General Terms and Conditions (Version 10.1)
This document contains the general terms and conditions for On Direct Business Services Limited, trading as “Cloud Direct”. A copy of the standard Microsoft Customer Agreement is also included at the end of this document.
Version 10.1, released in March 2020, supersedes Version 10. Version 10.1 contains an additional section, 4.16.
On Direct General Terms and Conditions
These general terms and conditions (“Terms”) and the other documents referred to govern your access to and use of the Services (as defined below). These Terms may be updated from time to time and the latest copy will be available on our website at clouddirect.net.
The following expressions have the following meanings:
|“Act”||the Data Protection Act 2018|
|"Billing Commencement Date"||the inclusive date from which billing will start. For some services you may be charged in advance of this date where services require provisioning as part of the commissioning process.|
|“Recurrence Period”||the invoice frequency of Service (monthly, annually, etc.)|
|“Content”||any information, files, data or material uploaded by you including any text.|
|"Hardware"||any hardware provided by us to you as part of providing any Service.|
|“Individual Information”||any Content that contains personal data (as that term is defined in the Act).|
|“Initial Term”||the agreed minimum term for each Service will be 12 months unless expressly stated differently in the Service Agreement, which shall start on the Billing Commencement Date on each relevant Service, excluding any free or trial period.|
|“IPR”||all copyright and related rights, rights in computer software, design rights, trade marks, database rights, patents, trade secrets, know-how, rights in confidential information and all other intellectual property rights.|
|“Month”||each consecutive period of one month commencing on the Billing Commencement Date and the same day of each subsequent calendar month.|
|“Proposal Document”||the accompanying document signed and accepted by you setting out details of the proposed solution and service provision should this be of a more bespoke nature and would therefore not be fully captured within the standard Service Agreement.|
|“Service Agreement”||the document signed and accepted by you setting out the Services, the Service Fees, the Initial Term, any product specific special terms which may override clauses in this document and other information relating to the Services and including these Terms and the SLA.|
|“Service Fee”||the fee payable by you to us, for the Services, which is made up of the Subscription Fee and any applicable Usage Fee.|
|"SLA"||our service level agreement(s) setting out information about the expected performance of the Services.|
|“Services”||the products and services we supply to you as detailed in the Service Agreement.|
|“Subscription Fee”||that regular part of the Service Fee (often payable in advance).|
|“Supplier”||any company we use to provide the Services to you.|
|“Usage Measure”||the unit of measurement for the Services as set out in the Service Agreement (e.g. Seconds, Gigabytes, etc.).|
|“Usage Fee”||that variable part of the Service Fee based on actual Usage for a period (may be charged current month or in arrears).|
|“we”, “our” or “us”||On Direct Business Services Limited (company number 04631034) trading as “Cloud Direct” whose registered office is at 1 London Street, Reading, Berkshire RG1 4QW and whose trading address is Cambridge House, Henry Street, Bath, BA11BT (VAT registration number GB 801 3192 74).|
|“you” or "your"||the customer named in the Service Agreement.|
|“Appropriate Technical and Organisational Measures"||shall be interpreted in accordance with the Privacy Laws.|
|“Customer Personal Data"||means any Personal Data the Processing of which is subject to Privacy Laws, that is controlled by the Customer and its customers (where applicable) which the Processor Processes in the course of providing the Services under the Agreement, wherever the Processing takes place.|
|“Data Controller"||shall be interpreted in accordance with the Privacy Laws.|
|“Data Processor"||shall be interpreted in accordance with the Privacy Laws.|
|“Data Subject"||shall be interpreted in accordance with the Privacy Laws.|
|“EU Data Protection Law"||means all applicable EU data protection and privacy laws, including:
(i) prior to 25 May 2018, the EU Data Protection Directive 95/46/EC and, on and after 25 May 2018, the General Data Protection Regulation 2016/679;
(ii) the Privacy and Electronic Communications Directive 2002/58/ED; and
(iii) any other European Union or EU Member State laws made under or pursuant to (i) or (ii),
in each case as such laws may be amended or superseded from time to time.
|“GDPR"||means the General Data Protection Regulation (EU) 2016/679.|
|“Personal Data"||shall be interpreted in accordance with the Privacy Laws.|
|“Privacy Laws"||means applicable laws serving to ensure the protection of Personal Data (including in connection with the Processing of Personal Data), and the protection of the rights and freedoms (in particular, their right to privacy) of Data Subjects relating to their Personal Data, including EU Data Protection Law and UK Data Protection Law, in each case as such laws may be amended or superseded from time to time.|
|“Processing"||shall be interpreted in accordance with the Privacy Laws (and “Process” shall be construed accordingly).|
|“UK Data Protection Law"||means all applicable UK data protection and privacy laws including any UK law which replaces EU Data Protection Law, or which implements or transposes EU Data Protection Law into UK law.|
2. Our Obligations
2.1 We agree to:
2.1.1 assist you in the set-up of the Services;
2.1.2 provide the Services to the levels set out in the relevant SLA or as detailed in the supporting Proposal Document as applicable; and
2.1.3 provide technical assistance and training (which may incur a reasonable additional charge depending on requirements) for the set-up and provision of the Services when reasonably requested to do so.
2.1.4 If the Services include any project work that is time and materials charged, we will use reasonable endeavours to meet agreed dates and charges subject to clause 3.5.
2.2 Notwithstanding clause 2.1, we reserve the right to suspend or vary the Services at any time to carry out maintenance and upgrades or to deal with any problem or error.
3. Your Obligations
3.1 You agree to:
3.1.1 comply with the terms of any licence applicable to the Services;
3.1.2 follow our instructions for the use of the Services which we may send to you from time to time;
3.1.3 notify us immediately if you become aware of any problem with the Services;
3.1.4 make available to us:
220.127.116.11 employees with appropriate skills, knowledge and authority;
18.104.22.168 access to your site(s) and facilities at your site(s); and
22.214.171.124 information and materials as we may reasonably require to provide the Services
3.1.5 comply with all applicable laws, legislation and regulations relating to the Services;
3.1.6 keep all contact information provided to us up to date and correct in order to enable account management and technical notifications about your service. If the Services include VoIP services, you agree to keep us informed of any phone location changes in order to ensure details are correct for the use of 999 emergency services;
3.1.7 co-operate with us in all matters relating to the Services;
3.1.8 keep us up to date with any changes to the infrastructure or environment relating to the Services that might impact on the performance of the Services;
3.1.9 maintain the Hardware in satisfactory condition and insure any rented or loaned Hardware against all risks for its full price on our behalf from the date of delivery;
3.1.10 notify us as soon as reasonably practicable of any loss of or damage to rented or loaned Hardware (fair wear and tear excepted) and, on request, reimburse us for the price for any loss or damage to it;
3.1.11 be responsible for monitoring your usage of the Service, and subsequent Usage Fees (and possible overage charges), incurred for the Services we provide;
3.1.12 ensure that all Content (including any description, date or information relating to the Content but excluding any backup data) uploaded by you or by us on your behalf is accurate and up to date;
3.1.13 establish, maintain and monitor adequate internal security measures for your access and use of the Services including the confidentiality and safe storage of all login details, user names and passwords and updating them regularly; and
3.1.14 use the Services for your internal business purposes only. The Services are personal to you and may not be assigned, sublicensed, sold, resold, transferred, distributed or otherwise disposed of or commercially exploited in any way.
3.2 You will not access or use the Services for any unlawful purpose, including:
3.2.1 in any way which will or is likely to infringe the IPR of a third party;
3.2.2 for the transmission, display, downloading or uploading of any Content which is or is likely to be construed as defamatory, threatening, offensive, abusive, obscene or which will or is likely to cause unnecessary anxiety or inconvenience to a third party or which is otherwise unlawful;
3.2.3 to attempt to gain unauthorised access to the Services;
3.2.4 to attempt to modify, distribute, reverse engineer or otherwise attempt to decipher any code in connection with the Services and/or any other aspect of our technology;
3.2.5 in any way that will or is likely to cause damage or adversely affect the operation of our Services or interfere with or disrupt our website, other websites, servers or networks; and
3.2.6 in any way that will or is likely to interfere with the use and enjoyment of the Services for other users.
3.3 Unless we have appointed you as our partner or reseller you will not market, offer to sell or resell the Services to any third party.
3.4 If the Services include any third party services, you agree to be bound by the third party terms and conditions applicable to such services (e.g. the Microsoft Customer Agreement as attached to this agreement). If and to the extent that these Terms conflict with any third party terms and conditions, these Terms shall prevail.
3.5 If the Services include any project work that is time and material charged, you accept that:
3.5.1 Any failure by you to adhere to the terms of this Service Agreement that leads to delays, then target dates shall be extended so as to accommodate fully the effects of such delay.
3.5.2 Any delay that is directly or indirectly caused by any act or omission by you, we shall reserve the right to charge you for the effects of such a delay on a time and materials basis at our standard published day billing rates.
4. Prices and Payment
4.1 In return for us agreeing to provide you the non-exclusive, non-transferable right for you to access and use the Services subject to these Terms, you agree to pay us the Service Fee.
4.2 Where the Subscription Fee element of the Service Fee is charged in advance, the invoice must be paid before you access the Services.
4.3 You may allow extra users to have access to existing and additional new Services. We therefore reserve the right to charge Subscription and Usage Fees based on your additional usage. This will be charged at the rate set out in the Service Agreement or, if no rate is specified, at our standard list price. It is your responsibility to request rates information.
4.4 Usage Fees for some Services will be charged in arrears, based on actual Usage for the Month. Usage Fees for all other Services will be charged and invoiced in the Month of service based on a “snapshot” of data, which is taken during the Month, and is applied to the whole Month.
4.5 We will not increase the Service Fees during the first 12 months of the agreement except to the extent that third party licensors (such as Microsoft) increase or pass on their charges to us.
4.6 For support or managed service packages, we reserve the right to increase the price on an annual basis with effect from each anniversary of the Billing Commencement Date by up to 5%. The first such increase shall take effect at the beginning of second year.
4.7 In the event of a Service Fee increase, should the annual percentage increase be more than 5 percentage points above the corresponding increase in Retail Price Index published by the Office for National Statistics (or is successor) for the 12-month period preceding price increase, and the increase is not acceptable to you, you may terminate the affected service by giving us written notice within 30 days of the price increase.
4.8 Where the Services include training and consultancy services, we reserve the right to charge a flat-rate of £150 per day for expenses to include domestic travel, any required accommodation and general subsistence. Other expenses such as flights or any significant additional costs must be calculated and agreed between Cloud Direct and the customer prior to being incurred.
4.9 All charges are exclusive of value added tax (VAT), which will be charged at the current rate at the time of invoice.
4.10 If you decide to pay your invoice(s) by a method other than Direct Debit we reserve the right to add an administration charge of £3 per customer per month.
4.11 Invoices are due for payment in full without deduction or withholding, except as required by law, within 30 days of the date of the invoice. If you do not pay any invoice on time, we reserve the right to:
4.11.1 charge you interest at the rate of 4% per annum above the then published base rate of Santander UK Plc on a daily basis from the date of the invoice until the actual date of payment of the overdue amount, whether before or after judgement; and
4.11.2 suspend the Services until you have paid all overdue invoices in full. You will continue to be responsible for the Service Fees during the period of suspension.
4.12 Where the service commissioning process requires access to an available live service in advance of your planned Billing Commencement Date you may be charged for these specific services.
4.13 If you wish to change the Services, you should contact us to agree with you any changes to the Service Fees resulting from the change, the likely timescale required to implement the change and any other impacts of the change before commencing the new Services.
4.14 Professional Services work will be invoiced on either a month-in-arrears basis (for time and materials work) or on a 50:50 split for fixed price assignments (50% on order placement and 50% with deliverable).
4.15 Non-recurring service items such as hardware and licences will be invoiced on receipt of your order. Long delivery items (greater than 30 days) will be invoiced on a 50:50 basis (50% on order and 50% on delivery).
4.16 If one of your Services permits early termination before the end of the Initial Term or Extended Term and you cancel the service before the end of such term you may be charged a cancellation fee.
5. Data Protection and Contact Details
5.1 You and we shall comply with the provisions of the Act and any related legislation so far as they relate to the Services or the data held by us.
5.2 You agree that we may provide the Suppliers with your contact details for the purpose of delivering the Services.
5.3 You will obtain all necessary consents to enable you to submit Individual Information to us (whether in the Content or otherwise).
5.4 You will have in place appropriate technical and organisational measures against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure of or access to any Content that contains Individual Information.
5.5 You will have adequate security measures to ensure that unauthorised persons will not have access to the Individual Information and that any persons you authorise to have access to the Services will respect and maintain the confidentiality and security of the Individual Information.
5.6 We will ensure that all processing of Individual Information that is carried out by us is carried out in accordance with the Act.
6.1 Subject to your compliance with the Terms, we warrant the Services will be carried out with reasonable care and skill by personnel whose qualifications and experience will be appropriate for the tasks which are allocated to them.
6.2 We do not warrant that the Services will be error free or uninterrupted.
6.3 Except as set out in this clause 6, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from these Terms.
7. Limitation of Liability
7.1 This clause sets out the limit of our liability to you for breach of our obligations under these Terms, any representation, misdeed (including negligence), breach of statutory duty or other wrongful act on our part.
7.2 Neither party will exclude or reduce its liability under or in connection with these Terms nor otherwise to the extent that it arises in respect of any of the following matters:
7.2.1 death or personal injury resulting from negligence;
7.2.2 fraud or fraudulent misrepresentation; and
7.2.3 any other matter for which it would be unlawful for either party to exclude or limit or attempt to exclude or limit its liability.
7.3 Subject to clause 7.2:
7.3.1 we will not be liable for:
126.96.36.199 any indirect, consequential or special loss resulting from any of the acts as mentioned in clause 7.1; or
188.8.131.52 any loss of profits, loss of goodwill, loss of contracts or loss of data;
184.108.40.206 any loss resulting from corruption of data due to the introduction of a virus or arising as a result of a problem with the internet unless you can show that it is due to our negligence or default; and
7.3.2 our total liability to you in respect of direct damage to your physical property shall not exceed £2,000,000; and
7.3.3 our total liability to you in respect of all other losses arising under or in connection with these Terms shall not exceed the total Service Fees paid by you during the period of 12 months immediately preceding the date on which the event giving rise to the claim occurred.
7.4 You confirm that you have read and understood this clause and have adequate insurance, or other financial means, to cover for any losses beyond those set out in this clause.
7.5 If you require us to take on any additional liability beyond that set out in this clause, then we will consider doing so upon agreement of an increase in the Service Fees to reflect such additional liability, which must be agreed in writing between you and us.
8. Confidentiality and Intellectual Property
8.1 The existence of the Service Agreement between the parties and the Services being supplied may be disclosed to third parties provided that:
8.1.1 Details of the individual Services can only be disclosed with prior written agreement between the parties;
8.1.2 On successful commencement or delivery of the Services, the parties will agree a case study that both parties can publish and disclose to third parties.
8.2 Each party agrees to the other not to disclose to any person, except information required in order to perform the Services, all confidential information (written or oral) concerning the business and affairs of the other. This included information that has been obtained or received from the other party, with the exception of information which is:
8.2.1 trivial or obvious;
8.2.2 already in the possession of the receiving party other than as a result of a breach of this clause;
8.2.3 in the public domain other than as a result of a breach of this clause;
8.2.4 disclosed or used in accordance with the other party’s prior written approval;
8.2.5 required to be disclosed by law, court order or any governmental or regulatory authority.
8.3 Each party agrees that it will take any necessary steps to ensure compliance with this clause 8 by its employees, authorised agents and sub-contractors.
8.4 Nothing in these Terms will transfer any IPR to you in the software, materials, documents or items we prepare, produce or supply in connection with the Services.
8.5 This clause 8 will survive the termination of the Services Agreement howsoever caused.
8.6 All IPR in the Services belong to us or our respective licensors and that you have no right, title or interest in or to such IPR other than as expressly set out in these Terms or as permitted by law.
8.7 You shall indemnify and hold us harmless against any cost, losses, liabilities and expenses, including reasonable legal costs arising from any claim relating to or resulting directly or indirectly from your use of the Services including the infringement of any third party IPR or right of confidentiality, provided that:
8.7.1 we give prompt notice of any such claim;
8.7.2 we provide, at your expense, reasonable cooperation in the defence and settlement of the claim; and
8.6.3 you have sole control of the defence and settlement of the claim.
8.8 We will defend, or at our option settle, any claim or suit brought against that the Services infringe any third party’s IPR or right of confidentiality and we shall indemnify you against any award amounts awarded against you in judgement or settlement of such claims provided that:
8.8.1 you give us prompt notice of any such claim;
8.8.2 you provide, at our expense, reasonable cooperation in the defence and settlement of the claim; and
8.8.3 we have sole control of the defence and settlement of the claim.
8.9 In defence or settlement of any claim we may procure the right for you to continue using the Services or replace or modify them so that they become non-infringing.
8.10 This clause 8 sets out your entire remedies for infringement of any IPR or right of confidentiality.
9. Free Accounts
Where you use a free account or trial account, we allow you to use the Service free of charge up to the limitations specified on the package on offer. We reserve the right to terminate the account at any time, with or without notice.
10. Term and Termination
10.1 The Service Agreement will begin when you confirm your commitment to the Service Agreement and supporting Proposal Document if applicable. This commitment can be in the form of e-sign, purchase order or written confirmation including e-mail correspondence. The Services will become chargeable from the Billing Commencement Date subject to clause 4.12 above.
10.2 For Services with a Monthly Recurrence Period:
10.2.1 After the Initial Term, either party may terminate monthly recurring services whereupon the Service will be terminated at the end of the calendar month following the month in which the notice was served.
10.3 For all other Services (e.g. annually billed services):
10.3.1 The Service shall be automatically extended for a period of 12 months (“Extended Term”) at the end of the Initial Term and at the end of each Extended Term, unless and until either party gives written notice to the other party, not later than 60 days before the end of the Initial term or the relevant Extended Term, to terminate such Service at the end of the Initial Term or the relevant extended Term, as the case may be.
10.4 We may terminate or suspend the Services immediately by giving written notice if:
10.4.1 you fail to pay any amount on or before the due date for payment;
10.4.2 your use of the Services is materially adversely affecting the operation of the Services for other users; or
10.4.3 a technical emergency occurs (in which case we will let you know by telephone or e-mail if possible).
10.5 Either party may terminate the Service Agreement immediately by giving written notice if the other party:
10.5.1 commits any material breach of these Terms and (in the case of a breach capable of being remedied) fails to remedy it within 30 days of a written request to do so;
10.5.2 has an encumbrancer takes possession or a receiver (or similar office holder) is appointed over any of its property or assets, makes any voluntary (or similar) arrangement with its creditors, has an administrator appointed or is subject to insolvency proceedings in any jurisdiction;
10.5.3 goes into liquidation (except for the purposes of an amalgamation, reconstruction or other reorganisation and in such manner that the company resulting from the reorganisation effectively agrees to be bound by or to assume the obligations imposed on that other party under the Service Agreement); or
10.5.4 ceases, or threatens to cease, to carry on business.
10.6 Any notice of termination given by you will not be valid or effective until we have acknowledged receipt of the same in writing.
10.7 Termination of any individual Service will not affect the continuation of any other Services.
10.8 On termination of the Service Agreement:
10.8.1 you shall immediately cease to use the Services, and deliver to us all software, hardware (in good working order), materials, documentation and items provided under this Agreement at your own cost; and
10.8.2 data within the Service(s) will be unavailable to you and will be deleted.
10.9 Clauses which expressly or by implication have effect after termination of this agreement shall continue in full force and effect.
11. Dispute resolution
11.1 If you have a complaint you should initially follow our ‘What to do if you have a complaint’ guide which is available on our website at the following link: https://www.clouddirect.net/legal/what-to-do-if-you-have-a-complaint/
11.2 A more comprehensive overview of our customer complaints code of practice is also available from our website or as a pdf download at the following link: https://www.clouddirect.net/legal/customer-complaints-code-of-practice/
11.3 We are registered with Ombudsman Services, which is an OfCom-approved alternative dispute resolution body. Ombudsman Services will review your complaint and decide if it is justified. We will act on the Ombudsman Services decision and put things right for you.
Ombudsman Services complaint submissions are free of charge. Ombudsman Services contact details are as follows:
The Brew House
12.1 For the avoidance of any doubt any conflicting terms will be decided in the following order: Special Terms agreed with you in advance (if any); Proposal Document (if any); this Service Agreement; SLA (if applicable).
12.2 Neither party shall be liable for any delays in performing, or failure to perform, any of its responsibilities under these Terms if such delay or failure was due to any cause beyond its reasonable control, for as long as the situation exists.
12.3 The Service Agreement may not be assigned by either party without the prior written consent of the other party, which shall not be unreasonably withheld or delayed.
12.4 The Contracts (Rights of Third Parties) Act 1999 shall not apply to these Terms.
12.5 No waiver by either party in respect of a breach of these Terms will operate as a waiver in respect of any subsequent breach.
12.6 If any provision of these Terms is declared by any judicial or any other competent authority to be void, voidable, illegal or otherwise unenforceable, it shall be limited or eliminated to the minimum extent necessary, so these Terms shall otherwise remain in full force and effect and enforceable.
12.7 Any notice or other information required, or permitted to be given, under these Terms shall be validly given if served personally on that party or if sent by first class pre-paid post or email to the last known address of that party:
12.7.1 If sent by first class pre-paid post, the notice will be treated as received 2 days after the date of posting; and
220.127.116.11 If sent by email, the notice will be treated as received on the same day if sent during normal working hours, or on the next working day where sent outside such hours (provided in it is supported by a valid server delivery receipt).
12.8 In the event of any conflict, the following order or precedence shall apply: the Service Agreement, these Terms, and finally the SLA.
This Agreement shall be governed by and construed in accordance with English law and the parties agree to submit to the non-exclusive jurisdiction of the English courts.
14. Relationship of parties and subcontractors
14.1 We shall act at all times as an independent contractor.
14.2 We may with your prior consent, use sub-contractors to perform services under this agreement.
15. Force Majeure
15.1 Neither party shall be liable for any loss suffered by the other party or deemed to be in default for any delays or failures in performance hereunder (other than in relation to payment) resulting from acts or causes beyond its reasonable control or from acts of God, acts or (if enacted after the date hereof), regulations of any governmental or supra-national authority.
Annex A – Data Processing Agreement
1. DATA PROTECTION
1.1 The Processor agrees, in relation to the Customer Personal Data, that the Customer is the Data Controller (and therefore controls what happens to the Customer Personal Data) and the Processor is the Data Processor.
1.2 The Processor acknowledges and agrees that nothing in this agreement relieves the Processor from its responsibilities and liabilities under the Privacy Laws.
1.3 The purpose of the Processing is the performance of the Services, and the Processing will be carried out until the date that the Processor ceases to provide the Services to the Customer. Details as to the nature and purpose of the Processing, the types of Personal Data and the categories of Data Subjects are set out in Schedule 1 to this agreement.
1.4 When the Processor Processes Customer Personal Data in the course of providing the Services, the Processor will:
1.4.1 Process the Customer Personal Data only in accordance with written instructions from the Customer, including with regard to transfers of Customer Personal Data to a third country or international organisation except where required to do so by law. If the Processor is required by law to Process the Customer Personal Data for any other purpose, the Processor will inform the Customer of this requirement before the Processing, unless that law prohibits this on important grounds of public interest. If the Customer issues a direction to the Processor which requires the Processor to do something that is inconsistent with the terms of the Service Agreement, the Processor may wish to make a reasonable charge, in which case that charge will be as agreed in writing between the parties.
1.4.2 take reasonable steps to ensure the reliability and competence of the Processor personnel who have access to the Customer Personal Data;
1.4.3 ensure that the personnel required to Process the Customer Personal Data:
(a) are informed of the confidential nature of the Customer Personal Data;
(b) are subject to appropriate obligations of confidentiality; and
(c) do not publish, disclose or divulge any of the Customer Personal Data to any third party unless directed in writing to do so by the Customer;
1.4.4 implement and maintain Appropriate Technical and Organisational Measures to protect the Customer Personal Data against unauthorised or unlawful processing and against accidental loss, destruction, damage, theft, alteration or disclosure;
1.4.5 taking into account the nature of the Processing, assist the Customer:
(a) by taking Appropriate Technical and Organisational Measures and in so far as it is possible, in fulfilling the Customer’s obligations to respond to requests from Data Subjects exercising their rights; and
(b) in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR or equivalent provisions in the Privacy Laws,
and the Customer shall notify the Integrated Management Systems Team by email (email@example.com) of any requests from Data Subjects;
1.4.6 on expiry or termination of the Service Agreement, at the Customer’s option, either delete or return to the Customer all the Customer Personal Data (unless the Processor is required to retain it by law). If the Customer requires the Processor to delete the Customer Personal Data in any other circumstances, the Processor may make a reasonable charge for doing so;
1.4.7 make available to the Customer all information necessary to demonstrate its compliance with its obligations in this agreement and allow the Customer and its auditors or authorised agents to conduct audits and inspections during the term of the Service Agreement (and provide reasonable assistance in connection therewith) for the purpose of verifying that the Processor is Processing Customer Personal Data in accordance with the Processor’s obligations under this agreement, the Service Agreement and applicable Privacy Laws; and
1.4.8 not give access to or transfer any Customer Personal Data to any third party (including any group companies or sub-contractors) without the prior written consent of the Customer. Where the Customer does consent to the Processor engaging a sub-contractor to carry out any part of the Services, the Processor must ensure the reliability and competence of the third party, its employees and agents who may have access to the Customer Personal Data and must include in any contract with the third party, provisions in favour of the Customer which are equivalent to those in this clause and as are required by applicable Privacy Laws. For the avoidance of doubt, where a third party fails to fulfil its obligations under any sub-processing agreement or any applicable Privacy Laws, the Processor will remain fully liable to the Customer for the fulfilment of the Processor’s obligations under this agreement and the Service Agreement.
1.5 The Processor shall notify the Customer immediately if, in the Processor’s opinion, an instruction for the Processing of Customer Personal Data given by the Customer infringes applicable Privacy Laws.
1.6 The Processor shall communicate any claims or requests in respect of the Customer Personal Data without delay to the Customer to enable the Customer to provide details to its customers.
1.7 If the Processor becomes aware of any accidental, unauthorised or unlawful destruction, loss, alteration, or disclosure of, or access to any Customer Personal Data that the Processor Processes when providing the Services (a “Personal Data Breach”), the Processor will:
1.7.1 notify the Customer by email and without undue delay (and in any event within 48 hours). The email shall be sent to the Customer’s primary contact (as shown in the Processor’s customer relationship management (CRM) system) and the Customer is responsible for ensuring this information is kept up to date;
1.7.2 provide the Customer (as soon as possible) with a detailed description of the Data Breach, the type of Customer Personal Data that was the subject of the Data Breach and the identity of each affected person, as soon as such information can be collected or otherwise becomes available (as well as periodic updates to this information and any other information the Customer may reasonably request relating to the Data Breach); and
1.7.3 not release or publish any filing, communication, notice, press release, or report concerning the Data Breach without the Customer’s prior written approval (except where required to do so by law).
1.8 If, pursuant to Article 28(7) or Article 28(8) of the GDPR, the Information Commissioner adopts standard contractual clauses for the matters referred to in Article 28(3) and Article 28(4) of the GDPR and the Customer notifies the Processor that it wishes to incorporate any element of any such standard contractual clauses into the Agreement, the Processor will agree to the changes as reasonably required by the Customer to achieve this.
1.9 The Processor will not Process Customer Personal Data outside the European Economic Area, or a country in respect of a valid adequacy decision has been issued by the European Commission, except with the prior written consent of the Customer. Where the Customer gives its consent, such transfers will be made subject to the terms of the model clauses for the transfer of Personal Data to data processors established in third countries adopted by the European Commission or any replacement or additional form approved by the European Commission or as applicable in the UK.
2.1 In the event of any conflict between the Service Agreement and this agreement, the provisions of this agreement shall prevail to the extent that they are more stringent than those in the Service Agreement. Save as specifically modified and amended in this agreement, the terms and conditions contained in the Service Agreement shall remain in full force and effect and shall govern this agreement.
2.2 This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and interpreted in accordance with English law.
2.3 The Processor and the Customer irrevocably agree that the English courts that have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) that arises out of, or in connection with, this agreement or its subject matter or formation.
|“Subject matter of the Processing:”||The subject matter for Processing results from the Service Agreement between the Data Controller and the Data Processor.|
|“Nature and purpose of the Processing:”||The Processing of the Personal Data in the course of the Processor delivering cloud-based IT services as more particularly described in the Service Agreement.|
|“Type of Personal Data:”||Personal data may include, among other information, personal contact information such as name, address, telephone or mobile number, fax number, email address, and passwords; employment details including employer name, job title and function, employment history, salary and other benefits, job performance and other capabilities, education/qualifications, identification numbers and business contact details; financial details; goods and services provided; unique IDs collected from mobile devices, network carriers or data providers, IP addresses, behaviour and interest data, and any other data the Data Controller may elect to include as part of Processing.|
|“Categories of Data Subject:”||Data Subjects may include the Customer’s representatives and end users, such as employees, job applicants, contractors, collaborators, partners, customers and users of the Customer and any other Data Subjects the Data Controller may elect to include as part of Processing. Data Subjects may also include individuals attempting to communicate or transfer Personal Data to users of the Service.|
Microsoft Customer Agreement (applicable only to Microsoft Cloud Services)
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):
- reverse engineer, decompile, or disassemble any Product, or attempt to do so;
- 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;
- work around any technical limitations in a Product or restrictions in Product documentation;
- separate and run parts of a Product on more than one device;
- upgrade or downgrade parts of a Product at different times;
- transfer parts of a Product separately; or
- 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 under this Agreement 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. Nothing in this Agreement prohibits the transfer of Software to the extent allowed under applicable law if the distribution right has been exhausted.
i. Customer Eligibility. Customer agrees that if it is purchasing academic, government or nonprofit offers, Customer meets the respective eligibility requirements (https://aka.ms/eligiblitydefinition). Microsoft reserves the right to verify eligibility and suspend product use if requirements are not met.
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.
- 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.
- 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, noninfringement, 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 loss of revenue or loss of anticipated savings (in either case whether direct or indirect), indirect, incidental, special, punitive, or consequential damages, loss of use, loss of business information, or interruption of business, however caused or on any theory of liability.
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.
Liability for death or personal injury. In any case where the law of England and Wales applies per the terms of the Agreement or the determination of a court, nothing in this Agreement shall exclude liability for death or personal injury caused by negligence or liability for fraudulent misrepresentation
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.
c. Support and Professional Services. Customer’s Partner will provide details on support services available for Products purchased under this agreement. Support services may be performed by Partner or its designee, which in some cases may be Microsoft. If Customer purchases Professional Services under this agreement, the performance of those Professional Services will be subject to the terms and conditions in the Use Rights.
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. Pricing and payment terms related to orders placed by Customer directly with Microsoft are set by Microsoft, and Customer will pay the amount due as described in this section.
a. Payment method. 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.
b. Invoices. Microsoft may invoice eligible Customers. 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.
c. Invoice Payment terms. 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.
d. 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.
e. 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.
f. 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.
g. 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:
- All licenses granted under this Agreement will terminate immediately except for fully paid, perpetual licenses.
- 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.
- 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:
Microsoft Ireland Operations Limited
One Microsoft Place
South County Business Park
Dublin 18, Ireland
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 Ireland. 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:
- If Microsoft brings the action, the venue will be where Customer has its headquarters.
- 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.
- 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 signup, 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 Ireland Operations Limited.
“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.