This Agreement (“Agreement”) is a legal contract between you (“you” or “Customer”) and Advantage Business Systems (“Advantage”) from which you are procuring Services (defined below) and governs your use of the Services purchased through Azure Marketplace and AppSource Marketplace (collectively, “Marketplace”) and is a binding contract between the Parties.
This Agreement is the parties’ entire agreement and incorporates and/or supersedes all related prior and contemporaneous agreements in whatever form. By agreeing to these terms and conditions, you represent and warrant that you have the authority to accept this Agreement, and you also agree to be bound by its terms. This Agreement applies to all Orders entered into under this Agreement. Capitalised terms have the meanings given under “Definitions”.
Definitions
“Affiliate” means any legal entity that controls, is controlled by, or is under common control with a party.
“Anti-Corruption Laws” means all laws against fraud, bribery, corruption, inaccurate books and records, inadequate internal controls, money-laundering, and illegal software, currently in force or as amended by the laws of England and Wales.
“Control” means ownership of more than a 50% interest of voting securities in an entity or the power to direct the management and policies of an entity.
“Confidential Information” is defined in the “Confidentiality” section.
“Customer Data” means all data, including all text, sound, software, image or video files that are provided to Advantage or its Affiliates by, or on behalf of, Customer and its Affiliates through use of the Services. Customer Data does not include Support Data.
“Documentation” means all user manuals, handbooks, training material, requirements, and other written or electronic materials Advantage makes available for, or that result from use of, the Services.
“End User” means any person Customer permits to use the Services or access Customer Data.
“Feedback” means ideas, suggestions, comments, input, or know-how, in any form, that one party provides to the other in relation to recipient’s Confidential Information, products, or services. Feedback does not include sales forecasts, future release schedules, marketing plans, financial results, and high-level plans (e.g. feature lists) for future products.
“Insolvent” means admitting in writing the inability to pay debts as they mature; making a general assignment for the benefit of creditors; suffering or permitting the appointment of a trustee or receiver for all or any of its (i.e., the non-terminating party’s) assets, unless such appointment is vacated or dismissed within 60 days from the date of appointment; filing (or having filed) any petition as a debtor under any provision of law relating to insolvency, unless such petition and all related proceedings are dismissed within 60 days of such filing; being adjudicated insolvent or bankrupt; having wound up or liquidated; or ceasing to carry on business .
“Order” means an ordering document used to purchase the Services via the Marketplace.
“Personal Data” means any information relating to an identified or identifiable natural person.
“Representatives” means a party’s employees, Affiliates, contractors, advisors and consultants.
“Services” means all services, websites (including hosting), solutions, platforms, and products identified in an Order and that Advantage makes available under or in relation to this Agreement, including the software, equipment, technology, and services necessary for Advantage to provide the foregoing.
“Standard Contractual Clauses” means the standard data protection clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, as described in Article 46 of the GDPR.
“Subcontractor” means any third party: (1) to whom Advantage delegates its obligations under this Agreement, including an Advantage Affiliate not contracting directly with Customer through an Order; or (2) who, in performing under a contract between it and Advantage or an Advantage Affiliate, stores, collects, transfers or otherwise processes Personal Data (obtained or accessed in connection with performing under this Agreement) or other Customer Confidential Information.
“Support Data” means all data, including all text, sound, video, image files, or software, that are provided to Advantage by or on behalf of Customer (or that Customer authorises Advantage to obtain from a Service) through an engagement with Advantage to obtain technical support for the Services covered under this Agreement.
“Data Protection Law” means any law applicable to Advantage or Customer, relating to data security, data protection and/or privacy, including Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to processing of personal data and the free movement of that data (“GDPR”), and any implementing, derivative or related legislation, rule, regulation, and regulatory guidance, as amended, extended, repealed and replaced, or re-enacted.
“use” means to copy, download, install, run, access, display, use or otherwise interact with.
1. License for the Services
1.1 License grant
The Services are licensed and not sold. Upon the Customer placing their order with Advantage, Advantage will order a license from Microsoft and upon Microsoft’s acceptance of an Order, and subject to Customer’s compliance with this Agreement, Advantage grants Customer a nonexclusive and limited license to use the ordered Services. These licenses are solely for Customer’s own use and business purposes and are nontransferable except as expressly permitted under this Agreement or applicable law.
1.2 Duration of licenses
Licenses granted on a subscription basis expire at the end of the applicable subscription period set out in the Order, unless renewed. Licenses granted for metered Services billed periodically based on usage continue as long as the Customer continues to pay for its usage of the Services. All other licenses become perpetual upon payment in full.
1.3 End Users
The Customer will control access to and use of the Services by End Users and is responsible for any use of the Services that does not comply with this Agreement and will indemnify Advantage in full in respect of any claims arising out of non-compliance.
1.4 Affiliates
Customer may order Services for use by its Affiliates. If it does, the licenses granted to the Customer under this Agreement will apply to such Affiliates, but only the Customer will have the right to enforce this Agreement against Advantage. The use of Services by the Customers Affiliates does not create a contract between the Affiliates and Advantage. Customer will remain responsible for all obligations under this Agreement and for its Affiliates’ compliance with this Agreement and any applicable Order(s).
1.5 Reservation of Rights
Advantage reserves all rights not expressly granted in this Agreement. Services are protected by copyright and other intellectual property laws. No rights will be granted or implied by waiver or estoppel. Rights to access or use Services on a device do not give Customer any right to implement Advantage’s patents or other intellectual property in the device itself or in any other software or devices.
1.6 Restrictions
Except as expressly permitted in this Agreement, Documentation or an Order, Customer must not (and is not licensed to):
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copy, modify, reverse engineer, decompile, or disassemble any Service, or attempt to do so.
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install or use any third-party software or technology in any way that would subject Advantage’s intellectual property or technology to any other license terms.
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work around any technical limitations in the Services or restrictions in Documentation.
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separate and run parts of the Services on more than one device.
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upgrade or downgrade parts of the Services at different times.
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use the Services for any unlawful purpose.
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transfer parts of the Services separately; or
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distribute, sublicense, rent, lease, or lend any Services, in whole or in part, or use them to offer hosting services to a third party.
1.7 License transfers
The Customer can only transfer fully paid-up licenses provided it has obtained the prior written consent of Advantage and complies with all of Advantages requirements in respect of the transfer. Such consent will not be unreasonably withheld.
1.8 Feedback
Any Feedback on the operation of the Services is given voluntarily, and the Customer grants to Advantage without charge, a non-exclusive license under the Customer’s owned or controlled non-patent intellectual property rights to make, use, modify, distribute, and commercialise the Feedback as part of any of Advantage’s products and services, in whole or in part and without regard to whether such Feedback is marked or otherwise designated by the Customer as confidential.
2. Privacy
DATA PROCESSING CLAUSES
DEFINITIONS
Data Protection Legislation: Data Protection Act 2018 (DPA 2018) and the UK General Data Protection Regulation (UK
GDPR).
2.1. DATA PROTECTION
2.1.1. Both parties will, in so far as the Data Protection Legislation applies to this agreement, comply with all applicable requirements of the Data Protection Legislation. This clause 1 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
2.1.2. The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller, and the Supplier is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation). The schedule, Advantage Privacy Policy sets out the scope, nature and purpose of processing by the Provider, the duration of the processing and the types of personal data (as defined in the Data Protection Legislation, Personal Data) and categories of Data Subject.
2.1.3. Without prejudice to the generality of clause 1.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier for the duration and purposes of this agreement.
2.1.4. Without prejudice to the generality of clause 1.1, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under this agreement:
2.1.4.1. process that Personal Data only in accordance with the UK GDPR.
2.1.4.2. ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing
and evaluating the effectiveness of the technical and organisational measures adopted by it).
2.1.4.3. ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
2.1.4.4. not transfer any Personal Data outside of the United Kingdom unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
1.4.4.1. The Customer or the Supplier has provided appropriate safeguards in relation to the transfer.
2.1.4.4.2. The data subject has enforceable rights and effective legal remedies.
2.1.4.4.3. the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
2.1.4.4.4. the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data.
2.1.4.5. assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in
ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators.
2.1.4.6. notify the Customer without undue delay on becoming aware of a Personal Data breach.
2.1.4.7. at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the Personal Data; and
2. .4.8. maintain complete and accurate records and information to demonstrate its compliance with this clause 2 and allow for audits by the Customer or the Customer’s designated auditor.
2.5. In entering into this contract, the Customer agrees that the Supplier shall be authorised to process the data provided by the customer until such time as the Contract has been completed and the period of retention of data has expired. Thereafter all data processed under the terms of this agreement will be destroyed in accordance with the supplier’s data destruction policy (Privacy policy).
2.6. Either party may, at any time on not less than 30 days’ notice, revise this clause 1 by replacing it with any applicable controller to processor standard clauses or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to this agreement)
3. Confidentiality
3.1 Confidential Information
“Confidential Information” is non-public information that is designated “confidential” or that a reasonable person should understand is confidential, including, but not limited to, Customer Data, the terms of this Agreement, and Customer’s account authentication credentials. Confidential Information does not include information that: (1) becomes publicly available without a breach of a confidentiality obligation; (2) the receiving party received lawfully from another source without a confidentiality obligation; (3) is independently developed; or (4) is a comment or suggestion volunteered about the other party’s business, products or services.
3.2 Protection of Confidential Information
Each party will use their reasonable endeavours to protect the other’s Confidential Information and will use the other party’s Confidential Information only for purposes of the parties’ business relationship. Neither party will disclose Confidential Information to third parties, except to its Representatives, and then only on a need-to-know basis under nondisclosure obligations at least as protective as this Agreement. Each party remains responsible for the use of Confidential Information by its Representatives and, in the event of discovery of any unauthorized use or disclosure, must promptly notify the other party.
3.3 Disclosure required by law.
A party may disclose the other’s Confidential Information if required by law.
3.4 Duration of Confidentiality obligation
These obligations apply: (1) for Customer Data, until it is deleted by Advantage; and (2) for all other Confidential Information, for a period of – six years after a party receives the Confidential Information.
4. Verifying compliance
The Customer is responsible for keeping all records relating to Services together with their use and distribution. At Advantage’s expense, Advantage may verify the Customers and its Affiliates’ compliance with this Agreement at any time upon 30 days’ notice. To do so, Advantage may engage an independent auditor (under nondisclosure obligations) or ask Customer to complete a self-audit process. Customer must promptly provide any information and documents that Advantage or the auditor reasonably requests related to the verification and access to systems running the Services. If verification or self-audit reveals any unlicensed use, Customer must, within 30 days, order sufficient licenses to cover the period of its unlicensed use. Without limiting Advantage’s other remedies, if unlicensed use is 5% or more of Customer’s total use of all Services, Customer must reimburse Advantage for its costs incurred in verification and acquire sufficient licenses to cover its unlicensed use at 125% of the then-current Customer price or the maximum allowed under applicable law, if less. All information and reports related to the verification process will be Confidential Information and used solely to verify compliance.
5. Representation and warranties
5.1 Advantage continuously represents and warrants that:
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it has full rights and authority to enter into, perform under, and grant the rights in, this Agreement;
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its performance will not violate any agreement or obligation between it and any third party;
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the Services will not:
1. to the best of Advantage’s knowledge, infringe or violate any third-party patent, copyright, trademark, trade secret, or other proprietary right; or
5.2. to the best of Advantage’s ability contain viruses or other malicious code that will degrade or infect any products, services, software, or Customer’s network or systems, and
e. while performing under this Agreement, Advantage will comply with applicable law, including Data Protection Laws and Anti-Corruption Laws
5.3 Except as expressly stated in this Agreement, Advantage disclaims any and all other warranties (express, implied or statutory, or otherwise)
6. Defence of third-party claims
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By Customer: Customer will indemnify Advantage and its Affiliates from:
i) all third-party claims, actions, proceedings arising from or related to Customer’s or any authorised user’s breach of this Agreement or user terms (a “Claims Against Advantage”) in full
ii) any sums incurred by Advantage in settlement of any claims
iii) all legal costs incurred by Advantage and any third-party legal costs that Advantage either agrees to or are ordered to pay to a third party.
Advantage must provide the Customer with prompt written notice of any Claims Against Advantage.
By Advantage: Advantage will assist the Customer to defendant any and all third-party claims, actions, proceedings, and demands alleging that the use of the Offering as permitted under the Contract infringes or misappropriates a third party’s intellectual property rights (a “Claim Against Customer”).
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Notwithstanding anything contained in subsection (a) above no settlement may be entered into by an indemnifying party, without the express written consent of the indemnified parties (such consent not to be unreasonably withheld).
7. Limitation of liability
For the Services each party’s maximum, aggregate liability to the other under this Agreement is limited to direct damages finally awarded in an amount not to exceed the amounts Customer was required to pay for the Services during the term of the applicable licenses, subject to the following:
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Subscriptions: For Services ordered on a subscription basis, Advantage’s maximum liability to Customer for any incident giving rise to a claim will not exceed the amount Customer paid for the Services during the 12 months before the incident.
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Free Services and distributable code: For Services provided free of charge and code that Customer is authorized to redistribute to third parties without separate payment to Advantage, Advantage excludes any liability for direct or indirect damages.
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Exclusions: In no event will either party be liable for indirect, incidental, special, punitive, or consequential damages, or loss of use, loss of profits, or interruption of business, however caused.
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Exceptions: No limitation or exclusions will apply to liability arising out of either party’s: (1) confidentiality obligations (except for liability related to Customer Data, which will remain subject to the limitations and exclusions above); (2) defense obligations; or (3) breach of the other party’s intellectual property rights.
8. Pricing and payment
A customer’s pricing and payment terms for a given order are set forth and governed by the Microsoft Services Agreement and applicable Order.
9. Term and termination
a. Term: This Agreement is effective until terminated by a party, as described below. The term for each Order will be set forth therein.
b. Termination without cause: Unless otherwise set forth in an Order, either party may terminate this Agreement or any Order without cause on 90 days’ notice. Termination without cause will not affect Customer’s perpetual licenses, and licenses granted on a subscription basis will continue for the duration of the subscription period(s), subject to the terms of this Agreement. Advantage will not provide refunds or credits for any partial subscription period(s) if the Agreement or an Order is terminated without cause.
c. Termination for cause: Without limiting other remedies it may have, either party may terminate this Agreement or any Order immediately on notice if (i) the other party materially breaches the Agreement or an Order, and fails to cure the breach within 30 days after receipt of notice of the breach; or (ii) the other party becomes Insolvent. Upon such termination, the following will apply:
1) All licenses granted under this Agreement will terminate immediately except for fully paid, perpetual licenses.
2) All amounts due under any unpaid invoices will become due and payable immediately. For metered Services billed periodically based on usage, Customer must immediately pay for unpaid usage as of the termination date.
3) If Advantage is in breach, Customer will receive credit for any subscription fees, including amounts paid in advance for unused consumption for any usage period after the termination date.
d. Suspension: Advantage may suspend use of the Services without terminating this Agreement during any period of material breach. Advantage will give Customer reasonable notice before suspending the Services. Suspension will only be to the extent reasonably necessary.
e. Survival: The terms of this Agreement, including the applicable Order, which are likely to require performance, or have application to events that may occur, after the termination or expiration of this Agreement or any Order, will survive termination or expiration, including all indemnity obligations and procedures.
10. Miscellaneous
a. Entire Agreement: This Agreement supersedes all prior and contemporaneous communications, whether written or oral, regarding the subject matter covered in this Agreement.
b. Independent contractors: The parties are independent contractors. Customer and Advantage each may develop products independently without using the other’s Confidential Information.
c. Agreement not exclusive: Customer is free to enter into agreements to license, use, and promote the services of others.
d. Amendments: Unless otherwise agreed in a writing signed by both parties, Advantage will not change the terms of this Agreement, including privacy terms, during the term of this Agreement.
e. Assignment:
1) The Customer may assign the agreement to an Affiliate provided it has obtained the prior written consent of Advantage such consent not to be unreasonably withheld.
2) Customer consents to the assignment to an Affiliate or third party, without prior notice, of any rights Advantage may have under this Agreement to receive payment and enforce Customer’s payment obligations, and all assignees may further assign such rights without further consent.
3) either party may assign this Agreement without the consent of the other party in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets.
f. Severability: If any part of this Agreement is held to be unenforceable, the rest of the Agreement will remain in full force and effect.
g. Waiver: Failure to enforce any provision of this Agreement will not constitute a waiver. Any waiver must be in writing and signed by the waiving party.
h. No third-party beneficiaries: This Agreement does not create any third-party beneficiary rights except as expressly provided by its terms.
i. Notices: Notices must be in writing and will be treated as delivered on the date received at the address, date shown on the return receipt, email transmission date within normal office hours of the Parties, or date on the courier. Notices to Advantage must be sent to the address stated in the Order. Notices to the Customer will be sent to the individual at the address Customer identifies on its account as its contact for notices. Advantage may send notices and other information to Customer by email or other electronic form.
j. Applicable law: The laws of England and Wales will apply to this contract.
k. Compliance with laws: Advantage will comply with all laws and regulations applicable to its provision of the Services. Advantage will obtain and maintain any approvals, licenses, filings, or registrations necessary to its performance, and will comply with all law (including law related to export, corruption, money laundering, or any combination of these). Customers must also comply with laws applicable to their use of the Services.
l. Construction: Neither party has entered this Agreement in reliance on anything not contained or incorporated in it. This Agreement is in English only. Any translation of this Agreement into another language is for reference only and without legal effect. If a court of competent jurisdiction finds any term of the Agreement unenforceable, the Agreement will be deemed modified as necessary to make it enforceable, and the rest of the Agreement will be fully enforced to affect the parties’ intent. Lists of examples following “including”, “e.g.”, “for example”, or the like are interpreted to include “without limitation,” unless qualified by words such as “only” or “solely.”
