- Terms and Conditions of Trading
- Services Terms and Conditions
- Terms of Sales for Cloud Services
- CSP Special Terms and Conditions
Clause 1 – Definitions
- “Business Customer” means a customer who is not a Consumer.
- “Consumer” means an individual acting for purposes which are wholly or mainly outside that individual’s trade, business, craft or profession.
- “365Solutions” means 365Solutions.cloud Limited also referred to as “we” or “us” in these terms and conditions.
- “Catalogue” means the catalogue of products and services offered by 365Solutions.
- “Force Majeure” means any cause affecting the performance by 365Solutions of its obligations arising from acts, events, omissions, happenings or non-happenings beyond its reasonable control including (but not limited to) governmental regulations, fire, flood or any disaster or industrial dispute affecting a third party.
- “Normal Working Hours” means 9 am to 5 pm on a Working Day.
- “Working days” means Monday to Friday, excluding Bank and other Public holidays.
Please note that special terms apply to Consumers, which prevail over the other provisions of these terms and conditions. Customers who are Consumers are referred to Clause 13.
Clause 2 – Orders
- All contracts of sale made by 365Solutions shall be deemed to incorporate these terms and conditions, which shall prevail over any other terms from the party (“the Customer”) with whom 365Solutions is dealing. Cancellation of orders by business to business customers is not accepted as many orders are despatched on the same day the order is placed. Cancellation of orders by Consumers will be accepted in accordance with the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. Nothing in these terms and conditions is intended to impinge upon a Consumer’s statutory or contractual rights to reject faulty goods.
- All orders are subject to acceptance and to availability of the goods ordered: 365Solutions is entitled to refuse any order placed by you.
- You undertake that: (a) all details you provide to us for the purpose of purchasing goods or services offered on our web site are correct and You, the Customer, accepts that full liability for orders placed using a valid user-id and password lies with You and not 365Solutions and (b) the credit or debit card you use to make a purchase from us is your own card or your company’s card, that you are authorised to use it, and that there are sufficient funds or credit facilities to cover the cost of any goods or services you order from us. We reserve the right to obtain validation of your credit or debit card details before providing you with any goods or services. (c) Where the Customer is purchasing Microsoft Service Provider Licensing Agreement (‘SPLA’) products or services, the Customer undertakes to provide timely reporting of its prior months usage by the 10th day of each month. In the event that there is zero usage to report then the Customer agrees and directs that 365Solutions shall submit a zero use report on the Customer’s behalf, in respect of its active SPLA agreements, if no report has been received by the 10th day of the month.
- Please note, 365Solutions may record and/or monitor inbound and outbound calls and electronic traffic for training purposes.
- All software is sold subject to the software publisher’s end user licence agreement (EULA), the terms of which the Customer agrees to adhere to.
Clause 3 – Prices
- Goods and services are invoiced at the price prevailing at time of acceptance of order. VAT is charged at the rate applicable at the time of invoicing or otherwise in accordance with the law.
- 365Solutions reserves the right to modify the prices from time to time.
- Any prices quoted by 365Solutions in local currency may be adjusted by 365Solutions due to fluctuations in the US Dollar exchange rate.
- Due to the transaction costs imposed upon 365Solutions, a surcharge of 2.5% of the total invoice value will be applied to all AMEX transactions with effect from 1st January 2016.
- All amounts payable hereunder are payable in full and remitted back to 365Solutions without offset or deduction for taxes (including withholding tax) and custom duties.
Clause 4 – Delivery, Title and Risk
- 365Solutions shall use reasonable endeavours to despatch goods by the date agreed with the customer, but does not accept liability for failure to deliver within the stated time where this is caused by circumstances beyond our reasonable control, such as delays caused by delivery companies or manufacturer lead times. If a delay is likely, we shall contact the customer and advise of the delay. A customer who is a Consumer shall be entitled to cancel an order when advised of a delay if the revised delivery date is not acceptable.
- In the case of a Business Customer, if 365Solutions is unable to deliver the goods within 30 days of the agreed delivery date, the Customer will, as its sole remedy, be entitled to cancel the order and require any monies paid to 365Solutions in respect of that order to be refunded. In order to cancel, the Customer must send written notice of cancellation to 365Solutions after the above date but before delivery of the goods or notification from 365Solutions that the goods are ready for delivery. This Clause does not apply to Consumers.
- In the case of Business Customers, 365Solutions does not accept liability for shortages or damage to deliveries unless the Customer notifies 365Solutions of the shortage or damage in writing within 48 hours of receipt of the delivery. Consumers should notify shortages or damage within a reasonable period of becoming aware.
- Business Customers are required to be able to accept the goods when they are ready for delivery within Normal Working Hours.
- Delivery is deemed to take place when the goods are delivered to the Customer’s nominated address, whereupon the risks of loss, breakage and all damage and all other risks shall pass to the Customer.
- Title in the goods does not pass to the Customer until payment is received in full by 365Solutions.
- If the Customer cannot accept delivery, 365Solutions may at its option: (a) store and insure the goods at the Customer’s expense and risk or (b) sell the goods at the best price reasonably obtainable and (after deducting reasonable storage insurance and selling costs) pay to the Customer any excess over the sale price or charge the Customer for any shortfall or (c) re-arrange delivery provided that 365Solutions may charge the Customer for the additional delivery costs incurred.
- The Customer may request a Proof of Delivery, provided that this request is made in writing within 3 months of the date of delivery and 365Solutions shall use reasonable endeavours to provide such proof. Thereafter, delivery shall be deemed to have been successfully completed.
- Upon delivery of the goods, the Customer will be asked to sign a Proof of Delivery to acknowledge safe receipt. It is the responsibility of the Customer to ensure that the number of packages delivered corresponds with the number stated on the delivery note. Where a discrepancy occurs or where there is evident damage to the packaging, this should be noted on the Proof of Delivery. 365Solutions shall not be liable for discrepancies or damage evident on delivery where the Customer accepts delivery and signs the Proof of Delivery without amendment.
Clause 5 – Payment
- Payment is due on presentation of invoice unless credit terms have been agreed in writing with 365Solutions. 365Solutions shall invoice Customer: on acceptance of the Customer’s order in respect of software; on shipment in respect of hardware; on completion of professional services or monthly in arrears in respect of recurring services unless otherwise agreed in writing and in advance in respect of maintenance and support services.
- If payment is not made on the due date, 365Solutions will be entitled to charge interest daily on the outstanding balance at the statutory rate and in any event an administration fee in the sum of £50 shall be applied to each overdue invoice.
Clause 6 – Product Specifications
- 365Solutions makes every effort to supply the goods as advertised but reserves the right to supply the goods subject to minor variations in actual dimensions and specifications where these are changed by the manufacturer.
- If 365Solutions cannot supply the goods ordered by the Customer, 365Solutions reserves the right to offer goods of equal or superior quality at no extra cost. In such a case, if the Customer does not wish to accept the alternative goods offered, he or she may cancel the order and require the refund of any money paid to 365Solutions in respect of that order, including carriage charges. This shall be the sole remedy of the Customer in these circumstances.
- Due to the current manufacturing methods of active matrix display panels, a small percentage of sub-pixel anomalies (i.e. a pixel stuck on or off) are accepted by the industry as unavoidable. Accordingly, because the manufacturing yield of perfect active matrix panels is low, displays may have some sub-pixels that are either always on or off. The cost of accepting only theoretically perfect displays would almost double the price of a portable computer using an LCD screen. Please be aware of this before purchasing a TFT screen. 365Solutions has to adhere to the manufacturer’s guidelines stipulating that a given number of pixel failures are deemed acceptable before the TFT screen is accepted for replacement on grounds of fault.
Clause 7 – Trade names and Trade Marks
- Trade names and marks (other than 365Solutions’s) are not always indications of the actual manufacturer of a particular product and may rather be indicative of general use systems and machines associated with such products.
- In the case of component purchases, Customers requiring a particular brand of product should, before placing an order, check with 365Solutions the identity of the manufacturer of component it is proposed to purchase.
Clause 8 – Warranties and Returns
Please note that special terms apply to Consumers who wish to return goods, which prevail over the provisions of this Clause 8. Customers who are Consumers are referred to Clause 13.
- 365Solutions is committed to providing our customers with the highest quality products and service. However, on rare occasions, products may be found to be faulty or defective. In such cases we offer the returns facilities described below.
- Unless otherwise stated in the manufacturer’s documentation, all goods delivered to a UK mainland address carry a 12-month manufacturer’s warranty.
- If you purchase goods in the course of your business, the following provisions of this Clause shall apply. Other than the express provisions set out in these terms and conditions, all other terms and the implied terms or warranties relating to the supply of goods are excluded to the fullest extent permitted by law. Goods are not tested or sold as being fit for any particular application or for use under specific conditions, unless expressly agreed in writing.
- If you purchase services in the course of your business, the following provisions of this Clause shall apply. 365Solutions shall use its skill and expertise to carry out any contracted works (the “Service(s)”) to a standard equivalent to that of a competent computer professional, and shall warrant our work as free from defects, for a period of 30 days after completion. In particular, we cannot be held responsible for any fault or damage not caused by 365Solutions services’ engineers or its contracted agents. In the event of a claim arising relating to the level of skill and judgement applied in the course of providing Services, 365Solutions reserves at its sole discretion the right to appoint an independent expert in the field to appraise the work carried out in the execution of the Service(s). Additionally, 365Solutions cannot be held responsible for equipment installed or configured when the equipment has subsequently been altered or configured by persons other than 365Solutions. Except as set out here, all other express or implied terms or warranties relating to the Services are excluded to the fullest extent permitted by law.
- Subject to the right of Consumers to return goods for refund under The Consumer Contracts Regulations 2013 and The Consumer Rights Act 2015 (see Clause 13), 365Solutions does not sell products on a trial basis. Customers are strongly advised to check suitability and specifications of products before ordering. In some instances, Customers may benefit from special price discounts issued by a manufacturer specifically for their benefit. Such goods are not returnable to the manufacturer and may not be sold to other customers. Accordingly, orders for such goods can not be cancelled and 365Solutions can only accept a return of such Goods where they prove to be defective and the Goods are returned for repair or replacement.
- In the event that 365Solutions, at its discretion (unless the Consumer Contracts Regulations 2013 and The Consumer Rights Act 2015 apply, see Clause 13), agrees to accept the return for credit of unwanted products, the goods must be returned with 365Solutions’s prior written agreement within 14 days of delivery. The goods must be unopened and in perfect re-saleable condition. All goods returned in these circumstances (except where the Consumer Contracts Regulations 2013 and The Consumer Rights Act 2015 apply, see Clause 13) will be subject to a handling fee of 15% of 365Solutions’s sale price for the goods, or £20, whichever is the greater.
- Subject to testing to verify any alleged fault, we will accept the return of defective goods for full refund or replacement at our option, if, but only if, the goods are returned within 14 days of delivery. Consumers who wish to return defective products are not obliged to follow the processes set out below, but are recommended to do so as this helps us to provide a more efficient returns service. (a) 365Solutions’s technical support staff or Customer Support staff, as appropriate, will advise you of which method of delivery to use to return the products. Depending on the nature of the product purchased, we will either arrange a courier collection, or request that you return the product directly to us. If the goods are found on inspection to be defective, the cost of returning the item will be refunded to you. Authorised product returns must be sent to: Customer Returns, 365Solutions.cloud Ltd, Kemp House, 160 City Road, London, United Kingdom, EC1V 2NX. (b) 365Solutions offers a “no charge” collection, repair and delivery service (on the UK mainland only) for hardware which is shown to be faulty provided that the fault is reported within 14 days of delivery. If we have arranged for a courier collection of your product, we are unable to specify the collection time, and it is your responsibility to ensure that someone will be present at the collection address when the courier arrives. (c) All returned goods (except those returned under Clause 13) must be accompanied by 365Solutions’s Returns Authorisation number (‘RA Number’) which can be obtained by contacting Customer Support on +441514330401. Returned goods will not be accepted without an RA Number. Do not write directly on the manufacturer’s packaging. Please write the RA number on the address label provided with the Returns Authorisation and attach it to the returned package. Any defacement of the manufacturer’s packaging or damage caused by inadequate packaging may result in the rejection of the return or an additional restocking fee, at 365Solutions’s sole discretion. (d) 365Solutions cannot accept liability for packages damaged during transit. It is the Customer’s responsibility to wrap the product adequately to prevent damage. (e) Proof of postage is not proof of delivery and you are therefore strongly advised to send your package by recorded delivery, registered post or courier, and to insure the goods for their full value. (f) On receipt of the returned product, we will test it to identify the fault you have notified to us. (g) If following the testing process, the product is found to be in good working order without defect, we will return the product to you, and the carriage costs of this return will be your responsibility. Please note that if you have, in the meantime, required us to provide you with a replacement product before completion of the testing process, you will have to pay for this product also. This Clause does not apply to Consumers returning goods pursuant to Clause 13. (h) Customers who wish to make a warranty claim must comply with the manufacturer’s instructions and warranty procedure. In order to resolve your problem as quickly as possible, we may refer you to the product manufacturer who will deal directly with the return. In these instances, we will provide you with the contact information for the relevant manufacturer. If you are a consumer, this does not affect your statutory rights. (i) This warranty shall not apply if the goods have been worked upon, altered or damaged in any way by the Customer or its employees or agents, or to goods not used in accordance with the manufacturer’s instructions. (j) No software on which seals have been broken can be returned for credit. If any software discs are faulty, the manufacturer will replace them. If you are a consumer this does not affect your statutory rights. Please note Software Licences are non returnable unless the software is materially non-compliant with its specification or the physical media on which it is supplied is defective. (k) Some manufacturers require goods to be returned within 14 days or less in order to secure refund. In such instances the manufacturer’s time limit will apply and therefore 365Solutions will only accept a return within 14 days of purchase or the manufacturer’s time limit, if that limit is less than 14 days. This is clearly indicated on the catalogue page for the particular product. We can only accept the return of a defective product that does not meet the description, if they are returned to us within 14 days. Beyond that period you will be deemed to have accepted the goods and you must therefore check the goods promptly on receipt. Please note that this period is reduced to 7 days for clearance bargains and ‘NCCR’ products as set out in Clause12.
Clause 9 – 365Solutions’s Liability
- In its dealings with Business Customers, 365Solutions shall under no circumstances be liable for any consequential or indirect damage or loss, however caused, including (but not restricted to) loss of business or profits, loss of goodwill, damage to trading relationships loss of data and other financial loss. (“Financial loss” in this sense does not refer to the price you have paid for the goods, which we may be liable to refund to you, in whole or in part, if the goods are faulty or do not comply with their description). 365Solutions’s liability in respect of all other losses shall be limited to the invoiced amount of the relevant order.
- Nothing in this agreement shall limit 365Solutions’s liability for death or personal injury caused by its negligence.
Clause 10 – Health and Safety
365Solutions confirms that the goods it supplies as a distributor do not present a hazard to health and safety (a) when properly used for the purpose for which they are designed; and (b) if the Customer takes reasonable and normal precautions in their use.
Clause 11 – Force Majeure
Where, in spite of its reasonable efforts, 365Solutions is unable to perform an obligation due to circumstances beyond its reasonable control, it shall not be deemed to be in breach of its contract with the Customer.
Clause 12 – Special Rules for Clearance Bargains & Non-Current Catalogue Requests (‘NCCR’) Products
Please not that special terms apply to Consumers who wish to return goods, which prevail over the provisions of this Clause 12. Customers who are Consumers are referred to Clause 13.
- Goods sold as ‘Clearance Bargains’ or “Stock Blowout” are downgraded goods that 365Solutions is able to offer at a discount on the normal catalogue price. Stocks of goods offered as Clearance Bargains are limited and such goods are sold subject to the following special rules. These special rules apply in addition to, and in the event of any conflict override, all of 365Solutions’s other terms and conditions, except those terms and conditions specifically covering Consumers.
- Clearance Bargains are graded according to the condition of the goods, which is described at the point of sale. The length of the guarantee (if any), with the benefit of which the goods are sold, is specified in the description of the relevant grade.
- Clearance Bargains, by their very nature, have limited availability. Upon receipt of an order for Clearance Bargains, 365Solutions will check stock availability. Until stock availability is confirmed to the customer, a contract for sale will not be created and no payment will be debited from the customer.
- All goods sold by 365Solutions as ‘Non-current catalogue requests’ (‘NCCR’) or ‘Specials’ are sold subject to the following special rules that apply in addition to 365Solutions’s other terms and conditions. (a) Products are non-returnable unless we have made an error or the goods are faulty; (b) quoted prices are valid for 14 days only, and (c) quoted prices are not subject to value, cash or volume discounts.
Clause 13 – The Consumer Regulations
- Contracts for the purchase of goods by a Customer not acting in the course of a business (a Consumer) and made over the telephone or through the 365Solutions website, or by mail order, are, with the exception of certain excepted contracts, subject to the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (‘the Consumer Protection (Amendment) Regulations 2014 and the Consumer Rights Act 2015 (“the Regulations”)’).
- If the Regulations apply, Customers may cancel goods purchased from 365Solutions by sending a written notice of cancellation (in the form made available to Consumers by 365Solutions) by post or hand delivery addressed to Customer Services at 365Solutions.cloud Ltd, Kemp House, 160 City Road, London, United Kingdom, EC1V 2NX, or by fax to +441514330401.
- The notice of cancellation must be delivered within fourteen (14) calendar days of the day after date of delivery of the goods.
- The Customer will be responsible for the cost of returning the goods if he or she exercises this right of cancellation under the Regulations. If the Customer does not actually return the goods to 365Solutions, the Customer is under a duty to make the goods available for collection at the Customer’s expense from the address to which they were delivered.
- The Customer is under a duty to retain possession of the goods whilst awaiting return to 365Solutions and to take reasonable care of them during this period. The Customer will be liable for any loss of or damage to the goods if he or she fails to comply with this obligation.
- To be entitled to a refund, the Customer must return all cancelled goods within 14 calendar days from the date of cancellation.
- A refund will be made to the Consumer Customer only after receipt by 365Solutions of the cancelled goods (or evidence is provided to 365Solutions of such return).
- All refunds will be subject to a deduction of an amount for any diminished value in the returned goods.
- Refunds for Goods which are found to be defective shall be provided subject to and in accordance with the Consumer Rights Act 2015.
- Alternative Dispute Resolution details will be provided upon request.
Clause 14 – Errors and Omissions
- 365Solutions makes every effort to ensure that all prices and descriptions quoted in its catalogue and on its website are correct and accurate. However, the frenetic tempo of e-commerce makes it inevitable that mistakes will occasionally occur. In the case of a manifest error or omission, 365Solutions will be entitled to rescind the contract, notwithstanding that it has already accepted the Customer’s order and/or received payment from the Customer. 365Solutions’s liability in that event will be limited to the return of any money the Customer has paid in respect of the order. In the case of a manifest error in relation to price, the Customer will be entitled to purchase the goods by paying the difference between the quoted price and the correct price, as confirmed in writing by 365Solutions after the manifest error has been discovered.
- A ‘manifest error’, as the term is used in sub-paragraph (1) above, means, in relation to an incorrect price, a price quoted in error by 365Solutions which is more than 10% less than the price that would have been quoted had the mistake not been made.
Clause 15 – WEEE Regulations
For all Goods sold in the UK which fall under the WEEE Regulations, the Business Customer shall ensure they follow the Producer (manufacturer) directions for disposal and recycling thereof. 365Solutions shall not be responsible for any costs thereof. Such directions can be found either accompanying the Goods or on the manufacturers’ website. The household user (Consumer) is required to log on to http://www.recycle-more.co.uk. for details of their nearest disposal and recycle operation in the UK and agrees to return all Goods as directed on the site and in accordance with the Regulations. Selling products directly to an end-user in another Member State is known as ‘distance selling’. The WEEE Directive and Member State WEEE Regulations state that 365Solutions is not responsible for WEEE arising from distance sales of business products directly to the business customer in other Member States. Instead, it is the business customers’ responsibility to ensure that products which they buy through distance selling arrangements are managed in an environmentally responsible manner at the end of life and in accordance with the WEEE Regulations. In purchasing such products from 365Solutions the Business Customer agrees to comply with these Regulations and, in so doing, the Business Customer agrees to register with the WEEE Registry in Ireland.
Clause 16 – Export Restrictions
- Customer acknowledges that some goods are controlled for resale or export by the U.S. Department of Commerce, the EU or EU/EFTA member state bodies and / or other applicable restrictions and that such goods may require authorization prior to resale or export. Customer agrees that it will not export, re-export, or otherwise distribute goods, or any direct products thereof, in violation of any dual use restrictions and export control laws or regulations of the U.S., the EU or any EU/EFTA member state or other applicable jurisdiction.
- Please note that (some of) the products supplied by us fall within the scope of the EU regulation 428/2009 and that an export license is required to transfer the goods outside of the EU. In case of export of these products outside of the EU, you will be responsible for obtaining such licences from the relevant authority.
- Customer shall indemnify 365Solutions for any claims, losses, costs, liability and charges, including reasonable legal fees incurred by 365Solutions as a result of Customer’s breach of any export controls or regulations.
- It shall be the Customer’s responsibility to comply with all export and other resale restrictions. Upon request the Customer agrees to reaffirm in writing its compliance and its intentions to comply with applicable export and restricted user and uses regulations.
Clause 17 – Anti-Bribery
- The Customer shall: (a) comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (Relevant Requirements); (b) not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK; (c) have and shall maintain in place throughout the term of this agreement its own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirement, the Relevant Policies and clause 1.1(b), and will enforce them where appropriate; (d) promptly report to the Supplier any request or demand for any undue financial or other advantage of any kind received by the Customer in connection with the performance of this agreement; (e) immediately notify the Supplier if a foreign public official becomes an officer or employee of the Customer or acquires a direct or indirect interest in the Customer (and the Customer warrants that it has no foreign public officials as officers, employees or direct or indirect owners at the date of this agreement)
- Breach of this clause 17 shall be deemed a material breach.
- For the purpose of this clause 17, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively.
Clause 18 – Confidential Information and Data Protection
- Each party shall preserve the confidentiality of all confidential information of the other which it receives, keep such information secure and protected against theft, damage, loss or unauthorised access, and not use such information for any purpose except as contemplated by the Contract. Moreover, each party shall ensure that such obligations are observed by its employees, officers, agents and contractors. These obligations shall survive the variation, renewal or termination of the Contract for a period of three years but shall not apply to information which is already in or subsequently comes into the public domain through no fault of the recipient.
Clause 19 – General
- Nothing in these terms and conditions affects your statutory rights as a Consumer.
- If any provision in this Agreement is held to be invalid or unenforceable, it shall be deemed severed from the Agreement and this shall not affect the validity or enforceability of the remaining provisions.
- Any waiver of a breach of this Agreement must be in writing.
- Any variation of this Agreement must be in writing and signed by a duly authorised 365Solutions official.
- The headings are for convenience only and shall not affect the interpretation of this Agreement.
- Any notices given under this Agreement shall be in writing and sent (a) by first class pre-paid post to the last known address of the party; or (b) by fax to their last known fax number; or (c) by e-mail to the last notified e-mail address of the party.
- These terms and conditions shall be governed by and construed in accordance with the laws of England & Wales and the parties submit to the non-exclusive jurisdiction of the English courts.
- 365Solutions may at its discretion record telephone transactions for staff training and quality control purposes.
- “Client” means the client to whom 365Solutions is providing the Services.
- “365Solutions” means 365SOLUTIONS.CLOUD LIMITED, its subsidiaries and any of its subcontractors.
- “Services” means the services which 365Solutions will perform as described in a Packaged Service Description or a signed Statement of Works.
- “Data” means Client data to the extent that it relates to their requirements for Services or is necessary for the proper provision of the Services to the Client.
- “Normal Working Hours” means 9.00am to 5.00pm on a Working Day.
- “Working Day” means Monday to Friday, excluding Bank or other Public holidays in England.
- “Statement of Works” means the document agreed by the parties which specifies the Services to be provided and the requirements for their provision.
- “Equipment” means the products sold by 365Solutions as set out in the Statement of Works or in a Packaged Service Description.
- “Out of Hours” means time outside of Normal Working Hours.
- “Packaged Service” means a standard pre-defined and repeatable service offering which 365Solutions will perform as described in a Packaged Service Description.
- “Packaged Service Description” means the document setting out the scope of a Packaged Service.
- All contracts for the provision of Services and Equipment by 365Solutions shall be deemed to incorporate these terms and conditions, which shall prevail over any other terms from the Client. Once an order has been received, if the Client wishes to cancel the order, the Client will be liable for the cancellation and postponement charges as set out in these terms and conditions (see “Cancellation/Postponement” below).
- All orders are subject to acceptance and to availability to provide the Services ordered: 365Solutions is entitled to refuse any order placed by the Client.
- The Client undertakes that all details it provides to 365Solutions for the purpose of purchasing Equipment or Services are correct.
- Services and Equipment, together with VAT, are invoiced at the price as set out in the Statement of Works or quote. The Statement of Works and quote pricing are valid for 30 days only from the date of the Statement of Works or quote, unless otherwise stated therein.
- 365Solutions reserves the right to modify the prices from time to time for future orders.
- Any estimates made by 365Solutions for the cost of any Services and Equipment shall be estimates only. Whenever estimated prices are quoted, 365Solutions shall use all reasonable efforts to perform the relevant Services at the estimated price but in no event shall such estimates constitute a fixed price or a not-to-exceed price agreement unless stated otherwise in the Statement of Works or quote.
- Any prices quoted by 365Solutions in a local currency may be adjusted by 365Solutions due to fluctuations in the US Dollar exchange rate.
Delivery, Title and Risk
- 365Solutions shall use reasonable endeavours to despatch Equipment by the date agreed with the Client, but does not accept liability for failure to deliver within the stated time where this is caused by circumstances beyond 365Solutions’s control. This may include, but shall not be limited to such as delays caused by couriers or manufacturer lead times. If it appears a delay may be likely, 365Solutions shall use all reasonable efforts to contact the Client and advise of the delay.
- 365Solutions does not accept liability for shortages or damage to deliveries unless the Client notifies 365Solutions of the shortage or damage in writing within 48 hours of receipt of the delivery.
- Clients are required to be able to accept the Equipment when they are ready for delivery within Normal Working Hours.
- Title in the Equipment does not pass to the Client until payment is received in full by 365Solutions. In any event title in software shall remain with the software vendor.
- If the Client cannot accept delivery, 365Solutions may at its option: (a) store and insure the Equipment at the Client’s expense and risk or (b) sell the Equipment at the best price reasonably obtainable and (after deducting reasonable storage insurance and selling costs) pay to the Client any excess over the sale price or charge the Client for any shortfall or (c) rearrange delivery provided that 365Solutions may charge the Client for the additional delivery costs incurred.
If 365Solutions cannot supply the Equipment ordered by the Client, 365Solutions reserves the right to offer Equipment of equal or superior quality at no extra cost. In such a case, if the Client does not wish to accept the alternative Equipment offered, it may cancel the order and require the refund of any money paid to 365Solutions in respect of that order, including carriage charges. This shall be the sole remedy of the Client in these circumstances.
Pre-requisites & Essential Requirements
- The Client shall provide 365Solutions and its staff sufficient working space as well as such access to the Client’s personnel, files and equipment at the Client’s facility as 365Solutions reasonably deems necessary for the performance of the Services.
- The Client shall:
o Comply with the obligations set out in these terms and conditions;
o Undertake the specific obligations specified in the Statement of Works or Packaged Service Description;
o Ensure that any assumptions or dependencies set out in the Statement of Works or Packaged Service Description are fulfilled or complied with as the case may be.
- If the Client fails to fulfil any of its responsibilities under these terms and conditions in a proper and timely manner and such failure causes a delay in the performance of the Services or results in additional costs to 365Solutions, 365Solutions shall take such action as it deems reasonably prudent and shall provide the Client with a written specification of such delay and the resulting costs. The Client agrees to pay these costs to 365Solutions at the then current standard 365Solutions rates for the Services involved.
- In the event that 365Solutions removes any of the Client’s hardware from its site, unless it is otherwise specifically agreed in writing by the parties at the time, 365Solutions shall be entitled to assume that all data of a sensitive nature and personal data (as defined by the Data Protection Act 1998) has been removed from the tapes or other media and the Client agrees to indemnify 365Solutions from all and any claims and proceedings made or brought by any person in respect of any loss, damage or distress to that person by reason of any wrongful disclosure of any personal data on any such media or tapes.
- Client shall be solely responsible for maintaining back-up copies of all data.
- Unless specified in the Statement of Works or Packaged Service Description, Services do not include any electrical, network or external communications infrastructure cabling specification or installation.
- All such network cabling and associated sockets should be in their correct location and tested by the Client prior to the Equipment installation date.
- All agreed Equipment locations will be final and adequate power sockets must be available.
- No additional work will be undertaken if not included on the Statement of Works or Packaged Service Description. A Request for Change Document may be drawn up by 365Solutions to cover such work but it must be agreed and signed by the Client before such additional work can be carried out.
- Under no circumstances will any Equipment be released or the Client given access to any Equipment, until 365Solutions has finished the Services unless otherwise expressly stated in the Statement of Works or Packaged Service Description.
- Any existing equipment belonging to the Client being utilised or connected, must be fully operational and virus free, and fully accessible to 365Solutions during the installation.
- Delays on site caused by faulty equipment, not supplied by 365Solutions, services not being ready, or access restrictions may incur additional charges at the then current 365Solutions rates.
- 365Solutions shall use reasonable endeavours to provide the Services by the date agreed with the Client, but does not accept liability for failure to deliver within the stated time where this is caused by circumstances beyond 365Solutions’s reasonable control. If a delay is likely, 365Solutions shall contact the Client and advise of the delay.
- Unless otherwise agreed, the arrival time on site is for a 9.00am start on the date booked.
- Installation and completion dates are an estimate and are dependent on the Client complying with its obligations and third parties complying with their obligations. Installation and completion dates are not guaranteed. If, solely due to 365Solutions’s negligence, a component of the Services is unreasonably delayed the Client’s sole remedy is to reject that component.
- Clients are required to give 365Solutions access to provide/install the Services within Normal Working Hours and Out of Hours (where agreed).
- If the Client cannot allow 365Solutions access to provide/install the Services on the agreed date 365Solutions may re-arrange provision/installation of the Services provided that 365Solutions may charge the Client for the additional costs incurred at the then current 365Solutions rates.
- It is the responsibility of the Client to ensure that the Services provided correspond with the Statement of Works or Packaged Service Description.
- Upon completion of the Services, Client will be notified of the same. The Services are deemed to be accepted if the Client has not raised any concerns in writing with 365Solutions within 3 days thereafter.
Any software provided as part of the Services is subject to any accompanying End User License Agreement and the terms thereof. The Client agrees to be bound by the same.
- 365Solutions shall invoice the Client on the payment dates specified in the Statement of Works or in the Packaged Service Description, if none are specified, 365Solutions shall invoice Customer: on acceptance of the Customer’s order in respect of software; on shipment in respect of hardware; on completion of professional services or monthly in arrears in respect of recurring services unless otherwise agreed in writing; and in advance in respect of maintenance and support services. Payment is due on presentation of invoice unless credit terms have been agreed in writing with 365Solutions.
- If payment is not made on the due date, 365Solutions will be entitled to charge interest daily on the outstanding balance at the rate of 3% above Lloyds Bank PLC base lending rate from time to time and in any event an administration fee in the sum of £50 shall be applied to each overdue invoice.
- The provision of any services outside the scope of the Services as set out in the Statement of Works or Packaged Service Description shall be billed to the Client at the then current 365Solutions rates for such services.
- Amounts stated do not include taxes. All additional taxes or duties which 365Solutions shall have to pay or collect in connection with the provision of the Services shall be borne by the Client (except for taxes based on 365Solutions’s income). VAT will be charged at the rate prevailing at the date of invoice.
Once a purchase order has been received for the services defined within the Statement of Works or Packaged Service Description, the Client will be liable for the following cancellation and postponement charges;
- Less than 48 hours in advance of agreed commencement date of Services – 100% of the service order value
- 5 days to 48 hours in advance of agreed commencement date of Services – 75% of the service order value
- 10 days to 6 days in advance of agreed commencement date of Services – 50% of the service order value
- 11 days to 14 days in advance of agreed commencement date of Services – 25% of the service order value
- 14 days or more in advance of agreed commencement date of Services – No Charge
Notwithstanding the above, any built-to-order or non-cancellable hardware or software cannot be cancelled.
- Both 365Solutions and the Client acknowledge that they may receive information and material constituting trade secrets concerning the business, finances, systems, products and documentation of the other (“Confidential Information”). Confidential Information shall be limited to information clearly identified as confidential. Both 365Solutions and the Client agree to protect and preserve the confidentiality of the other’s Confidential Information using the same standard of care as it uses to protect its own Confidential Information of a similar nature, but in no event using a lesser standard than a reasonable standard of care. The parties agree to hold each other’s Confidential Information in confidence while the Services are being performed and for a period of three years thereafter.
- Both 365Solutions and the Client will only divulge Confidential Information to those employees, sub-contractors and agents who have entered into a binding written agreement to maintain confidentiality and for whom knowledge of the Confidential Information is necessary for the proper performance of their duties.
- All service data collected by 365Solutions (including but not limited to asset data bases, call data and system configuration details) shall belong to 365Solutions.
- All Intellectual Property rights in the Services provided by 365Solutions shall belong to 365Solutions.
- 365Solutions warrants that:- (a) it shall use reasonable skill and care to carry out the Services to the generally accepted industry standards and the Services shall be supplied and rendered by appropriately experienced, qualified and trained personnel in a professional and workmanlike manner (b) the Services will be free from defects for a period of 30 days after completion. The Client shall report in detail any deficiencies in the Services to 365Solutions in writing within 3 days of completion of the Services. In the event of a breach of warranty, Client shall allow 365Solutions the opportunity to correct errors or re-perform the Services so as to comply with the warranties set out in sub clauses (a) and (c). (c) the Services, when supplied, shall conform to the description and service level agreements set out in the relevant Statement of Works or Packaged Service Description; (d) the provision of the Services and Clients’ use thereof shall not infringe any Intellectual Property Rights of any third party. This warranty does not apply insofar as it relates to items of hardware, software or other equipment manufactured by third party OEM’s; (e) where the provision of the Services involves the supply or fitting of spare parts, title to such parts shall pass to the Client once the relevant part is fitted and the parts removed shall become the property of 365Solutions, unless otherwise specified in a Statement of Works or Packaged Service Description;
- 365Solutions cannot be held responsible for any fault or damage not caused by 365Solutions. In the event of a claim arising relating to the level of skill and judgement applied in the course of providing Services, 365Solutions reserves at its sole discretion the right to appoint an independent expert in the field to appraise the work carried out in the execution of the Services. Additionally, 365Solutions cannot be held responsible for equipment installed or configured when the equipment has subsequently been altered or configured by persons other than 365Solutions.
- In relation to Equipment, 365Solutions warrants that 365Solutions does not sell products on a trial basis. Clients are strongly advised to check suitability and specifications of Equipment before ordering. In some instances, Clients may benefit from special price discounts issued by a manufacturer specifically for their benefit. Such Equipment is not returnable to the manufacturer and may not be sold to other Clients.
- Unless otherwise stated in the manufacturer’s documentation, all Equipment delivered to a UK mainland address carries a manufacturer’s warranty. Clients who wish to make a warranty claim must comply with the manufacturer’s instructions and warranty procedure.
- No software on which seals have been broken can be returned for credit. If any software discs are faulty, the manufacturer will replace them. Please note Software Licences are non returnable unless the software is materially non-compliant with its specification or the physical media on which it is supplied is defective.
- Except as set out here all warranties and conditions, whether express or implied by statute, common law or otherwise relating to the Services are hereby excluded to the fullest extent permitted by law.
- The Client warrants that it has the authority to provide information and personal data to 365Solutions and authorises 365Solutions to handle the Client’s information and personal data and to transfer it to third parties to the extent required to deliver the Services.
- 365Solutions shall under no circumstances be liable for any consequential or indirect damage or loss, however caused, including (but not restricted to) loss of business or profits in the ordinary course, loss of goodwill, damage to trading relationships loss of data and other financial loss. 365Solutions’s liability in respect of all other losses shall be limited to the invoiced amount of the relevant order.
- Nothing in this agreement shall limit 365Solutions’s liability for death, personal injury fraud or fraudulent misrepresentation.
Where, in spite of its reasonable efforts, 365Solutions is unable to perform an obligation due to circumstances beyond its reasonable control, it shall not be deemed to be in breach of its contract with the Client.
- If either party materially breaches any of its obligations and the breach has not been remedied within 30 days after written notice is given to the defaulting party specifying the breach, the party not in default may by written notice terminate this agreement (including the relevant Statements of Works or Packaged Service Description) as of the date specified in such termination notice.
- Either party may terminate this agreement or the relevant Statement of Works or Packaged Service Description or suspend work if: (a) the other party fails to promptly pay any amount due to be paid under this agreement or Statement of Works or Packaged Service Description; or (b) the other party passes a resolution for winding up (save for the purpose of solvent amalgamation or reconstruction) or suffers a winding-up order being made against it; or (c) a receiver, administrative receiver, administrator or similar officer is appointed over the other party.
Errors and Omissions
- 365Solutions makes every effort to ensure that all prices and descriptions quoted are correct and accurate. In the case of a manifest error or omission, 365Solutions will be entitled to rescind the contract, notwithstanding that it has already accepted the Client’s order and/or received payment from the Client. 365Solutions’s liability in that event will be limited to the return of any money the Client has paid in respect of the order. In the case of a manifest error in relation to price, the Client will be entitled to purchase the Equipment or Services by paying the difference between the quoted price and the correct price, as confirmed in writing by 365Solutions after the manifest error has been discovered.
- A ‘manifest error’, as the term is used in sub-paragraph (1) above, means, in relation to an incorrect price, a price quoted in error by 365Solutions which is more than 10% less than the price that would have been quoted had the mistake not been made.
Compliance with relevant requirements
- The Client shall: (a) comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (Relevant Requirements); (b) not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK; (c) have and shall maintain in place throughout the term of this agreement its own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirement, the Relevant Policies and clause (a), and will enforce them where appropriate; (d) promptly report to 365Solutions any request or demand for any undue financial or other advantage of any kind received by the Client in connection with the performance of this agreement; (e) immediately notify 365Solutions if a foreign public official becomes an officer or employee of the Client or acquires a direct or indirect interest in the Client (and the Client warrants that it has no foreign public officials as officers, employees or direct or indirect owners at the date of this agreement);
- Breach of this clause shall be deemed a material breach.
- For the purpose of this clause, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively.
- If any provision in these terms and conditions is held to be invalid or unenforceable, it shall be deemed severed from the terms and conditions and this shall not affect the validity or enforceability of the remaining provisions.
- Any variation of these terms and conditions must be in writing and signed by a duly authorised 365Solutions official.
- Any notices given under these terms and conditions shall be in writing and sent (a) by first class pre-paid post to the last known address of the party; or (b) by fax to their last known fax number; or (c) by e-mail to the last notified e-mail address of the party.
- These terms and conditions shall be governed by and construed in accordance with the laws of England & Wales and the parties submit to the non-exclusive jurisdiction of the English courts.
- 365Solutions may at its discretion record telephone transactions for staff training and quality control purposes.
1.1. “Chargeable Units” means the metric or other unit of measure for the usage of the Cloud Services upon which Service Fees are calculated and charged. For illustration purposes and not by way of limiting this definition, a Chargeable Unit may be a User, license, seat, device, mailbox, capacity, or bandwidth, as applicable to the Cloud Services (such applicability will be determined by 365Solutions or Vendor).
1.2. “Cloud Services” means the cloud computing services ordered by Client through 365Solutions, and any applicable Third-Party Software or Vendor branded services provided or performed by the Vendor.
1.3. “365Solutions Additional Services” means any technical, consulting or managed professional services performed by 365Solutions and related to the Cloud Services as may be set forth in a relevant Statement of Work (“Statement of Work” or “SOW”), and provided by 365Solutions in accordance with the applicable terms and conditions of sale for services as provided by 365Solutions from time to time.
1.4. “Minimum Usage Commitment” means the minimum Usage Commitment in additional terms for Cloud Services.
1.5. “Personal Data” means as defined by the Directive 95/46/EC or any EU legal instrument which shall supersede it.
1.6. “Registered Usage” means the number or quantity of Chargeable Units provisioned online by Client directly or through 365Solutions at the direction of Client as calculated on a prorated basis by Vendor.
1.7. “Service Fees” means the total fees for services purchased by Client under this Agreement, including without limitation, Subscription Fees, as described in this Agreement.
1.8. “Service Level Agreement” or “SLAs” means the service levels or service level agreements pertaining to, among other things, the nature and quality of the Cloud Services. Any SLAs shall be described in the Special Terms.
1.9. “Vendor” means the entity that provides the Cloud Services, as described in the Vendor Terms and offered by 365Solutions under this Agreement, including Third Party Software licensors (if any).
1.10. “Vendor Facilities” means any infrastructure of Vendor or its licensors in connection with the provision of the Cloud Services, including, without limitation, software programs, hardware, data centers, networks, systems, websites, technology, or other facilities or resources provided or operated by, or on behalf of, Vendor or its licensors in connection with the provision of the Cloud Services.
1.12. “Special Terms Addendum” or “Special Terms” means any terms and conditions that are specific to the particular Cloud Services and added as an addendum to the Cloud Terms of Sale or provided to Client at the time of purchase. To the extent such terms differ or conflict with these Cloud Terms of Sale, the Special Terms shall take precedence.
1.13. “Statement of Work” or “SOW” means a mutually agreed upon written statement of work describing the 365Solutions Offering performed by 365Solutions for Client.
1.14. “Subscription Fees” means recurring fees for Cloud Services during the applicable Subscription Period based on the actual Chargeable Units and Cloud Services ordered by Client.
1.15. “Subscription Period” means a monthly, yearly or other mutually-agreed-upon billing period, as indicated online in 365Solutions’s cloud management portal or as mаy be set forth in Schedule 1.
1.16. “Term” means collectively, the “Initial Term” and, if applicable, any “Renewal Term,” as defined in subsection 4.1 (Term of Agreement).
1.17. “Territory” means countries located in EU/EFTA unless otherwise provided in the Special Terms.
1.18. “Third-Party Software” means any software that is owned by one or more third parties, is licensed by Vendor from such third parties, is not included in the software developed or published by Vendor but which may be embedded software subsequently sublicensed by Vendor to Client, and is necessary for Client to access and/or use the Cloud Services.
1.19. “Export Laws” means applicable laws, regulations, rules, ordinances, governmental orders, administrative acts, and the like relating to export.
1.20. “Usage Commitment” means the greater of: (i) the Registered Usage selected by Client, or (ii) the then-current Registered Usage as reported to 365Solutions by Vendor and upon which 365Solutions invoices Client for the applicable Usage and Subscription Period during the applicable Term.
- SCOPE OF SERVICES
365Solutions is reselling and/or soliciting orders on behalf of the Vendors for Cloud Services performed or otherwise provided by Vendor or its affiliates, subcontracts, successors or assignees. Unless 365Solutions Services are specifically being purchased by Client either individually or bundled with a Cloud Service, 365Solutions is not responsible for any third party services related to the implementation or configuration of Cloud Services.
2.1. Sale of Cloud Services
(a) Description of Services; Order Placement. Description of Cloud Services may be amended or otherwise updated unilaterally by Vendor from time to time and without notice. Any order for such services by Client shall incorporate the terms and conditions of this Agreement. Any pre-printed, different or additional terms and conditions sent by Client to 365Solutions are expressly rejected and will not be binding upon 365Solutions.
(b) IP Rights. Vendor or its licensors, subcontractors, or suppliers will retain all rights, title, and interests in and to the Cloud Services and Vendor Facilities as well as any derivative works thereof, including, without limitation, any intellectual property rights in and to the Cloud Services and the Vendor Facilities. Client shall not infringe, misappropriate, or otherwise violate such rights, title, or interests. Client’s access to Cloud Services shall be subject to the terms and conditions of the Order, as well as the Vendor Terms.
(c) Use of Cloud Services. Client’s access to, and use of, the Cloud Services shall be subject to the terms and conditions of this Agreement, including the Vendor Terms. Client shall be solely responsible for periodically reviewing designated URLs or successor URLs of the Vendor to understand and perform in accordance with such amended or otherwise updated versions of Vendor Terms. Client assumes all risks, costs, and expenses in connection with the use of the Cloud Services.
- Territory. Client is purchasing Cloud Services for use within the Territory, unless otherwise agreed between the parties.
- Vendor Facilities. Client acknowledges that the Cloud Services may be provided by Vendor from Vendor Facilities anywhere in the world and Vendor may, at any time, transfer the provision of the Cloud Services from one installation to another. There is no guarantee that any such installation, or part thereof, is dedicated to the sole use of Client. Transfer, transmission, distribution, posting, uploading, storage, downloading, and the retrieval of any information, software, technology, or other technical data via the Cloud Services may be subject Export Laws, privacy, or data security laws.
- High Risk. Cloud Services sold by 365Solutions are not designed for use in life support, life sustaining, nuclear or other applications in which failure could reasonably be expected to result in personal injury, loss of life or catastrophic property damage.
- Business Purpose. Client will use the Cloud Services for its own use and for legitimate business purposes only, and Client shall not resell, sub-lease, sub-rent, or sub-license the Cloud Services to any third party.
(d) 365Solutions Additional Services. This Agreement may incorporate one or more SOWs that describe certain technical, consulting or managed professional services performed by 365Solutions. Each such SOW or description of services shall be effective and become part of this Agreement by reference when signed or accepted by Client. Unless otherwise agreed, if there is a conflict between the terms and conditions of this Agreement and those of any SOW, then the terms and conditions of SOW shall govern with respect to the underlying services.
2.2. Client’s Responsibilities. In addition to other duties of Client set forth in this Agreement, Client is responsible for the following:
(a) Client will provide a project contact with decision-making authority to support the scope of Cloud Services described in the Vendor Terms;
(b) Client will provide all necessary hardware, software, and tools at Client’s site required for the implementation of Cloud Services at Client’s site prior to the provisioning of the Cloud Services, and Client is responsible for all licensing requirements in connection with such hardware, software, and tools;
(c) Unless otherwise agreed between the parties, Client is responsible for any data migration of existing data;
(d) Client shall provide information reasonably requested by 365Solutions or Vendor, including, without limitation, any technical and related information, and any consents that Vendor may need from Client necessary for Vendor to enable the Cloud Services and shall otherwise undertake the responsibilities applicable to Client set forth in the Vendor Terms;
(e) Client agrees to cooperate with 365Solutions in good faith by taking such further actions and/or executing such further agreements or instruments as may be reasonably required under the circumstances by 365Solutions or Vendor; and
(f) Client shall comply with all relevant legislation and conform to the protocols and industry standards applicable to the use of the internet.
- SERVICE FEES AND INVOICING
3.1. Service Fees. Subject to subsection paragraph (b) below (Changes in Usage), as consideration for the services purchased by Client under this Agreement, Client shall pay 365Solutions the Service Fees, which will be based upon the applicable pricing rate for the Cloud Services and the Usage Commitment, and/or for any 365Solutions Additional Services. 365Solutions reserves the right to make adjustments to pricing for reasons including, but not limited to, changing market conditions, discontinuation, unavailability, Vendor price changes based on general partner/distributor program changes or errors in advertisements.
(a) Pricing Rates. For the Initial Term, the pricing rates for Cloud Services ordered under this Agreement shall be set forth online by 365Solutions in its cloud management portal, which rates will be based upon the Registered Usage and Cloud Services described therein. For any Renewal Term, the pricing rates shall be 365Solutions’s then-current rates for such Cloud Services based upon the applicable Usage Commitment at commencement of the then-current Renewal Term, unless otherwise agreed upon by 365Solutions in writing.
(b) Changes in Usage. Upon execution of an order, the parties agree that all future changes in quantities used, enabled or consumed for existing purchased Cloud Services will be invoiced on an actual use basis. If new Cloud Services or features are procured, Client will need to execute a new order or a Project Change Request Form with 365Solutions for any such net-new Cloud Services. Fees payable by Client for the then-current Usage Commitment shall be based upon the applicable online pricing rates set by 365Solutions in its cloud management portal.
3.2. Invoicing. Charges for Cloud Services will accrue on the date the Cloud Services are activated or made available by Vendor to Client and are non-refundable, except as expressly provided in this Agreement. 365Solutions will invoice Client the Service Fees on a monthly basis. Service Fees include: (a) Subscription Fees; and (b) non-recurring set up and other one-off charges (including, but not limited to, domain set-up charges and/or 365Solutions Additional Services), if any, for a calendar month. 365Solutions Additional Services will be invoiced in accordance with the applicable mutually agreed upon Statement of Work between the parties.
3.3. Payment Terms. Client must pay all undisputed invoices in full within 30 days of the invoice date. All payment terms are measured from the date of invoice. Each invoice shall be paid in the currency specified on such invoice. If an invoice is the subject of a bona fide dispute, Client shall notify 365Solutions in writing, including a description of the nature of such dispute in sufficient detail, within such 30 day period. Failure to comply with the requirements of this provision shall preclude the Client’s right to dispute such invoice. 365Solutions reserves the right to charge an annual interest rate of 4% over the base lending rate of Lloyds bank for any undisputed past due Service Fees. Client is responsible for all costs of collection, including reasonable attorneys’ fees, for any payment default on undisputed Service Fees.
3.4. Taxes. Fees or prices exclude taxes of any kind and any travel expenses that may be incurred by 365Solutions in connection with this Agreement. The Client shall pay 365Solutions’s invoices in full without off-set or withholding of taxes. If any such deduction or withholding is required by law, the Client shall pay to 365Solutions such additional amount so that the net amount 365Solutions receives is equal to the full amount invoiced and 365Solutions would have received had such deduction or withholding not been made.
3.5. Service Credits. In the event that a credit for Cloud Services is due to Client in accordance with the Vendor Terms, the parties agree that any credit due will be credited by 365Solutions to Client’s account within a reasonable time after 365Solutions’s receipt the corresponding credit amount from Vendor following Vendor’s verification of Client’s claim. Client expressly acknowledges and agrees that 365Solutions is not obligated to provide any Service credit if Vendor is unable to verify, or otherwise rejects, Client’s claim for any reason or if Vendor fails to provide the Service credit for any reason even if it has verified Client’s claim. ANY CREDITS OR TERMINATION RIGHTS DESCRIBED UNDER VENDOR’S SLAs SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF CLIENT IN CONNECTION WITH ANY UNAVAILABILITY OF THE SERVICES OR BREACH OF SUCH SLAs.
4.1. Term of Agreement.
(a) Initial Term. Unless earlier terminated in accordance with this Section (Term; Suspension; Termination), the initial term of Client’s subscription of the Cloud Services shall be as indicated in Special Terms, commencing on the later of (i) the Effective Date, or (ii) the date the Cloud Services are made available to Client by the Vendor as notified by the Vendor to 365Solutions, (the “Initial Term”).
(b) Renewal Term. Upon expiration of the Initial Term, Client’s Cloud Services subscription will automatically renew for additional, successive Subscription Periods as indicated in Special Terms (each a “Renewal Term”), unless Client or 365Solutions provides notice of non-renewal at least 60 days prior to the end of the Initial Term or the Renewal Term then in effect.
CLIENT EXPRESSLY ACKNOWLEDGES AND AGREES THAT CLIENT’S CLOUD SERVICES SUBSCRIPTION WILL BE SUBJECT TO: (i) THIS AGREEMENT (ii) THE VENDOR TERMS, AND (iii) OTHER SERVICE-RELATED TERMS, EACH AS THEY EXIST ON THE FIRST DAY OF ANY RENEWAL TERM. SUCH TERMS MAY BE DIFFERENT THAN THOSE IN EFFECT DURING THE IMMEDIATELY PRECEDING SUBSCRIPTION PERIOD AND MAY BE FURTHER AMENDED DURING THE RENEWAL TERM BY 365SOLUTIONS AND/OR THE VENDOR, AS PROVIDED IN THE THEN-CURRENT TERMS. CLIENT IS SOLELY RESPONSIBLE FOR PERIODICALLY REVIEWING THE RELEVANT TERMS TO ENSURE THAT CLIENT UNDERSTANDS AND PERFORMS IN ACCORDANCE WITH THE TERMS AND CONDITIONS THEN IN EFFECT.
4.2. 365Solutions/Vendor Suspension/Termination Rights.
(a) Client’s Breach. Without prejudice to any other rights to which it may be entitled, 365Solutions may terminate this Agreement, in whole or in part, with immediate effect, if Client materially breaches this Agreement and fails to remedy that breach within 30 days of receipt of 365Solutions’s written notice of such breach and its intent to terminate the Agreement unless the breach is remedied. A material breach of this Agreement, includes but is not limited to: (i) Client’s failure to pay Service Fees when due, (ii) rejection of payment for any reason of any Service Fees using a credit card provided by Client, (iii) Client’s breach of subsection 5.3 (Compliance With Laws), or (iv) Client’s use of the Cloud Services in violation of the terms and conditions of this Agreement, Special Terms or Vendor Terms (“Use Issues”). Notwithstanding anything to the contrary in this paragraph, 365Solutions is not required to provide Client the aforementioned notice and cure period and may immediately terminate this Agreement, in whole or in part, if Vendor does not provide corresponding adequate notice and cure period to 365Solutions in connection with Vendor’s termination of Cloud Services due to Use Issues. In addition, 365Solutions may terminate this Agreement effective upon notice, if Client: (i) becomes insolvent; (ii) enters bankruptcy, reorganization, or other similar proceedings under applicable law, whether voluntary or involuntary; (iii) admits in writing its inability to pay debts; or (iv) makes or attempts to make an assignment for the benefit of creditors.
(b) Suspension; Fee Accrual/Reinstatement. If any Cloud Services, or part thereof, are withheld or suspended by Vendor as a result of Use Issues, Service Fees will continue to accrue and will be based upon the Usage Commitment. Any such terminations or suspensions shall be in accordance with the notice requirements of the relevant Vendor Terms. Client shall continue to be responsible for payment of Service Fees in accordance with this Agreement. If Vendor charges 365Solutions for any remedial work that is necessary as a direct result of any Use Issues, 365Solutions shall charge Client. In addition, any reconnection of Cloud Services following disconnection or suspension pursuant to this subsection may require a reasonable reinstatement fee. Client will pay 365Solutions for such charges within 30 days of 365Solutions’s invoice date. Furthermore, if Vendor suspends Cloud Services due to Client’s material breach because of Use Issues and requires an increase in the fees payable by 365Solutions to Services Provider as a prerequisite to resume making the Cloud Services available for Client, Client agrees to pay such additional Service Fees in accordance with this Agreement if invoiced by 365Solutions. 365Solutions shall not be liable to Client if Vendor withholds provision of Cloud Services or suspends or terminates Client’s access to, or use of, Cloud Services, or any part thereof, as provided in this Section. In addition, any such action by Vendor does not give Client the right to terminate this Agreement.
4.3. Client Termination Rights.
(a) Client Termination under the Agreement. This Agreement may not be terminated or suspended by Client for convenience. Client has the right to terminate this Agreement only if 365Solutions materially breaches this Agreement and fails to remedy that breach within 30 days after receipt of Client’s written notice of such breach and Client’s intent to terminate this Agreement unless the breach is remedied. Client may terminate this Agreement effective upon notice, if 365Solutions: (i) becomes insolvent; (ii) enters bankruptcy, reorganization, or other similar proceedings under applicable law, whether voluntary or involuntary; (iii) admits in writing its inability to pay debts; or (iv) makes or attempts to make an assignment for the benefit of creditors.
(b) Client Termination under Vendor Terms. Client may have certain rights to terminate some Cloud Services (but not the entire Agreement) only as expressly provided under the Vendor Terms; provided, however, that Client must first be in compliance with all termination-related processes and other applicable requirements set forth in the Vendor Terms. Client must provide 365Solutions prior written notice of Client’s election to exercise such termination rights, and any such election must be exercised in accordance with the applicable Vendor Terms.
4.4. 365Solutions/Vendor Agreement Termination. This Agreement will immediately terminate, without any liability for such termination if: 1) the 365Solutions/Vendor Agreement terminates for any reason or otherwise expires; or 2) Vendor refuses to provide such Cloud Services to Client for any reason.
4.5. Effect of Termination.
(a) Payment upon Breach. If all or part of this Agreement is terminated by 365Solutions as provided in the subsection paragraph titled “Client’s Breach,” Client shall pay 365Solutions the Subscription Fees that would be due for the remainder of the unexpired Subscription Period and any Service Fees for Cloud Services performed prior to termination. All such fees shall become immediately due and payable upon any such termination.
(b) Provision of Cloud Services after Client’s Termination. Notwithstanding anything to the contrary in this Section (Term; Suspension; Termination), if despite Client’s election of termination, or any notice to terminate Cloud Services, or any part thereof, Client: (i) requests the continued delivery of the Cloud Services (or part thereof) after the intended termination effective date indicated in Client’s written notice, or (ii) otherwise continues to have access to and use such Cloud Services after the intended termination date, then, even if such request or access and use is temporary, to the extent Vendor invoices 365Solutions for the provision of such Cloud Services to Client, Client shall pay 365Solutions the Service Fees. The terms of this Agreement shall govern the provision of any Cloud Services until terminated by Vendor.
(c) Payment upon Termination. Service Fees to be paid by Client to 365Solutions as provided in subsection paragraphs 4.5(a) and (b) shall continue to be based upon the Usage Commitment in the Term immediately preceding termination, or as otherwise provided in Schedule 1 hereto. Except for termination for breach as indicated in subsection paragraph (a) above, upon termination or expiration of Cloud Services, payment shall be made in accordance with the terms of payment provided under this Agreement. Termination or expiration of this Agreement shall not relieve either party of its rights or obligations incurred prior to termination or expiration that by their nature or term survive, including any and all payment due under this Agreement.
- ADDITIONAL TERMS AND CONDITIONS:
5.1. Authority. Each party represents and warrants that it has the full power and authority to enter into this Agreement, and that it possesses all other rights necessary for the performance of its obligations under this Agreement, without violating any right of any other party. Client further represents and warrants that Client is purchasing Cloud Services in the Territory for use within the Territory, unless otherwise specifically and mutually agreed between the parties in writing.
(a) To purchase Cloud Services or apply for credit in connection with such purchase, Client must establish an account with 365Solutions and obtain a login or user name, account number, password, and/or other access-related information (collectively, “Account-Access Information”). Client agrees to promptly: (i) provide certain accurate, current and complete information as reasonably required by 365Solutions to process Client’s order or credit application, or by Vendor to provision the Cloud Services or provide technical support; and (ii) maintain and update such information to keep it accurate, current and complete, including but not limited to, changes to Client’s billing address or e-mail address, or the names of its authorized personnel. Client authorizes 365Solutions to process any and all account transactions initiated through the use of Client’s Account-Access Information.
(b) Client agrees to be responsible for all activities, changes, and obligations incurred through use of Client’s Account-Access Information, and for maintaining the confidentiality of Client’s Account-Access Information. 365Solutions may assume, without inquiry, that any person in possession of Client’s Account-Access Information has authority to access Client’s account or the Cloud Services, or modify Client’s account, including purchasing additional or different Cloud Services or increasing the Registered Usage pertaining to Client’s purchase under this Agreement. Client must immediately notify 365Solutions in writing of any unauthorized use of Client’s Account-Access Information, and Client agrees to be responsible for any unauthorized use, charges made and/or liabilities incurred through Client’s Account-Access Information. 365Solutions shall not be liable for any loss, damage, cost, or expenses incurred by Client resulting from 365Solutions’s reliance on any document, instruction, notice, or communication reasonably believed by 365Solutions to be genuine and originating from an authorized representative of Client.
5.3. Compliance with Laws. Client shall comply with, and agrees that it is its responsibility to adhere to, all applicable laws in connection with Client’s use of the Cloud Services, including without limitation, Export Laws and any territorial restrictions under this Agreement, or any such restrictions imposed by Vendor. In addition, Client expressly acknowledges and agrees that one or more of the Vendor Facilities may be located outside the EEA and that the use of the Cloud Services, including, without limitation, the transfer, transmission, distribution, posting, uploading, storage, downloading, and the retrieval of any information, software, technology, or other technical data via the Cloud Services may be subject to the Export Laws, import, privacy, or data security laws. Client represents and warrants that it is not on any blocked, debarred, or denied entity or party list, any debarred or denied persons list, or any other prohibited or restricted person or entity list under the Export Laws, and Client is not a national or resident of, located in, or under the control of, any restricted country or any country with which the U.S. or the EU has embargoed trade under the Export Laws or other applicable law. Client shall not transfer, transmit, distribute, upload, store, or post via, or download or retrieve from, the Cloud Services any information, software, technology, or other technical data in violation of applicable law.
(a) Required. Except as otherwise provided herein, any notice required to be given under this Agreement must be in writing and sent to the addresses set forth above (or to other persons or addresses as either party may designate in writing to the other subsequent to the execution of this Agreement). Such notice is considered received: (i) when personally delivered; (ii) one business day after having been sent by overnight mail via a professional carrier; or (iii) when sent by fax or electronic mail, receipt confirmed by the applicable method of transmittal; or (iv) if sent by certified or registered mail, within 5 business days of deposit in the mail. Legal notices to 365Solutions must be sent with a separate copy addressed to the address stated on 365Solutions’s website from which Cloud Services are purchased for the attention of the “Legal Department”.
5.6. Assignments. Client shall have no right to assign this Agreement, nor any of its rights, obligations, or privileges (by operation of law or otherwise) without the prior written consent of 365Solutions. 365Solutions may, without having to obtain Client’s consent, assign this Agreement, and its rights, obligations, and privileges hereunder to any Affiliate or corporate successor. Any attempted assignment, delegation or assumption not in accordance with this subsection shall be void and of no force or effect. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and permitted assigns of the parties.
5.7. Governing Law. This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with the laws of the Country where the 365Solutions entity from which Cloud Services are purchased is based.
5.8. Warranty Disclaimer. 365SOLUTIONS PROVIDES NO WARRANTY IN CONNECTION WITH THE SERVICES, ANY TECHNICAL SUPPORT PROVIDED BY VENDOR IN CONNECTION WITH THE SERVICES, OR ANY VENDOR FACILITIES. SERVICES AND ANY TECHNICAL SUPPORT PROVIDED BY VENDOR ARE SOLD OR OTHERWISE PROVIDED TO CLIENT “AS IS,” WITHOUT WARRANTY OF ANY KIND FROM 365SOLUTIONS.
365SOLUTIONS EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, IN RELATION TO SERVICES AND TECHNICAL SUPPORT PROVIDED BY VENDOR, OR ANY VENDOR FACILITIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE OR TRADE PRATICE. WITHOUT LIMITING THE FOREGOING, 365SOLUTIONS DISCLAIMS ANY WARRANTY THAT (I) THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE; (II) ANY DEFECTS WILL BE CORRECTED; (III) THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS; (IV) THE SERVICES OR ANY TECHNICAL SUPPORT PROVIDED BY VENDOR IN CONNECTION WITH THE SERVICES WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS; (V) ANY RESULTS OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; AND (VI) ANY VENDOR FACILITIES WILL BE DEDICATED TO PROVIDING THE SERVICES SOLELY FOR CLIENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CLIENT FROM 365SOLUTIONS (INCLUDING, WITHOUT LIMITATION, ITS SALES OR TECHNICAL SUPPORT REPRESENTATIVES), OR THROUGH OR FROM THE VENDOR’S WEBSITE, WILL CREATE ANY WARRANTY BY 365SOLUTIONS NOT EXPRESSLY STATED IN THIS AGREEMENT.
5.9. Confidentiality. “Confidential Information” means any non-public information, including but not limited to, intellectual property, pricing, customer lists, personally identifiable health information, financial information, access codes provided in connection with the Cloud Services, sales and marketing plans of the other party, its affiliates, or its customers, Vendors, contractors, or licensors (collectively, “Vendors”). Each party (“Receiving Party”) will maintain in confidence and safeguard any Confidential Information disclosed to it by the other party (“Disclosing Party”). Each party must use the same degree of care in protecting and preserving Confidential Information as it uses to protect its own similar confidential and proprietary information, but shall never use less than what would be a reasonable standard of care. If Client is a federal or state governmental entity, then Client agrees on behalf of the other agencies of the federal or state government who may benefit from the Cloud Services that such agencies shall be subject to the same obligations of confidentiality as set forth in these Terms of Sale. Each party agrees to use any Confidential Information only for the purpose of conducting business with each other in the manner contemplated by the order and restrict disclosure to only those personnel who have a need to know. Each party will bind such personnel to obligations of confidentiality to the same extent it is bound by this Agreement. The obligations under this paragraph do not apply to information that: (i) is or becomes generally known or in the public domain through no act or omission of the other party; (ii) was lawfully in a party’s possession without restriction as to use or disclosure before its receipt from the other party; (iii) is received from, or was made available to, a third party without any obligation of confidentiality; (iv) was independently developed by the party; (v) is otherwise permitted to be disclosed under the order; or (vi) is disclosed with the prior written consent of the disclosing party. Client agrees 365Solutions may disclose Client’s Confidential Information to Vendor as reasonably necessary for, or requested by, Vendor to provide the Cloud Services or any technical support related to the Cloud Services. If a Receiving Party is required to provide Confidential Information to any court, government agency or party pursuant to a written court order, subpoena, regulation or process of law, the recipient must first promptly notify the disclosing party so that the Disclosing Party may have a reasonable opportunity to seek a protective order or other appropriate remedy from the proper authority. Each party agrees that in the event of a breach or threatened breach of any provisions within this paragraph, the Disclosing Party is entitled to seek specific performance and injunctive or other equitable relief as a remedy for such breach or anticipated breach. Any such relief is in addition to, and not in lieu of any other remedies available, including, without limitation, monetary damages.
5.10. Client Indemnification. Client shall defend and indemnify 365Solutions for, from, and against any losses, damages, penalties, costs, and expenses (including reasonable attorney fees) incurred by 365Solutions in connection with any claims or actions by Vendor or other third parties arising out of or resulting from: (i) Client’s use of the Cloud Services other than as permitted hereunder (excluding claims that the Cloud Services, as provided by Vendor, infringe third party intellectual property rights), and/or (ii) Client’s failure to comply with applicable law.
5.11. Limitation of Liability.
(a) Direct Damages Limitation. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO THE SUBSECTION PARAGRAPH (b) BELOW TITLED “INDIRECT/SPECIAL DAMAGES,” 365SOLUTIONS’S MAXIMUM LIABILITY TO CLIENT FOR DAMAGES ARISING IN ANY WAY OUT OF THIS AGREEMENT IS LIMITED TO PROVEN DIRECT DAMAGES, NOT TO EXCEED IN THE AGGREGATE, IN ANY 12 MONTH PERIOD, AN AMOUNT EQUAL TO CLIENT’S NET PAYMENTS FOR THE SERVICES PURCHASED IN THE 6 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TO THE EXTENT 365SOLUTIONS HAS ANY OBLIGATION UNDER THE SLAs, 365SOLUTIONS’S MAXIMUM LIABILITY IN ANY CALENDAR MONTH SHALL BE NO MORE THAN ONE HUNDRED PERCENT (100%) OF THE MONTHLY CHARGE PAYABLE BY THE CLIENT TO 365SOLUTIONS FOR THE AFFECTED SERVICE(S) FOR SUCH MONTH.
(b) Indirect/Special Damages. EXCEPT FOR FRAUD AND CLIENT’S OBLIGATIONS UNDER THE SUBSECTION TITLED “CLIENT INDEMNIFICATION,” NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE), ARISING IN ANY WAY OUT OF THIS AGREEMENT, ANY OF THE DOCUMENTS REFERENCED IN THIS AGREEMENT, OR ANY ADDENDA OR AMENDMENT HERETO, OR ARISING OUT OF THE USE OF OR INABILITY TO USE ANY SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(c) BOTH PARTIES UNDERSTAND AND AGREE THAT THE LIMITATIONS OF LIABILITIES FOR EACH PARTY SET FORTH IN THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, ARE REASONABLE AND THEY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT SUCH LIMITATIONS.
5.12. Miscellaneous. Except as specifically provided herein, this Agreement is not intended to and does not create any claims, rights, remedies, or benefits exercisable by any third party. Any subsequent additions, deletions or modifications to this Agreement are not binding unless agreed upon in writing by authorized representatives of both parties. If any part of this Agreement is, for any reason, found to be invalid, illegal or unenforceable, all other parts of this Agreement will remain in effect. A delay or failure to exercise or partially exercise any right under this Agreement does not operate as a waiver, nor will it preclude future exercise of that right or permit, or sanction any subsequent breach of any term or condition. 365Solutions may subcontract any or all of its obligations hereunder to one or more qualified parties without Client’s prior consent, unless otherwise restricted in any SOW. Except for the obligation to make timely payments, neither party will be liable for any failure or delay in the performance of this Agreement due to circumstances beyond its reasonable control, including but not limited to acts of nature, acts of government, national emergencies, acts of terrorism, transportation delays, labor disturbances, work stoppages or loss of electrical power; loss of telecommunications or similar infrastructure. The headings in this Agreement are for reference purposes only and may not be construed as being part of this Agreement. This Agreement may be executed in one or more counterparts, each of which will be considered an original, but which altogether constitute the same instrument. Agreement to, and acceptance of, this Agreement may be made by facsimile signature or in an electronic form showing the signatures of both parties.
5.13. Updates. 365Solutions reserves the right at any time to modify this Agreement from time to time. This Agreement, as amended, will be effective upon placement of new orders for Cloud Services or upon renewal of existing subscriptions for Cloud Services. 365Solutions shall use reasonable business endeavors to inform you of material changes to the terms and conditions of this Agreement affecting the delivery of the Cloud Services.
5.13. Conflicting Terms. Except as otherwise provided under this Agreement, in the event of a conflict between the terms and conditions of this Agreement and Vendor Terms, as they apply to the relationship between Client and 365Solutions, the terms and conditions of this Agreement shall govern.
5.14 Entire Agreement. This Agreement, including any Special Terms Addenda applicable to Cloud Services is the entire agreement between the parties relating to the provision of Cloud Services and any 365Solutions Additional Services to Client under this Agreement and unless otherwise indicated in this Agreement, supersedes any prior representations or agreements, oral or written, and all other communications between the parties relating to the subject matter of this Agreement.
If you are an individual accepting these Microsoft CSP Special Terms on behalf of an entity, you represent that (i) you have the legal authority to accept these CSP Special Terms on that entity’s behalf, (ii) you have read and understand the terms of these CSP Special Terms and (iii) you agree, on behalf of the entity that you represent, to the terms of these CSP Special Terms.
“Affiliate” means any legal entity that owns, is owned by, or that is under common ownership with Company or Client. Ownership means control of more than a 50% interest.
“Business Day” means any day which is not a Saturday, Sunday or public holiday in the Territory.
“Client” means the legal entity ordering Products for use as an end user.
“Microsoft Cloud Agreement” means the agreement that Microsoft uses to convey or provide Products to Clients, current versions of which are attached in Schedule 1 hereto. Microsoft may revise the Microsoft Cloud Agreement for future Clients on not less than thirty (30) days’ notice.
“Client Data” has the meaning assigned to it in the Microsoft Cloud Agreement under “Customer Data”.
“Marks” means (i) either party’s names, word marks, logos, logotypes, trade dress, designs or other trademarks; (ii) the trademark and trade name “Microsoft,” and all trademarks and trade names derived from it, and the trademarks owned by Microsoft and used in association with all Products or which are set out at https://www.microsoft.com/en-us/legal/intellectualproperty/trademarks/en-us.aspx, or any successor site, as Microsoft may amend; and (iii) any and all copyrights either party owns.
“Microsoft” means Microsoft Ireland Operations Limited.
“Normal Business Hours” means 9.00 am to 5:00 pm UK time, each Business Day.
“Personal Data” means as defined by the Directive 95/46/EC or any EU legal instrument which shall supersede it.
“Portal” means the Portal identified by 365Solutions. The Portal will communicate updates and other information relating to these CSP Special Terms.
“Product” means the Microsoft online services as described under the following links, https://technet.microsoft.com/en-us/library/office-365-service-descriptions.aspx and https://azure.microsoft.com/de-de/services/, which may include Microsoft software technology, on the then-current 365Solutions CSP price list.
“Subscription” means an order for a quantity of Product for a defined term (e.g.:1 or 12 months).
“Taxes” means any federal, state, provincial or local taxes, fees, charges, surcharges, or other similar fees or charges arising as a result of or in connection with the transactions contemplated under these CSP Special Terms and include, but are not limited to, sales and use taxes, value added, gross receipts taxes, utility user’s fees, municipal occupation and license taxes, excise taxes, business and occupations taxes, 911 taxes, franchise fees, universal service fund fees or taxes, regulatory cost recovery and other surcharges, taxes imposed or based on or with respect to or measured by any net or gross income or receipts (other than taxes based upon 365Solutions’s net income and any gross receipts taxes imposed in lieu of taxes on the income or profits of 365Solutions), franchise taxes, stamp taxes, taxes on doing business, duties, tariffs, levies and withholding taxes.
“Territory” means the territory in which the Client is authorised to use the Products in accordance with the Microsoft Cloud Agreement.
- Products and Territory
- Territory. The Client is only authorised to use the Products in the Territory.
- New Releases of Existing Products. Client acknowledges and agrees that Microsoft may modify a Product, or may release a new version of a Product at any time and for any reason including, but not limited to, to address Client needs or otherwise address competitive demands, to respond to a government regulation, order, or law, or to advance innovation in its Product offerings. Microsoft reserves the right to add new features or functionality to, or remove existing features or functionality from, a Product.
- Academic, Charity and Government Products. Microsoft may provide Products that are identified as academic, charity or government. These Products may only be provided to Clients that meet Microsoft’s qualification criteria.
- Microsoft Cloud Agreement Acceptance and Subscription Terms.
- Microsoft Cloud Agreement Acceptance. By accepting these CSP Special Terms, the Client accepts the relevant Microsoft Cloud Agreement local to the Client’s country. The current versions of the Microsoft Cloud Agreement are attached in Schedule 1 to these CSP Special Terms. The Microsoft Cloud Agreement is subject to updates
- Fixed term Products. The Client will purchase the fixed term Products for a fixed Subscription term of 12 months. The quantity of Product in the Subscription can be varied on monthly basis subject to not being reduced below one per Subscription. 365Solutions’s billing will be adjusted to take account of the new quantity of Product in the Subscription in the subsequent invoice.
- Consumption based Products. The Client will purchase the consumption based Products for continuous monthly Subscription terms. Consumption based Products shall be billed based on actual usage in the preceding month.
- Auto-Renewal. Subscriptions will automatically renew at the end of any term. Each renewal term will be for the period equal to the previous term. Pricing for a renewal term will be 365Solutions’s pricing in the price list in effect as of the commencement of the renewal term.
- Disablement. 365Solutions may disable a Client’s Subscription in case of subscription payments being two calendar months in arrears. 365Soluitons will need to separately disable each active Subscription. Depending on the Product, Client will have limited or no access to the Product. Neither 365Solutions nor Microsoft will be liable in any manner whatsoever to the Client arising out of 365Solutions’s disablement of the Client’s Subscriptions. Microsoft may disable a Client’s Subscription for legal or regulatory reasons or as otherwise permitted under Microsoft Cloud Agreement and Microsoft will notify 365Soluitons of a disablement as soon as commercially reasonable. 365Soluitons agrees to notify the Client of the same. If Microsoft disables the Client’s Subscription, billing will be suspended until the Subscription is re-enabled.
- Cancellation. The Client may cancel a Subscription for a Product as follows:
For 12 month Subscriptions:
1) no refund is allowed for fees that have been paid and 2) an “Early Termination Charge”, meaning fees due from Client in the event of cancellation of a Subscription before its term ends, may be applied.
For monthly Subscriptions of Consumption based Products:
Can be cancelled at any time and any usage before cancellation will be billed in the next scheduled invoice date.
Upon cancellation, Client will have thirty (30) days to migrate any Client Data to either a new Subscription with 365Solutions, with Microsoft directly, or some other service. The Client shall be responsible for any migration process including any associated costs.
- Ordering, Reporting and Fulfillment.
- Price List. 365Solutions’s prices for Products are available at the Portal, or through any other process designated by 365Solutions. 365Solutions may change the price lists by publishing an updated price list to the Portal not less than one (1) calendar month before the effective date of such price list. 365Solutions may provide notice of price list changes by either electronic or physical mail or facsimile.
- Ordering. The Client’s order for actual usage shall be automatically generated on a monthly basis. 365Solutions shall invoice the Client on a monthly basis for actual usage referencing the following pre-defined PO number “CSPT1-Month-Year”.
- Delivery of Products. 365Solutions will provide the Microsoft administrative log in credentials for accessing the applicable Product to the Client. Upon receipt and acceptance of a valid order for Products, 365Soluitons will provision the Product for the benefit of the Client.
- Support. 365Solutions shall provide the following first level support to the Client:
365Solutions’s technical support centre shall accept the Client’s technical support calls and respond to Client’s e-mail support requests during Normal Business Hours. 365Solutions’s technical support and the Client’s requests for support shall be in the English language only. 365Solutions shall use reasonable endeavours to process support requests, issue trouble ticket tracking numbers if necessary, determine the source of the problem and provide an appropriate solution. The technical support call centre shall respond to all support requests within a reasonable time taking into account the severity of the problem.
Any support requests which cannot be resolved by 365Solutions shall be referred to Microsoft.
Only the Client’s appointed support representatives may contact 365Solutions’s technical support in order to report problems which the Client’s appointed support representatives cannot reasonably resolve themselves. The Client shall appoint a number of appointed support representatives not exceeding 5% of the total installed Product user base. The names of the appointed support representatives must be up-to-date and notified to 365Solutions.
The Client shall also provide support for data integration tools and processes developed or maintained by the Client in order to connect the Products to the Client’s other software and databases.
- Privacy; Client Data.
- Privacy. The Client shall (i) comply with all applicable legal requirements regarding privacy and data protection; and (ii) provide sufficient notice to, and obtain sufficient consent and authorization from, any party providing Personal Data to the Client, 365Soluitons and Microsoft to permit the processing of the data by 365Soluitons and Microsoft and their respective Affiliates, subsidiaries, and subcontractors as required in order to provide the Products and Cloud Services to the Client.
Microsoft and 365Solutions may collect, use, transfer, disclose, and otherwise process the Client’s Data, including Personal Data, as described in the Microsoft Cloud Agreement.
Microsoft may send direct communications to Clients related to the terms of the Microsoft Cloud Agreement or the operation or delivery of the Product. The Client must provide Microsoft with accurate contact information for the administrator of each domain.
- Client Data.
The Client is required to pass to 365Solutions some Client Data. The Client warrants that it is the data controller of the Client Data. The security, privacy and data protection commitments made by Microsoft in any Microsoft Cloud Agreement only apply to the Products purchased from Microsoft and not to any services or products provided by 365Soluitons. The Client agrees and acknowledges that in respect of any access to and processing of Personal Data:
(A) 365Solutions will only have access to and process minimal amounts of non-sensitive or non-special categories of Personal Data primarily to Microsoft CSP Cloud Services and related services which shall include processing for order fulfilment, account management and reporting purposes; and
(B) other than the purposes described in sub-paragraph (A) above, 365Solutions shall not be considered a data processor or data controller or in any other way have any responsibilities or liability (and Client holds 365Solutions harmless) in respect of the use, processing, storage, transfer or access or otherwise in respect of Personal Data by and/or between Client on the one hand and Microsoft on the other hand which shall be subject to the arrangements and agreements entered in to directly between Client and Microsoft.
(i) 365Solutions shall use Client Data only to provide Client with the Products and the support services specified in these CSP Special Terms and to assist Client in the proper administration of the Products. Additionally, 365Solutions shall only access and disclose to law enforcement or other government authorities data from, about or related to Client, including the content of communications to the extent required by law (or to provide law enforcement or other government entities access to such data).
(ii) If 365Solutions receives a request for Client Data either directly from a law enforcement agency or as redirected to 365Solutions, then 365Solutions shall redirect the law enforcement agency to request that data directly from Client. If compelled to disclose Client Data to law enforcement, then 365Solutions shall promptly notify Client and provide a copy of the demand, unless legally prohibited from doing so.
(iii) Client consents and authorizes 365Solutions, Microsoft (and their service providers and subcontractors) at Client’s direction to access and disclose to law enforcement or other government authorities data from, about or related to Client, including the content of communications (or to provide law enforcement or other government entities access to such data). As and to the extent required by law, Client shall notify the individual users of the Products that their data may be processed for the purpose of disclosing it to law enforcement or other governmental authorities and shall obtain the users’ consent to the same.
(iv) Neither 365Solutions nor Microsoft provide a back-up service for the Client Data unless additionally purchased by the Client. The Client is responsible for the back-up of Client Data. Neither 365Solutions nor Microsoft shall be liable for the loss of Client Data as a result of the Client’s failure to back up such Client Data.
- Other Rights and Obligations.
- Client’s Representations and Warranties. Client represents and warrants that it will provide access to 365Solutions to the Client’s Microsoft administration portal as a delegated administrator on a continuing basis.
- Product Warranties. 365Solutions makes no representation, condition or warranty about the Products. Product warranties are as set out in Microsoft’s Cloud Client Agreement or other end user facing documentations.
- Compliance with laws and Microsoft’s Anti-Corruption Policy.
(i) Compliance with laws and Microsoft’s Anti-Corruption Policy. Client will comply with all applicable laws against bribery, corruption, inaccurate books & records, inadequate internal controls and money-laundering, including the U.S. Foreign Corrupt Practices Act (“Anti-Corruption Laws”).
(ii) Audit Rights. During the term of these CSP Special Terms and for two years after the later of either (i) the termination of 365Solutions’s CSP Special Terms with Client, or (ii) the date of issuance of final payment between 365Solutions and Client, 365Solutions or its audit-related agents shall have access to, and the Client shall maintain, any books, documents, records, papers, or other materials of the Client related to these CSP Special Terms (the “Relevant Records”). Client shall establish and maintain a reasonable accounting system that enables 365Solutions and its audit-related agents to identify Client’s assets, expenses, expenditures, costs of goods, margins, discounts, rebates or other payments and compensation received, and use of funds related to these CSP Special Terms. Client shall maintain a system of internal controls to prevent the payment of bribes and provide reasonable assurance that financial statements and reporting are accurate. Client shall not have undisclosed or unrecorded accounts for any purpose. False, misleading, incomplete, inaccurate, or artificial entries in the books and records are prohibited
365Solutions will provide Client with at least ten-days written notice of 365Solutions’s intent to exercise its rights under this provision. The Relevant Records and, if requested, relevant employees, shall be made available to 365Solutions or its audit-related agents during normal business hours at the Client’s office or place of business. If no such location is available, then the Relevant Records, and if requested, relevant employees, shall be made available at a time and location that 365Solutions will determine.
365Solutions may exercise its rights under this provision any time it has a good faith reason to believe that Client or its representatives are in violation of any Anti-Corruption Laws in connection with these CSP Special Terms or in any manner that may impact 365Solutions or its relationship with Client. In addition, 365Solutions may further exercise its rights under this provision for any other reason at any other time not to exceed once every 12-month period.
- Payment Due Date.
If Client fails to make any payments by the due date which shall be 30 days from the date of invoice , 365Solutions may take any of the following actions:
(i) 365Solutions may hold all pending orders, suspend further shipments or Client access to Products under any agreement between 365Solutions and Client until 365Solutions receives all payments due under these CSP Special Terms;
(ii) An administration fee in the sum of £50 shall be applied to each overdue invoice. If 365Solutions chooses to take any of these actions, it does not waive any other right or remedy it may possess.
Client may not withhold payment or take deductions from any invoice amount (by offset, counterclaim, or otherwise) before 365Solutions issues a credit. This includes returns, rebates, price adjustments, billing errors, shipping claims, handling fees, allowances, remittance costs and other charges.
- Financial Statements, Credit, Security.
(i) 365Solutions may offer Client credit. Credit terms may vary by Territory or country. 365Solutions may revise or withdraw Client’s credit, starting when 365Solutions notifies Client, if Client’s financial conditions change. If 365Solutions withdraws Client’s credit, all outstanding amounts will become immediately due and payable. Payment will then be made when orders are placed, or otherwise as 365Solutions directs.
(ii) The Client should immediately notify 365Solutions in case of any changes in the structure of its organization including: (a) significant changes in ownership; (b) changes in company name (both legal name and trade /business name); (c) mergers/amalgamations/divestments; (d) location changes; or (e) changes in the operational activities of the organization. Changes in relation to the legal name or registered address of the Client should be signed by an authorized signatory of the Client and should be supported by: (x) an excerpt from the company register or equivalent institution in the country; and (y) an updated tax certificate showing the tax/VAT registration numbers after the change.
- Warranty and Indemnity Obligations.
- Warranty. Microsoft warrants its Products to Clients to the extent described in the Microsoft Cloud Agreement. 365Solutions provides no Product warranties.
- No Warranty. To the maximum extent permitted under applicable laws, 365Solutions excludes all implied warranties and conditions, such as implied warranties of merchantability, non-infringement, and fitness for a particular purpose.
- Defence of Infringement Claims.
Microsoft’s shall provide assistance with regards to third party intellectual property infringement claims as described in the Microsoft Cloud Agreement.
- Term and Termination.
- Term. These CSP Special Terms will remain in effect until one year after acceptance date, unless terminated earlier as set forth below. These CSP Special Terms will automatically renew for successive one (1) year terms unless either party gives the other thirty (30) days’ written notice of its intent to not renew.
- Termination Without Cause. 365Solutions may terminate these CSP Special Terms at any time without cause and without intervention of the courts by giving not less than thirty (30) days’ written notice.
- Termination for Cause. If a party breaches any term of these CSP Special Terms, the other party can terminate these CSP Special Terms for cause. The terminating party will give the breaching party not less than thirty (30) days’ written notice and opportunity to cure the breach if the cause for termination is curable. A party will be allowed to cure a breach once, if a party breaches the Agreement for the same reason as a prior breach such as late payment, then the other party may terminate the Agreement immediately. If the cause for termination is not curable, termination is effective immediately upon written notice from the terminating party. Disclosure of confidential information including the disclosure of specially negotiated Client terms, misappropriation of Microsoft’s intellectual property, and insolvency, bankruptcy or other similar proceedings, are grounds for immediate termination.
- Effect of Expiration or Termination.
(i) When these CSP Special Terms ends or is terminated, Client must immediately stop using all rights granted by these CSP Special Terms. Client must also pay 365Solutions any amounts due under these CSP Special Terms.
(ii) Termination of these CSP Special Terms terminates all and any amendments or addenda under these CSP Special Terms.
(iii) If these CSP Special Terms expires or is terminated for any reason other than a breach by Client:
365Solutions will, subject to the terms of these CSP Special Terms, continue to provide Products to Client for an active Subscription for the shorter of 12 months or the minimum period of required performance by Client under these CSP Special Terms.
- Waiver of Rights and Obligations. Each party waives any right or obligation under any applicable law or regulation to request or obtain intervention of the courts to terminate these CSP Special Terms.
- Survival. Sections 6 (Privacy; Client Data), 7(b) (Product Warranties), 7(c) (Compliance with laws and Microsoft’s Anti-Corruption Policy), 9 (Warranty and Indemnity Obligations), 10 (d) (Effect of Expiration or Termination), 10 (e) (Waiver of Rights and Obligations), 10(f) (Survival) , 14 (General) of these terms and conditions will survive any termination or expiration of these CSP Special Terms.
- Intellectual Property.
- Use of Marks. The Agreement does not grant either party any right, title, interest, or license in or to any of the other party’s Marks.
- Proprietary Notices. Client must not remove any copyright, trademark or patent notices from any of the Products. Client must include Microsoft’s copyright notice on any documentation for the Products, including online documentation. The first time Client mentions the name of Microsoft’s Products in communications, it must use the appropriate trademark, Product descriptor and trademark symbol (either “™” or “®”), and clearly indicate Microsoft’s (or Microsoft’s suppliers’) ownership of the trademark(s).
- Reservation of Rights.
At any time during the term of these CSP Special Terms, Microsoft may terminate any Client’s status as a Client. Client will be promptly notified of such termination. Following such a notice, no further Client orders will be accepted. Termination will not affect 365Solutions’s right to invoice the Client or Client’s obligation to pay for Products ordered before such termination. If Microsoft terminates the Client’s status as a Client, Client will not have any claim against Microsoft or 365Solutions for damages or lost profits resulting from the termination.
- Financial Integrity and Accounting.
Client will not provide false, misleading or inaccurate financial information to 365Solutions or Microsoft. Client must ensure that all orders, and the Agreement or any other documents it submits are complete and accurate.
- Terms Change. 365Solutions may change these CSP Special Terms unilaterally from time to time. In case of material changes, 365Solutions will use reasonable business endeavours to give the Client reasonable advance notice of the change. The changes shall be deemed accepted upon placement of a new order/Subscription or renewal of the relevant Subscription.
- No Representations. 365Solutions has not made any representation to Client about any Products other than as specifically stated in these CSP Special Terms. Client has relied on its own skill and judgment (or that of its advisers) in deciding to enter into this these CSP Special. However, neither party limits or excludes liability for fraudulent misrepresentations.
- Applicable Law; Attorneys’ Fees. These CSP Special Terms are governed by and interpreted in accordance with the laws of the country where 365Solutions entity from which the Products are ordered is based. The parties consent to the exclusive jurisdiction and venue of the competent local courts of the country where 365Solutions is based for all disputes connected to these CSP Special Terms.
This choice of jurisdiction and venue does not prevent either party from seeking injunctive relief for:
(i) violation of intellectual property rights;
(ii) breach of confidentiality obligations; or
(iii) enforcement or recognition of any award or order in any appropriate jurisdiction.
If either party begins litigation in connection with these Microsoft CSP Special Terms and Conditions, the substantially prevailing party will be entitled to recover its reasonable attorneys’ fees, costs and other expenses. The 1980 United Nations Convention on Contracts for the International Sale of Goods does not govern these CSP Special Terms.
Microsoft Cloud Agreement
The Microsoft Cloud Agreement from the link list below (according to the country in which the Client is based) shall apply to the Client’s usage of Products.