BACKGROUND
A. The Supplier is an authorised reseller of certain Microsoft cloud services.
B. The Supplier and the Customer agree that the Supplier will provision, administer and provide support (as applicable) for the Customer’s Microsoft seat-based cloud services in accordance with this Appendix as part of the Combined Bundle under the Managed Service Bundle Agreement.
1. Microsoft Cloud Services: Microsoft 365
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Existing Services |
Customer’s existing subscriptions (if any) of the Microsoft Cloud Services that are included in the Combined Bundle (and associated seat-count), for which the Supplier is the Primary Administrator, will be included in the Combined Bundle from the Commencement Date of the Managed Service Bundle Agreement. |
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Transferred Services from another Microsoft Partner - Supplier as Primary Administrator |
The Transferred Services (if any) that are included in the Combined Bundle (and associated seat-count) will be transferred to the Supplier, so that the Supplier is the Primary Administrator for those subscriptions, at the timing specified below: (a) promptly following the commencement date of the Managed Service Bundle Agreement, except where (b) below applies; (b) on expiry of the current term of those subscriptions, if Microsoft policies prevent the transfer prior to this time. Refer to clause 5 of the terms and conditions to this Statement of Supply. |
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Subscriptions and seat counts |
The Customer authorises the Supplier to purchase subscriptions for the Customer for the purposes of the Combined Bundle, including for any increase in seat count if required in accordance with Part 6 of the Managed Service Bundle Agreement. By signing the Managed Service Bundle Agreement, the Customer requests the Supplier to purchase the Microsoft subscriptions as specified in the Agreement, and to purchase additional licenses to increase the seat count in accordance with any applicable changes to the Combined Bundle made under Part 6 of the Managed Service Bundle Agreement. |
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Acknowledgment no reduction in amount payable |
Refer to Part 5 of the Managed Service Bundle Agreement, early termination. |
2. Term of subscriptions
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2.1 Subscription term and seat-count commitment |
The Customer acknowledges and agrees that, for all Microsoft Cloud Services included in the Combined Bundle (including as varied under Part 6 of the Managed Service Bundle Agreement): (a) the Supplier will place Orders for subscriptions (and associated seat counts); and (b) the term(s) in each case cannot be reduced; and (c) without in any way limiting the Customer’s obligation to pay for the Combined Bundle (including as varied under Part 6 of the Managed Service Bundle Agreement), the subscriptions for Microsoft Cloud Services (and all associated seat counts) cannot be suspended by the Customer without ongoing payment for the full term of the subscriptions in accordance with the Managed Service Bundle Agreement; and (d) the seat-count can be increased in accordance with changes made under Part 6 of the Managed Service Bundle Agreement but cannot be decreased during the term of a subscription or the term of the Managed Service Bundle Agreement, whichever is longer. Subscriptions are subject to the termination provisions in the Managed Service Bundle Agreement. |
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1.2 Auto-renewal of subscriptions |
Refer to Part 5 of the Managed Service Bundle Agreement (Term). |
3. Basis of supply: Microsoft Cloud Services
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Basis of Supply – Microsoft Customer Agreement |
All Microsoft Cloud Services are supplied subject to the Managed Service Bundle Agreement (which includes this Statement of Supply) and the applicable Microsoft Customer Agreement. The Microsoft Customer Agreement applicable for the Customer is here. The Microsoft Customer Agreement is an agreement between Microsoft and the Customer and includes General Terms, Use Rights, Use Rights, SLAs (service level agreements) and any additional terms Microsoft presents when an Order is placed (the terms ‘General Terms’, ‘Use Rights’ and ‘SLA’ are defined in the Microsoft Customer Agreement. |
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Receipt of Microsoft Customer Agreement |
The Customer acknowledges receipt of the current Microsoft Customer Agreement from the Supplier and by purchasing Microsoft Cloud Services from the Supplier as part of the Combined Bundle, the Customer confirms: its acceptance of the Microsoft Customer Agreement; that the Supplier is authorised by the Customer to confirm the Customer’s acceptance of the Microsoft Customer Agreement on behalf of the Customer. If required by the Supplier, the Customer will confirm its acceptance of the Microsoft Customer Agreement in writing. The Customer acknowledges that the Supplier is not permitted to revise the Microsoft Customer Agreement in any way. |
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Subscription Renewals |
If Microsoft updates the Microsoft Customer Agreement the Customer must accept the new Microsoft Customer Agreement at or before renewal of their subscription. The updated Microsoft Customer Agreement (if any) will be available at the above link (if a link is provided) or will be made available to the Customer prior to the subscription renewal. By permitting the subscription to renew, the Customer is deemed to have accepted the updated Microsoft Customer Agreement. |
4. Microsoft Customer Account
For the purposes of this Statement of Supply, the Customer is responsible for all activity in the Customer Account including without limitation all subscriptions and seat counts.
The Supplier has no obligation, under this Statement of Supply, to supervise or in any way monitor the Customer’s requests for subscriptions or additional seat counts to Microsoft Cloud Services (or suitability of the Customer’s subscriptions).
5. Supplier Administrator Access
The Customer acknowledges and agrees that:
following signing of the Managed Service Bundle Agreement by both parties, the Customer will receive a link from the Supplier at which the Customer will confirm the Supplier as being its supplier of the Microsoft Cloud Services (unless this has already occurred) for the purposes of this Statement of Supply;
the Supplier and the Distributor will (following confirmation by the Customer under (a) above, unless this has already occurred):
be the Primary Administrator of the Microsoft Cloud Services for the Customer for the term of Managed Service Bundle Agreement; and
have administrative privileges and access to Customer Data and administrator data;
the Customer may at any time request additional administrator privileges from the Supplier;
the Customer can, at its sole discretion and at any time during the term of this Statement of Supply, terminate the Supplier’s and the Distributor’s administrative privileges provided that termination of administrative privileges under this clause does not in any way alter the Customer’s payment obligations under the Managed Service Bundle Agreement; and
the Customer appoints the Supplier and the Distributor as its agent for the purposes of interfacing with and providing instructions to Microsoft for the purposes of this Statement of Supply.
6. Subscriptions to Microsoft Cloud Services
Nothing in this Statement of Supply alters the rights and obligations of the Customer or Microsoft under the Microsoft Customer Agreement between Microsoft and the Customer which is accepted by the Customer (as described in section 3 above) in respect of all Microsoft Cloud Services supplied under this Statement of Supply.
The Customer acknowledges and agrees that Microsoft may send direct communications to the Customer related to the terms of the Microsoft Customer Agreement or the operation or delivery of the Microsoft Cloud Services.
7. Support for Microsoft Cloud Services
The Supplier is the Customer’s point of contact for the Customer for all operational and technical support questions related to the Microsoft Cloud Services supplied under this Statement of Supply. Except as expressly included in the Managed Service Bundle Agreement, support is available from the Supplier by separate agreement made under the Master Terms and Conditions, on a time and materials basis unless agreed otherwise in writing.
If the Customer considers that it has a claim on the SLA (the ‘SLA” being the service level commitments made by Microsoft to the Customer in respect of the Microsoft Cloud Services), the Customer must submit the claim to Microsoft in accordance with the Microsoft Customer Agreement and notify the Supplier in order for any applicable service credit to be channelled back through the Supplier and applied to the Customer’s account with the Supplier.
The Customer acknowledges that the Supplier cannot remedy, and has no obligation to seek to remedy, any defect or purported defect in the Microsoft Cloud Services that may be identified by the Customer and that the remedy (if any) that the Customer may have in relation to such defects is contained in and subject to the Customer’s applicable Microsoft Customer Agreement.
8. Adjustments to subscriptions
The Customer may add to the subscriptions to Microsoft Cloud Services it has under the Managed Service Bundle Agreement through the change control process in part 6 of the Managed Service Bundle Agreement
9. Pricing and payment
Refer to the Managed Service Bundle Agreement for details of pricing and payment.
Without limiting the reasons that the Supplier may decline a disputed invoice claim, a claim by a Customer that subscriptions on the Customer Account or that the specified seat-count or any part of it added to the Customer Account were not needed by the Customer will not relieve the Customer from its obligation to pay for those subscriptions or specified seat as part of the Combined Bundle and will not provide a reason for validly disputing an invoice.
Without the Supplier waiving any other right or remedy it may have (including its rights under the Master Terms and Conditions), if any amount due under the Managed Service Bundle Agreement is not paid by the Customer by the due date, the Supplier may:
invoke the process made available by Microsoft to suspend the Microsoft Cloud Services; and/or
decline to place any additional Orders for the Customer; and/or
suspend delivery of services to the Customer under any other agreement between the Supplier and the Customer; and/or
suspend delivery of further Microsoft Cloud Services,
until the outstanding amount is paid in full provided that any suspension of Microsoft Cloud Services under this clause 9.3 does not in any way suspend or alter the Customer’s obligation to pay for the relevant Microsoft Cloud Services (including as part of the Combined Bundle) for the full term of the relevant subscription(s). The Supplier will give 10 Working Days’ notice in writing of its intention to invoke the suspension process or to suspend delivery under this clause.
10. Customer Data
Refer to the ‘Personal Data and Data Protection’ provisions in the Master Terms & Conditions.
The Customer acknowledges that Processing of Personal Data by Microsoft is addressed in the Microsoft Customer Agreement.
The Customer acknowledges that the obligations that Microsoft may have in respect of a Personal Data Breach, where applicable, are addressed in the Microsoft Customer Agreement.
11. Intellectual property
Refer to the Microsoft Customer Agreement.
12. Warranty position for Cloud Services
The Supplier will use reasonable endeavours to assist the Customer to deal with Microsoft (via the Distributor where applicable) on any warranty claims in respect of the Microsoft Cloud Services.
Subject to clause 7 and clause 13.1, the Supplier has no obligations in respect of defects, support requirements or otherwise for the Microsoft Cloud Services including without limitation that in the event of any defect or failure of the Microsoft Cloud Services the Supplier has no obligation to provide any interim hardware, software, other equipment or remedial service.
13. Consequences of termination
On termination of the Managed Service Bundle Agreement, and subject to any other agreement that the Customer may enter into with the Supplier in respect of the supply of Microsoft Cloud Services:
without limiting the Customer’s payment obligations in the event of early termination of the Managed Service Bundle Agreement (refer to Part 5 of the Managed Service Bundle Agreement), where the Customer has unexpired subscriptions for Microsoft Cloud Services, the Customer will pay the Supplier for all subscriptions to Microsoft Cloud Services (including associated seat counts) for the full term of those subscriptions (excluding any renewal term to which the Customer is not yet contractually committed under this Statement of Supply);
the Customer will have 30 days to migrate any Customer Data to either a new subscription or some other service.
14. Liability
Without limiting the liability provisions in the Master Terms and Conditions, in no event is the Supplier liable to the Customer for the Microsoft Cloud Services, including without limitation in terms of performance, non-performance, availability, non-availability, compliance or non-compliance with specifications of the Microsoft Cloud Services or otherwise. Any right or remedy that the Customer may have in relation to the Microsoft Cloud Services is included or referenced in the Microsoft Customer Agreement.
15. Defined terms
In this statement of supply:
“Customer Account” means the Customer’s account on the Distributor’s portal;
“Customer Data” means all data, including all text, sound, video or image files and software, and which may include Personal Data, that is provided to Microsoft by or on behalf of the Customer through use of the Microsoft Cloud Services;
“Distributor” means the Supplier’s distributor, being Appriver;
“Existing Services” means the Customer’s current Microsoft seat-based cloud subscriptions (and associated seat-counts) as at the date of this Agreement, for which the Supplier is the Primary Administrator as at the date of this Agreement;
“Microsoft Cloud Services” means the Microsoft cloud services included in the Combined Bundle (as varied by any changes made under Part 6 of the Managed Service Bundle Agreement) for which the Supplier is the relevant Microsoft partner (as recorded by Microsoft), including:
the Existing Services (if any and if included in the Combined Bundle – refer to section 1 of this Appendix);
the Transferred Services (if any and if included in the Combined Bundle - refer to section 1 of this Appendix); and
the Microsoft seat-based cloud subscriptions (and associated seat-counts) Ordered by the Supplier for the
Customer as described in clause 1 above,
as recorded in the Customer Account, and includes in each case (to the extent that the context permits), all renewals of subscriptions in accordance with the Managed Service Bundle Agreement;
“Order” means an order for Microsoft seat-based services made by the Supplier in accordance with an Order Request, and “Ordered” has a corresponding meaning;
“Order Request” means an order request made by the Customer for Microsoft Cloud Services, with order requests being deemed to have been made by the Customer for all subscriptions to Microsoft Cloud Services (and associated seat-count) included in the Combined Bundle (as varied by any changes made under Part 6 of the Managed Service Bundle Agreement);
“Primary Administrator” means that the Supplier has administrator privileges in respect of the Customer’s subscriptions (and associated seat counts), as described in the Microsoft Customer Agreement;
“Transferred Services” means Microsoft seat-based cloud subscriptions (and associated seat counts) that were purchased for the Customer by another partner and that, with the Customer’s authorisation, for the purposes of the Managed Service Bundle Agreement, have been transferred to the Supplier in the Microsoft Partner Center on or after the date of the Managed Service Bundle Agreement (so that, following the transfer, the Supplier is the Primary Administrator for those subscriptions