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Following this question on StackOverflow I would like to use the Windows icons (previously) included with Visual Studio as part of a Windows GUI application; the icons would be used as part of the interface, for example, a "save" button. These icons are now downloaded separately from Visual Studio and come with a "EULA" file. I'm trying to figure out if use of these icons is compatible with a GPL3 project. I can't find a version to link to online so I've included the text of the license below; you can find the original in the download from link http://www.microsoft.com/en-us/download/details.aspx?id=35825 .

The parts I'm not sure about:

• require distributors and external end users to agree to terms that protect the Distributable Code at least as much as this agreement; and,

and

or modify or distribute the source code of any Distributable Code so that any part of it becomes subject to an Excluded License. An Excluded License is one that requires, as a condition of use, modification or distribution, that (i) the code be disclosed or distributed in source code form; or (ii) others have the right to modify it.

License in full:


MICROSOFT SOFTWARE LICENSE TERMS
MICROSOFT VISUAL STUDIO 2019 IMAGE LIBRARY

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These license terms are an agreement between Microsoft Corporation (or based on where you live, one of its affiliates) and you. They apply to the software named above. The terms also apply to any Microsoft services or updates for the software, except to the extent those have different terms.

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IF YOU COMPLY WITH THESE LICENSE TERMS, YOU HAVE THE RIGHTS BELOW.

  1. INSTALLATION AND USE RIGHTS.
    a. General. You may use copies of the software images to develop and test your applications.
    b. Third Party Software. The software may include third party applications that are licensed to you under this agreement or under their own terms. License terms, notices, and acknowledgements, if any, for the third party applications may be accessible online at http://aka.ms/thirdpartynotices or in an accompanying notices file. Even if such applications are governed by other agreements, the disclaimer, limitations on, and exclusions of damages below also apply to the extent allowed by applicable law.
  2. DISTRIBUTABLE CODE. The software contains images that you are permitted to distribute (“Distributable Code”) in applications you develop as described in this Section. (For this Section the term “distribution” also means deployment of your applications for third parties to access over the Internet.)

a. Right to Use and Distribute.

  • Images. You may copy and distribute images from the Image Library in applications you develop with the Visual Studio family of products. Your use of the Images must be in accordance with the use descriptions associated with the Images.
  • Third Party Distribution. You may permit distributors of your applications to copy and distribute the Distributable Code as part of those applications.

b. Distribution Requirements. For any Distributable Code you distribute, you must

  • add significant primary functionality to it in your applications;
  • require distributors and external end users to agree to terms that protect the Distributable Code at least as much as this agreement; and,
  • indemnify, defend, and hold harmless Microsoft from any claims, including attorneys’ fees, related to the distribution or use of your applications, except to the extent that any claim is based solely on the Distributable Code.
    c. Distribution Restrictions. You may not use Microsoft’s trademarks in your applications’ names or branding in a way that suggests your applications come from or are endorsed by Microsoft; or modify or distribute the source code of any Distributable Code so that any part of it becomes subject to an Excluded License. An Excluded License is one that requires, as a condition of use, modification or distribution, that (i) the code be disclosed or distributed in source code form; or (ii) others have the right to modify it.
  1. DATA.
    a. Data Collection. The software may collect information about you and your use of the software, and send that to Microsoft. Microsoft may use this information to provide services and improve our products and services. You may opt-out of many of these scenarios, but not all, as described in the product documentation. There are also some features in the software that may enable you and Microsoft to collect data from users of your applications. If you use these features, you must comply with applicable law, including providing appropriate notices to users of your applications together with a copy of Microsoft’s privacy statement. Our privacy statement is located at https://go.microsoft.com/fwlink/?LinkID=824704. You can learn more about data collection and use in the help documentation and our privacy statement. Your use of the software operates as your consent to these practices.
    b. Processing of Personal Data. To the extent Microsoft is a processor or subprocessor of personal data in connection with the software, Microsoft makes the commitments in the European Union General Data Protection Regulation Terms of the Online Services Terms to all customers effective May 25, 2018, at https://docs.microsoft.com/en-us/legal/gdpr.
  2. SCOPE OF LICENSE. The software is licensed, not sold. This agreement only gives you some rights to use the software. Microsoft reserves all other rights. Unless applicable law gives you more rights despite this limitation, you may use the software only as expressly permitted in this agreement. In doing so, you must comply with any technical limitations in the software that only allow you to use it in certain ways. You may not
  • work around any technical limitations in the software;
  • reverse engineer, decompile or disassemble the software, or otherwise attempt to derive the source code for the software, except and to the extent required by third party licensing terms governing use of certain open source components that may be included in the software;
  • remove, minimize, block or modify any notices of Microsoft or its suppliers in the software;
  • use the software in any way that is against the law; or
  • share, publish, rent or lease the software, provide the software as a stand-alone offering for others to use , or transfer the software or this agreement to any third party.
  1. EXPORT RESTRICTIONS. You must comply with all domestic and international export laws and regulations that apply to the software, which include restrictions on destinations, end users, and end use. For further information on export restrictions, visit http://aka.ms/exporting.
  2. SUPPORT SERVICES. Microsoft is not obligated under this agreement to provide any support services for the software. Any support provided is “as is”, “with all faults”, and without warranty of any kind.
  3. ENTIRE AGREEMENT. This agreement, and any other terms Microsoft may provide for supplements, updates, or third-party applications, is the entire agreement for the software.
  4. APPLICABLE LAW. If you acquired the software in the United States, Washington law applies to interpretation of and claims for breach of this agreement, and the laws of the state where you live apply to all other claims. If you acquired the software in any other country, its laws apply.
  5. CONSUMER RIGHTS; REGIONAL VARIATIONS. This agreement describes certain legal rights. You may have other rights, including consumer rights, under the laws of your state or country. Separate and apart from your relationship with Microsoft, you may also have rights with respect to the party from which you acquired the software. This agreement does not change those other rights if the laws of your state or country do not permit it to do so. For example, if you acquired the software in one of the below regions, or mandatory country law applies, then the following provisions apply to you:
    a. Australia. You have statutory guarantees under the Australian Consumer Law and nothing in this agreement is intended to affect those rights.
    b. Canada. If you acquired this software in Canada, you may stop receiving updates by turning off the automatic update feature, disconnecting your device from the Internet (if and when you re-connect to the Internet, however, the software will resume checking for and installing updates), or uninstalling the software. The product documentation, if any, may also specify how to turn off updates for your specific device or software.
    c. Germany and Austria.
    (i) Warranty. The software will perform substantially as described in any Microsoft materials that accompany it. However, Microsoft gives no contractual guarantee in relation to the software.
    (ii) Limitation of Liability. In case of intentional conduct, gross negligence, claims based on the Product Liability Act, as well as in case of death or personal or physical injury, Microsoft is liable according to the statutory law.
    Subject to the foregoing clause (ii), Microsoft will only be liable for slight negligence if Microsoft is in breach of such material contractual obligations, the fulfillment of which facilitate the due performance of this agreement, the breach of which would endanger the purpose of this agreement and the compliance with which a party may constantly trust in (so-called "cardinal obligations"). In other cases of slight negligence, Microsoft will not be liable for slight negligence
  6. DISCLAIMER OF WARRANTY. THE SOFTWARE IS LICENSED “AS-IS.” YOU BEAR THE RISK OF USING IT. MICROSOFT GIVES NO EXPRESS WARRANTIES, GUARANTEES OR CONDITIONS. TO THE EXTENT PERMITTED UNDER YOUR LOCAL LAWS, MICROSOFT EXCLUDES THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
  7. LIMITATION ON AND EXCLUSION OF REMEDIES AND DAMAGES. YOU CAN RECOVER FROM MICROSOFT AND ITS SUPPLIERS ONLY DIRECT DAMAGES UP TO U.S. $5.00. YOU CANNOT RECOVER ANY OTHER DAMAGES, INCLUDING CONSEQUENTIAL, LOST PROFITS, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES.
    This limitation applies to (a) anything related to the software, services, content (including code) on third party Internet sites, or third party applications; and (b) claims for breach of contract, breach of warranty, guarantee or condition, strict liability, negligence, or other tort to the extent permitted by applicable law.
    It also applies even if Microsoft knew or should have known about the possibility of the damages. The above limitation or exclusion may not apply to you because your state or country may not allow the exclusion or limitation of incidental, consequential or other damages.
2

The license of these icons is not compatible with the GPL. The GPL meets the definition that the Microsoft EULA uses for "Excluded license" and the EULA states that the icons may not become subject to such a license.

However, not all is lost. If you can write your application in such a way that it reads the necessary icons at runtime from separate files, then the application and the icons are independent works as far a copyrights are concerned and the GPL will not extend to the icons.

You are then even allowed to have them in the same repository and distribute them together, as long as you make it very clear that the icons are not subject to the GPL but that they are under this Microsoft EULA.

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