NCE MANAGED SERVICES TERMS
- NCE MANAGED SERVICES
1.1 The Supplier is a reseller of Microsoft NCE products and/or services under the New Commerce Experience (“NCE Managed Services”). Where the Managed Services referred to in the Statement of Work include the provision of NCE Managed Services, the NCE Managed Services shall be provided in accordance with and governed by the Statement of Work and this Schedule (which is hereinafter referred to as the “NCE Managed Services Terms”).
1.2 Except as defined in these NCE Managed Services Terms, capitalised terms shall have the meanings given to them in the Statement of Work and/or the Master Services Agreement found here (“Agreement”) (as the case may be).
1.3 For the avoidance of any doubt, in the event of a conflict in respect of the NCE Managed Services referred to in the Statement of Work only between these NCE Managed Services Terms and the Agreement, the NCE Managed Services Terms shall prevail. For all other Services, the Agreement shall apply. - INTERPRETATION
2.1 The following definitions in this paragraph 2 apply in these NCE Managed Services Terms.
Cap: is the total monthly volume of Microsoft services which the Client is permitted to use.
Online Service(s): means any of the Microsoft-hosted online services subscribed to by Client under the Agreement, including (but not limited to) Microsoft Dynamics Online Services, Office 365 Services, Microsoft Azure Services, or Microsoft Intune Online Services.
Product(s): the Microsoft online services, tools, software, hardware, or professional support or consulting services provided under the terms of the Customer Agreement.
Third Party Distributor: the third party who sells the Product(s) to the Client or the Supplier (as the case may be).
Subscription(s): the purchase of a Subscription Service. - SERVICE PROVISION
3.1. By submitting an order for NCE Subscription Services, the Client:
(a) represents that any Subscription commitments and requirements disclosed are complete and accurate in all respects;
(b) agrees to pay the Supplier for all orders it submits for Products and the NCE Managed Services; and
(c) agrees to the terms of the NCE Managed Services Terms, the Agreement and the Statement of Work.
3.2. By placing an order with the Supplier, the Client represents and warrants that the Client has accepted the Customer Agreement.
3.3. Once an order for Subscription Services have been accepted by the Supplier:
a) Subscriptions shall continue for the duration of the Agreement or the applicable Statement of Work (as the case may be) unless and until terminated in compliance with the Statement of Work; and/or
b) Adjustments may only be made to increase the Minimum Users and not decrease below any current Minimum User provisioned as more fully set out in the Statement of Work,
in accordance with these NCE Managed Services Terms and the Statement of Work. - CLIENT’S OBLIGATIONS
The Client agrees and acknowledges to adhere to the terms of the Customer Agreement which govern the use of the Subscription Services and the Online Services. - FEES
5.1. Fixed Term Subscriptions:
a) Products sold under fixed term subscriptions are sold for a term as specified in the Statement of Work. The Statement of Work shall specify if such Subscriptions Services are to be billed on a monthly or annual basis.
b) Any subsequent adjustments to annual Subscriptions (e.g. adding users) made mid-billing cycle will be invoiced and paid at the time of placing the order.
c) Any subsequent adjustments to monthly Subscriptions (e.g. adding users) made mid-billing cycle will be calculated and post-billed at the subsequent invoice.
5.2. For all Consumption subscriptions, the Client agrees and acknowledges that:
a) Consumption Subscriptions can only be cancelled in accordance with these NCE Managed Services Term unless otherwise specified in a Statement of Work and any usage before a transfer to another provider is in effect will be billed in the next scheduled invoice date;
b) Consumption Subscription will be billed at the next billing cycle and will include all usage from the prior month. Pricing will be based on the pricing effective during the current billing cycle except when prices decrease or increase. The unit price for an Online Service sold on a consumption basis may change during the subscription period;
c) it shall pay all such usage and is responsible for monitoring its consumption needs;
d) the Client further acknowledges and accepts that the Supplier may establish or install a technical lock or barrier (the “Barrier“), which prevents the Client from utilization of a Product in excess of the Cap;
e) for the avoidance of doubt, if, in spite of paragraph 5.2(d), the Client utilizes a Product in excess of the Cap, the Client shall pay to the Supplier fees and other expenses in accordance with its actual use. Any dysfunction or non-use of the Barrier shall not release the Client from paying fees and costs in accordance with its actual utilization of a Product. The Supplier has no responsibilities with regards to preventing the Client from utilisation in excess of the Cap.
5.3. For the avoidance of doubt, the Supplier may increase any fees related to the Subscription Services in line with any increases imposed upon the Supplier by Microsoft and in line with the terms of the Customer Agreement. The Supplier may change credit or payment terms for unfilled orders if, in the Supplier’s reasonable opinion, the Client´s financial condition, previous payment record, or relationship with the Supplier merits such change.
5.4. The Supplier may change credit or payment terms for unfilled orders if, in the Supplier’s reasonable opinion, the Client’s financial condition, previous payment record, or relationship with the Supplier merits such change. - INTELLECTUAL PROPERTY
6.1. The Client acquires only such limited rights to use the Products as is explicitly described in the Customer Agreement. Any use by the Client of these rights beyond the scope permitted by the Customer Agreement shall constitute a material breach hereof.
6.2. The Supplier is not liable for defects in, or delays related to the Products.
6.3.For the avoidance of doubt, if a claim for infringement concerns the Products, the separate terms and conditions of the Customer Agreement shall apply and is a separate action between the Client and Microsoft. - CANCELLATION
7.1. Subject to paragraph 7.2, where the Client has procured Products or Online Services from the Supplier, the Client may cancel the applicable order in line with the terms set out by Microsoft if the Client notifies the Supplier within four (4) days of placing the initial order for the applicable Products or Online Services. For such notice to cancel to be effective, it must be received by the Supplier within the hours of 9am – 4pm (GMT) on a Business Day.
7.2 The Client acknowledges and accepts that any cancellation pursuant to paragraph 7.1 will only be accepted if submitted by the Supplier within Microsoft’s designated cancellation period for the applicable Online Service or Product and is approved by Microsoft and/or the Third Party Distributor (if applicable) and is in accordance with any other requirements of Microsoft and/or Third Party Distributor (if applicable) at the time of cancellation. If cancellation is approved by Microsoft and/or Third Party Distributor, then the order will be cancelled.
7.3 Depending on the service or product being cancelled, if and to the extent any credit of the purchase price (in full or pro-rata) is issued by Microsoft or the Third Party Distributor (if applicable) to the Supplier, on receipt of the same, the Supplier will pass on any such credit to the Client less any Microsoft and/or Third Party Distributor handling fee as a proportion of the value of any order submitted and approved after the designated period for the relevant Product or Online Service. The Supplier is not liable to the Client if Microsoft and/or Third Party Distributor do not issue a credit. - LIMITATION OF LIABILITY
8.1. For the avoidance of doubt, the terms set out in the Customer Agreement govern the rights and responsibilities of the Client and Microsoft in relation to the use of the Subscription Services and Online Services and the Supplier excludes any and all liability in relation to the use of the Products.
8.2. Notwithstanding anything, to the contrary in the Agreement, the Client shall indemnify the Supplier from and against any claims, including but not limited to claim for licence fees that directly or indirectly arises from the Client’s use of the Subscription Services or reporting under the Agreement. - TERM & TERMINATION
9.1. The Client’s perpetual licences and licences granted on a Subscription basis will continue for the duration of the Subscription period(s), subject to the terms of these NCE Managed Service Terms and the Agreement (as applicable). Unless otherwise specified in the applicable Statement of Work, the Client shall remain liable for any and all payments due in respect of the licences until the end of the respective subscription period.
9.2. Termination of the licences will not affect any other Services provided under these NCE Managed Services Terms or the Agreement.
9.3. The Supplier shall not be liable whatsoever to the Client following any termination or suspension of the Subscription Services for legal, regulatory or any other reason reasons by Microsoft or the Third Party Distributor.
9.4. The Supplier may terminate the NCE Managed Services immediately on giving written notice to the Client if:
a) payment of any amount due from the Client under these NCE Managed Services Terms is overdue by ten (10) Business Days or more provided that the Supplier has given the Client ten (10) days’ written notice of such failure to pay; and/or
b) upon termination by Microsoft or the Third Party Distributor of the licence(s); and/or
in accordance with the Customer Agreement.
9.5. On termination of the Agreement, the applicable Statement of Work or these NCE Managed Services Terms for any reason:
a) the Client shall pay all outstanding sums owing to the Supplier up to and including the date of termination;
b) all licences granted under the Agreement will terminate immediately except for fixed term and fully-paid, perpetual licences;
c) for metered Products billed periodically based on usage, the Client must immediately pay for unpaid usage as of the termination date; and
d) if Microsoft is in breach and the Client is entitled, the Client will receive a credit for any Subscription Services fees, including amounts paid in advance for unused consumption for any usage period after the termination date.