These Cloud Solution Provider terms and conditions of sale (the "Agreement") entered into between you ("Client") and Insight Canada Inc. ("Insight") will govern your purchase from Insight of the goods and services described in your order or cart. This Agreement is effective upon your (a) placement of an online or offline order with Insight for the underlying goods and services being purchased; (b) accessing, accepting or using the applicable goods and services purchased from Insight; or (c) acceptance of this Agreement between you and Insight upon completion of an online order.
GENERAL TERMS AND CONDITIONS. The Parties agree as follows:
1.1. “Chargeable Units” means the metric or other unit of measure for the usage of the Cloud Services upon which Fees for Cloud Services are calculated and charged. Without limiting the generality of the foregoing, a Chargeable Unit may be a User, license, seat, device, mailbox, capacity, or bandwidth, as applicable to the Cloud Services (such applicability will be determined by Insight or Vendor).
1.2. “Cloud Services” means the third party branded or provided cloud software, platform and/or infrastructure solutions and services ordered by Client and provisioned through Insight.
1.3. “Fees” means the fees for Cloud Services purchased by Client under this Agreement, including without limitation, Subscription Fees, as described in this Agreement.
1.4. “Insight Services” or "Services" means, without limitation, provisioning, set up, migration services or other professional or consulting services as may be provided directly by Insight in connection with the Cloud Services, as set forth in Schedule 1 and provided by Insight in accordance with the terms and conditions for sale for services located at: https://ca.insight.com/en_CA/help/terms-of-sale-services.html; but expressly excludes Cloud Services.
1.5. “Insight Vendor Agreement” or “ISPA” means the agreement between Insight and Vendor relating to the resale of the Cloud Services to Insight clients, including, without limitation, any order placed by Insight to Vendor under the ISPA to purchase the applicable Cloud Services for resale to Client.
1.6. “Personal Information” means information that is identifiable to a particular individual, including but not limited to such person’s name, physical address, telephone number, email address, social security number, or credit card number, and includes Customer Data (as defined in Microsoft's Online Services Terms).
1.7. “Registered Usage” means the number or quantity of Chargeable Units provisioned by Client directly or through Insight on behalf of Client, calculated on a prorated basis by Vendor.
1.8. “Service Level Agreement” or “SLAs” means the service levels or service level agreements pertaining to, among other things, the nature and quality of the Cloud Services. The SLAs agreed upon under this Agreement, if any, shall be set forth in Exhibit B.
1.9. “Statement of Work” or “SOW” means a mutually agreed upon written statement of work describing the Insight Offering performed by Insight for Client, which may include but is not limited to: description of the scope of work, deliverables, milestones, acceptance criteria, fees and payment schedule, and contacts.
1.10. “Subscription Fees” means recurring fees for Cloud Services during the applicable Subscription Period based on the actual Chargeable Units and Cloud Services ordered by Client.
1.11. “Subscription Period” means a monthly, yearly or other mutually-agreed-upon billing period, as indicated online in Insight’s cloud management portal or as my be set forth in Schedule 1.
1.12. “Term” means collectively, the “Initial Term” and, if applicable, any “Renewal Term,” as defined in subsection 4.1 (Term of Agreement).
1.14. “Territory” means Canada.
1.15. “Third-Party Software” means any software that is owned by one or more third parties, is licensed by Vendor from such third parties, is not included in the software developed or published by Vendor but which may be embedded software subsequently sublicensed by Vendor to Client, and is necessary for Client to access and/or use the Cloud Services.
1.16. “U.S. Export Laws” means laws, regulations, rules, ordinances, governmental orders, administrative acts, and the like of the Canada or U.S. relating to export, including, without limitation, those promulgated, issued, or administered by the Canadian Minister of Foreign Affairs, Public Works and Government Services Canada (“PWGSC”), the U.S. Department of Commerce, the Office of Foreign Assets Control (“OFAC”) of the U.S. Department of the Treasury, U.S. Department of State, and other Canadian or U.S. governmental authorities.
1.17. “Usage Commitment” means the greater of: (i) the Registered Usage selected by Client, or (ii) the then-current Registered Usage as reported to Insight by Vendor and upon which Insight invoices Client for the applicable Usage and Subscription Period during the applicable Term.
1.18. “Vendor” or "Microsoft" is the entity that provides the Cloud Services, as described in the Vendor Terms and offered by Insight under this Agreement, including Third-Party Software licensors (if any).
1.19. “Vendor Facilities” means any infrastructure of Vendor or its licensors in connection with the provision of the Cloud Services, including, without limitation, software programs, hardware, data centers, networks, systems, websites, technology, or other facilities or resources provided or operated by, or on behalf of, Vendor or its licensors in connection with the provision of the Cloud Services.
2 SCOPE OF CLOUD SERVICES.
2.1. Sale of Cloud Services.
(a) Description of Cloud Services; Order Placement. Description of Cloud Services may be amended or otherwise updated unilaterally by Vendor from time to time and without notice. Any order for such services by Client shall incorporate the terms and conditions of this Agreement. Any pre-printed, different or additional terms and conditions sent by Client to Insight are expressly rejected and will not be binding upon Insight.
(b) Microsoft Cloud Agreement. CLIENT EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE ORDERING AND USE OF CLOUD SERVICES UNDER THIS AGREEMENT IS SUBJECT TO THE MICROSOFT CUSTOMER AGREEMENT BETWEEN CLIENT AND MICROSOFT, AS FURTHER REFERENCED IN EXHIBIT A. IT IS CLIENT’S SOLE RESPONSIBITY TO OBTAIN AND REVIEW THE MOST CURRENT MICROSOFT CLIENT AGREEMENT.
2.2. Use of Cloud Services. Except as otherwise provided by Vendor under the Microsoft Online Services Terms or OST (Location of Customer Data at Rest in the OST) , Cloud Services may be provided by Vendor from infrastructure installations or datacenters anywhere in the world; and the provision of such Cloud Services may, at any time, be transferred from one installation to another. There is no guarantee that any such installation, or part thereof, is dedicated to the sole use of Client. Client’s access to, and use of, the Cloud Services shall be subject to the terms and conditions of this Agreement, including the Vendor Terms.
2.3. Client’s Responsibilities. In addition to other duties of Client set forth in this Agreement, Client is responsible for the following:
(a) Client will provide a project contact with decision-making authority to support the scope of Cloud Services described in the Vendor Terms;
(b) Client will provide all necessary hardware, software, and tools at Client’s site required for the implementation of Cloud Services at Client’s site prior to the provisioning of the Cloud Services, and Client is responsible for all licensing requirements in connection with such hardware, software, and tools;
(c) Client shall ensure that the proper personnel are scheduled to review any implementation related to the provisioning of the Cloud Services at Client’s site;
(d) Unless otherwise expressly provided in this Agreement, Client is responsible for any data migration of existing data;
(e) Client shall provide information reasonably requested by Insight or Vendor, including, without limitation, any technical and related information, and any consents that Vendor may need from Client necessary for Vendor to enable the Cloud Services and shall otherwise undertake the responsibilities applicable to Client set forth in the Vendor Terms;
(f) Client agrees to cooperate with Insight in good faith by taking such further actions and/or executing such further agreements or instruments as may be reasonably required under the circumstances by Insight or Vendor;
(g) Client will use the Cloud Services for its own use and for legitimate business purposes and shall not resell, sub-lease, sub-rent, or sub-license Cloud Services to any third party; and
(h) Client shall comply with all relevant legislation and conform to the protocols and industry standards applicable to the use of the internet.
3. FEES AND INVOICING.
3.1. Cloud Services Fees. Subject to subsection paragraph (b) below (Changes in Usage), as consideration for the services purchased by Client under this Agreement, Client shall pay Insight the Fees, which will be based upon the applicable pricing rate for the Cloud Services and the Usage Commitment. Insight reserves the right to make adjustments to pricing for reasons including, but not limited to, changing market conditions, discontinuation, unavailability, Vendor price changes based on general partner/distributor program changes or errors in advertisements.
(a) Pricing Rates. For the Initial Term and unless otherwise provided, the pricing rates for Cloud Services and Insight Services (where applicable) ordered under this Agreement shall be set forth in Schedule 1 or in a quote provided by Insight, which rates will be based upon the Registered Usage and Cloud Services and Insight Services described therein. For any Renewal Term, the pricing rates shall be Insight’s then-current rates for such Cloud Services based upon the applicable Usage Commitment at commencement of the then-current Renewal Term, unless otherwise agreed upon by Insight in writing.
(b) Changes in Usage. Upon execution of this Order, the parties agree that all future quantities used, enabled or consumed for existing purchased Cloud Services will be invoiced on an actual use basis, including without limitation, any increases. If new Cloud Services or features are procured, Client will need to execute a Project Change Request Form for any such net-new Cloud Services.
(c) Exchange Migration Fee. The estimated fee for migration services (where applicable and ordered on Schedule 1) will be bundled together with the Subscription Fees for the requested subscriptions creating an overall fee for subscriptions and migration services. This Migration Fee will be removed from the overall fee after twelve (12) months, leaving only the Subscription Fee due monthly as set forth in Schedule 1, after the initial twelve (12) months.
(d) One-Time Exchange Migration Set-Up Fee. Unless otherwise agreed in writing, Client acknowledges and agrees that Insight will charge an up-front, one-time Migration Fee of $1,195.00 for any Migration Services committed to less than seventy-five (75) chargeable units (where applicable pursuant to Section 3.1(c) above and as set forth on Schedule 1).
3.2. Invoicing. Charges for Cloud Services will accrue on the date the Cloud Services are activated or made available by Vendor to Client and are non-refundable, except as expressly provided in this Agreement. Insight will invoice Client the Service Fees on a monthly basis as set forth in Schedule 1. Fees include: (a) Subscription Fees; and (b) non-recurring set up and other one-off charges (including, but not limited to, domain set-up charges), if any, for a calendar month or on an annual basis.
3.3. Payment Terms. Client must pay all undisputed invoices in full within 30 days of the invoice date. All payment terms are measured from the date of invoice and are payable in the currency specified on the invoice. If an invoice is the subject of a bona fide dispute, Client shall notify Insight in writing, including a description of the nature of such dispute in sufficient detail, within such 30 day period. Failure to comply with the requirements of this provision shall preclude the Client's right to dispute such invoice. All payments must reference the invoice number. Insight reserves the right to charge interest of 1.5% per month or the maximum allowable by applicable law, whichever is less, for any undisputed past due Fees. Client is responsible for all costs of collection, including reasonable attorneys' fees, for any payment default on undisputed Fees.
3.4. Taxes. Fees or prices exclude taxes of any kind and any travel expenses that may be incurred by Insight in connection with this Agreement. Federal, state and local sales, use, and excise taxes and all similar taxes and duties on Cloud Services performed or any other services hereunder, (excluding taxes based on Insight’s income, assets or net worth), are the sole responsibility of Client. Client may provide Insight a tax exemption certificate, which will be subject to review and acceptance by Insight.
3.5. Cloud Services Credits. In the event that a credit for Cloud Services is due to Client in accordance with the Vendor Terms, the parties agree that any credit due will be credited by Insight to Client’s account within a reasonable time after Insight’s receipt the corresponding credit amount from Vendor following Vendor’s verification of Client's claim. Client expressly acknowledges and agrees that Insight is not obligated to provide any Cloud Services credit if Vendor is unable to verify, or otherwise rejects, Client’s claim for any reason or if Vendor fails to provide the Cloud Services credit for any reason even if it has verified Client’s claim. ANY CREDITS OR TERMINATION RIGHTS DESCRIBED UNDER VENDOR’S SLAs SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF CLIENT IN CONNECTION WITH ANY UNAVAILABILITY OF THE CLOUD SERVICES OR BREACH OF SUCH SLAs.
4. TERM; SUSPENSION; TERMINATION.
4.1. Term of Agreement.
(a) Initial Term. Unless earlier terminated in accordance with this Section (Term; Suspension; Termination), the initial term of Client’s subscription of the Cloud Services shall be as indicated on Schedule 1, commencing on the later of (i) the Effective Date, or (ii) the date the Cloud Services are made available to Client by the Vendor as notified by the Vendor to Insight, (the “Initial Term”).
(b) Renewal Term. Upon expiration of the Initial Term, Client’s Cloud Services subscription will renew for additional, successive Subscription Periods as indicated in Schedule 1 (each a “Renewal Term”), unless Client or Insight provides notice of non-renewal (as provided in subsection paragraph (c) (Non-Renewal Notification) below) at least 60 days prior to the end of the Initial Term or the Renewal Term then in effect.
CLIENT EXPRESSLY ACKNOWLEDGES AND AGREES THAT CLIENT’S CLOUD SERVICES SUBSCRIPTION WILL BE SUBJECT TO: (i) THIS AGREEMENT (ii) THE VENDOR TERMS, AND (iii) OTHER CLOUD SERVICES-RELATED TERMS, EACH AS THEY EXIST ON THE FIRST DAY OF ANY RENEWAL TERM. SUCH TERMS MAY BE DIFFERENT THAN THOSE IN EFFECT DURING THE IMMEDIATELY PRECEDING SUBSCRIPTION PERIOD AND MAY BE FURTHER AMENDED BY INSIGHT AND/OR THE VENDOR, AS PROVIDED IN THE THEN-CURRENT TERMS. CLIENT IS SOLELY RESPONSIBLE FOR PERIODICALLY REVIEWING THE RELEVANT TERMS TO ENSURE THAT CLIENT UNDERSTANDS AND PERFORMS IN ACCORDANCE WITH THE TERMS AND CONDITIONS THEN IN EFFECT.
(c) Non-Renewal Notification. Any notices regarding a party’s non-renewal of Cloud Services as provided in this subsection will be submitted in accordance with Section 5.5 (Notices).
4.2. Insight/Vendor Suspension/Termination Rights.
(a) Client’s Breach. Without prejudice to any other rights to which it may be entitled, Insight may terminate this Agreement, in whole or in part, with immediate effect, if Client materially breaches this Agreement and fails to remedy that breach within 30 days of receipt of Insight’s written notice of such breach and its intent to terminate the Agreement unless the breach is remedied. A material breach of this Agreement, includes but is not limited to: (i) Client’s failure to pay Fees when due, (ii) rejection for any reason of any Fees using a credit card provided by Client, (iii) Client’s breach of subsection 5.3 (Compliance With Laws), or (iv) Client’s use of the Cloud Services in violation of the terms and conditions of this Agreement, the Vendor Terms (“Use Issues”). Notwithstanding anything to the contrary in this paragraph, Insight is not required to provide Client the aforementioned notice and cure period and may immediately terminate this Agreement, in whole or in part, if Vendor does not provide corresponding adequate notice and cure period to Insight in connection with Vendor’s termination of Cloud Services due to Use Issues. In addition, Insight may terminate this Agreement effective upon notice, if Client: (i) becomes insolvent; (ii) enters bankruptcy, reorganization, or other similar proceedings under applicable law, whether voluntary or involuntary; (iii) admits in writing its inability to pay debts; or (iv) makes or attempts to make an assignment for the benefit of creditors.
(b) Suspension; Fee Accrual/Reinstatement. If any Cloud Services, or part thereof, are withheld or suspended by Vendor as a result of Use Issues, Fees will continue to accrue and will be based upon the Usage Commitment. Any such terminations or suspensions shall be in accordance with the notice requirements of the relevant Vendor Terms. Client shall continue to be responsible for payment of Fees in accordance with this Agreement. Client will pay Insight for such charges within 30 days of Insight’s invoice date. Furthermore, if Vendor suspends Cloud Services due to Client’s material breach because of Use Issues and requires an increase in the fees payable by Insight to Vendor as a prerequisite to resume making the Cloud Services available for Client, Client agrees to pay such additional Fees (including a reinstatement fee) in accordance with this Agreement if invoiced by Insight. Any such action by Vendor does not give Client the right to terminate this Agreement.
4.3. Client Termination Rights.
(a) Client Termination under the Agreement. This Agreement may not be terminated or suspended by Client for convenience. Client has the right to terminate this Agreement only if Insight materially breaches this Agreement and fails to remedy that breach within 30 days after receipt of Client’s written notice of such breach and Client’s intent to terminate this Agreement unless the breach is remedied. Client may terminate this Agreement effective upon notice, if Insight: (i) becomes insolvent; (ii) enters bankruptcy, reorganization, or other similar proceedings under applicable law, whether voluntary or involuntary; (iii) admits in writing its inability to pay debts; or (iv) makes or attempts to make an assignment for the benefit of creditors.
(b) Client Termination under Vendor Terms. Client may have certain rights to terminate some Cloud Services (but not the entire Agreement) only as expressly provided under the Vendor Terms; provided, however, that Client must first be in compliance with all termination-related processes and other applicable requirements set forth in the Vendor Terms. Client must provide Insight prior written notice of Client’s election to exercise such termination rights, and any such election must be exercised in accordance with the applicable Vendor Terms.
4.4. ISPA Termination. This Agreement will immediately terminate, without any liability for such termination if: 1) the ISPA terminates for any reason or otherwise expires; or 2) Vendor refuses to provide such Cloud Services to Client for any reason.
4.5. Effect of Termination.
(a) Payment upon Breach. If all or part of this Agreement is terminated by Insight as provided in the subsection paragraph titled “Client’s Breach,” Client shall pay Insight the Subscription Fees that would be due for the remainder of the unexpired Subscription Period and any Fees for Cloud Services performed prior to termination. All such fees shall become immediately due and payable upon any such termination.
(b) Provision of Cloud Services after Client’s Termination. If despite Client’s election of termination, or any notice to terminate Cloud Services, or any part thereof, Client: (i) requests the continued delivery of the Cloud Services (or part thereof) after the intended termination effective date indicated in Client’s written notice, or (ii) otherwise continues to have access to and use such Cloud Services after the intended termination date, then, even if such request or access and use is temporary, to the extent Vendor invoices Insight for the provision of such Cloud Services to Client, Client shall pay Insight the Fees. The terms of this Agreement shall govern the provision of any Cloud Services until terminated by Vendor.
(c) Payment upon Termination. Except for termination for breach as indicated in subsection paragraph (a) above or unless the Microsoft Cloud Solution Provider program otherwise allows applicable fixed term Cloud Service subscriptions to be terminated without any early termination charge, upon termination or expiration of Cloud Services, payment shall be made in accordance with the terms of payment provided under this Agreement. Termination or expiration of this Agreement shall not relieve either party of its rights or obligations incurred prior to termination or expiration that by their nature or term survive, including any and all payment due under this Agreement.
5. ADDITIONAL TERMS AND CONDITIONS.
5.1. Authority. Each party represents and warrants that it has the full power and authority to enter into this Agreement, and that it possesses all other rights necessary for the performance of its obligations under this Agreement, without violating any right of any other party. Client further represents and warrants that Client is purchasing Cloud Services in the Territory for use within the Territory, unless otherwise specifically and mutually agreed upon in writing by authorized representatives of each party.
5.2. Account Information and Access.
(a) To purchase Cloud Services or apply for credit in connection with such purchase, Client must establish an account with Insight and obtain a login or user name, account number, password, and/or other access-related information (collectively, “Account-Access Information”). Client agrees to promptly: (i) provide certain accurate, current and complete information as reasonably required by Insight to process Client’s order or credit application, or by Vendor to provision the Cloud Services or provide technical support; and (ii) maintain and update such information to keep it accurate, current and complete, including but not limited to, changes to Client’s billing address or e-mail address, or the names of its authorized personnel. Client authorizes Insight to process any and all account transactions initiated through the use of Client’s Account-Access Information.
(b) Client agrees to be responsible for all activities, changes, and obligations incurred through use of Client’s Account-Access Information, and for maintaining the confidentiality of Client’s Account-Access Information. Insight may assume, without inquiry, that any person in possession of Client’s Account-Access Information has authority to access Client’s account or the Cloud Services, or modify Client’s account, including purchasing additional or different Cloud Services or increasing the Registered Usage pertaining to Client’s purchase under this Agreement. Client must immediately notify Insight in writing of any unauthorized use of Client’s Account-Access Information, and Client agrees to be responsible for any unauthorized use, charges made and/or liabilities incurred through Client’s Account-Access Information. Insight shall not be liable for any loss, damage, cost, or expenses incurred by Client resulting from Insight’s reliance on any document, instruction, notice, or communication reasonably believed by Insight to be genuine and originating from an authorized representative of Client.
5.3. Compliance with Laws. Client shall comply with, and agrees that it is its responsibility to adhere to, all applicable laws in connection with Client’s use of the Cloud Services, including without limitation, Export Laws and any territorial restrictions under this Agreement, or any such restrictions imposed by Vendor. In addition, Client expressly acknowledges and agrees that one or more of the Vendor Facilities may be located outside Canada and that the use of the Cloud Services, including, without limitation, the transfer, transmission, distribution, posting, uploading, storage, downloading, and the retrieval of any information, software, technology, or other technical data via the Cloud Services may be subject to Canadian or U.S. or foreign export, import, privacy, or data security laws. Client represents and warrants that it is not on any blocked, debarred, or denied entity or party list, any debarred or denied persons list, or any other prohibited or restricted person or entity list under the Export Laws, and (c) Client is not a national or resident of, located in, or under the control of, any restricted country or any country with which the U.S. has embargoed trade under the U.S. Export Laws or other applicable law. Client shall not transfer, transmit, distribute, upload, store, or post via, or download or retrieve from, the Cloud Services any information, software, technology, or other technical data in violation of applicable law.
5.4. High-Risk Use; Security; Access; Privacy. Client acknowledges and agrees that Insight makes no representations, warranties or assurances that the Cloud Services are designed for or suitable for use in any high risk environment, including but not limited to aircraft or automobile safety devices or navigation, life support systems or medical devices, nuclear facilities, or weapon systems, and Client shall indemnify, defend and hold Insight harmless from any loss (of any kind), cost, damages or expense (including, but not limited to, attorney’s fees and expenses) arising from any such use of the Cloud Services. Client further agrees to review and comply with the Vendor’s disclaimers and restrictions, if any, regarding the use of Cloud Services, in high risk environments. Client further acknowledges and agrees that Client shall be solely responsible for daily back-up and other protection of its data and software against loss, damage or corruption. Client shall be solely responsible for reconstructing data (including but not limited to data located on disk files and memories) and software that may be lost, damaged or corrupted during the performance of Cloud Services. INSIGHT, ITS AFFILIATES, AND ITS AND THEIR SUPPLIERS, SUBCONTRACTORS AND AGENTS ARE HEREBY RELEASED AND SHALL CONTINUE TO BE RELEASED FROM ALL LIABILITY IN CONNECTION WITH THE LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE, AND CLIENT ASSUMES ALL RISK OF LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE IN ANY WAY RELATED TO OR RESULTING FROM THE CLOUD SERVICES.
5.5. Notices. Except as otherwise provided herein, any notice required to be given under this Agreement must be in writing and sent to the addresses set forth on the Order Form (or to other persons or addresses as either party may designate in writing to the other subsequent to the execution of this Agreement). Such notice is considered received: (i) when personally delivered; (ii) one business day after having been sent by overnight mail via a professional carrier; or (iii) when sent by fax or electronic mail, receipt confirmed by the applicable method of transmittal; or (iv) if sent by certified or registered mail, within 5 business days of deposit in the mail. Legal notices to Insight must be sent with a separate copy addressed to:
2701 E. Insight Way
Chandler, AZ 85286
Attn: Legal Department
5.6. Assignments. Client may assign this Agreement, with written consent of Insight, to (i) an Affiliate of Client or (ii) in connection with a transaction or series of transactions in which Client, directly or indirectly, sells, disposes of or otherwise transfers all or substantially all of its assets to one or more unaffiliated purchaser(s), including, without limitation, by way of a merger, consolidation, reorganization or similar transaction; provided, however, that any assignee of Client is, pursuant to this Section 5.6 legally, financially and technically capable of performing the obligations of this Agreement. Insight may, without having to obtain Client’s consent, assign this Agreement, and its rights, obligations, and privileges hereunder to any Affiliate or corporate successor without the consent of Client. Any attempted assignment, delegation or assumption not in accordance with this subsection shall be void and of no force or effect. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and permitted assigns of the parties.
5.7. Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of the Province of Ontario, which shall have exclusive jurisdiction for all judicial. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
5.8. Warranty Disclaimer. INSIGHT PROVIDES NO WARRANTY IN CONNECTION WITH THE CLOUD SERVICES, ANY TECHNICAL SUPPORT PROVIDED BY VENDOR IN CONNECTION WITH THE CLOUD SERVICES, OR ANY VENDOR FACILITIES. CLOUD SERVICES AND ANY TECHNICAL SUPPORT PROVIDED BY VENDOR ARE SOLD OR OTHERWISE PROVIDED TO CLIENT "AS IS," WITHOUT WARRANTY OF ANY KIND FROM INSIGHT.
INSIGHT EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED IN RELATION TO THE CLOUD SERVICES(INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, SATISFACTORY QUALITY, DURABILITY, ACCURACY OR NON-INFRINGEMENT)ARISING OUT OF, OR REALTED TO, THE CLOUD SERVICES OR THE HARDWARE OR SOFTWARE USED TO DELIVER THE CLOUD SERVICES. FURTHERMORE, INSIGHT DOES NOT WARRANT THAT THE CLOUD SERVICES WILL BE TIMELY, UNINTERRUPED OR ERROR FREE OR THAT THE CLOUD SERVICES WILL MEET CLIENT’S REQUIREMENTS. THE DISCLAIMER CONTAINED IN THIS SECTION 5.8 DOES NOT AFFECT THE TERMS OF ANY VENDORS’ WARRANTY. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY AND LIMITED REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE. THE TERMS OF THIS SECTION 5.8 DOES NOT AFFECT THE TERMS OF ANY WARRANTIES FROM THE VENDOR..
5.9. Confidentiality. “Confidential Information” means any information or data of a confidential nature of a Party, its Affiliates or a third party in oral, electronic or written form that the receiving Party knows or has reason to know is proprietary or confidential and that is disclosed by a Party in connection with this Agreement or that the receiving Party may have access to in connection with this Agreement, including but not limited to the terms and conditions of each Statement of Work. Confidential Information does not include Personal Data. Each party anticipates that it may be necessary to provide access to Confidential Information to the other Party in the performance of this Agreement or a Statement of Work. Confidential Information does not include information that: (i) is or becomes generally known or in the public domain through no act or omission of the other party; (ii) was lawfully in a party’s possession without restriction as to use or disclosure before its receipt from the other party; (iii) is received from, or was made available to, a third party without any obligation of confidentiality; (iv) was independently developed by the party; (v) is otherwise permitted to be disclosed under the Order; or (vi) is disclosed with the prior written consent of the disclosing party. Client agrees Insight may disclose Client’s Confidential Information to Vendor as reasonably necessary for, or requested by, Vendor to provide the Cloud Services or any technical support related to the Cloud Services. If a Receiving Party is required to provide Confidential Information to any court, government agency or party pursuant to a written court order, subpoena, regulation or process of law, the recipient must first promptly notify the disclosing party so that the Disclosing Party may have a reasonable opportunity to seek a protective order or other appropriate remedy from the proper authority. Each party agrees that in the event of a breach or threatened breach of any provisions within this paragraph, the Disclosing Party is entitled to seek specific performance and injunctive or other equitable relief as a remedy for such breach or anticipated breach. Any such relief is in addition to, and not in lieu of any other remedies available, including, without limitation, monetary damages.
5.10. Client Indemnification. Client shall defend and indemnify Insight for, from, and against any losses, damages, penalties, costs, and expenses (including reasonable attorney fees) incurred by Insight in connection with any claims or actions by Vendor or other third parties arising out of or resulting from: (i) Client’s use of the Cloud Services other than as permitted hereunder (excluding claims that the Cloud Services, as provided by Vendor, infringe third party intellectual property rights), and/or (ii) Client’s failure to comply with applicable law.
5.11. Limitation of Liability.
(a) Direct Damages Limitation. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO THE SUBSECTION PARAGRAPH (B) BELOW TITLED “INDIRECT/SPECIAL DAMAGES,” INSIGHT’S MAXIMUM LIABILITY TO CLIENT FOR DAMAGES ARISING IN ANY WAY OUT OF THIS AGREEMENT IS LIMITED TO PROVEN DIRECT DAMAGES, NOT TO EXCEED IN THE AGGREGATE, IN ANY 12 MONTH PERIOD, AN AMOUNT EQUAL TO CLIENT’S NET PAYMENTS FOR THE CLOUD SERVICES PURCHASED IN THE 6 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TO THE EXTENT INSIGHT HAS ANY OBLIGATION UNDER THE SLAs, INSIGHT’S MAXIMUM LIABILITY IN ANY CALENDAR MONTH SHALL BE NO MORE THAN ONE HUNDRED PERCENT (100%) OF THE MONTHLY CHARGE PAYABLE BY THE CLIENT TO INSIGHT FOR THE AFFECTED CLOUD SERVICE(S) FOR SUCH MONTH.
(b) Indirect/Special Damages. EXCEPT FOR FRAUD AND CLIENT’S OBLIGATIONS UNDER THE SUBSECTION TITLED “CLIENT INDEMNIFICATION,” NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE), ARISING IN ANY WAY OUT OF THIS AGREEMENT, ANY OF THE DOCUMENTS REFERENCED IN THIS AGREEMENT, OR ANY ADDENDA OR AMENDMENT HERETO, OR ARISING OUT OF THE USE OF OR INABILITY TO USE ANY CLOUD SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(c) BOTH PARTIES UNDERSTAND AND AGREE THAT THE LIMITATIONS OF LIABILITIES FOR EACH PARTY SET FORTH IN THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, ARE REASONABLE AND THEY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT SUCH LIMITATIONS.
5.12. Miscellaneous. Except as specifically provided herein, this Agreement is not intended to and does not create any claims, rights, remedies, or benefits exercisable by any third party. Any subsequent additions, deletions or modifications to this Agreement are not binding unless agreed upon in writing by authorized representatives of both parties. If any part of this Agreement is, for any reason, found to be invalid, illegal or unenforceable, all other parts of this Agreement will remain in effect. A delay or failure to exercise or partially exercise any right under this Agreement does not operate as a waiver, nor will it preclude future exercise of that right or permit, or sanction any subsequent breach of any term or condition. Insight may subcontract any or all of its obligations hereunder to one or more qualified parties without Client’s prior consent, unless otherwise restricted in any SOW. Except for the obligation to make timely payments, neither party will be liable for any failure or delay in the performance of this Agreement due to circumstances beyond its reasonable control, including but not limited to acts of nature, acts of government, national emergencies, acts of terrorism, transportation delays, labor disturbances, work stoppages or loss of electrical power; loss of telecommunications or similar infrastructure. The headings in this Agreement are for reference purposes only and may not be construed as being part of this Agreement. This Agreement may be executed in one or more counterparts, each of which will be considered an original, but which altogether constitute the same instrument. Agreement to, and acceptance of, this Agreement may be made by facsimile signature or in an electronic form showing the signatures of both parties.
5.13. Conflicting Terms. Except as otherwise provided under this Agreement, in the event of a conflict between the terms and conditions of this Agreement and Vendor Terms, as they apply to the relationship between Client and Insight, the terms and conditions of this Agreement shall govern.
5.14 Entire Agreement. This Agreement, together with all attached schedules, addenda, exhibits, and amendments, is the entire agreement between the parties relating to the provision of Cloud Services by Vendor to Client under this Agreement and unless otherwise indicated in this Agreement, supersedes any prior representations or agreements, oral or written, and all other communications between the parties relating to the subject matter of this Agreement.
Pricing, CLOUD SERVICES DESCRIPTION
and statement of work for insight services
This Schedule is subject to Section 3 (Fees and Invoicing) of the Agreement.
1. DEFINITIONS. To the extent the defined terms in this Schedule 1 conflict with those in the Agreement, the defined terms in this Schedule shall take precedence for purposes of interpreting the Vendor Terms.
2. INITIAL TERM. The Initial Term is 12 months. Cloud Services will automatically renew for an additional 12 months at the end of the Initial Term and upon each subsequent 12 month term.
3. PRICING. Pricing for each Chargeable Unit as set forth by Insight online in its cloud management portal and the applicable discount is based on total seat volume in aggregate per Registered Usage calculation as reported by Vendor and provided to Insight. Seats must be assigned within 30 days of this agreement for price to remain valid, for the initial term of the contract.
SEE ORDER FORM
*Monthly Subscription Fees are based on the actual Chargeable Units and Cloud Services ordered. Chargeable Units are calculated on a daily basis by Vendor and based on the number of seats allocated to the subscription of each Cloud Service. Changes to the allocated subscription level must be done by Insight at the direction of Client. Client can assign seats within each subscription, but this will not impact the Chargeable units.*
The Subscription Period will be: Monthly
Registered Usage shall be calculated as of the anniversary date associated with the purchased Cloud Services in accordance with Vendor’s program guide and requirements. Subscription Fees will be pre-billed according to the designated Subscription Period above on Client’s next scheduled invoice; any subsequent adjustments to such subscriptions (e.g. any changes in Registered Usage in mid-billing cycle will be: (a) billed or credit applied in arrears on a pro-rata basis; and (b) pre-billed moving forward, on the subsequent scheduled invoice. IF CLOUD SERVICES ARE CANCELLED BEFORE THE TERM EXPIRES, CLIENT WILL NOT RECEIVE A REFUND FOR ANY FEES ALREADY PAID. EARLY TERMINATION CHARGES MAY BE INCURRED FOR CLOUD SERVICES THAT ARE CANCELLED PRIOR TO THEIR EXPIRATION. UNLESS TERMINATED, SUBSCRIPTIONS WILL AUTOMATICALLY RENEW AT THE END OF ANY TERM. RENEWAL PRICING WILL BE BASED ON THE THEN-CURRENT PRICING AT RENEWAL. IF CLIENT CHOOSES TO NOT RENEW, CLIENT MUST CANCEL THE CLOUD SERVICES IN ADVANCE OF THE NEXT SCHEDULED INVOICE IN ACCORDANCE WITH THE NOTICE REQUIREMENTS SET FORTH IN THE AGREEMENT.
5. CLOUD SERVICES DESCRIPTION. The description of Cloud Services provided by Vendor and purchased by Client under this Agreement are set forth below.
5.1 Cloud Services.
A. Cloud Services Description:
Each Client will be responsible for selecting Cloud Services and actual number of units used in the Microsoft Online Services Portal tenant activated and provisioned by or on behalf of the Client. A further description of the above Cloud Services may also be found in the Microsoft Online Services Portal.
B. Client Support:
Insight will provide technical and other customer support for the Cloud Services purchased by Client under this Agreement. Depending on the severity of an issue, Insight may involve Vendor in its provision of support to Client; however Client hereby agrees and acknowledges that it shall in all cases seek such support only from Insight. Insight will provide these services to a designated Technical Contract at Client, who will provide all communications with the end-user community at Client.
6. STATEMENT OF WORK FOR INSIGHT SERVICES; SERVICE LEVELS.
Support Severity Level Definition
Application critical outage causing critical impact to business operations if service/access is not quickly restored. Workarounds are not available. Client is willing to commit substantial resources 24/7 to resolve the situation.
Portions of application/application components are down or inaccessible to end users. The incident is impacting significant aspects of business operations. Manual workarounds may be available. Client is willing to commit full-time resources during normal business hours to resolve the situation.
Application or system performance is slightly degraded with limited impact to business continuity.
Client requires information or assistance on product capabilities, installation, or configuration. This category also includes any scheduled maintenance and/or enhancements.
Severity Level Response Cross Reference:
Severity Level Code
Severity Level 1
Severity Level 2
8A-5P CST M-F;
Excluding recognized Insight holidays
Severity Level 3
8A-5P CST M-F;
Excluding recognized Insight holidays
Severity Level 4
8A-5P CST M-F;
Excluding recognized Insight holidays
Other Insight Services (as applicable):
Office 365 Exchange
· Establish connectivity between the current mail server and the Office 365 Exchange Online Environment
· Set up and configure Microsoft Exchange Online
· Migrate Exchange mailboxes to Office 365
· Validate accessibility and stability of the Exchange Online environment
The Services will be performed remotely
Scope and Approach
Insight will perform the following Services (as applicable):
Office 365 Exchange
· Validate migration option, target and data set
· Identify mail-enabled applications and risk/impact
· Validate available bandwidth
· Validate Client applications and operating system requirements are met
· Develop end user communication plans
· Identify mobile device configuration changes
Office 365 Exchange
· Enable Microsoft Online Services Directory Synchronization (if needed)
· Test any 3rd party tools that might be required
· Configure Client domain and verify integration with Client’s onmicrosoft.com sub-domain
· Configure mailboxes for target users
· Configure 1 mobile device policy for demonstration and training purposes
· Identify and configure Administrator and User roles and policies
Office 365 Exchange
· Set up all user mailboxes
· Assign licenses to users
· Migrate and synchronize mail, calendar and contacts mailboxes to a new Office 365 tenant
· Perform post-migration testing
· Provide Administrative Console Training (1 hour)
· Provide recommended MX record modifications for promoting environment to production status to Client
· Serve as the primary point of contact on all project issues, needs, and concerns
· Facilitate kickoff / close out meeting to review scope and project expectations and formally agree on effort completed
Insight will provide the following Deliverables:
Office 365 Exchange
· Documentation is needed
Insight will provide the applicable and necessary labor, supervision, maintenance, consultation, and/or materials to perform the applicable Services and provide the applicable Deliverables defined and described in this SOW. For purposes of this SOW, “Deliverables” means any materials produced in the course of performing Services listed or specifically required to be delivered to Client under this SOW.
Office 365 Exchange
· If Blackberry Enterprise Servers are in use in the organization, Client is responsible for the upgrade of those servers to the 5.2 MR 5 or higher with applicable service packs to support Exchange 2010. The migration/upgrade is outside the scope of this engagement.
· In some cases, Client may be responsible for opening a service request with Microsoft with assistance from Insight.
· Client is responsible for installing and configuring any end user devices.
· Client is responsible for any desktop-level configuration changes.
· Client is responsible for all end user communication.
· Client is responsible for making recommended MX record changes to promote Microsoft Exchange Online to production status.
· Client will provide remote access (e.g., VPN connectivity) to Client's environment.
· Client will be responsible for submitting migration batches 1 day prior to the migration date.
· Client will be required to give Insight global admin access to the Office 365 tenant.
General Client Responsibilities
· Client will provide a project contact with decision-making authority to support the scope of services described in this SOW and ensure the proper personnel are scheduled to review each completed Service or Deliverable upon notification of completion by Insight.
· If applicable, Client will provide site contacts for each Client location. Each such contact will provide Insight with sufficient detail regarding his/her site, and will coordinate or perform required onsite work, as reasonably requested by Insight and Client IT, for the duration of the project.
· Client will provide Insight the necessary access to internal experts, location(s), critical systems, applications, workspace and equipment (telephones, faxes, LAN connectivity, printer access, dial-out modem lines, passwords, keys, etc. as applicable) required at each field location to complete the project. Access to Client systems will be provided to Insight via either onsite direct access or remote/VPN access. If Client does not allow remote/VPN access to Client systems and remote work is necessary, then Client will make local resources available to be utilized by Insight to accommodate for this lack of access. If Client cannot provide access or local resources, then additional project duration, labor hours, travel expenses, and others costs may be incurred and due to Insight by Client.
· Client will provide the necessary hardware, software, tools and permits required for the successful completion of the project prior to Insight's arrival. Further, Client is responsible for all licensing requirements to be compliant per their own agreements.
· Client is responsible for all product and material, including distribution and transport of Client-owned product and material, unless otherwise specified in writing. Product and material is defined as any item purchased, owned and/or provided by Client (or others) that Insight is required to use for fulfillment of any Services described herein.
· Client is responsible for providing adequate and secure onsite storage for all Client-owned product and material unless otherwise specified in writing.
· If applicable, Client will be responsible for: (a) back-up and/or data migration of existing data unless otherwise agreed to by Insight; (b) computer system and network designs; and (c) component selection as it relates to the performance of the computer system and/or the net-work.
· Client is responsible for maintaining physical, electronic, and procedural controls to ensure the confidentiality, integrity, and availability of Client's information on all applicable Client computing systems used to store or transmit Client's information, in accordance with current applicable industry standards and best practices.
· Client is responsible for managing and maintaining: (a) reasonable firewalls and, if appropriate, encryption; (b) regular back-ups of Client's information; and (c) least-privileged-based access controls (including provisioning, de-provisioning, authentication, authorization, and ac-accountability controls).
· Client and its employees, contractors, and agents will: (a) cooperate with any reasonable request of Insight, (b) provide input throughout the project and will review progress at review meetings requested by Insight; and (c) provide Insight with access to all of Client's information, documentation and technology, necessary for Insight to perform the Services, including a list of all Client and third-party contacts necessary for Insight to do so. Such cooperation, input, access, and license are critical to this project, and Client's representation at all review meetings is essential. If applicable, Insight is hereby granted and shall have a nonexclusive, royalty-free license, during the term of the Services, to access and use the Client Technology solely for the purposes of delivering the Services to Client. "Client Technology" shall mean any intellectual property owned by Client that will be used by Insight in performing the Services under this SOW.
· Client will indemnify Insight against any claims of improper or unlawful conduct by Client, its employees or agents.
Project Specific Assumptions
O365 Exchange Migration
· Average mailbox size is 2 GB across all mailboxes.
· Client has a minimum upload bandwidth capability of 3 Mbps to the Office 365 platform.
· In order to minimize project expenses, all work performed by Insight will be conducted remotely and connectivity will be provided by Client if needed.
· The project team will leverage internal Client resources to assist with the build, deployment and validation of the physical/virtual server infrastructure.
· This SOW assumes a contiguous effort; any Client-initiated delays in the project or stoppage not arising from Insight's acts or omissions will be presented to Client as a change request.
· For Exchange/Exchange Online related work efforts, all Microsoft Office Outlook clients that are supported by Microsoft are in scope. All other mail clients are out of scope.
· If applicable, any onsite skills transfer that takes place during this project will not replace the manufacturer’s formal system implementation and administration classes.
· Insight has no obligation to mount, affix, or otherwise fasten any cable, hardware, or other product to any building or structure (inside or outside), and Insight has no obligation to run cable above, under, behind, or through any ceiling, floor, or wall of any building or structure. If such services are requested by Client, such services may be performed by Insight only to the extent permitted by applicable law and will be subject to a change request for additional services.
· Each Party agrees that personnel will not be asked to perform, nor volunteer to perform, engineering and/or consulting tasks that lie outside the skill sets and experience of personnel. Personnel have the right to decline a service request if the request falls outside their scope of experience and expertise.
· The following are considered out-of-scope and are not part of the Services:
o Setup of any end user devices
o Desktop-level configuration changes
o Migration or upgrade of Blackberry Enterprise Servers
o Enabling RPC over HTTP
o Setup of Active Directory Federated Services, which will require Client's users to have multiple passwords
o Electrical or cabling services
o Formal user training (unless otherwise stated)
Insight‘s telephone number and e-mail address in connection with customer support provided under this Exhibit are as follows:
By Phone: 1-800-535-1506
By E-mail: CSP.Support@Insight.com
BY EXECUTING THIS AGREEMENT, CLIENT ACKNOWLEDGES AND CERTIFIES THAT IT HAS READ, ACCEPTS AND WILL AT ALL TIMES COMPLY WITH: (1) MICROSOFT’S ONLINE SERVICES TERMS; AND (2) MICROSOFT’S CUSTOMER FACING AGREEMENT WITH CLIENT (ALSO REFERRED TO BY MICROSOFT AS THE "MICROSOFT CUSTOMER AGREEMENT"). CLIENT SHALL BE SOLELY RESPONSIBLE FOR PERIODICALLY REVIEWING DESIGNATED URLS OR SUCCESSOR URLS OF VENDOR TO UNDERSTAND AND PERFORM IN ACCORDANCE WITH SUCH AMENDED OR OTHERWISE UPDATED VENDOR TERMS.
1. The Microsoft Online Services Terms can be found at:
2. The Microsoft Customer Agreement is available from Client’s tenant accessed through the Microsoft Online Services Portal;
Can be found at:
Service Level Agreement
(ONLINE Services AND AZURE SERVICES)
The provisions of this Exhibit B are set forth on Vendor’s website at: https://www.microsoft.com/en-us/licensing/product-licensing/products.aspx
Service Level Agreement for Microsoft Online Services and Service Level Agreement for Azure Services (or as otherwise provided by Vendor), specify the performance and quality commitments offered by the Vendor to Client.
The terms and conditions located at this URL establish a direct agreement between Client and Vendor.