SMB Suite & Microsoft
If you access this Website and the Services on behalf of an entity, you shall bind such entity and all of its employees, contractors, accounting professionals, representatives or agents whom you have authorized (collectively “Authorized Users”) by the Terms. Each Authorized User’s use of the Website and Services shall be subject to and governed by the Terms. References in these Terms to “you” and “your” shall mean you, the entity you represent and any Authorized Users you may have authorized. YOU MAY NOT ACCESS THE WEBSITE OR THE SMB Suite PROGRAM IF YOU ARE OUR DIRECT COMPETITOR OR ANY AFFILIATES THEREOF, EXCEPT WITH OUR PRIOR WRITTEN CONSENT. IN ADDITION, YOU MAY NOT ACCESS THE SERVICES FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.
1. Website and Services.
1.1 Services and Site Implementation. Subject to the terms and conditions of these Terms, SMB Suite shall provide the Services to you. To begin, you may contact us at sales@SMBSuite.com or complete our sign up form to create an account (“Account”). The Services shall be provided substantially as specified on the applicable SMB Suite site. 1.2 Services Provided. The Services are available to you and accessible with your equipment when it is within the operating parameters of our network and when connectivity is available through established telecommunication providers. However, your access to the Services may be subject to interruption in the event of any interruption to telecommunication services between you and the Services. 1.3 Non-Exclusive Services. You understand that SMB Suite will provide the Services on a nonexclusive basis, even if the Services have been customized for your use, and that we have customized and provided, and will continue to customize and provide, its software and technology to other parties for use in connection with a variety of applications, including accounting applications. Notwithstanding the foregoing, SMB Suite will not reveal any of your data, or use any of your trademarks or trade names, in providing its Services to third parties, or as part of its advertising campaigns unless specifically authorized by you in writing. 1.4 Ownership. You acknowledge that SMB Suite owns all right, title and interest in and to the Website and Services. If SMB Suite has made any customizations for you with respect to the Services, you acknowledge that the customizations and any source code, scripts, graphics and other resources uses in customizing the Services remain the sole title and ownership of SMB Suite.
2. Data and Data Security.
4. Use of the Services.
5. Software Licenses.
Microsoft Office and other Microsoft Software: To access Microsoft software in a cloud environment all users are required to subscribe to the appropriate software licenses per current Microsoft licensing programs. You disclaim, to the extent permitted by applicable law, all warranties by Microsoft and any liability by Microsoft or its suppliers for any damages, whether direct, indirect, or consequential, arising from the software services. In addition, you grant SMB Suite the right to disclose your information as required for reporting to Microsoft under the terms and conditions required by the then current Microsoft programs.
6. Confidentiality of Data.
The information and documents you store on the Website and Services contain sensitive information related to your finances and your business. All such information is deemed to be “Confidential Information.” SMB Suite shall endeavor to hold all Confidential Information in strict confidence and shall not disclose, deliver, or otherwise make the same known or available to any third party. SMB Suite shall make no use of any Confidential Information directly or indirectly, for its own benefit or that of any third party, except as expressly intended pursuant to these Terms, or in compliance with any court or administrative order from a governmental entity. In the event that we or anyone to whom we transmit the Confidential Information pursuant to these Terms is requested or becomes legally compelled to disclose any of the Confidential Information (whether by oral questions, interrogatories, requests for information or documents, subpoena, governmental investigation or demands or similar process or otherwise), we will provide the you with prompt notice, to the extent practicable, so that you may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of these Terms. In the event that such protective order or other remedy is not obtained, you agree that such disclosure may be made without liability hereunder. We will furnish only that portion of the Information that we are, in the opinion of our counsel or the counsel of our Representatives, legally required to disclose.
7. Termination and Suspension of Services.
7.1 Termination by SMB Suite. Your access and use of the Services may be terminated by SMB Suite upon (i) the failure to timely make payments for the Services and the payment is more than five (5) days overdue; or (ii) in case of any material breach of any of the provisions of these Terms that is not cured within ten (10) days of the breaching party receiving notice thereof from the non-breaching party. 7.2 Termination by Reseller. If your use of the Services is paid for by or through a third party, you understand and agree that the third party has the right to have your account suspended or terminated at any time for any or no reason and that their failure to pay for Services that you use could result in termination or suspension of your access to the Services and/or your data. 7.3 Termination by You. These Terms may be terminated by you upon thirty (30) days written prior notice to SMB Suite. 7.4 Effect of Termination. In the event of termination, you take full responsibility for retrieving your data from the SMB Suite system during the period provided you for retrieval and within one month after the date of termination. However, SMB Suite will provide a reasonable amount of support to assist you in copying your Data from the Services. Your data will be deleted from the Services one month after the date of termination.
8. DISCLAIMER OF WARRANTIES.
YOUR USE OF THIS WEBSITE AND SERVICES FROM SMB Suite IS AT YOUR OWN RISK, TO THE FULLEST EXTENT PERMISSIBLE BY LAW. SMB Suite MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND IN CONNECTION WITH THE WEBSITE OR SERVICES OFFERED. WE PROVIDE THIS WEBSITE, SERVICES AND THIRD PARTY SOFTWARE OFFERED ON OR THROUGH THE SITE ON AN “AS IS, WITH ALL FAULTS” BASIS. SMB Suite EXPRESSLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE ACCURACY, COMPLETENESS, IMPLIED WARRANTIES OF MERCHANTABILITY, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF ANY CONTENT OFFERED ON OR THROUGH THE SITE. THE FOREGOING EXCLUSION OF WARRANTIES DOES NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
9. LIMITATIONS OF LIABILITY.
SMB Suite, ITS DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, SUCCESSORS AND ASSIGNS WILL NOT BE LIABLE FOR ANY DAMAGES TO YOU OR ANYONE ELSE FOR ANY LIABILITY, INCLUDING WITHOUT LIMITATION, DIRECT, INDIRECT, SPECIAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR LOSS OF OR DAMAGE TO PROPERTY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THIS WEBSITE OR THE SERVICES, ANY SOFTWARE PROVIDED AS PART OF THE SERVICES, ANY WEB SITES LINKED TO THIS WEBSITE, OR THE MATERIALS, INFORMATION OR SERVICES CONTAINED ON ANY OR ALL SUCH WEBSITES, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATIONS OF LIABILITY DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.
10. LIMITATION OF REMEDIES.
IN THE EVENT OF ANY PROBLEM WITH THE WEBSITE OR THE SERVICES, YOU AGREE THAT YOUR SOLE REMEDY IS OUTLINED IN THE LIMITATIONS OF LIABILITY SECTION OF THESE TERMS. IN THE EVENT OF ANY PROBLEM WITH THE THIRD PARTY SOFTWARE THAT YOU HAVE USED ON OR THROUGH THIS WEBSITE AND SERVICES, YOU AGREE THAT YOUR SOLE REMEDY, IF ANY, IS FROM THE MANUFACTURER OR CREATOR OF SUCH SOFTWARE, IN ACCORDANCE WITH SUCH MANUFACTURER’S OR CREATOR’S WARRANTY.
11.1 Survival. This indemnification provision shall survive termination or discontinuation of your use of the Website and Services. 11.2 Indemnification by you. You (and your Authorized Users) shall jointly and severally indemnify, defend and hold SMB Suite, its owners, affiliates and subsidiaries, and their respective officers, directors, employees, contractors, representatives, and agents and their successors and assigns, harmless in respect of any and all claims, losses, damages, liabilities and expenses, including, without limitation, settlement costs, and all legal, accounting, and any other expenses in connection therewith (collectively “Damages”) incurred in connection with or related to your use of the Services.14 11.3 Notice and Defense of Claim. Whenever any claim shall arise for indemnification hereunder, the party entitled to indemnification (the “Indemnified Party”) shall provide written notice to the other party (the “Indemnifying Party”) within thirty (30) days of becoming aware of the right to indemnification and, as expeditiously as possible thereafter, the facts constituting the basis for such claim. In connection with any claim giving rise to indemnity hereunder, resulting from or arising out of any claim or legal proceeding by a person who is not a party to these Terms, the Indemnifying Party, at its sole cost and expense and upon written notice to the Indemnified Party, may assume the defense of any such claim or legal proceeding with counsel reasonably satisfactory to the Indemnified Party. The Indemnified Party shall be entitled to participate in the defense of any such action, with its counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom, the Indemnified Party may, but shall not be obligated to, defend against such claim or litigation in such manner as it may deem appropriate including, but not limited to, settling such claim or litigation, after giving notice of it to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate and no action taken by the Indemnified Party in accordance with such defense and settlement shall relieve the Indemnifying Party of its indemnification obligations herein provided with respect to any Damages resulting therefrom
12. Force Majeure.
Either party to these Terms shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, war, and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-today basis for the period of time equal to that of the underlying cause of the delay.
13. Major Corporate Events.
SMB Suite may also terminate these Terms in the event that SMB Suite or its owners engages in any merger, acquisition, reorganization, sale of all or substantially all of its assets, bankruptcy, insolvency or elects at its sole discretion to cease doing business in the United States and/or Canada for economic reasons or for any other reason whatsoever (“Major Corporate Event”). If you are taking advantage of any SMB Suite offer for free or discounted services or any other services that were intended to go beyond the date of cessation, you may not recover any damages from SMB Suite (or any of its affiliated entities) in the event that you incur costs and expenses related to the cessation of the Services, nor do you have, nor may you bring, any claim for repayment or reimbursement of such costs and expenses, including without limitation, fees paid to other hosting services for the balance of time remaining with respect to any Services.
While you are using any of the Services we provide and for a period of twelve (12) months after the expiry or termination of your use of such Services, you will not directly or indirectly employ or solicit to employ, the officers, employees, subcontractors or agents of SMB Suite (“Personnel”). In the event you solicit any Personnel for employment in breach of this Section, then in addition to any other remedies available in these Terms, or at law, you shall reimburse SMB Suite an amount equal to the salary and commissions, if any, earned by such employee during the last twelve (12) months while such Personnel was employed by SMB Suite. The parties acknowledge that such reimbursement is a genuine estimate of the lost revenue and the costs of recruiting and training of a replacement.
15.1 Full Agreement. Along with these Terms and exhibits you may also execute a Client Services Agreement (“CSA”) with SMB Suite. In the event of a conflict or inconsistency between these Terms and the CSA, the CSA shall control and govern the rights and obligations of the parties. 15.2 Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of Texas. You and SMB Suite hereby consent to the jurisdiction of the state and federal courts located in the Northern District of the State of Texas with regards to any action or proceeding that is permissible under the terms of this Agreement. 15.3 Attorneys’ Fees. If either party brings litigation to enforce any terms of these Terms, the prevailing party shall be entitled to costs and reasonable attorney’s fees. 15.4 Severability. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of these Terms shall remain in full force and effect. 15.5 Assignment. You may not assign its rights or delegate its obligations under these Terms without the other party’s prior written consent, except to the surviving entity in a merger or consolidation in which it participates or to a purchaser of all or substantially all of its assets, so long as such surviving entity or purchaser shall expressly assume in writing the performance of all of the terms of these Terms. 15.6 No Waiver. Our failure to insist upon or enforce strict performance of any provision of these Terms shall not be construed as a waiver of any provision or right. 15.7 Attribution. The initial SMB Suite portal page and all related pages shall conspicuously display a graphic provided by SMB Suite that indicates that SMB Suite’s technology is being used. 15.8 Notices. Any notice required for or permitted by these Terms, shall be in writing and shall be delivered to the addresses provided by you when at the time these Terms were entered into with SMB Suite or as subsequently advised to SMB Suite. You agree that you will notify SMB Suite of any changes to your contact information with 14 days. Any notice to SMB Suite shall be deemed sufficient upon actual receipt.
Notices to SMB Suite shall be sent as follows:
7700 Windrose Ave
Plano, TX 75063
Microsoft Customer Agreement
This Microsoft Customer Agreement (the “Agreement”) is between Customer and Microsoft and consists of these General Terms, the applicable Use Rights and SLAs, and any additional terms Microsoft presents when an order is placed. This Agreement takes effect when the Customer accepts these General Terms. The individual who accepts these General Terms represents that he or she is authorized to enter into this Agreement on behalf of the Customer.
These General Terms apply to all of Customer’s orders under this Agreement. Capitalized terms have the meanings given under “Definitions.”
License to use Microsoft Products
a. License grant. Products are licensed and not sold. Upon Microsoft’s acceptance of each order and subject to Customer’s compliance with this Agreement, Microsoft grants Customer a nonexclusive and limited license to use the Products ordered as provided in the applicable Use Rights and this Agreement. These licenses are solely for Customer’s own use and business purposes and are nontransferable except as expressly permitted under this Agreement or applicable law.
b. Duration of licenses. Licenses granted on a subscription basis expire at the end of the applicable subscription period unless renewed. Licenses granted for metered Products billed periodically based on usage continue as long as Customer continues to pay for its usage of the Product. All other licenses become perpetual upon payment in full.
c. Applicable Use Rights. For perpetual licenses, the Use Rights in effect when Customer orders a Product will apply. For subscriptions, the Use Rights in effect at the start of each subscription period will apply. Customers with subscriptions for Software may use new versions released during the subscription period subject to the Use Rights in effect when those versions are released. For metered Products billed periodically based on usage, the Use Rights in effect at the start of each billing period will apply during that period. Microsoft may update the Use Rights periodically, but material adverse changes for a particular version will not apply during the applicable license, subscription, or billing period.
d. End Users. Customer will control access to and use of the Products by End Users and is responsible for any use of the Products that does not comply with this Agreement.
e. Affiliates. Customer may order Products for use by its Affiliates. If it does, the licenses granted to Customer under this Agreement will apply to such Affiliates, but Customer will have the sole right to enforce this Agreement against Microsoft. Customer will remain responsible for all obligations under this Agreement and for its Affiliates’ compliance with this Agreement.
f. Reservation of Rights. Microsoft reserves all rights not expressly granted in this Agreement. Products are protected by copyright and other intellectual property laws and international treaties. No rights will be granted or implied by waiver or estoppel. Rights to access or use a
Product 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.
g. Restrictions. Except as expressly permitted in this Agreement or Product documentation, Customer must not (and is not licensed to):
(1) reverse engineer, decompile, or disassemble any Product, 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;
(3) work around any technical limitations in a Product or restrictions in Product documentation;
(4) separate and run parts of a Product on more than one device;
(5) upgrade or downgrade parts of a Product at different times;
(6) transfer parts of a Product separately; or
(7) distribute, sublicense, rent, lease, or lend any Products, in whole or in part, or use them to offer hosting services to a third party.
h. License transfers. Customer may only transfer fully-paid, perpetual licenses to (1) an Affiliate or (2) a third party solely in connection with the transfer of hardware to which, or employees to whom, the licenses have been assigned 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 must uninstall and discontinue using the licensed Product and render any copies unusable. Customer must notify Microsoft of a License transfer and provide the transferee a copy of these General Terms, the applicable Use Rights and any other documents necessary to show the scope, purpose and limitations of the licenses transferred. Attempted license transfers that do not comply with this section are void.
Non-Microsoft Products are provided under separate terms by the Publishers of such products. Customer will have an opportunity to review those terms prior to placing an order for a Non-Microsoft Product through a Microsoft online store or Online Service. Microsoft is not a party to the terms between Customer and the Publisher. Microsoft may provide Customer’s contact information and transaction details to the Publisher. Microsoft makes no warranties and assumes no responsibility or liability whatsoever for Non-Microsoft Products. Customer is solely responsible for its use of any Non-Microsoft Product.
Customer must keep records relating to Products it and its Affiliates use or distribute. At Microsoft’s expense, Microsoft may verify Customer’s and its Affiliates’ compliance with this Agreement at any time upon 30 days’ notice. To do so, Microsoft may engage an independent auditor (under nondisclosure obligations) or ask Customer to complete a self-audit process. Customer must promptly provide any information and documents that Microsoft or the auditor reasonably requests related to the verification and access to systems running the Products. If
verification or self-audit reveals any unlicensed use, Customer must, within 30 days, order sufficient licenses to cover the period of its unlicensed use. Without limiting Microsoft’s other remedies, if unlicensed use is 5% or more of Customer’s total use of all Products, Customer must reimburse Microsoft for its costs incurred in verification and acquire sufficient licenses to cover its unlicensed use at 125% of the then-current Customer price or the maximum allowed under applicable law, if less. All information and reports related to the verification process will be Confidential Information and used solely to verify compliance.
a. Personal Data. Customer consents to the processing of Personal Data by Microsoft and its Affiliates, and their respective agents and subcontractors, as provided in this Agreement. Before providing Personal Data to Microsoft, Customer will obtain all required consents from third parties (including Customer’s contacts, Partners, distributors, administrators, and employees) under applicable privacy and data protection laws.
b. Location of Personal Data. To the extent permitted by applicable law, Personal Data collected under this Agreement may be transferred, stored and processed in the United States or any other country in which Microsoft or its Affiliates, or their respective agents and subcontractors, maintain facilities. Microsoft will abide by the requirements of European Economic Area and Swiss data protection law regarding the collection, use, transfer, retention, and other processing of Personal Data from the European Economic Area and Switzerland.
a. Confidential Information. “Confidential Information” is non-public information that is designated “confidential” or that a reasonable person should understand is confidential, including, but not limited to, Customer Data, the terms of this Agreement, and Customer’s account authentication credentials. Confidential Information does not include information that (1) becomes publicly available without a breach of a confidentiality obligation; (2) the receiving party received lawfully from another source without a confidentiality obligation; (3) is independently developed; or (4) is a comment or suggestion volunteered about the other party’s business, products or services.
b. Protection of Confidential Information. Each party will take reasonable steps to protect the other’s Confidential Information and will use the other party’s Confidential Information only for purposes of the parties’ business relationship. Neither party will disclose Confidential Information to third parties, except to its Representatives, and then only on a need-to-know basis under nondisclosure obligations at least as protective as this Agreement. Each party remains responsible for the use of Confidential Information by its Representatives and, in the event of discovery of any unauthorized use or disclosure, must promptly notify the other party. The Online Services Terms may provide additional terms regarding the disclosure and use of Customer Data.
c. Disclosure required by law. A party may disclose the other’s Confidential Information if required by law, but only after it notifies the other party (if legally permissible) to enable the other party to seek a protective order.
d. Residual information. Neither party is required to restrict work assignments of its Representatives who have had access to Confidential Information. Each party agrees that the use of information retained in Representatives’ unaided memories in the development or deployment of the parties’ respective products or services does not create liability under this Agreement or trade secret law, and each party agrees to limit what it discloses to the other accordingly.
e. Duration of Confidentiality obligation. These obligations apply (1) for Customer Data, until it is deleted from the Online Services; and (2) for all other Confidential Information, for a period of five years after a party receives the Confidential Information.
a. Limited warranties and remedies.
(1) 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 described in the SLA.
(2) Software. Microsoft warrants that the Software version that is current at the time will perform substantially as described in the applicable Product documentation for one year from the date Customer acquires a license for that version. If it does not, and Customer notifies Microsoft within the warranty term, Microsoft will, at its option, (a) return the price Customer paid for the Software license or (b) repair or replace the Software.
The remedies above are Customer’s sole remedies for breach of the warranties in this section. Customer waives any warranty claims not made during the warranty period.
b. Exclusions. The warranties in this 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, trial, preview, or prerelease products, or to components of Products that Customer is permitted to redistribute.
c. Disclaimer. Except for the limited warranties above and subject to applicable law, Microsoft provides no other 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.
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 made available by Microsoft for a fee and used within the scope of the license granted under this 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 misappropriation or infringement, it may, at its option, either (1) modify or replace the Product with a functional equivalent or (2) terminate Customer’s license and refund any license fees (less depreciation for perpetual licenses), including amounts paid in advance for unused consumption 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 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 its Affiliates against any third-party claim to the extent it alleges that: (1) any Customer Data or Non-Microsoft Product 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, alone or in combination with anything else, violates the law or harms a third party.
Limitation of liability.
For each Product, each party’s maximum, aggregate liability to the other under this Agreement is limited to direct damages finally awarded in an amount not to exceed the amounts Customer was required to pay for the Products during the term of the applicable licenses, subject to the following:
a. Subscriptions. For Products ordered on a subscription basis, Microsoft’s maximum liability to Customer for any incident giving rise to a claim will not exceed the amount Customer paid for the Product during the 12 months before the incident.
b. 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 liability is limited to direct damages finally awarded up to US$5,000.
c. Exclusions. In no event will either party be liable for indirect, incidental, special, punitive, or consequential damages, or loss of use, loss of profits, or interruption of business, however caused or on any theory of liability.
d. Exceptions. No limitation or exclusions will apply to liability arising out of either party’s (1) confidentiality obligations (except for liability related to Customer Data, which will remain subject to the limitations and exclusions above); (2) defense obligations; or (3) violation of the other party’s intellectual property rights.
a. Selecting a Partner. Customer may authorize a Partner to place orders on Customer’s behalf and manage Customer’s purchases by associating the Partner with its account. If the
Partner’s distribution right is terminated, Customer must select an authorized replacement Partner or purchase directly from Microsoft. Partners and other third parties are not agents of Microsoft and are not authorized to enter into any agreement with Customer on behalf of Microsoft.
b. Partner Administrator privileges and access to Customer Data. If Customer purchases Online Services from a Partner or chooses to provide a Partner with administrator privileges, that Partner will be the primary administrator of the Online Services and will have administrative privileges and access to Customer Data and Administrator Data. Customer consents to Microsoft and its Affiliates providing the Partner with Customer Data and Administrator Data for purposes of provisioning, administering and supporting (as applicable) the Online Services. Partner may process such data according to the terms of Partner’s agreement with Customer, and its privacy commitments may differ from Microsoft’s. Customer appoints Partner as its agent for purposes of providing and receiving notices and other communications to and from Microsoft. Customer may terminate the Partner’s administrative privileges at any time.
Pricing and payment.
a. Pricing and payment. If Customer orders from a Partner, the Partner will set Customer’s pricing and payment terms for that order, and Customer will pay the amount due to the Partner. Otherwise, Customer’s pricing and payment terms for a given order are set by Microsoft, and Customer will pay the amount due to Microsoft.
b. Payment method. For orders with Microsoft, Customer must provide a payment method or, if eligible, choose to be invoiced for purchases made on its account. By providing Microsoft with a payment method, Customer (1) consents to Microsoft’s use of account information regarding the selected payment method provided by the issuing bank or applicable payment network; (2) represents that it is authorized to use that payment method and that any payment information it provides is true and accurate; (3) represents that the payment method was established and is used primarily for commercial purposes and not for personal, family or household use; and (4) authorizes Microsoft to charge Customer using that payment method for orders under this Agreement.
c. Invoices. Microsoft may invoice eligible Customers for orders placed directly with Microsoft. Customer’s ability to elect payment by invoice is subject to Microsoft’s approval of Customer’s financial condition. Customer authorizes Microsoft to obtain information about Customer’s financial condition, which may include credit reports, to assess Customer’s eligibility for invoicing. Unless the Customer’s financial statements are publicly available, Customer may be required to provide their balance sheet, profit and loss and cash flow statements to Microsoft. Customer may be required to provide security in a form acceptable to Microsoft to be eligible for invoicing. Microsoft may withdraw Customer’s eligibility at any time and for any reason. Customer must promptly notify Microsoft of any changes in its company name or location and of any significant changes in the ownership, structure, or operational activities of the organization.
d. Invoice Payment terms. If Microsoft invoices Customer, each invoice will identify the amounts payable by Customer to Microsoft for the period corresponding to the invoice.
Customer will pay all amounts due within thirty (30) calendar days following the invoice date.
e. Late Payment. Microsoft may, at its option, assess a late fee on any payments to Microsoft that are more than fifteen (15) calendar days past due at a rate of two percent (2%) of the total amount payable, calculated and payable monthly, or the highest amount allowed by law, if less.
f. Cancellation fee. If a subscription permits early termination and Customer cancels the subscription before the end of the subscription or billing period, Customer may be charged a cancellation fee.
g. Recurring Payments. For subscriptions that renew automatically, Customer authorizes Microsoft to charge Customer’s payment method periodically for each subscription or billing period until the subscription is terminated. By authorizing recurring payments, Customer authorizes Microsoft to process such payments as either electronic debits or fund transfers, or as electronic drafts from the designated bank account (in the case of Automated Clearing House or similar debits), as charges to the designated card account (in the case of credit card or similar payments) (collectively, “Electronic Payments”). If any payment is returned unpaid or if any credit card or similar transaction is rejected or denied, Microsoft or its service providers reserve the right to collect any applicable return item, rejection or insufficient funds fee to the maximum extent permitted by applicable law and to process any such fees as an Electronic Payment or to invoice Customer for the amount due.
h. Taxes. Microsoft prices exclude applicable taxes unless identified as tax inclusive. If any amounts are to be paid to Microsoft, Customer shall also pay any applicable value added, goods and services, sales, gross receipts, or other transaction taxes, fees, charges, or surcharges, or any regulatory cost recovery surcharges or similar amounts that are owed under this Agreement and that Microsoft is permitted to collect from Customer. Customer shall be responsible for any applicable stamp taxes and for all other taxes that it is legally obligated to pay including any taxes that arise on the distribution or provision of Products by Customer to its Affiliates. Microsoft shall be responsible for all taxes based upon its net income, gross receipts taxes imposed in lieu of taxes on income or profits, and taxes on its property ownership.
If any taxes are required to be withheld on payments invoiced by Microsoft, Customer may deduct such taxes from the amount owed and pay them to the appropriate taxing authority, but only if Customer promptly provides Microsoft an official receipt for those withholdings and other documents reasonably requested to allow Microsoft to claim a foreign tax credit or refund. Customer will ensure that any taxes withheld are minimized to the extent possible under applicable law.
Term and termination.
a. Term. This Agreement is effective until terminated by a party, as described below.
b. Termination without cause. Either party may terminate this Agreement without cause on 60 days’ notice. Termination without cause will not affect Customer’s perpetual licenses, and
licenses granted on a subscription basis will continue for the duration of the subscription period(s), subject to the terms of this Agreement.
c. Termination for cause. Without limiting other remedies it may have, either party may terminate this Agreement on 30 days’ notice for material breach if the other party fails to cure the breach within the 30-day notice period. Upon such termination, the following will apply:
(1) All licenses granted under this Agreement will terminate immediately except for fully-paid, perpetual licenses.
(2) All amounts due under any unpaid invoices shall become due and payable immediately. For metered Products billed periodically based on usage, Customer must immediately pay for unpaid usage as of the termination date.
(3) If Microsoft is in breach, Customer will receive a credit for any subscription fees, including amounts paid in advance for unused consumption for any usage period after the termination date.
d. Suspension. Microsoft may suspend use of an Online Service without terminating this Agreement during any period of material breach. Microsoft will give Customer notice before suspending an Online Service when reasonable.
e. Termination for regulatory reasons. Microsoft may modify, discontinue, or terminate a Product in any country or jurisdiction where there is any current or future government regulation, obligation, or other requirement, that (1) is not generally applicable to businesses operating there; (2) presents a hardship for Microsoft to continue offering the Product without modification; or (3) causes Microsoft to believe these terms or the Product may conflict with any such regulation, obligation, or requirement. If Microsoft terminates a subscription for regulatory reasons, Customer will receive, as its sole remedy, a credit for any subscription fees, including amounts paid in advance for unused consumption for any usage period after the termination date.
a. Independent contractors. The parties are independent contractors. Customer and Microsoft each may develop products independently without using the other’s Confidential Information.
b. Agreement not exclusive. Customer is free to enter into agreements to license, use, and promote the products and services of others.
c. Amendments. Microsoft may modify this Agreement from time to time. Changes to the Use Rights will apply as provided in this Agreement. Changes to other terms will not apply until Customer accepts them. Microsoft may require Customer to accept revised or additional terms before processing a new order. Any additional or conflicting terms and conditions contained in a purchase order or otherwise presented by Customer are expressly rejected and will not apply.
d. Assignment. Either party may assign this Agreement to an Affiliate, but it must notify the other party in writing of the assignment. Customer consents to the assignment to an Affiliate or third party, without prior notice, of any rights Microsoft may have under this
Agreement to receive payment and enforce Customer’s payment obligations, and all assignees may further assign such rights without further consent. Any other proposed assignment of this Agreement must be approved by the non-assigning party in writing. Assignment will not relieve the assigning party of its obligations under the assigned Agreement. Any attempted assignment without required approval will be void.
e. U.S. export. 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, end use and destination restrictions by U.S. and other governments related to Microsoft products, services, and technologies.
f. Severability. If any part of this Agreement is held to be unenforceable, the rest of the Agreement will remain in full force and effect.
g. Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver. Any waiver must be in writing and signed by the waiving party.
h. No third-party beneficiaries. This Agreement does not create any third-party beneficiary rights except as expressly provided by its terms.
i. Survival. All provisions survive termination of this Agreement except those requiring performance only during the term of the Agreement.
j. Notices. Notices must be in writing and will be treated as delivered on the date received at the address, date shown on the return receipt, email transmission date, or date on the courier or fax confirmation of delivery. Notices to Microsoft must be sent to the following address:
Dept. 551, Volume Licensing
6100 Neil Road, Suite 210
Reno, Nevada 89511-1137
Notices to Customer will be sent to the individual at the address Customer identifies on its account as its contact for notices. Microsoft may send notices and other information to Customer by email or other electronic form.
k. Applicable law. This Agreement will be governed by and construed in accordance with the laws of the State of Washington and federal laws of the United States. The 1980 United Nations Convention on Contracts for the International Sale of Goods and its related instruments will not apply to this Agreement.
l. Dispute resolution. When bringing any action arising under this Agreement, the parties agree to the following exclusive venues:
(1) If Microsoft brings the action, the venue will be where Customer has its headquarters.
(2) If Customer brings the action against Microsoft or any Microsoft Affiliate located outside of Europe, the venue will be the state or federal courts in King County, State of Washington, USA.
(3) If Customer brings the action against Microsoft or any Microsoft Affiliate located in Europe, and not also against Microsoft or a Microsoft Affiliate located outside of Europe, the venue will be the Republic of Ireland.
The parties consent to personal jurisdiction in the agreed venue. This choice of venue does not prevent either party from seeking injunctive relief in any jurisdiction with respect to a violation of intellectual property rights or confidentiality obligations.
m. Order of precedence. These General Terms will take precedence over any conflicting terms in other documents that are part of this Agreement that are not expressly resolved in those documents, except that conflicting terms in the Use Rights take precedence over these General Terms as to the applicable Products. Terms in the Online Services Terms take precedence over conflicting terms in the Product Terms. Terms in an amendment control over the amended document and any prior amendments concerning the same subject matter.
n. Microsoft Affiliates and contractors. Microsoft may perform its obligations under this Agreement through its Affiliates and use contractors to provide certain services. Microsoft remains responsible for their performance.
o. Government procurement rules. By accepting this agreement, Customer represents and warrants that (i) it has complied and will comply with all applicable government procurement laws and regulations; (ii) it is authorized to enter into this Agreement; and (iii) this Agreement satisfies all applicable procurement requirements.
“Administrator Data” means the information provided to Microsoft or its Affiliates during sign-up, purchase, or administration of Products.
“Affiliate” means any legal entity that controls, is controlled by, or is under common control with a party. “Control” means ownership of more than a 50% interest of voting securities in an entity or the power to direct the management and policies of an entity.
“Confidential Information” is defined in the “Confidentiality” section.
“Customer” means the entity identified as such on the account associated with this Agreement.
“Customer Data” means all data, including all text, sound, software, image or video files that are provided to Microsoft or its Affiliates by, or on behalf of, Customer and its Affiliates through use of Online Services.
“End User” means any person Customer permits to use a Product or access Customer Data. “Licensing Site” means http://www.microsoft.com/licensing/contracts or a successor site.
“Microsoft” means Microsoft Corporation.
“Non-Microsoft Product” means any third-party-branded software, data, service, website or product, unless incorporated by Microsoft in a Product.
“Online Services” means Microsoft-hosted services to which Customer subscribes under this Agreement. It does not include software and services provided under separate license terms.
“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.
“Partner” means a company Microsoft has authorized to distribute Products to Customer.
“Personal Data” means any information relating to an identified or identifiable natural person.
“Product” means all Software and Online Services identified in the Product Terms that Microsoft offers under this Agreement, including previews, prerelease versions, updates, patches and bug fixes from Microsoft. Product availability may vary by region. “Product” does not include Non-Microsoft Products.
“Product Terms” means the document that provides information about Products available under this Agreement. The Product Terms document is published on the Licensing Site and is updated from time to time.
“Publisher” means a provider of a Non-Microsoft Product.
“Representatives” means a party’s employees, Affiliates, contractors, advisors and consultants.
“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 in the Product Terms. Software does not include Online Services, but Software may be part of an Online Service.
“use” means to copy, download, install, run, access, display, use or otherwise interact with.
“Use Rights” means the license terms and 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. License terms for all Products are published in the Product Terms. Terms of service for Online Services are published in the Online Services Terms.