KANTOKU-SAN 3D/3D PRO - END USER LICENSE AGREEMENT

Updated: November 1, 2020

IMPORTANT:  PLEASE READ CAREFULLY.  The software product provided to you by Topcon Corporation ("Topcon") along with its associated manuals and documentation, if any, (collectively, the “Software”) is owned by Topcon and your use of the Software is subject to the terms and conditions of this Software System License Agreement (“Agreement”) set forth below. The Software is intended for use on and/or as embedded in the Topcon product upon which the Software is intended to be installed and used (each a “Device”). If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms "you" or "your" shall refer to such entity. If you do not have such authority, or if you do not agree with these terms and conditions, you may not use the Software.  Topcon also reserves the right to immediately terminate this Agreement for failure to comply with the terms provided herein. 

By clicking the “ACCEPT” button below, and/or or by installing or using the Software or any Device in which the Software is embedded, you agree to be bound by the terms and conditions of this Agreement.  If you do not agree, you will not be authorized to use the Software.

1. Grant of License to Software.  If you have installed, purchased or otherwise received Software from Topcon or as embedded in a Device, Topcon grants you a personal, non-exclusive, non-transferable (except as expressly set forth herein) license for the applicable Term (as defined below) to use the Software under the terms stated herein and in any case only with a single Device running a validly licensed copy of the operating system for which the Software was designed (e.g., Linux, Android, iOS, Windows).   If you have acquired the product as an educational license you can use the Software only for academic research projects. This explicitly excludes projects which are contracted to you by any third party for a fee, or projects that are performed in collaboration with a third party that is funding the research in whole or in part.
    
2. Restrictions on Use and Transfer.  You may not: (i) modify, adapt, translate, create derivative works of, reverse engineer, decompile, or disassemble the Software: (ii) remove, modify or hide or otherwise make unreadable or non-viewable any notice, legend, advice, watermark, trademark, service mark, or other designation contained on the Software, component thereof, documentation, or output therefrom; (iii) distribute registered copies of the Software to third parties, including, without limitation, rent, lease, or lend the Software to third parties; (iv) install or access, or allow the installation or access of, the Software over the Internet, including, without limitation, use in connection with a Web hosting or similar service, or make the Software available to third parties via the Internet on your computer system or otherwise; (v) use or export the Software outside of the country of installation or purchase for any reason; (vi)  use, permit the use, or use the Software in violation of any U.S. Federal, state, or local laws or regulations or any foreign law or regulation, including laws regarding intellectual property rights in or laws or regulations regarding the trading or exchange of securities or concerning the Software.  You further agree to use the Software solely for its intended purpose; (vii) assign, give or transfer the Software to another individual or entity, without the prior written consent of Topcon. 

   You are prohibited from (a) timesharing, service bureau, subscription service or rental use of the Software or (b) passing title to the Software any other individual or (c) publication of any results of benchmark tests run on the Software.

   You shall not copy the Software without prior written consent from Topcon.  You agree that any such copies of the Software shall contain the same proprietary notices which appear on and in the Software.

   Topcon shall be entitled to audit your use of the Software in relation to compliance with this Agreement, upon reasonable notice and on reasonable terms and report such use to its licensors.
    

3. Pass-Through of Open Source Terms.  Notwithstanding the foregoing license grant and restrictions, you acknowledge that certain components of the Software may be covered by so-called “open source” software licenses (“Open Source Components”), which means any software licenses approved as open source licenses by the Open Source Initiative or any substantially similar licenses, including without limitation any license that, as a condition of distribution of the software licensed under such license, requires that the distributor make the software available in source code format.  The Software includes a text file listing the Open Source Components and Topcon shall provide a list of Open Source Components for a particular version of the Software upon your request.  To the extent required by the licenses covering Open Source Components, the terms of such licenses will apply to such Open Source Components in lieu of the terms of this Agreement.  To the extent the terms of the licenses applicable to Open Source Components prohibit any of the restrictions in this Agreement with respect to such Open Source Component, such restrictions will not apply to such Open Source Component. To the extent the terms of the licenses applicable to Open Source Components require Licensor to make an offer to provide source code or related information in connection with the Software, such offer is hereby made.  Any request for source code or related information should be directed only to: Topcon via email at OSinquiry@topcon.com.
    
4. Fees and Payment.  Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Topcon's income. You shall pay all fees or charges by your credit card that you authorized for billing, or by payment method that you agreed with Topcon or a distributor of Topcon, in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Topcon charges and collects in advance for use of the Software. All payment obligations are non-cancelable, and all amounts paid are nonrefundable. Topcon reserves the right to modify its fees and charges and to introduce new charges at its discretion.

   If available, you can select the option to automatically renew a Term by allowing Topcon or a distributor of Topcon to charge the credit card that you had authorized for billing. The automatic renewal option Topcon will automatically renew the subject subscription for a term of equal length to the immediately preceding Term and bill your credit card at the then current fee schedule no earlier than 30 days prior to the end of the subject Term. The automatic renewal option will be activated upon initial activation and can be disabled at any time at your discretion. You are responsible for providing accurate and current payment information. Topcon shall not be responsible for any gaps in the Term if you fail to renew or does not keep payment information updated.
    

5. Term and Termination. “Term” means the time period during which you may use the Software associated with the applicable Topcon part number assigned to the Software license you acquired and/or as set forth in the applicable purchase confirmation. The Term shall commence on the earlier of: (i) the date set forth in the applicable purchase confirmation or (ii) the date you initially activate the Software.  This Agreement is effective until expiration of the Term or terminated as provided herein.  You may terminate the license at any time by uninstalling the Software. Without prejudice to any other rights of Topcon, Topcon may terminate your license if you fail to comply with the terms and conditions of this Agreement or fail to pay the applicable fees. In such event, you must destroy all copies of the Software in your possession. Topcon will not be responsible for any damage incurred by you or your customers arising from or related to non-renewal or disability to use the Software resulting from a failure to pay applicable fees.
    
6. Safety.  IMPROPER USE OF A TOPCON PRODUCT CAN LEAD TO INJURY TO PERSONS OR PROPERTY AND/OR MALFUNCTION OF THE PRODUCT.  THE PRODUCT SHOULD ONLY BE REPAIRED BY AUTHORIZED TOPCON WARRANTY SERVICE CENTERS. USERS SHOULD REVIEW AND HEED THE SAFETY WARNINGS IN THE DOCUMENTATION ACCOMPANYING THE PRODUCT.
    
7. Ownership of the Software.  The Software is owned by Topcon and its respective licensors and is protected by United States and international copyright laws and other intellectual property laws.
    
8. Professional Use.  The Software is designed to be used by a professional. The user is required to be a professional surveyor or have a good knowledge of surveying and be familiar with the safe use of such products, in order to understand the user instructions before operating the Software. 
    
9. Updates.  Topcon may, from time to time, in its sole and absolute discretion, make updates to the Software available. Any such updates made available to you shall become part of the Software for all purposes of this Agreement. Topcon is not obliged to provide you with any maintenance or support of the Software.
    
10. Crash; Bug Reporting and Feedback. The Software provides you with the ability to report performance issues/feedback and suggestions to Topcon. In the event that you chose to report any performance issues to Topcon, the Software will gather the relevant job file and Device and Software settings and save to a file that you may forward to Topcon. Such information and feedback shall be used by Topcon to develop, provide and improve Topcon’s products and services, resolve bugs and faults, and to facilitate the provision of Software updates, product development, management and support and other services to you (if any) related to the Software. You hereby grant to Topcon a perpetual license to use, perform, copy, modify of the information that you supply to Topcon under the process and for the purposes described in this Section 10.
     
11. Confidentiality. 
    

    11.1 Confidential Information.  As used in this Agreement, confidential information shall mean any information: (a) designated as confidential by Topcon; (b) related to the Software; (c) related to Topcon’s business or operations, or (d) other information received by you by virtue of your relationship with Topcon including, but not limited to, customer information, product plans, product designs, product costs, product prices, product names, finances, marketing plans, business opportunities, personnel, research, development, customer data, or know-how (collectively “Confidential Information”).
     

    11.2 Limitations on Disclosure and Use of Confidential Information.  You shall exercise the same degree of care employed by you to prevent the unauthorized disclosure of your own confidential information, but in no event employing less than reasonable care.  Confidential Information disclosed under this Agreement shall only be used by you in the furtherance of this Agreement or the performance of your obligations hereunder.  You may not disclose any Confidential Information to any third party without the prior written consent of Topcon, except pursuant to a valid and enforceable order of a court or government agency. 
     

    11.3 Exceptions.  Confidential Information does not include information which (a) is rightfully received by you from a third party without restriction, (b) is known to or developed by you independently without use of the Confidential Information, (c) is or becomes generally known to the public other than by a breach of duty hereunder by you, or (d) has been approved in advance for release by written authorization from Topcon.

12. Disclaimers.  YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE SOFTWARE AND ANY FEATURES/SERVICES PERFORMED BY OR ACCESSED THROUGH THE SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND ERROR IS WITH YOU.

    THE SOFTWARE AND RELATED FEATURES ARE PROVIDED “AS IS.”  TOPCON MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, REGARDING OR RELATING TO THE SOFTWARE AND RELATED FEATURES (INCLUDING, WITHOUT LIMITATION, THAT THE SOFTWARE WILL BE ERROR-FREE OR AVAILABLE FOR USE AT ALL TIMES) OR CONTENT THEREIN OR TO ANY OTHER MATERIAL FURNISHED OR PROVIDED TO YOU PURSUANT TO THIS AGREEMENT OR OTHERWISE, AND TOPCON SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO SAID MATERIALS OR THE USE THEREOF.  TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, THE UNIFORM COMMERCIAL CODE OR OTHER UNIFORM LAWS SHALL NOT APPLY TO THIS AGREEMENT.

    TOPCON DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, THAT ANY SERVICES/FEATURES WILL CONTINUE TO BE AVAILABLE, THAT THE SOFTWARE OR SERVICES/FEATURES WILL BE CORRECTED, OR THAT THE SOFTWARE WILL BE COMPATIBLE OR WORK WITH ANY THIRD-PARTY SOFTWARE, APPLICATIONS OR THIRD-PARTY SERVICES.
     

13. Trademarks.  The Topcon name, the Topcon logo, and the product names associated with the Service are trademarks of Topcon and no right or license is granted to use them. Product and company names mentioned herein may be trademarks of their respective owners.
     
14. Third-Party Features. The Software includes features/services available under license from certain third-parties (“Third-Party Features”). Topcon does not guarantee the ongoing availability of any Third-Party Features, which are subject to immediate termination at the discretion of Topcon. In the event that any Third-Party Feature is terminated, you shall have no further right to access/use the subject feature under this Agreement and your access to such Third-Party Feature may be permanently disabled. Notifications of availability/termination of Third-Party Features may be posted from time to time on the Topcon website.
    

    14.1 Bing Maps Feature. Microsoft Bing maps feature. Additional End User Terms relating thereto are found below in Appendix A.

15. Limitation of Liability.  TOPCON, ITS DISTRIBUTORS, LICENSORS AND SUPPLIERS SHALL NOT BE LIABLE FOR TECHNICAL OR EDITORIAL ERRORS OR OMISSIONS CONTAINED IN THE SOFTWARE, ITS DOCUMENTATION AND/OR FEATURES.  TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, IN NO EVENT SHALL TOPCON , ITS DISTRIBUTORS, LICENSORS, OR SUPPLIERS BE LIABLE UNDER ANY CLAIM, DEMAND OR ACTION ARISING OUT OF OR RELATING TO THE SOFTWARE, ITS USE, INSTALLATION OR THEIR PERFORMANCE OR LACK THEREOF UNDER THIS AGREEMENT FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM, DEMAND OR ACTION.  UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO A NEGLIGENT ACT, WILL Topcon OR ITS AFFILIATES, AGENTS, EMPLOYEES, DISTRIBUTORS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DAMAGES OF ANY KIND THAT RESULT FROM (i) THE USE OR THE INABILITY TO USE THE SOFTWARE AND/OR ANY FEATURES THEREOF (INCLUDING THIRD PARTY FEATURES/SERVICES; (ii) THE TIMELINESS, DELETION, MIS-DELIVERY, OR FAILURE TO STORE ANY DATA, COMMUNICATIONS OR SETTINGS; (iii) THE COST OF GETTING SUBSTITUTE GOODS AND SERVICES; OR (iv) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, WITHOUT LIMITING THE FOREGOING, IN ALL EVENTS THE REMEDIES AVAILABLE TO YOU SHALL BE LIMITED TO THE GREATER OF THE AMOUNT PAID BY YOU TO TOPCON FOR THE RIGHT TO USE THE SOFTWARE OR $100.
     
16. Indemnification.  YOU SHALL INDEMNIFY AND HOLD TOPCON, ITS DISTRIBUTORS, LICENSORS AND SUPPLIERS AND THEIR RESPECTIVE AGENTS, OFFICERS, MANAGERS, EMPLOYEES AND MEMBERS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, SUITS, JUDGMENTS AND EXPENSES (INCLUDING REASONABLE LEGAL FEES AND EXPENSES) ARISING OUT OF OR RELATING TO: (A) THE BREACH BY YOU OF YOUR OBLIGATIONS UNDER THIS AGREEMENT; (B) YOU VIOLATION OF ANY LAW< REGULATION OR THIRD-PARTY RIGHTS; AND/OR (C)INTELLECTUAL PROPERTY MISAPPROPRIATION OR INFRINGEMENT CLAIMS BY ANY THIRD PARTY BASED ON, OR RELATING TO, YOUR USE OF THE SOFTWARE.  YOU AGREE TO GIVE TOPCON PROMPT NOTICE OF SUCH CLAIMS AND TO PERMIT TOPCON TO CONTROL THE DEFENSE OR SETTLEMENT THEREOF.
     
17. Export Control. You may not use or otherwise export or re-export the Software except as authorized by the laws of Japan and United States and the laws of the jurisdiction(s) in which the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported (a)into Republic of Iraq,      Islamic Republic of Iran, Democratic People's Republic of Korea (DPRK), Republic of the Sudan (North Sudan), Syrian Arabic Republic, Republic of Cuba, and the Crimea Region of Ukraine or (b) into any U.S. embargoed countries or (c) to anyone on the Foreign End User List issued by The Ministry of Economy, Trade and Industry (METI), Japan or the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Software for any purposes prohibited by Japanese law and United States law, including, without limitation, the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.
     
18. Website; Other Statements.  No statement contained at the Topcon website (or any other web site) or in any other advertisements or Topcon literature or made by an employee or independent contractor of Topcon shall modify this Agreement.
     
19. Privacy Policy. At all times personal information will be treated in accordance with Topcon’s Privacy Policies, which can be viewed at:  https://www.topcon.co.jp/en/privacy/.
     
20. General.  This Agreement may be amended, modified, superseded, or canceled, at any time by Topcon.  This Agreement shall be governed by and construed and enforced in accordance with the laws of Japan, without regard to conflicts of laws provisions. Any action concerning this Agreement shall take place in the courts located in Tokyo.  If for any reason any provision of this Agreement, or a portion thereof, shall be unenforceable, that provision shall be enforced to the maximum extent permissible so as to affect the intent of this Agreement, and the remainder of this Agreement shall continue in full force and effect. This Agreement constitutes the entire agreement between us and you with respect to the Software and it supersedes all prior or contemporaneous communications, agreements and understandings between Topcon and you with respect to the subject matter hereof. In the event of any conflict between the terms and conditions of this Agreement and the terms and conditions of any other agreement between the parties relating to the acquisition of a license to the Software or support thereof, including Topcon’s standard terms of purchase, the terms and conditions of this Agreement shall control. No joint venture, partnership, employment, or agency relationship exists between you and Topcon as a result of this agreement or use of the Service. The failure of Topcon to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Topcon in writing. A printed version of this Agreement shall be admissible in judicial or administrative proceedings.

Appendix A

MICROSOFT BING MAPS END USER MINIMUM TERMS

Microsoft has licensed the Services (defined below) to Topcon. By using the Software, you accept these terms. If you do not accept them, do not use the Software.

1. Definitions.

   “Asset” means one of any of the following classes: vehicle, device or another mobile object.

   “Content” means the maps, images and other data and third-party content that Bing Map licensors are authorized to access via the Services.

   “Premium Services” means, collectively, the Bing Maps Distance Matrix API, Bing Maps Isochrone, Bing Maps Snap to Road API and Bing Maps Truck Routing API.

   “Services” means the Bing Maps Platform APIs (except Premium Services) to be provided by Microsoft.
    

2. License. Topcon provides you a license to access the Services (except Premium Services) from within the Software provided by Topcon only.
    
3. Additional Restrictions.
   You may overlay administrative boundaries or other map content provided in the Software, provided that you do not use the Software for:

   (1)    loading additional map content layers of any kind;

   (2)    editing or creating map content. For avoidance of doubt, simple annotations such as a line, arrow, polygon or circle to highlight an area are allowed and not considered to be map content under this restriction; and

   (3)    executing any spatial query other than proximity (find the nearest), point-in-polygon, distance between two points or as provided by the find
   and route services.  For avoidance of doubt, Software may not perform Geofences, buffers or query a spatially enabled database.
    

4. General Restrictions. Microsoft does have some restrictions on your use of the Software supplied by Topcon. In using the Services provided with the Software, you may not:

   (a)    Upload or incorporate any content to the Services via the Software, or use the Software to display or use any content:
    

   •      for which you do not have all necessary permissions from the copyright holder(s);
   •      which includes nudity or is obscene, indecent, pornographic;
   •      which is intended to exploit minors in any way;
   •      which incites, advocates, or expresses hatred, bigotry, racism, or gratuitous violence; or
   •      which is intended to threaten, stalk, defame, defraud, degrade, victimize, or intimidate an individual or group of individuals for any reason, including on the basis of age, gender, disability, ethnicity, sexual orientation, race, or religion, or to incite or encourage anyone else to do so.

   (b)    Copy, store, archive, or create a database of the Content.

   (c)    Use Content, including geocodes, other than in conjunction with the Software.

   (d)    Present or alert a user to individual maneuvers of a route in any way that is synchronized with the user’s sensor-based position along the route (e.g. turn by turn navigation that tracks the user’s position using GPS and communicates a maneuver as the user approaches the location for such maneuver).

   (e)    Change, obscure, or minimize any logo, trademark, copyright or other notice of Microsoft or its suppliers, or digital watermarks in the Content; except that we may make alternative logo, trademark and copyright attribution requirements available for use with small maps or on small devices; if available you will find them here: http://go.microsoft.com/fwlink/?LinkID=229258.

   (f)    Use the Services for business asset tracking, fleet management, or dispatch including, without limitation, to monitor or track the location or movement of Asset(s), including to provide guidance based on the position or routing of multiple objects tracked using GPS or other sensor- generated methods.

   (g)    Use Content other than in combination with the Services and not separately.

   (h)    Use Content that consists of points of interest data to generate sales leads information in the form of ASCII or other text-formatted lists of category-specific business listings which (i) include complete mailing address for each business; and (ii) contain a substantial portion of such listings for a particular country, city, state or zip code region.

   (i)     Transmit, sell, license or deliver any infringing, defamatory, offensive, or illegal products, services or materials.

   (j)     Violate any applicable U.S. Export Administration Regulations or end user, end-use and destination restrictions issued by U.S. and other governments. The Services are subject to U.S. export jurisdiction.

   (k)    Use the Services in any way that threatens the integrity, performance or reliability of the Services including performance or stress testing, or in any manner that works around any technical limitations in the Services.

   (l)     Syndicate, redistribute, resell or sublicense access to the Services or Content on a standalone basis.

   (m)  Falsify or alter any unique referral identifier in, or assigned to, a Software, or otherwise obscure or alter the source of queries coming from a Software.

   (n)    Reverse engineer, decompile or disassemble the Services, except and only to the extent that applicable law expressly permits, despite this limitation.

   (o)    Integrate road maps from the Services with road maps supplied by any third party.  You may not replace aerial imagery from the Services with imagery supplied by any other mapping platform.

   (p)    Use the Services or Content with a vehicle’s dashboard, or a device connected to a vehicle’s dashboard, systems or sensors, except that the device may be connected to the vehicle power source for charging purposes.

   (q)    Use bird’s eye aerial imagery (if it is made available through the Bing Maps Platform APIs) to reveal latitude, longitude, altitude or other metadata.

   (r)    Save, download, print, distribute, transmit or manipulate bird’s eye imagery, or offer others that ability, through your Software.

   (s)    Use bird’s eye imagery of the United States, Canada, Mexico, New Zealand, Australia, and/or Japan if you are a government entity.

   (t)     Use Content from Ordnance Survey.
    

5. Intellectual Property and Reservation of Rights. All rights to the Services and the Content, including rights of use, not specifically granted under these End User Minimum Terms or your agreement with Topcon are reserved by Microsoft and its suppliers. Except as set forth in your agreement with your Topcon, these End User Minimum Terms do not grant Microsoft any right or license to any Software or your intellectual property, including intellectual property that you licensed from third parties. Except for material that Microsoft may license to you, Microsoft does not claim ownership of the content you post or otherwise provide to us, which is hosted by Microsoft or a third-party hosting provider on Microsoft’s behalf, related to the Services (called a “Submission”). However, by posting or otherwise providing your Submission (and for the avoidance of doubt, where Microsoft hosts content on your behalf including by a third party hosting provider, this constitutes a Submission, but where you host or a third party hosts content on your behalf, other than Microsoft or a third party hosting provider on behalf of Microsoft, this does not constitute a Submission), you are granting to Microsoft free permission to use, copy, distribute, display, publish, transcode and otherwise modify your Submission, each in connection with the Services, and sublicense these rights to others in order to provide the Services. For every Submission you make, you must have all rights necessary for you to grant the permissions in this section.
    
6. Additional Rights and Restrictions for End Users.

   (i)     Support or SLA.  Microsoft does not provide any support or SLA directly to end users for Software provided to an end user by Topcon.

   (ii)    Termination Rights.  Microsoft reserves the right terminate access to the Software to any end user who is in breach of any restriction included in these End User Terms or Topcon’s terms with you related to use of the Services, and who fails to cure such breach within thirty (30) days after written notice thereof.

   (iii)   No Warranty by Microsoft to End Users.  Microsoft does not make any representation or warranty (express, implied, statutory, or otherwise) with respect to the Services or otherwise.