Microsoft Cloud Agreement
SCHEDULE 1 - CUSTOMER AGREEMENT
This Customer Agreement is entered into between the entity you represent, or, if you do not designate an entity in connection with a Subscription purchase or renewal, you individually (“Customer”), and Nasstar Group Limited (“Nasstar”, “we”, “us”, “our” and “Reseller”). It consists of the terms and conditions below, Use Rights, SLA, and all documents referenced within those documents (together, the “agreement”). It is effective on the date that your Reseller provisions your Subscription. Key terms are defined in Section 10. For the avoidance of doubt, the terms of this Customer Agreement shall govern the use of the Online Services only.
1. Grants, rights and terms.
All rights granted under this Customer Agreement are non-exclusive and non-transferable and apply as long as neither Customer nor any of its Affiliates is in material breach of this Customer Agreement.
a. Software. Upon acceptance of each order, Microsoft grants Customer a limited right to use the Software in the quantities ordered.
(i) Use Rights. The Use Rights in effect when Customer orders Software will apply to Customer’s use of the version of the Software that is current at the time. For future versions and new Software, the Use Rights in effect when those versions and Software are first released will apply. Changes Microsoft makes to the Use Rights for a particular version will not apply unless Customer chooses to have those changes apply.
(ii) Temporary and perpetual licenses. Licenses available on a subscription basis are temporary. For all other licenses, the right to use Software becomes perpetual upon payment in full.
(iii) Downgrade rights. Customer may use an earlier version of Software than the version that is current on the date Customer orders the Software. In that case, the Use Rights for the current version apply to the use of the earlier version. If the earlier Software version includes features that are not in the new version, then the Use Rights applicable to the earlier version apply with respect to those features.
b. Online Services. Customer may use the Online Services as provided in this Customer Agreement.
(i) Online Services Terms. The Online Services Terms in effect when Customer orders or renews a subscription to an Online Service will apply for the applicable subscription term. For Online Services that are billed periodically based on consumption, the Online Services Terms current at the start of each billing period will apply to usage during that period.
(ii) Suspension. Microsoft and Nasstar may suspend use of an Online Service during Customer’s violation of the Acceptable Use Policy or failure to respond to a claim of alleged infringement. Microsoft or Nasstar (as the case may be) will give Customer notice before suspending an Online Service when reasonable.
(iii) End Users. Customer controls access by End Users, and is responsible for their use of the Product in accordance with this Customer Agreement. For example, Customer will ensure End Users comply with the Acceptable Use Policy.
(iv) Customer Data. Customer is solely responsible for the content of all Customer Data. Customer will secure and maintain all rights in Customer Data necessary for Microsoft and Nasstar to provide the Online Services to Customer without violating the rights of any third party or otherwise obligating Microsoft or Nasstar to Customer or to any third party. Microsoft and Nasstar do not and will not assume any obligations with respect to Customer Data or to Customer’s use of the Product other than as expressly set forth in this agreement or as required by applicable law.
(v) Responsibility for your accounts. Customer is responsible for maintaining the confidentiality of any non-public authentication credentials associated with Customer’s use of the Online Services. Customer must promptly notify customer support about any possible misuse of Customer’s accounts or authentication credentials or any security incident related to the Online Services.
c. License transfers. License transfers are not permitted, except that Customer may transfer only fully-paid perpetual licenses to (1) an Affiliate or (2) a third party, solely in connection with the transfer of hardware or employees to whom the licenses have been assigned to the third party as part of (a) a divestiture of all or part of an Affiliate or (b) a merger involving Customer or an Affiliate. Upon such transfer, Customer and its Affiliates must uninstall and discontinue using the licensed Product and render any copies unusable. Nothing in this Customer Agreement prohibits the transfer of Software to the extent allowed under applicable law if the distribution right has been exhausted.
d. Reservation of rights. Products are protected by copyright and other intellectual property rights laws and international treaties. Microsoft and Nasstar reserve all rights not expressly granted in this Customer Agreement. No rights will be granted or implied by waiver or estoppel. Rights to access or use Software on a device do not give Customer any right to implement Microsoft patents or other Microsoft intellectual property in the device itself or in any other software or devices.
e. Restrictions. Customer may use the Product only in accordance with this Customer Agreement. Customer may not (and is not licensed to): (1) reverse engineer, decompile or disassemble any Product or Fix, or attempt to do so; (2) install or use non-Microsoft software or technology in any way that would subject Microsoft’s intellectual property or technology to any other license terms; or (3) work around any technical limitations in a Product or Fix or restrictions in Product documentation. Customer may not disable, tamper with, or otherwise attempt to circumvent any billing mechanism that meters Customer’s use of the Online Services. Except as expressly permitted in this agreement or Product documentation, Customer may not distribute, sublicense, rent, lease, lend, resell or transfer and Products, in whole or in part, or use them to offer hosting services to a third party.
f. Preview releases. Microsoft and Nasstar may make Previews available. Previews are provided “as-is,” “with all faults,” and “as-available,” and are excluded from the SLA and all limited warranties provided in this agreement. Previews may not be covered by customer support. Previews may be subject to reduced or different security, compliance, and privacy commitments, as further explained in the Online Services Terms and any additional notices provided with the Preview. Microsoft and Nasstar may change or discontinue Previews at any time without notice. Microsoft also may choose not to release a Preview into “General Availability.”
g. Verifying compliance for Products.
(i) Right to verify compliance. Customer must keep records relating to all use and distribution of Products by Customer and its Affiliates. Microsoft and Nasstar have the right, at their own expense, to verify compliance with the Products’ license terms. Customer must promptly provide any information reasonably requested by the independent auditors retained by Microsoft or Nasstar in furtherance of the verification, including access to systems running the Products and evidence of licenses for Products that Customer hosts, sublicenses, or distributes to third parties. Customer agrees to complete Microsoft’s and Nasstar’s self-audit process, which Microsoft or Nasstar may request as an alternative to a third party audit.
(ii) Remedies for non-compliance. If verification or self-audit reveals any unlicensed use of Products, then within 30 days (1) Customer must order sufficient licenses to cover its use, and (2) if unlicensed use is 5% or more, Customer must reimburse Nasstar and Microsoft for the costs Microsoft and Nasstar incurred in verification and acquire the necessary additional licenses at 150% of the price, based on the then-current price last and customer price level. The unlicensed use percentage is based on the total number of licenses purchased for current use compared to the actual installed base. If there is no unlicensed use, Microsoft nor Nasstar will subject Customer to another verification for at least one year. By exercising the rights and procedures described above, Microsoft or Nasstar do not waive their rights to enforce this Customer Agreement or to protect their intellectual property by any other legal means.
(iii) Verification process. Microsoft and Nasstar will notify Customer at least 30 days in advance of their intent to verify Customers’ compliance with the license terms for the Products Customer and its Affiliates use or distribute. Microsoft or Nasstar (as the case may be) will engage an independent auditor, which will be subject to a confidentiality obligation. Any information collected in the self-audit will be used solely for purposes of determining compliance. This verification will take place during normal business hours and in a manner that does not unreasonably interfere with Customer’s operations.
2. Subscriptions, ordering.
a. Choosing a Reseller. The Customer has chosen Nasstar as its authorised Reseller within the Customer’s region. If Microsoft or Reseller chooses to discontinue doing business with each other, this Customer Agreement will terminate and Customer must choose a replacement Reseller or purchase a Subscription directly from Microsoft, which may require Customer to accept different terms.
b. Available Subscription offers. Nasstar will establish the subscription offers available to you generally categorized as one or a combination of the following:
(i) Online Services Commitment Offering. Customer commits in advance to purchase a specific quantity of Online Services for use during a Term and to pay upfront or on a periodic basis for continued use of the Online Service.
(ii) Consumption Offering (also called Pay-As-You-Go). Customer pays based on actual usage with no upfront commitment.
(iii) Limited Offering. Customer receives a limited quantity of Online Services for a limited term without charge (for example, a free trial) or as part of another Microsoft offering (for example, MSDN). Provisions in this Customer Agreement with respect to the SLA and data retention may not apply.
(iv) Software Commitment Offering. Customer commits in advance to purchase a specific quantity of Software for use during a Term and to pay upfront or on a periodic basis for continued use of the Software.
(i) Orders must be placed through Nasstar. Customer may place orders for its Affiliates under this Customer Agreement and grant its Affiliates administrative rights to manage the Subscription, but, Affiliates may not place orders under this Customer Agreement. Customer also may assign the rights granted under Section 1.a and 1.b to a third party for use by that third party in Customer’s internal business. If Customer grants any rights to Affiliates or third parties with respect to Software or Customer’s Subscription, such Affiliates or third parties will be bound by this Customer Agreement and Customer agrees to be jointly and severally liable for any actions of such Affiliates or third parties related to their use of the Products.
(ii) Nasstar may at its discretion permit Customer to modify the quantity of Online Services ordered during the Term of a Subscription. Additional quantities of Online Services added to a Subscription will expire at the end of that Subscription. In the event, you wish to add additional subscriptions during the Term, such additional subscriptions shall be subject to Nasstar’s current pricelist in effect at that time and shall remain locked in at that price for the Term.
d. Pricing and payment.
(a) All Fees shall be set out in the relevant Order Form.
(b) For Consumption Offerings (Such as Azure) the amount billed each period (usually monthly) will depend on your actual usage.
(c) For Commitment Offerings the amount billed each period will only vary if you add or remove licences or services.
(i) Upon renewal of a Subscription, Customer may be required to sign a new customer agreement, a supplemental agreement or an amendment to this agreement.
(ii) Customer’s Subscription will automatically renew unless Customer provides Nasstar with a notice of your intent not to renew at least 30 days prior to expiration of the Term by emailing firstname.lastname@example.org. Your request will be confirmed by email. If you do not receive the confirmation within 2 working days from the request please call 0207 147 5001 to confirm cancellation.
f. Eligibility for Academic, Government and Non-profit versions. Customer agrees that if it is purchasing an academic, government or non-profit offer, Customer meets the respective eligibility requirements listed at the following sites:
(i) For academic offers, the requirements for educational institutions (including administrative offices or boards of education, public libraries, or public museums) listed at http://go.microsoft.com/academic;
(ii) For government offers, the requirements listed at http://go.microsoft.com/government; and
(iii) For non-profit offers, the requirements listed at http://go.microsoft.com/nonprofit.
Microsoft and Nasstar reserve the right to verify eligibility at any time and suspend the Online Service if the eligibility requirements are not met.
g. Taxes. The parties are not liable for any of the taxes of another party that that other party is legally obligated to pay and which are incurred or arise in connection with or related to the transactions contemplated under this agreement, and all such taxes will be the financial responsibility of the party who is obligated by operation of law to pay such tax.
3. Term, termination.
a. Agreement term and termination. This Customer Agreement will remain in effect until the expiration or termination of Customer’s Subscription, whichever is earliest. . The expiration or termination of this Customer Agreement will only terminate Customer’s right to place new orders for additional Products under this Customer Agreement.
b. Termination for cause by Microsoft. If the Customer breaches this Customer Agreement, Microsoft may terminate the Customer Agreement (in whole or in part, including orders) upon notice. If the breach is curable within 30 days, then Microsoft must provide 30 days’ notice to the breaching party and an opportunity to cure the breach.
c. Termination for cause and otherwise by Nasstar.: Nasstar at its discretion may immediately terminate this Customer Agreement if: (1) Microsoft varies any of the Online Services; (2) you fail to pay any amounts due; (3) you provide invalid credit card details or fail to notify Nasstar of any credit card changes; or (4) you breach any of the terms of this Customer Agreement.
d. Termination for cause by Customer. If Microsoft or Nasstar breaches this Customer Agreement, the Customer may terminate the Customer Agreement (in whole or in part, including orders) upon notice. If the breach is curable within 30 days, then the Customer must provide 30 days’ notice to Nasstar and Microsoft and an opportunity to cure the breach.
e. Cancel a Subscription. Although the provision of licences is flexible, Subscriptions cannot be cancelled or transferred in the initial 12-month period. To cancel or transfer after the initial 12-month period, email email@example.com giving minimum 30 days’ notice
4. Security, privacy, and data protection.
a. Reseller Administrator Access and Customer Data. Customer acknowledges and agrees that (i) you have chosen Nasstar as its Reseller and the primary administrator of the Online Services for the Term and will have administrative privileges and access to Customer Data, (ii) Reseller’s privacy practices with respect to Customer Data or any services provided by Reseller are subject to the terms of agreement with its Reseller and may differ from Microsoft’s privacy practices; and (iii) Reseller may collect, use, transfer, disclose, and otherwise process Customer Data, including personal data. Customer consents to Microsoft providing Reseller with Customer Data and information that Customer provides to Microsoft for purposes of ordering, provisioning and administering the Online Services.
b. Customer consents to the processing of personal information by Microsoft, Nasstar and their respective agents to facilitate the subject matter of this Customer Agreement. Customer may choose to provide personal information to Microsoft or Nasstar on behalf of third parties (including your contacts, resellers, distributors, administrators, and employees) as part of this Customer Agreement. Customer will obtain all required consents from third parties under applicable privacy and data protection laws before providing personal information to Microsoft or Nasstar.
c. Additional privacy and security details are in the Online Services Terms. The commitments made in the Online Services Terms only apply to the Online Services purchased under this Customer Agreement and not to any services or products provided by Nasstar. If Customer uses software or services that are hosted by Nasstar, that use will be subject to Nasstar’s privacy practices, which may differ from Microsoft’s.
d. As and to the extent required by law, Customer shall notify the individual users of the Online Services that their data may be processed for the purpose of disclosing it to law enforcement or other governmental authorities as directed Nasstar or as required by law, and Customer shall obtain the users’ consent to the same.
e. Customer appoints Nasstar as its agent for purposes of interfacing with and providing instructions to Microsoft for purposes of this Section 4.
a. Limited warranty.
(i) Software. Microsoft warrants that each version of the Software will perform substantially as described in the applicable Product documentation for one year from the date Customer is first licensed for that version. If it does not, and Customer notifies Microsoft within the warranty term, then Microsoft will, at its option, (1) return the price Customer paid for the Software license or (2) repair or replace the Software.
(ii) Online Services. Microsoft warrants that each Online Service will perform in accordance with the applicable SLA during Customer’s use. Customer’s remedies for breach of this warranty are in the SLA.
The remedies above are Customer’s sole remedies for breach of the warranties in this section. Customer waives any breach of warranty claims not made during the warranty period.
b. Exclusions. The warranties in this Customer Agreement do not apply to problems caused by accident, abuse or use inconsistent with this agreement, including failure to meet minimum system requirements. These warranties do not apply to free or trial products, Previews, Limited Offerings, or to components of Products that Customer is permitted to redistribute.
c. Disclaimer. Except for the limited warranties above, Microsoft provides no warranties or conditions for Products and disclaims any other express, implied, or statutory warranties for Products, including warranties of quality, title, non-infringement, merchantability and fitness for a particular purpose.
6. Defense of third party claims.
The parties will defend each other against the third-party claims described in this section and will pay the amount of any resulting adverse final judgment or approved settlement, but only if the defending party is promptly notified in writing of the claim and has the right to control the defense and any settlement of it. The party being defended must provide the defending party with all requested assistance, information, and authority. The defending party will reimburse the other party for reasonable out-of-pocket expenses it incurs in providing assistance. This section describes the parties’ sole remedies and entire liability for such claims.
a. By Microsoft. Microsoft will defend Customer against any third-party claim to the extent it alleges that a Product or Fix made available by Microsoft for a fee and used within the scope of the license granted under this Customer Agreement (unmodified from the form provided by Microsoft and not combined with anything else), misappropriates a trade secret or directly infringes a patent, copyright, trademark or other proprietary right of a third party. If Microsoft is unable to resolve a claim of infringement under commercially reasonable terms, it may, as its option, either: (1) modify or replace the Product or fix with a functional equivalent; or (2) terminate Customer’s license and refund any prepaid license fees (less depreciation on a five-year, straight-line basis) for perpetual licenses and any amount paid for Online Services for any usage period after the termination date. Microsoft will not be liable for any claims or damages due to Customer’s continued use of a Product or Fix after being notified to stop due to a third party claim.
b. By Customer. To the extent permitted by applicable law, Customer will defend Microsoft and Nasstar against any third-party claim to the extent it alleges that: (1) any Customer Data or non-Microsoft software hosted in an Online Service by Microsoft on Customer’s behalf misappropriates a trade secret or directly infringes a patent, copyright, trademark, or other proprietary right of a third party; or (2) Customer’s use of any Product or Fix, alone or in combination with anything else, violates the law or harms a third party.
7. Limitation of liability.
For each Product, each party’s maximum, aggregate liability to the other under this Customer Agreement is limited to direct damages finally awarded in an amount not to exceed the amounts Customer was required to pay for the applicable Products during the term of this Customer Agreement, subject to the following:
a. Online Services. For Online Services, Microsoft’s maximum liability to Customer for any incident giving rise to a claim will not exceed the amount Customer paid for the Online Service during the 12 months before the incident; provided that in no event will Microsoft’s aggregate liability for any Online Service exceed the amount paid for that Online Service during the Subscription.
b. For Online Services, Nasstar’s maximum liability to Customer for any incident giving rise to a claim will not exceed the amount Customer paid for the Online Service during the 12 months before the incident; provided that in no event will Nasstar’s aggregate liability for any Online Service exceed the amount paid for that Online Service during the Subscription.
c. Free Products and distributable code. For Products provided free of charge and code that Customer is authorized to redistribute to third parties without separate payment to Microsoft, Microsoft’s and Nasstar’s individual and separate liability is limited to direct damages finally awarded up to US$5,000.
d. Exclusions. In no event will either party be liable for loss of revenue or indirect, special, incidental, consequential, punitive, or exemplary damages, or damages for loss of use, lost profits, revenues, business interruption, or loss of business information, however caused or on any theory of liability.
e. Exceptions. The limits of liability in this section apply to the fullest extent permitted by applicable law, but do not apply to: (1) the parties' obligations under section 6; or (2) violation of the other's intellectual property rights.
8. Support and Professional Services.
Nasstar will provide details on support services available for Products purchased under this Customer Agreement. Support services may be performed by Nasstar or its designee, which in some cases may be Microsoft. If Customer purchases Professional Services under this Customer Agreement, the performance of those Professional Services will be subject to the terms and conditions in the Use Rights.
a. Notices. You must send notices by mail, return receipt requested, to the address below.
|Notices to Nasstar should be sent to:||Notices to Microsoft should be sent to:|
|Datapoint House, 400 Queensway Business Park, Queensway, Telford, Shropshire, TF1 7UL||Microsoft Ireland Operations Limited
Atrium Block A
Carmen Hall Road
Sandyford Industrial Estate
Dublin 18, Ireland
You agree to receive electronic notices from Nasstar or Microsoft, which will be sent by email to the account administrator(s) named for your Subscription. Notices are effective on the date on the return receipt or, for email, when sent. You are responsible for ensuring that the email address for the account administrator(s) named for your Subscription is accurate and current. Any email notice that we send to that email address will be effective when sent, whether or not you actually receive the email.
b. Assignment. You may not assign this Customer Agreement either in whole or in part. Microsoft or Nasstar may transfer this Customer Agreement without your consent, but only to one of Microsoft’s or Nasstar’s Affiliates. Any prohibited assignment is void.
c. Severability. If any part of this Customer Agreement is held unenforceable, the rest remains in full force and effect.
d. Waiver. Failure to enforce any provision of this Customer Agreement will not constitute a waiver.
e. No agency. This Customer Agreement does not create an agency, partnership, or joint venture.
f. No third-party beneficiaries. There are no third-party beneficiaries to this Customer Agreement except for Microsoft and any Microsoft Affiliates.
g. Use of contractors. Microsoft and Nasstar may use contractors to perform services, but will be responsible for their performance, subject to the terms of this Customer Agreement.
h. Microsoft as an independent contractor. The parties are independent contractors. Customer and Microsoft and Nasstar each may develop products independently without using the other’s confidential information.
i. Agreement not exclusive. Customer is free to enter into agreements to license, use or promote non-Microsoft products or services.
j. Applicable law and venue. This Customer Agreement is governed by the laws of Ireland. If Microsoft brings an action to enforce this Customer Agreement, Microsoft will bring it in the jurisdiction where Customer has its headquarters. If Customer brings an action to enforce this agreement, Customer will bring it in Ireland. This choice of jurisdiction does not prevent either party from seeking injunctive relief in any appropriate jurisdiction with respect to violation of intellectual property rights.
k. Entire agreement. This Customer Agreement is the entire subscription agreement concerning its subject matter and supersedes any prior or concurrent communications. In the case of a conflict between any documents in this Customer Agreement that is not expressly resolved in those documents, their terms will control in the following order of descending priority: (1) this Customer Agreement, (2) the Product Terms, (3) the Online Services Terms, and (4) any other documents in this Customer Agreement.
l. Survival. All provisions survive termination of this Customer Agreement except those requiring performance only during the term of the Customer Agreement.
m. U.S. export jurisdiction. Products are subject to U.S. export jurisdiction. Customer must comply with all applicable international and national laws, including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, and end-user, enduse and destination restrictions issued by U.S. and other governments related to Microsoft products, services, and technologies.
n. Force majeure. Neither party will be liable for any failure in performance due to causes beyond that party’s reasonable control (such as fire, explosion, power blackout, earthquake, flood, severe storms, strike, embargo, labour disputes, acts of civil or military authority, war, terrorism (including cyber terrorism), acts of God, acts or omissions of Internet traffic carriers, actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of Online Services)). This Section will not, however, apply to your payment obligations under this Customer Agreement.
o. Contracting authority. If you are an individual accepting these terms on behalf of an entity, you represent that you have the legal authority to enter into this Customer Agreement on that entity’s behalf.
p. Waiver of right to void online purchases. To the maximum extent permitted by applicable law, Customer waives its rights to void purchases under this Customer Agreement pursuant to any law governing distance selling or electronic or online agreements, as well as any right or obligation regarding prior information, subsequent confirmation, rights of withdrawal, or cooling-off periods.
Any reference in this Customer Agreement to “day” will be a calendar day.
“Acceptable Use Policy” is set forth in the Online Services Terms.
“Affiliate” means any legal entity that a party owns, that owns a party, or that is under common ownership with a party. “Ownership” means, for purposes of this definition, control of more than a 50% interest in an entity.
“Consumption Offering”, “Commitment Offering”, or “Limited Offering” describe categories of Subscription offers and are defined in Section 2.
“Customer Data” is defined in the Online Services Terms.
“End User” means any person you permit to access Customer Data hosted in the Online Services or otherwise use the Online Services.
“Fix” means a Product fix, modifications or enhancements, or their derivatives, that Microsoft either releases generally (such as Product service packs) or provides to Customer to address a specific issue.
“Licensing Site” means http://www.microsoft.com/licensing/contracts or a successor site.
“Microsoft” means Microsoft Ireland Operations Limited.
“Non-Microsoft Product” is defined in the Online Services Terms.
“Online Services” means any of the Microsoft-hosted online services subscribed to by Customer under this Customer Agreement, including Microsoft Dynamics Online Services, Office 365 Services, Microsoft Azure Services, or Microsoft Intune Online Services.
“Online Services Terms” means the additional terms that apply to Customer’s use of Online Services published on the Licensing Site and updated from time to time.
“Previews” means preview, beta, or other pre-release version or feature of the Online Services or Software offered by Microsoft to obtain customer feedback.
“Product” means all products identified in the Product Terms, such as all Software, Online Services and other web-based services, including Previews.
“Product Terms” means the document that provides information about Microsoft Products and Professional Services available through volume licensing. The Product Terms document is published on the Licensing Site and is updated from time to time.
“Professional Services” means Product support services and Microsoft consulting services provided to Customer under this Customer Agreement. “Professional Services” does not include Online Services.
“SLA” means Service Level Agreement, which specifies the minimum service level for the Online Services and is published on the Licensing Site.
“Software” means licensed copies of Microsoft software identified on the Product Terms. Software does not include Online Services, but Software may be a part of an Online Service.
“Subscription” means an enrollment for Online Services for a defined Term as established by your Reseller.
“Term” means the duration of a Subscription (e.g., 30 days or 12 months as applicable and in accordance with the terms of this Customer Agreement).
“Use Rights” means the use rights or terms of service for each Product published on the Licensing Site and updated from time to time. The Use Rights supersede the terms of any end user license agreement that accompanies a Product. The Use Rights for Software are published by Microsoft in the Product Terms.
The Use Rights for Online Services are published in the Online Services Terms.