Azure CSP Resale Terms

These Azure CSP Resale Terms (“Terms”) set out the terms and conditions for the purchase and sale of the Azure Subscription through KMicro. The Azure Subscription is licensed by Microsoft. KMicro and Customer are individually referred to as a “Party” and collectively as the “Parties”. These Terms are referenced and form part of KMicro’s Microsoft Cloud Solution Provider (“CSP”) Program, KMicro’s Keystone Managed Cloud statement of work, and such other service offerings that KMicro may add from time to time, where the Customer has selected the Microsoft Azure Public Cloud platform (each, a “SOW”). Capitalized terms used herein and not otherwise defined shall have the meaning set out in the SOW.

In consideration of the mutual promises contained herein, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Definitions.

  1. Affiliates means entities which are controlled by or under common ownership with a Party.

  2. Customer Data means all data, including all text, sound, software, or image files that are provided to us by, or on behalf of, you or your Affiliates through your use of the Azure Subscription.

  3. Microsoft means Microsoft Corporation, the licensor and/or provider of the Azure Subscription resold to Customer by KMicro.

2. Reseller Only.

Customer acknowledges and agrees that: (i) the Azure Subscription purchased by Customer is resold by KMicro for Customer’s use only; and (ii) KMicro is not the creator, manufacturer, distributor or licensor of the Azure Subscription. In purchasing the Azure Subscription, Customer is relying on Microsoft’s specifications only and is not relying on any statements, documents or specifications that may be provided by KMicro.

For clarity, integration of CSP data with third party services or platforms is out of scope.

3. Use of Azure Subscription.

Customer acknowledges that its rights to and use of the Azure Subscription is subject to the agreement between Customer and Microsoft for Customer’s use of Azure Subscription, a current version of which is located at https://www.microsoft.com/licensing/docs/customeragreement (the “Microsoft Customer Agreement”). and the Microsoft Cloud Agreement, a current version of which is located at https://www.KMicro.com/legal/microsoftmca (the “Microsoft Cloud Agreement”, collectively with the Microsoft Customer Agreement, the “Microsoft Agreements”), as may be updated by Microsoft from time to time. For purposes of the Microsoft Customer Agreement, the “Partner” is KMicro. For purposes of the Microsoft Cloud Agreement, the “Reseller” is KMicro. Customer hereby agrees to abide by the Microsoft Agreement.

4. Order Process and Delivery of Azure Subscription.

  1. In the event that Customer requests any Azure Subscription from KMicro (each, an “Order”), these Terms and the terms of the relevant SOW shall govern. KMicro may require a physical copy of the Order for administrative purposes, it being understood that no additional or different terms delivered by Customer shall apply.

  2. If Customer has previously or is currently purchasing Microsoft products and services from another Reseller or Microsoft partner in Microsoft’s CSP program, Customer will be required to execute a Microsoft CSP Subscription Transfer form and it is Customer’s responsibility to ensure completion and execution of this form.

  3. Following execution of the SOW and, if applicable, following execution of a CSP Subscription Transfer form, KMicro shall initiate an Azure Subscription by creating an Azure CSP instance through Microsoft’s Partner Center portal or such other tools as Microsoft supplies. Customer shall receive credentials to initiate and configure their Azure Subscription and KMicro shall provide Support in respect of such Azure Subscription.

  4. Orders placed by Customer are not binding until accepted by KMicro. All Orders are subject to Microsoft availability; therefore, KMicro cannot guarantee that it will be able to fulfill Orders. KMicro shall not be liable for delays or failure of Microsoft to provide the Azure Subscription. Microsoft may disable a Customer’s Azure Subscription for legal or regulatory reasons or as otherwise permitted under the Microsoft Agreement.

  5. Affiliates of Customer may enter into Orders provided that Customer and such Affiliate shall be jointly and severally liable for all obligations of Affiliate in relation to such Order.

5. Obligation to Purchase Support; Access Rights.

  1. Customer agrees that in order to obtain the Azure Subscription, Customer must purchase Support (as described in the SOW), and therefore all Orders will automatically include Support.

  2. KMicro will require the use of the Microsoft Lighthouse tool (the “Tool”) to manage the Customer’s Azure Subscription. This Tool will be installed and configured by KMicro to provide just-in-time secured, temporary administrative access for specific KMicro resources as designated by the Customer. Customer agrees to provide KMicro with assistance as reasonably required by KMicro to install this Tool. Customer agrees that KMicro will have administrative access, called an Azure Service Principal, which provides a security identity within the Customer’s Azure environment which is used by the Tool to provide support and service insights to KMicro. Customer agrees not to remove or revoke KMicro’s access to the Azure Service Principal while these Terms are in effect.

  3. In limited circumstances (e.g. opening a Microsoft support ticket) it may be necessary to temporarily grant additional limited administrative access to KMicro by utilizing Admin on Behalf of (“AOBO”), which will require assistance from the Customer’s support team to acknowledge and facilitate. The temporary AOBO access will be established for a specific length of time, and then disabled by Customer upon notice from KMicro when no longer necessary.

  4. Granular Delegated Admin Privileges. During the onboarding process, KMicro will request access to Granular Delegated Admin Privileges (“GDAP”) via an invitation sent to the Customer’s Microsoft Store for Business. Customer must have Global Administrator rights in order to accept and approve the invitation. Once KMicro is authorized, KMicro can then engage Microsoft on Customer’s behalf. KMicro will not have the ability to escalate any issues to Microsoft unless GDAP access is granted. Note: GDAP provides partners with least-privileged access following the Zero Trust cybersecurity protocol. The "Service Support Administrator" least-privileged access is required for KMicro to engage Microsoft on Customer’s behalf. If proactive or reactive support is needed, other admin rights (e.g., Exchange Admin, Intune Administrator, etc.) can be granularly elevated upon request. The duration of the GDAP relationship is set as a default of two years (the maximum permitted by Microsoft), unless these Terms are earlier terminated or a lesser duration is agreed by the parties. If these Terms are still in effect and the GDAP relationship expires, KMicro will request and Customer will have to approve the GDAP relationship again.

6. Fees and Payment Terms.

  1. The fees for the Azure Subscription are calculated by KMicro based on Customer’s measured usage of the Azure services, as set out in the SOW. Price rates are subject to change by Microsoft without notice. Payment is on a monthly basis in arrears.

  2. Notwithstanding the quantity of Azure Subscription that may be indicated in an Order, Customer acknowledges that such quantity is an estimate only, and Customer’s invoice will be based on the actual consumption of the Azure Subscription along with accompanying Support. Usage reports generated by Microsoft upon which invoices are based shall be deemed final.

  3. Provided Customer has approved credit terms with KMicro, Customer shall pay the invoice for the Azure Subscription within thirty (30) days of invoice date. The payment terms hereunder shall apply notwithstanding any separate agreement between the Parties containing different payment terms. Payments shall be made in the currency that is billed by KMicro. Any disputed fees must be brought to KMicro’s attention within ten (10) business days of the invoice date, otherwise fees are deemed accepted. Customer is responsible for any applicable sales, use, or other taxes, or federal, provincial, state or local fees or assessments associated with its purchase of Azure Subscription. KMicro may charge interest at 1.5% per month on all late payments.

  4. In the event that Customer does not have existing credit terms with KMicro, all amounts are payable upon invoice date, and from time to time as KMicro may deem necessary, Customer agrees to cooperate with KMicro and provide such information as reasonably required for KMicro to perform a credit check. In the event that KMicro is not satisfied with the results of such credit check, KMicro may, without penalty, terminate the SOW upon notice to Customer.

  5. Customer’s right to Order additional Azure Subscriptions shall be subject to credit limits established by KMicro.

  6. Should the Customer revoke or remove the Azure Service Principal and/or AOBO access required by KMicro to deliver support under these Terms, the price rates shall be calculated based on Customer’s measured usage of the Azure services at the current public Azure pricing.

7. Privacy; Customer Data.

  1. Privacy. If Customer provides personal data to KMicro under the SOW, KMicro will comply with KMicro’s privacy policy, a current version of which is located at https://www.KMicro.com/privacy. Customer consents to KMicro providing such personal data to Microsoft to permit the processing of the data by KMicro, Microsoft, and their respective affiliates, subsidiaries, and service providers as contemplated by the SOW. Microsoft may collect, use, transfer, disclose, and otherwise process Customer’s data, including personal data, as described in the Microsoft Agreement.

  2. Customer Data.

    1. KMicro shall use Customer Data to provide Customer with the Azure Subscription and Support and to assist Customer in the proper administration of the Azure Subscription. Customer agrees that KMicro is not responsible for the security or confidentiality of any Customer Data transmitted to or from or held in the Azure Subscription.

    2. KMicro shall only access and disclose to law enforcement or other government authorities to the extent required by law data from, about or related to Customer, including the content of communications (or to provide law enforcement or other government entities access to such data). If KMicro receives a request for Customer Data either directly from a law enforcement agency or as redirected to KMicro by Microsoft, then KMicro shall redirect the law enforcement agency to request that data directly from Customer. If compelled to disclose Customer Data to law enforcement, then KMicro shall promptly notify Customer and provide a copy of the demand, unless legally prohibited from doing so. As and to the extent required by law, Customer shall notify the Customer’s individual users of the Azure Subscription and Support that their data may be processed for the purpose of disclosing it to law enforcement or other governmental authorities as directed by KMicro, and shall obtain the users’ consent to the same.

8. Provisioning Azure Subscription.

Customer acknowledges and agrees that Customer is responsible for charges incurred for Azure Subscription(s) provisioned to their Microsoft account and that this places an obligation on Customer to carefully manage access rights to the Microsoft account. Customer must monitor their Azure Subscription usage and immediately report any suspicious or fraudulent activity to KMicro at info@kmicro.com. KMicro is not responsible for Customer errors in provisioning or de-provisioning the Azure Subscription or for any abnormal consumption or security issues that arise within Customer’s Azure environment.

9. New Releases.

Customer acknowledges and agrees that Microsoft may modify the Azure products and services, or may release a new version of the Azure products and services at any time and for any reason including, but not limited to, to address customer needs or otherwise address competitive demands, to respond to a government regulation, order, or law, or to advance innovation in its Azure offerings. Microsoft and therefore KMicro reserves the right to add new features or functionality to, or remove existing features or functionality from, the Azure Subscription and therefore the accompanying Support. KMicro shall not be liable for any changes to the Azure Subscription or Support as set out in this Section 9.

10. Term and Termination.

  1. The term of the SOW shall commence on the first date of the Azure Subscription and continue in full force and effect until termination or expiration of the SOW, whichever is earlier. The Azure Subscription is provided on a month-to-month basis. Customer may cancel an Azure Subscription any time by providing KMicro with at least 35 days written notice. When Customer cancels such Azure Subscription, the accompanying Support will also be automatically cancelled.

  2. Unless different termination provisions are set forth in the SOW, either Party may terminate the SOW by providing at least 35 days written notice to the other Party, subject to KMicro’s rights to terminate or suspend the Order in Section 10(c) below. Termination shall not affect any Orders in process or payments due to KMicro.

  3. Termination/Suspension of Azure Subscription. Notwithstanding Section 10(b) above, KMicro may by written notice terminate the SOW or suspend right to access all or some of the Azure Subscription and accompanying Support provided hereunder as of the date specified in such notice upon:

    1. Customer’s failure to pay KMicro any amount required to be paid under the SOW for more than fifteen (15) days;

    2. in the event Customer becomes insolvent or bankrupt;

    3. in the event KMicro is no longer a reseller of the Azure Subscription; or

    4. in the event of Customer’s breach of the Microsoft Agreement.

  4. Rights and Obligations upon termination or suspension. To the extent Customer’s access to the Azure Subscription is cancelled by Customer or otherwise terminated or suspended, Customer acknowledges and agrees that:

    1. it shall remain responsible for all fees and charges incurred through the date of suspension or termination for the Azure Subscription and Support, including fees and charges for in process tasks completed after the date of suspension or termination; and

    2. it shall remain responsible for any applicable fees and charges for any Microsoft offerings through KMicro to which it continues to have access.

  5. KMicro’s termination and/or suspension rights set forth above shall be in addition to and shall not limit any other rights, recourses or remedies which KMicro may have under these Terms or the SOW, at law or in equity.

  6. Upon cancellation or termination, Customer will have thirty (30) days to migrate any Customer Data that Customer has not deleted to either a new Azure Subscription with KMicro, with Microsoft directly, or some other service, (except for free trials, where Microsoft may delete Customer Data immediately without any retention period.) Customer remains responsible for all storage and other applicable charges during this retention period. Customer agrees that KMicro has no additional obligation to hold, export or return Customer Data and that KMicro has no liability whatsoever for deletion of Customer Data pursuant to these terms or the Microsoft Agreement.

11. Warranty Disclaimer.

KMICRO MAKES NO WARRANTIES, REPRESENTATIONS OR CONDITIONS IN CONNECTION WITH THE AZURE SUBSCRIPTION WHETHER EXPRESS OR IMPLIED, IN FACT OR IN LAW, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABLE QUALITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.

12. No Indemnification from KMicro.

KMicro does not directly provide any indemnities in connection with the Azure Subscription. Further, Customer expressly waives any claim that it may have or allege to have against KMicro based on any product liability or infringement or alleged infringement of any patent, copyright, trade secret or other intellectual property right with respect to any such service and also waives any right to indemnification from KMicro against any such claim made against Customer by a third party.

13. Indemnification from Customer.

Customer will defend, indemnify, and hold harmless KMicro, its Affiliates and licensors, and each of their respective employees, officers, directors and representatives from and against any losses arising out of or relating to any third party claim concerning: (a) breach by Customer of any of its obligations under the SOW, these Terms or the Microsoft Agreement; (b) violation by Customer of any law, rule or regulation ; or (c) infringement of any intellectual property rights of any third party by use of the Azure Subscription in a way not authorized by the SOW, these Terms, and/or the Microsoft Agreement.

14. Limitation of Liability.

  1. KMICRO’S TOTAL AND AGGREGATE LIABILITY FOR ANY LOSS, DAMAGE, COST OR EXPENSE SUFFERED OR INCURRED BY CUSTOMER ARISING OUT OF OR IN CONNECTION WITH THE AZURE SUBSCRIPTION, THESE TERMS, OR THE SOW IS HEREBY LIMITED TO A MAXIMUM OF THE DOLLAR AMOUNT EQUAL TO THE MOST RECENT ONE (1) MONTH PAYMENT PAID BY CUSTOMER FOR THE SUBSCIPTIONS(S) GIVING RISE TO THE CLAIM.

  2. IN NO EVENT SHALL KMICRO BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY LOSSES, DAMAGES OR EXPENSES OF ANY KIND, OR FOR BUSINESS INTERRUPTION OR DOWNTIME, LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF SYSTEMS OR NETWORKS, OR THE RECOVERY OF SUCH, THE AVAILABILITY OF THE AZURE SUBSCRIPTION OR ANY RELATED AZURE OR MICROSOFT OFFERINGS, PRODUCTS OR SERVICES, LOST REVENUE, LOST PROFITS, LOST SAVINGS OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND, EVEN IF IT HAD BEEN ADVISED OF THEIR POSSIBLE EXISTENCE OR EVEN IF REASONABLY FORESEEABLE.

  3. TO THE FULLEST EXTENT PERMITTED BY LAW, THE ABOVE LIMITATIONS SHALL APPLY IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION, DEMAND OR CLAIM, INCLUDING BUT NOT LIMITED TO, BREACH OF CONTRACT, NEGLIGENCE, TORT OR ANY OTHER LEGAL THEORY. THE ALLOCATIONS OF LIABILITY IN THIS SECTION REPRESENT THE AGREED AND BARGAINED-FOR UNDERSTANDING OF THE PARTIES AND KMICRO’S COMPENSATION HEREUNDER REFLECTS SUCH ALLOCATIONS.

15. Export Sales.

Customer agrees that it will comply with all applicable import, re-import, export, and re-export control laws and regulations.

16. Eligibility for Academic, Government and Nonprofit versions.

Customer agrees that if Customer is purchasing an academic, government or nonprofit offer, Customer must meet the respective eligibility requirements required by Microsoft. Microsoft and thereby KMicro reserves the right to verify eligibility at any time and suspend the Azure Subscription if the eligibility requirements are not met.

17. Miscellaneous.

  1. Choice of Law. For Customers in Canada, these Terms shall be governed by the laws of the Province of Ontario, without regard to its conflict of laws rules. The Parties hereby irrevocably attorn to the exclusive jurisdiction of the courts of the Province of Ontario and the federal courts located therein. For Customers in the United States of America, these terms shall governed by the laws of the State of New York, without regard to its conflict of laws rules. The Parties hereby irrevocably attorn to the exclusive jurisdiction of the courts of the State of New York and the federal courts located therein. In either case, the United Nations Convention on Contracts for the International Sale of Goods shall not apply.

  2. Force Majeure. Except for a party’s obligation to pay the other party any amount owed in accordance with these Terms, neither party will be deemed to be in default hereunder or liable for a failure or delay in performance that is caused, in whole or in part, by circumstances including, acts of God, acts, omissions or delays of carriers, embargo, explosion, fire, flood, order of civil or military authority, disease, strike, labor disputes, lockout, war, Azure Subscription or Support unavailability, malfunction or failure of third party systems or services (including telecommunications services), electrical or environmental system malfunction, or any other causes beyond its control where such event renders impossible or delays a party’s performance. In such an event, that impacted party will promptly notify the other in writing and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under these Terms.

  3. Notices. Any notices sent hereunder shall be delivered by reliable means to the addresses listed in the first paragraph above, shall reference the SOW and, in the case of KMicro, shall be delivered to KMicro’s Legal Department located at 173 Dufferin Street Suite 200, Toronto, ON M6K 3H7.

  4. KMicro is an independent contractor. Nothing contained herein creates a partnership, joint venture, employer/employee, principal-and-agent, or any similar relationship between the Parties. If any provision is determined to be invalid or unenforceable in whole or in part, such invalidity or unenforceability shall attach only to such provision or part thereof and all other remaining provisions or parts thereof shall continue in full force and effect. Any provision which imposes an obligation after termination or expiration of the SOW shall survive the termination or expiration of the SOW. No waiver of or failure to exercise any option, right or privilege hereunder shall be construed as a waiver of any other option, right or privilege. Neither Party may assign the SOW or any rights or obligations under the SOW to a third party without the express written consent of the other Party, which consent shall not be unreasonably withheld or delayed; provided however that KMicro may, without the consent of Customer, assign the SOW to any person or entity directly or indirectly controlling, controlled by, or under common control with KMicro. The SOW and these Terms contain the complete agreement between the Parties relating to the subject matter hereof and supersedes all prior negotiations, representations and understandings.

18. Subscription Transfers to KMicro.

  1. Customer shall ensure that all necessary information and documentation required for the transfer process is provided to KMicro by Customer and existing partner (“Current Partner”), including but not limited to: Microsoft Global Admin (First and Last Name); Microsoft Global Admin Email; Current CSP Partner Name; Current CSP Partner Microsoft ID; and accurate list of Azure Subscriptions and associated products/services to transfer including quantities, renewal date, billing frequency, and billing duration. Customer must review and verify all information received from the Current Partner to ensure its accuracy and completeness.

  2. In the event of any discrepancies identified in the transferred Azure Subscription, Customer must notify KMicro and the Current Partner immediately, and Customer shall work with the Current Partner directly to resolve the issue. KMicro accepts no responsibility in connection with inaccurate or incomplete information provided by Customer or the Current Partner in connection with the transferred Azure Subscription.

  3. Customer agrees to indemnify and hold harmless KMicro from any claims, damages, liabilities, or expenses arising from the actions or omissions of Customer or Current Partner in connection with the transfer of the Azure Subscription, including in connection with discrepancies arising from inaccurate or incomplete information provided in connection with the transfer.

October 30th, 2024