BACKGROUND
A. The Supplier is an authorised reseller of certain cloud services (SaaS).
B. Third party cloud services are supplied to the Customer as part of the Combined Bundle under the Managed Service Bundle Agreement, subject to the applicable vendor’s customer agreement (or vendor terms and conditions), which applies directly between the applicable vendor and the Customer.
1. Third Party Services
1.2 The Third Party Services are as specified in Attachment A of the Agreement (and refer to the definition of Third Party Services in this Appendix).
2. Customer acknowledgments
2.2 The Customer acknowledges that:
(a) the Supplier’s role in supplying the Third Party Services is as a reseller only and that the relevant Third Party Agreement applies directly between the relevant Third Party and the Customer (the Third Party Agreements are available on request from the Supplier);
(b) the Customer authorises the Supplier to accept the Third Party Agreement on behalf of the Customer. The Customer will itself approve or sign the Third Party Agreement if requested by the Supplier;
3. Terms and conditions
1.2 Nothing in these terms and conditions operates to alter or in any way diminish any aspect of a Third Party Agreement.
2. Provision of Third Party Product
2.2 The Supplier will supply the Third Party Product to the Customer in accordance with the Managed Service Bundle Agreement. The Third Party Services are provided to the Customer on a non-exclusive basis and unless otherwise specified in the Third Party Agreement, the Customer’s right to use the Third Party Product is not transferable. Where applicable, the Supplier will provide log on details to the Customer to enable the Customer to access and use the Third Party Product.
2.3 If the Supplier provides support services in relation to the Third Party Product, except as expressly included in the Managed Service Bundle Agreement, the Supplier will do so under the Master Terms and Conditions, on a time and materials basis.
2.4 In addition to the Third Party Agreement (which applies directly between the Customer and the relevant third party vendor), provision of the Third Party Product is subject to these terms and conditions including without limitation clause 2.5.
2.5 The Customer must not, nor may the Customer permit any other person to do any of the following, or attempt to do so:
(a) copy, alter, modify, reverse assemble, reverse compile, reverse engineer or enhance the Systems; or
(b) permit or enable users other than the Permitted Users to access or use the Third Party Service; or
(c) without limiting any other provision of the Agreement, use the Third Party Service for servers other than the servers approved on the Site Readiness Date (or which are subsequently approved under the change control process); or
(d) resell, rent, lease, transfer, sublicense or otherwise transfer rights to use the Third Party Service; or
(e) use the Third Party Service in any way that could damage or interfere with the Systems in any way;
(f) use the Third Party Service otherwise than in the manner in which the Third Party Service are designed to be used;
(g) use the Third Party Service in any way (whether by transmitting or inputting any files or other material or otherwise) that could interrupt, damage or otherwise interfere with use of the Third Party Service by any other customers;
(h) do any act which would or might invalidate or be inconsistent with the Intellectual Property rights of the relevant third party vendor.
2.6 The Customer indemnifies the Supplier against any loss, costs, expenses, demands or liability whether direct, indirect or otherwise, and whether arising in contract, tort (including negligence), equity or otherwise, arising out of a claim by a third party due to:
(a) use of the Third Party Service otherwise than in accordance with the Third Party Agreement; or
(b) a breach by the Customer of these terms and conditions.
3. Third Party Agreements
3.2 Supply of all Third Party Services is subject to the relevant Third Party Agreement, as well as these terms and conditions. The Customer acknowledges that the Third Party Agreement for the Third Party Services has been provided or made available to the Customer or is available on request from the Supplier and the Customer is deemed to have accepted all applicable Third Party Agreements on signing the Managed Service Bundle Agreement.
4. Data
4.2 The Customer warrants that the Customer has the right and authority to deal with the Data in its use of the Third Party Services.
4.3 Without limiting any other aspect of these terms and conditions or the relevant Third Party Agreement, the Customer is responsible for:
(a) except as expressly provided otherwise in these terms and conditions and the relevant Third Party Agreement, all aspects of the Customer’s access and use of the Third Party Service; and
(b) ensuring that, in using the Third Party Service, it complies with all applicable laws. The Supplier accepts no responsibility for ensuring that use of the Third Party Service will result in the Customer complying with applicable laws or enable the Customer to comply with applicable laws (including for example and without limitation, laws requiring records to be stored in a particular jurisdiction).
4.4 Nothing in these terms and conditions transfers ownership of the Data to the Supplier.
4.5 The Data is available to the Customer in accordance with the applicable Third Party Agreement and without limiting any legal obligations that the Supplier may have in respect of the Data, the Supplier neither has nor accepts any obligation to provide the Data to the Customer during or following the term of the Managed Service Bundle Agreement.
5. Intellectual Property
5.2 All Intellectual Property in the Third Party Services is the property of the relevant third party supplier (or its licensors) and nothing in these terms and conditions operates to change that ownership.
6. Termination
6.2 In addition to all other consequences of termination of the Managed Service Bundle Agreement and without limiting the Customer’s rights under the relevant Third Party Agreement, the Supplier will cease to provide the Third Party Services to the Customer, and the Customer will cease to have any entitlement to use the Third Party Service.
7. Liability
7.2 Without altering any other provision of the Managed Service Bundle Agreement which limits the Supplier’s liability in respect of any Third Party Service, including without limitation the liability provisions in the Master Terms and Conditions, in no event is the Supplier liable to the Customer for any Third Party Service, including without limitation in terms of performance, non-performance, availability, non-availability, compliance or non-compliance with specifications of that Third Party Service or otherwise. Any right or remedy that the Customer may have in relation to the Third Party Service is included or referenced in the relevant Third Party Agreement.
7.3 Subject to and without limiting any Third Party Agreement or any other provision of the Managed Service Bundle Agreement, the Customer acknowledges that:
(a) in using the Third Party Service, the Customer may be redirected to third party websites and/or elect to use third party products and services;
(b) access or use by the Customer of any such third party websites, products or services is subject to the relevant Third Party Agreement; and
(c) the Supplier accepts no responsibility or liability for or in connection with access or use by the Customer of any such third party websites, products or services.
8. Consumer guarantees
8.2 The Customer acknowledges that where it is acquiring the Third Party Service for the purposes of a business, to the extent permitted by the relevant legislation, any statutory consumer guarantees or legislation that are intended to apply to non-business consumers only will not apply.
9. Definitions: In these terms and conditions
“Data” means the Customer's data that is Processed in the course of provision or use of the Third Party Service;
“Intellectual Property” includes all copyright, trademarks, designs, patents, domain names, concepts, know-how, trade secrets, logos and all other similar property and rights whether registered or unregistered;
“Maximum Number” means, as applicable, the maximum number of users, servers (or other items for which a maximum number is specified) included in the Combined Bundle, as varied by change control under the Managed Service Bundle Agreement;
“Permitted Users” in the case of Third Party Services included in the Combined Bundle, means permitted users not exceeding the relevant Maximum Number;
“Systems” means, as the context permits, the software used by the third parties to provide the Third Party Service and/or the infrastructure used to host the Third Party Service;
“Third Party Agreement” means the third party agreement or terms and conditions, issued by the third party vendor, that applies to use of the Third Party Service;
“Third Party Services” means the Third Party Products included in the Combined Bundle (other than:
(a) the Microsoft Cloud Services; and
(b) Third Party Products which are used by the Supplier to provide services to the Customer and are not resold to the Customer (as described in Part 3 of the Agreement: ‘Third Party Products included in Combined Bundles’).