Wiise Terms and Conditions
1.1This Agreement applies to the Services provided by Wiise Software Pty Ltd (ABN 84 169 685 509) (we, us and our).
1.2By applying to use our Services, or using our Services, you agree to be bound by this Agreement (including the Schedules) which sets out the terms and conditions that govern the provision of the Services by us and the use of the Services by you.
2.1We have arrangements with Microsoft that permit us to build upon their Dynamics365 Business Central product offering in providing the Services. That arrangement requires us to have you agree to the Microsoft Terms with Microsoft. You agree to be bound by the Microsoft Terms with Microsoft.
2.2Microsoft may modify the Microsoft Terms at any time by notice to us, and if Microsoft does so we will notify you accordingly. Such modifications will take effect from the Modification Start Date. If you do not wish to be bound by any such modifications, you may terminate this Agreement by written notice to us any time before the Modification Start Date, in which case this Agreement will terminate immediately before the Modification Start Date.
3. TERM OF AGREEMENT
This Agreement commences on the Commencement Date and, subject to clause 13, continues for the Services Period. Following the end of the Services Period, you will no longer have the right to use the Services.
4. HOSTED SERVICE
You agree and accept that the Services are managed and supported exclusively by us or on our behalf from our servers or those of an Assisting Party and that no ‘back-end’ access to the Services is available to you.
5. RIGHTS GRANTED
5.1We grant you a non-exclusive, non-assignable, limited right for your Authorised Users to access and use the Services ordered by you for the Services Period to manage your business but not that of an independent third party. You and your Authorised Users do not acquire any other right or interest of any kind in or to the Services. The Services are the property of us or our licensors.
5.2Some of your Authorised Users may be Full Authorised Users and others may be Limited Authorised Users. You must ensure that the number of Full Authorised Users and Limited Authorised Users that you authorise to use the Services (regardless of whether they are actively using the Services at any particular time) does not exceed the respective quantities purchased under this Agreement. A Full Authorised User or a Limited Authorised User will be counted for such purposes until you have permanently removed their authorisation to use the Services (whether because they leave your employment or otherwise). You must promptly report to us if you suspect that you do not have enough Full Authorised Users or Limited Authorised Users.
5.3You may increase or decrease the number of Full Authorised Users and Limited Authorised Users for a month by written notice to us at least 30 days before the start of that month. Failure to provide such notice will result in the number of Full Authorised Users and Limited Authorised Users not being revised.
5.4To enable us to provide you and the Authorised Users with the Services, you grant us the right to use, process and transmit Your Content and Your Applications as contemplated under this Agreement. We may sublicence such rights to any Assisting Party.
5.5If Your Applications include third party programs, we may allow providers of those third party programs to access the Services, including Your Content and Your Applications, as required for the interoperation of such third party programs with the Services. We will not be responsible for any use, copying, corruption, disclosure, modification or deletion of Your Content or Your Applications resulting from any such access by third party program providers or for the interoperability of such third party programs with the Services. You warrant that you have obtained all necessary consents for allow Your Applications to be used in the manner contemplated by this Agreement.
6. USE OF THE SERVICES
6.1You agree not to use or permit your Authorised Users to use the Services for any purpose that may:
i.menace or harass any person or cause damage or injury to any person or property;
ii.involve the publication of any material that:
a. is misleading, deceptive, fraudulent, false, illegal, defamatory, inflammatory or libellous;
b. contains viruses, bots, worms, scripting exploits or other similar materials;
c. you do not have the right to submit; or
d. encourages illegal or tortious conduct or that is otherwise inappropriate;
iii.violate privacy rights;
iv.constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters;
v.constitute an infringement of our or anyone else’s Intellectual Property Rights or other proprietary rights; or
vi.otherwise violate applicable laws, ordinances or regulations, or give rise to any civil or criminal liability for you, us or any Assisting Party.
6.2 You also agree not to:
i.modify, adapt, or make a derivative work based on, the Services;
ii.create unauthorised links to the Services or frame or mirror the Services;
iii.reverse engineer, decompile or disassemble the Services, except to the extent expressly permitted by applicable law despite this limitation;
iv.distribute, sublicence, rent, lease or lend any materials provided as part of the Services to any third party without our prior written consent. For clarity, this does not prevent you from granting access to the Services or the output of the Services to your Authorised Users or external advisors, bankers, accountants or IT support providers for the purposes of them advising you;
v.attempt to access areas of the Services or our or a third party’s networks on which the Services are hosted to which you have not been given access;
vi.modify, disable, or compromise the integrity or performance of the Services, or related systems, networks or data, including but not limited to probing, scanning or testing the vulnerability of any system or network that hosts the Services;
vii.overwhelm or attempt to overwhelm the infrastructure over which the Services are provided;
viii.access the Services by any means other than the supported interfaces.
6.3You will not provide access to the Services to any person other than your Authorised Users.
6.4You agree to take appropriate steps to secure your systems and your Login Credentials to prevent unauthorised users from gaining access to the Services, including through or using those Login Credentials. We will treat anyone who uses your Login Credentials as you and you must ensure that all such persons (including your Authorised Users) comply with this Agreement. You will be liable for the acts and omissions of such persons (including your Authorised Users) in using the Services as if they were your own. We will not be responsible for you sharing, or any other misuse of, Login Credentials and we will hold you responsible for the activities of a person using your Login Credentials (whether or not authorised by you), except where due to our fault or that of an Assisting Party. You will notify us immediately if you suspect that someone is using your Login Credentials in an inappropriate manner.
6.5You are required to accept all Patches necessary for the proper functioning and security of the Services.
6.6You must defend, indemnify and hold us harmless from any claim from a third party arising due to:
i.any customisations to the Services in breach of clause 6.2, or other use infringing any proprietary right, including an Intellectual Property Right, of a third party if such claim would have been avoided by the use of the Services in accordance with this Agreement; or
ii.Your Content or Your Applications (including any claim that they infringe any propriety right, including any Intellectual Property Right of a third party).
7.2You are responsible for:
i.the management, conduct and operation of your business, interests and affairs;
ii.compliance with your legal and regulatory obligations, including relating to your use of the Services;
iii.deciding how you use the Services and the outcomes of the Services; and
iv.the delivery, achievement or realisation of any benefits directly or indirectly related to the Services.
7.3We shall rely on the truth, accuracy and completeness of any information provided or made available to us by you or on your behalf (including by Authorised Users) in connection with the Services without independently verifying it.
7.4Any advice, recommendation, information or deliverable provided by us to you is for your sole internal use and benefit. Unless required by law to do so, you shall not provide it or make it available to any third party, other than your Authorised Users or your external advisors, bankers, accountants or IT support providers for the purposes of them advising you.
7.5You are not permitted to use our names, logos or trademarks in any marketing, promotional material or other publication without our prior written consent. You will not register, apply for or take any other action to acquire any right, title or interest with respect to any proprietary right, including any of our Intellectual Property Rights, or that of any of our affiliates in any jurisdiction, whether or not we or any of our affiliates have taken any action to effect, perfect, register or enforce such rights in such jurisdictions.
7.6You are required to keep records (including proof of purchase) relating to the Services under this Agreement. On at least 14 days’ written notice, during normal business hours and in a manner that does not interfere unreasonably with your operations, we may audit or verify your use of the Services to assess whether your use is in accordance with this Agreement including, for example, whether you have enough Full Authorised Users and Limited Authorised Users for the Services. Upon request, you will provide reasonable co-operation and promptly give us such access and information that we reasonably request to assist us to make this assessment.
8.1As between us and you, you accept sole responsibility for:
i.all of Your Content uploaded onto the Services by you or on your behalf (including by Authorised Users), including the accuracy of Your Content; and
ii.the results obtained from the processing of Your Content by the Services, where the results depend upon the accuracy of Your Content.
8.2You consent to the use and sharing (including across national borders) of Your Content for any legitimate purpose relating to our delivery of the Services to you. We may disclose Your Content on the Services to the extent required to do so by applicable laws, legal process, professional standards and obligations or regulatory authority.
8.3You warrant that our or any Assisting Party’s use of any of Your Content in the course of delivering the Services will not infringe the property rights, Intellectual Property Rights or privacy rights of any third party.
9.1Where you have purchased the Services through one of our resellers, you must pay fees for your use of the Services in accordance with the arrangements agreed with your reseller. Consistent with industry practice, we may pay a separate percentage based referral fee or value added commission to our resellers in connection with the supply of the Services.
9.2Where you purchase the Services directly from us:
iyou agree to pay the Fees for your use of the Services and receipt of Support Services;
ii.any underpayment of the Fees, whether revealed by an audit or verification process, any self-reporting by you, or otherwise, must be made good within 30 days of receipt of an invoice from us in relation to that underpayment;
iii.the Subscription Fees will be charged by us on a per user basis and will be increased for any additional Full Authorised Users or Limited Authorised Users;
iv.the Fees are specified in our pricing document available on our website www.wiise.com. The Fees are subject to change. We will provide 60 days’ notice prior to any Fee change. Where you do not agree to those changes, you may terminate this Agreement in accordance with clause 13.4; and
v.we will charge you for the Services on the Commencement Date, for the period from the Commencement Date until the end of the month in which the Commencement Date occurs, on a pro-rata basis. Each subsequent month will be billed in advance on the last business day of the preceding month.
10.3Each party must keep confidential, and refrain from disclosing the Confidential Information and Personal Information of the other party. Each party will take reasonable security measures to protect such information from unauthorised use, access, disclosure, alteration or destruction. Such measures will include access controls, encryption and any other means that are required to comply with applicable law.
10.4 The Services may include the property of Licensors. Licensors retain all right, title and interest, including all Intellectual Property Rights, in and to their respective property included in the Services. Licensors’ property included in the Services, their underlying technology, architecture, and source code, and performance information relating to the Services, are Confidential Information of Licensors notwithstanding the absence of any marking or further designation. You must handle the Confidential Information of Licensors in accordance with clause 10.3.
i.extract and compile statistical and other commercial information from Your Content, as well as from data related to the performance, operation and use of the Services or prepare, use and disclose data from the Services (including aggregated and de-identified information using information and materials used or developed in the performance of the Services) for security and operations management, to support data driven functionality, to create statistical analyses, for research and development purposes, benchmarking and for internal or external quality assurance, business development, service and product improvement and risk management purposes. For the purposes of this paragraph, “aggregated and de-identified” means that your identity, or information relating specifically to you, cannot reasonably be ascertained;
ii.refer to, use and disclose knowledge, experience and skills of general application gained through the provision of the Services;
iii.use, and disclose to Microsoft any technical information that we derive from providing the Services related to our technology for problem resolution, troubleshooting, functionality enhancements and fixes, or for our knowledge base;
iv.refer to and use your name, contact details, logo and a description of the Services for marketing purposes; and
v.agree with you other uses of your Personal Information and Confidential Information from time to time.
10.7Any breach of this clause 10 by you will be deemed a material breach of this Agreement that cannot be remedied.
11. DATA AND DOCUMENT RETENTION
You acknowledge that there are inherent risks associated with internet based information transmission and online service delivery which are outside our reasonable control. For example, the Services may be affected by cyber-attacks or by third parties who provide or maintain aspects of the Services. If this occurs, we will make commercially reasonable efforts to make the Services available to you and assist you to access and recover Your Content. However, we cannot guarantee that your access to the Services or Your Content will always be secure, uninterrupted or error free. To the maximum extent permitted by law, we will not be liable for any loss (including loss of any of Your Content) which is outside our reasonable control.
12.1To the maximum extent permitted by law, the maximum aggregate liability of us or any Assisting Party in connection with this Agreement (whether in contract or tort, (including without limitation negligence), in equity, under statute or on any other basis) for all claims arising in each successive 12 month period commencing on the Commencement Date shall be limited to 100% of the total Fees actually paid by you to us or (if you have purchased the Services through one of our resellers) to your reseller in the relevant 12 month period.
12.2To the maximum extent permitted by law, whatever the legal basis for the claim, neither us nor any Assisting Party will be liable for any indirect, consequential, special or incidental damages, or damages for lost profits, revenues, business interruption or loss of data arising in connection with this Agreement, whether in contract or tort (including without limitation negligence), in equity, under statute or on any other basis, even if advised of the possibility of such damages or if such possibility was reasonably foreseeable.
12.3The liability of a party (and, in our case, any Assisting Party) for loss or damage of any kind (including loss or damage caused by negligence) is reduced to the extent that the other party caused or contributed to that loss or damage.
12.4Nothing in this Agreement excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition, implied or imposed by any legislation which cannot lawfully be excluded or limited. This may include the Australian Consumer Law which contains guarantees that protect the purchasers of goods and services in certain circumstances.
12.5If a Non-Excludable Provision applies and we are able to limit your remedy for a breach of that Non-Excludable Provision, then our liability for breach of that Non-Excludable Provision is limited to one or more of the following at our option:
i.in the case of goods: the replacement of the goods or the supply of equivalent goods; the repair of such goods; the payment of the cost of replacing the goods or acquiring equivalent goods; or the payment of the cost of having the goods repaired; and
ii.in the case of services: the supply of the services again; or the payment of the cost of having services supplied again.
12.6You agree not to bring any claim (including in negligence) against any of our employees personally in connection with the Services. You agree that each of our employees may rely on this clause 12.6 as if they were a party to this Agreement, and we enter into this Agreement on their behalf so that they may do so.
12.7Each Assisting Party is intended to have the benefit of this clause 12 as if they were a party to this Agreement, and we enter into this Agreement on their behalf so that they may do so.
12.8Subject to clause 12.4 and to the maximum extent permitted by law, you acknowledge that:
i.we are providing you with access to and use of the Services on an “as is” basis and all express or implied representations, guarantees, warranties or other terms and conditions of any kind relating to this Agreement not expressly stated in this Agreement are excluded from this Agreement; and
ii.the Services are neither fault tolerant nor free from errors, conflicts, bugs or interruptions.
13. TERMINATION AND SUSPENSION
13.1Either party may terminate this Agreement immediately in whole or in part by written notice to the other:
i.if the other party commits a material breach of this Agreement and, if the breach is capable of being remedied, does not remedy such breach within 14 days of the date on which it receives written notice identifying the breach and requesting that it be remedied;
ii.if the other party is subject to an Insolvency Event; or
iii.if the Services are suspended for more than 21 days.
13.2We may terminate this Agreement:
i.for convenience upon one year’s prior written notice; or
ii.immediately, in whole or in part by giving you written notice if, in our reasonable opinion, the continued provision of any Services by it would:
a. breach any applicable law, rule, regulation or professional standard;
b. bring our or our shareholders’ reputation into disrepute;
c. prejudice our or our shareholders’ ability to comply with any applicable independence requirement; or
d. expose individuals providing the Services to unreasonable physical or personal risk.
13.3Notwithstanding our rights to terminate this agreement in clauses 13.1 and 13.2, we may suspend the provision of the Services immediately in whole or in part by written notice to you:
i.where any Fees are not paid to us or (if you have purchased the Services through one of our resellers) to your reseller by the due date, and you fail to pay such amounts within 7 days after we or that reseller notifies you of such failure, until such Fees are paid;
ii.where, after a reasonable request, you do not provide or make available to us information or personnel necessary for us to perform the Services, until the information is provided or the personnel are made available; or
iii.if you commit a material breach of this Agreement that is capable of being remedied, and you fail to remedy such breach within 7 days of the date on which you receive written notice identifying the breach and requesting that it be remedied, until such time as that breach is remedied.
13.4You may terminate this Agreement by written notice to us at least 30 days before the start of a month, in which case this Agreement will terminate immediately before the start of that month. Failure to provide such notice will result in you being charged Fees for another month.
14. END OF SERVICES
14.1At the end of the Services Period, you no longer have the right to access or use the Services. However, at your request, and for a period of up to 30 days after the end of the applicable Services Period, we will make Your Content and Your Applications available to you for retrieval purposes only for a fee of $2,000. If we terminate this Agreement pursuant to clause 13.2, this fee shall not be payable by you.
14.2At the end of the 30-day period described in clause 14.1, and except as may be required by law, we may delete or otherwise render inaccessible any of Your Content and Your Applications.
14.3Following termination of this Agreement, you must pay within 30 days of such termination all amounts that have accrued prior to such termination, as well as all sums remaining unpaid under this Agreement.
All notices, consents, approvals, demands and other instruments required or permitted to be served under this Agreement must, unless otherwise expressly provided in this Agreement, be in writing, signed by or on behalf of the party serving the same or by that party’s solicitor and may be served upon the party at the postal or email address provided for that party in this Agreement.
16. GOODS AND SERVICES TAX
16.1GST means goods and services tax under A New Tax System (Goods and Services Tax) Act 1999 (Cth).
16.2Unless otherwise stated, all fees and charges are expressed on a “GST-exclusive” basis. If GST becomes payable for the Services, you must, in addition to the fees and expenses, pay an additional amount equal to the value of the GST as calculated in accordance with the GST laws in Australia.
i.Nothing in this Agreement limits any liability that you or we may have in connection with any representations or other communications (either oral or written) made prior to or during the term of this Agreement, where such liability cannot be lawfully excluded (including under section 18 of the Australia Consumer Law).
ii.Subject to paragraph i, this Agreement constitutes the sole and entire agreement between the parties and will supersede all previous communications (either oral or written) between the parties with respect to the subject matter of this Agreement, and no agreement or understanding varying or extending the same will be binding on either party unless arising out of the specific provisions of this Agreement.
17.2Governing law and jurisdiction
This Agreement is governed by, and is to be construed in accordance with, the laws of New South Wales and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales and any court hearing appeals from those courts.
i.Subject to clause 17.4, if a Dispute arises:
a. the party raising the Dispute must provide a Dispute Notice to the other party; and
b. the parties must engage in confidential senior level negotiations with a view to resolving the Dispute.
ii.If a Dispute has not been resolved within 14 days after the Dispute Notice is given, the parties agree to refer the Dispute to mediation in accordance with the Resolution Institute Mediation Rules.
iii.If a Dispute has not been resolved within 28 days after the Dispute Notice is given, the Dispute must be referred to arbitration conducted in English, with the seat of arbitration to be Sydney, Australia and in accordance with the ACICA Arbitration Rules. The number of arbitrators will be one if the amount in Dispute is under $10 million or three if the amount in Dispute is more than $10 million.
17.4No court proceedings may be commenced in relation to a Dispute other than in accordance with section 34A of the Commercial Arbitration Act 2010 (NSW) or to seek interim relief.
17.5 Relationship of the parties
Nothing in this Agreement will constitute or be construed to constitute a party as the partner, agent, employee or representative of any other party or to create any trust relationship between them.
17.6Force Majeure Event
If our performance of this Agreement is prevented or restricted by reason of a Force Majeure Event, then we are, for the period in which the Force Majeure Event operates and only to the extent that we are prevented or restricted at that time, excused from our obligation to perform this Agreement, any obligation to avoid or remove the causes of non-performance and any obligation that required performance within a previously agreed timeframe.
If any part of this Agreement is, or becomes, unenforceable, illegal or invalid for any reason, the relevant part is to be deemed to be modiﬁed to the extent necessary to remedy such unenforceability, illegality or invalidity or if this is not possible then such part must be severed from this Agreement, without affecting the enforceability, legality or validity of any other provision of this Agreement.
A power, remedy or right arising from any provision of this Agreement can only be waived, qualiﬁed, restricted, modiﬁed or amended speciﬁcally in writing by the party with that power, remedy or right.
Any clauses which are intended or capable of having effect after the expiration or termination of this Agreement are continuing obligations and those clauses survive this Agreement’s rescission, termination, completion or expiry.
Schedule 1 - Glossary
“Assisting Party” means any party that is in any way involved in or associated with the provision of the Services, including a Member Firm, other than the parties to this Agreement.
“Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
“Authorised Users” means your employees, contractors or officers that are Full Authorised Users or Limited Authorised Users.
“Business Day” means a day on which banks are open for business excluding Saturdays, Sundays, bank holidays or public holidays in Sydney.
“Commencement Date” means the date on which you are first given access to use the Services under this Agreement.
“Confidential Information” means (whether or not in material form and whether or not disclosed before or after the date this Agreement commences) any information of whatever kind disclosed or revealed by a party to the other party under or in relation to this Agreement that:
i.is by its nature confidential;
ii.is designated by the disclosing party as confidential; or
iii.the receiving party knows or reasonably ought to know is confidential,
but does not include information that:
iv.is, or becomes, publicly available without a breach of this Agreement;
v.was lawfully known to the receiving party without an obligation to keep it confidential;
vi.is received from another source who can disclose it lawfully and without an obligation to keep it confidential; or
vii.is independently developed by the receiving party.
“Dispute” means a dispute in relation to this Agreement or the Services.
“Dispute Notice” means a notice of a Dispute that contains sufficient detail to enable the Dispute to be considered.
“Fees” means the Subscription Fees and the Support Fees.
“Force Majeure Event
” means a telecommunications system failure, ﬁre, storm, ﬂood, earthquake, war, riot, civil disturbance, labour dispute, transportation embargo, law, order, or directive of any government in matters relating to this Agreement, or any other act or condition beyond the reasonable control of a party.
“Full Authorised Users” means those Authorised Users that have full rights to access and use the Services in the manner determined by us from time to time as constituting full access.
“Insolvency Event” means the occurrence of any one or more of the following events in relation to a party:
i.an order is made or an effective resolution is passed for winding up or dissolution without winding up (otherwise than for the purposes of reconstruction or amalgamation) of that party and the order or resolution remains in effect for a continuous period of 7 Business Days;
ii.a receiver, receiver and manager, official manager, administrator, provisional liquidator, liquidator, or like official is appointed over the whole or substantial part of the undertaking and property of that party and the appointment remains in effect for a continuous period of 7 Business Days;
iii.a holder of an encumbrance takes possession of the whole or any substantial part of the undertaking and property of that party;
iv.that party is unable to pay its debts as they fall due; or
v.that party becomes insolvent or is deemed to become insolvent under any applicable Law.
“Intellectual Property Rights” means all intellectual property or other proprietary rights throughout the world, whether under statute or common law or equity, now or hereafter in force or recognised, including but not limited to: (i) copyrights, trade secrets, trade-marks, patents, inventions, designs, logos and trade dress, moral rights, mask works, publicity rights, privacy rights and any other intellectual property or proprietary rights; and (ii) any application or right to apply for any of the rights referred to in clause (i), and any and all renewals, extensions and restorations of these.
“Licensor” means third party licensors.
“Limited Authorised Users” means those Authorised Users that have limited rights to access and use the Services in the manner determined by us from time to time as constituting limited access.
“Login Credentials” means your or your Authorised Users’ usernames and passwords or other credentials needed in order to access the Services.
“Member Firm” means an entity (whether or not incorporated) which is a member or an affiliate of a member of the KPMG-branded network of independent member firms.
“Microsoft” means Microsoft Corporation and/or any of its affiliates.
“Microsoft Terms” means the terms as determined by Microsoft, as set out in Schedule 2 and as Microsoft may decide to modify from time to time.
“Modification Start Date” means the start of the month after the month in which we notify you of modifications to the Microsoft Terms.
“Non-Excludable Provision” means any guarantee, warranty, term or condition that is implied or imposed in relation to this Agreement under the Australian Consumer Law or any other applicable legislation that cannot be excluded.
“Patches” means any version releases, patches, bug fixes, updates and/or maintenance and service packs.
“Personal Information” has the meaning given to that term in the Privacy Act 1988 (Cth).
“Services” means the WIISE subscription-based cloud computing business service.
“Services Period” means the period from the Commencement Date until the date of termination of this Agreement.
“Starter Pack” means the basic provision of the Services and includes those services set out in the Appendix.
“Subscription Fee” means those subscription fees payable for the Services in accordance with this Agreement.
“Support Fee” means those fees payable for the Support Services in accordance with this Agreement.
“Support Services” means those support services purchased in accordance with this Agreement.
“you” means the relevant legal entity or person that uses the Services, as identified in the online application form completed by that entity or person.
“Your Applications” means any software programs that are uploaded to the Services by you or on your behalf, or by your Authorised Users.
“Your Content” means your text, files, software, images, graphics, illustrations, information, data, audio, video, photographs and all data, documents, materials or other information provided to us or entered into the Services by you, or on your behalf, or at your request, or by your Authorised Users.
Schedule 2 – Microsoft terms
Agreement Regarding Use of Integrated Microsoft Products
This Agreement Regarding Use of Integrated Microsoft Products (“agreement”) is between the entity (“you” or “your”) to whom the attached subscription agreement grants rights in a product or solution that incorporates limited rights to certain Microsoft Products, and the Microsoft entity providing you the Online Services (“Microsoft”, “we”, “us”, or “our”). Capitalized terms are defined in Section 7.
1. Authorization; Access; Acceptable Use.
a.Authorization. Microsoft has authorized Solution Provider to integrate the Products with Solution Provider’s products, services and technology to form the Unified Solution that is provided to you under the agreement between you and Solution Provider. You acknowledge and agree that Solution Provider, and not Microsoft is the sole provider of the Unified Solution and that Solution Provider bears full responsibility to you for all of the Unified Solution’s features, functionality and performance. Solution Provider may make separate representations or warranties to you concerning the Unified Solution in your agreement with the Solution Provider, and unless otherwise agreed by Microsoft in writing, you agree to look solely to Solution Provider for all matters relating to or arising out of the Unified Solution.
b.Administrator Access and Customer Data. You acknowledge and agree that: (i) Company will be the primary administrator of the Online Services for the term of your subscription and will have administrative privileges and access to Customer Data, however, you may request additional administrator privileges from Company; (ii) Company’s privacy practices with respect to Customer Data or any services provided by Company may differ from Microsoft’s privacy practices; and (iii) Company may collect, use, transfer, disclose, and otherwise process Customer Data, including personal data. You consent to Microsoft providing Company with Customer Data and information that you provide to Microsoft for purposes of ordering, provisioning and administering the Online Services. You are responsible for maintaining the confidentiality of any non-public authentication credentials associated with your use of the Online Services. You must promptly notify Company’s customer support personnel about any possible misuse of their accounts or authentication credentials or any security incident related to the Online Services.
c. Acceptable use. You may use the Product only in accordance with this Agreement. You may not reverse engineer, decompile, disassemble, or work around technical limitations in the Product, except to the extent applicable law permits it despite these limitations. You may not disable, tamper with, or otherwise attempt to circumvent any billing mechanism that meters the use of the Online Services. You may not rent, lease, lend, resell, transfer, or host the Product, or any portion thereof, to or for third parties.
2. Right to Suspend Use.
a.We may suspend your use of the Online Services if: (i) it is reasonably needed to prevent unauthorized access to Customer Data; (ii) you fail to respond to a claim of alleged infringement within a reasonable time; or (iii) you do not abide by the Acceptable Use Policy or you violate other terms of this agreement.
b.Where possible, a suspension will apply to the minimum necessary part of the Online Services and will be in effect only while the condition or need exists. We will give notice to the named administrators for your Subscription, which may be you and/or your Solution Provider, before we suspend, except where we reasonably believe we need to suspend immediately. If you do not fully address the reasons for the suspension within 60 days after we suspend, we may terminate your Subscription and delete your Customer Data without any retention period. We may also terminate your Subscription if your use of the Online Services is suspended more than twice in any 12-month period.
3. Security, privacy, and data protection.
a.Customer Data. You agree that you are solely responsible for the content of all Customer Data. You agree to secure and maintain all rights in Customer Data necessary for Microsoft to provide the Online Services without violating the rights of any third party or otherwise obligating Microsoft to the Customer or to any third party. Microsoft does not and will not assume any obligations with respect to Customer Data or to your use of the Product other than as expressly set forth in this agreement, or as required by applicable law.
b.Consent. You consent to the processing of personal information by Microsoft and its agents to facilitate the subject matter of this agreement. You may choose to provide personal information to Microsoft on behalf of third parties (including your contacts, Solution Provider, administrators, and employees) as part of this agreement. You will obtain all required consents from third parties under applicable privacy and data protection laws before providing personal information to Microsoft.
c.Online Services Terms. Additional privacy and security details are in the Online Services Terms. The commitments made in the Online Services Terms only apply to the Online Services purchased under this agreement and not to any services or products provided by the Solution Provider.
d.Law Enforcement. You consent and authorize Microsoft (and its service providers and subcontractors), at Solution Provider’s direction or as required by law, to access and disclose to law enforcement or other government authorities data from, about or related to you, including the content of communications (or to provide law enforcement or other government entities access to such data).
e.Notification to Users. As and to the extent required by law, you shall notify the individual users of the Online Services that their data may be processed for the purpose of disclosing it to law enforcement or other governmental authorities as directed by Solution Provider or as required by law, and you shall obtain the users’ consent to the same.
f.Agents. You appoint Solution Provider as your agent for purposes of interfacing with and providing instructions to Microsoft for purposes of this Section 2.
4. Disclaimer of Warranties.
DISCLAIMER. The Products are provided to you AS-IS and WITHOUT WARRANTY. Microsoft disclaims all warranties, whether express, implied, statutory, or otherwise, including warranties of merchantability or fitness for a particular purpose. These disclaimers will apply except to the extent applicable law does not permit them.
5. Limitation of liability.
a.EXCLUSION. EXCEPT AS REQUIRED BY LAW, MICROSOFT SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES, LOSSES OR CLAIMS DIRECTLY OR INDIRECTLY ARISING OUT OF THE ONLINE SERVICE. Neither Microsoft nor you will be liable to the other for indirect, special, incidental, consequential, punitive, or exemplary damages, or damages for lost profits, revenues, business interruption, or loss of business information, even if the party knew they were possible or reasonably foreseeable.
b.Exceptions to limitations. The limits of liability in this Section apply to the fullest extent permitted by applicable law, but do not apply to violation of the other party's intellectual property rights.
a.Notices. You must send notices by mail, return receipt requested, to the address set forth above. You agree to receive electronic notices from us, which will be sent by email to the account administrator(s) named for your Subscription. Notices are effective on the date on the return receipt or, for email, when sent. You are responsible for ensuring that the email address for the account administrator(s) named for your Subscription is accurate and current. Any email notice that we send to that email address will be effective when sent, whether or not you actually receive the email.
b.Severability. If any part of this agreement is held unenforceable, the rest remains in full force and effect.
c.Waiver. Failure to enforce any provision of this agreement will not constitute a waiver.
d.U.S. export jurisdiction. You shall agree and acknowledge that Products are subject to U.S. export jurisdiction. You agree to comply with all applicable laws, including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, and end-user, end-use and destination restrictions issued by U.S. and other governments.
e. Applicable law and venue. This agreement is governed by Washington law, without regard to its conflict of laws principles, except that: (i) if you are a U.S. Government entity, this agreement is governed by the laws of the United States; and (ii) if you are a state or local government entity in the United States, this agreement is governed by the laws of that state. Any action to enforce this agreement must be brought in the State of Washington. This choice of jurisdiction does not prevent either party from seeking injunctive relief in any appropriate jurisdiction with respect to violation of intellectual property rights.
Any reference in this agreement to “day” will be a calendar day.
“Acceptable Use Policy” is set forth in the Online Services Terms.
“Customer Data” is defined in the Online Services Terms.
“Online Services” means any of the Microsoft-hosted online services subscribed to by you under this Agreement, including Microsoft Dynamics Online Services, Office 365 Services, Microsoft Azure Services, or Microsoft Intune Online Services.
“Online Services Terms” means the terms generally published on the Microsoft Volume Licensing portal, (https://www.microsoft.com/en-us/Licensing/product-licensing/products.aspx or a successor website) that apply to your use of the Products, as in effect on the date of the commencement of your Subscription or renewal thereof.
“Product” means any Online Service (including any Software).
“Software” means software we provide for installation on your device as part of your Subscription or to use with the Online Service to enable certain functionality which is embedded into Company’s Unified Solution.
“Solution Provider” means the provider of the Unified Solution as defined in the agreement between you and such Solution Provider to which this Exhibit is attached.
“Subscription” means an enrollment for Online Services for a defined term as specified in the agreement between you and Solution Provider.
“Unified Solution” means the solution integrating certain Products with Solution Provider software, services, and/or other third-party products, which is sold to you under the agreement between you and Solution Provider.