Microsoft 365 CSP Resale Terms

These Microsoft 365 CSP Resale Terms (“Terms”) set out the terms and conditions for the purchase and sale of the Microsoft 365 Subscription through KMicro. The Microsoft 365 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 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 365 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 Microsoft 365 Subscription.

  3. Microsoft means Microsoft Corporation, the licensor and/or provider of the Microsoft 365 Subscription resold to Customer by KMicro.

2. Reseller Only.

Customer acknowledges and agrees that: (i) the Microsoft 365 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 Microsoft 365 Subscription. In purchasing the Microsoft 365 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.

3. Use of Microsoft 365 Subscription.

Customer acknowledges that its rights to and use of the Microsoft 365 Subscription is subject to the agreement between Customer and Microsoft for Customer’s use of Microsoft 365 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 Microsoft 365 Subscription.

  1. In the event that Customer requests any Microsoft 365 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. Following execution of the SOW and, if applicable, following execution of a CSP Subscription Transfer form, KMicro shall initiate a Microsoft 365 Subscription by creating a Microsoft 365 CSP instance through Microsoft’s Partner Center portal or such other tools as Microsoft supplies. Customer shall receive credentials to initiate and configure their Microsoft 365 Subscription and KMicro shall provide support in respect of such Microsoft 365 Subscription.

  3. 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 Microsoft 365 Subscription. Microsoft may disable a customer’s Microsoft 365 Subscription for legal or regulatory reasons or as otherwise permitted under the Microsoft Agreement

  4. 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. 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 Microsoft 365 Subscription are calculated by KMicro based on the number of licenses/users of the Microsoft 365 services. For clarity, notwithstanding the quantity of licenses/users set forth in a quote (which is an estimate based on information provided to KMicro), the amount billed by KMicro will be based on the Customer’s actual number of licenses/users as determined by Microsoft. Price rates are subject to change by Microsoft without notice. Unless otherwise noted in the SOW, payment is on a monthly basis in arrears.

  2. Notwithstanding the quantity of Microsoft 365 Subscription licenses/users 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 number of licenses/users of the Microsoft 365 Subscription. User 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 Microsoft 365 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 Microsoft 365 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. 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. Customer’s right to Order additional Microsoft 365 Subscriptions shall be subject to credit limits established by KMicro.

  5. Should the Customer revoke or remove KMicro’s GDAP access, the price rates shall be calculated based on Customer’s measured usage of the Microsoft 365 services at the current public Microsoft 365 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://kmicro.com/privacy-policy 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 Microsoft 365 Subscription and to assist Customer in the proper administration of the Microsoft 365 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 Microsoft 365 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 Microsoft 365 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 Microsoft 365 Subscription.

Customer acknowledges and agrees that Customer is responsible for charges incurred for Microsoft 365 Subscription provisioned to their Microsoft account and that this places an obligation on Customer to carefully manage access rights to the Microsoft account. KMicro is not responsible for Customer errors in provisioning or de-provisioning the Microsoft 365 Subscription.

9. New Releases.

Customer acknowledges and agrees that Microsoft may modify the Microsoft 365 products and services, or may release a new version of the Microsoft 365 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 offerings. Microsoft and therefore KMicro reserves the right to add new features or functionality to, or remove existing features or functionality from, the Microsoft 365 Subscription. KMicro shall not be liable for any changes to the Microsoft 365 Subscription or support as set out in this Section 9.

10. Term and Termination.

  1. Monthly Subscriptions.

    1. The Microsoft 365 Subscription is provided on a month-to-month basis, starting on the date the Microsoft 365 Subscription is initiated by KMicro, and will continue until termination.

    2. Termination: Customer may terminate a Microsoft 365 Subscription any time by providing KMicro with at least 35 days’ written notice, and the Microsoft 365 Subscription (and any accompanying support) will terminate at the end of the following month.

  2. Annual (Multi-Year) Subscriptions.

    1. The Microsoft 365 Subscription is provided on an annual (or multi-year) basis, as set forth in the Order (the “Initial Term”) commencing on the date the Microsoft 365 Subscription is initiated by KMicro. The Microsoft 365 Subscription will automatically renew for additional one (1) year periods or the applicable multi-year period (each a “Renewal Term”, collectively with the Initial Term, referred to as the “Term”) unless terminated, as detailed below.

    2. Termination:

      1. Customer may terminate the Microsoft 365 Subscription by providing KMicro with at least 60 days’ written notice prior to the end of the applicable Term (the “Termination Window”), and the Microsoft 365 Subscription (and any accompanying support) will terminate at the end of the then-current Term.

      2. The Customer may request to terminate the Microsoft 365 Subscription upon 60 days’ written notice at any time outside of the Termination Window if transferring to an eligible partner, provided that such termination may be subject to liquidated damages resulting from the early termination, calculated based on the discounts provided to the Customer from the start date of the Microsoft 365 Subscription until the effective date of termination. KMicro reserves the right to decline such requests, acting reasonably.

  3. Cancellation: Customer may cancel their Microsoft 365 Subscription placed through KMicro sales within 24 hours of placing the initial Order, otherwise the Microsoft 365 Subscription may only be terminated as set forth above. If the Customer orders their Microsoft 365 Subscription through the self-serve subscription portal via AppDirect, Customer may cancel their Microsoft 365 Subscription within 7 calendar days of placing the initial Order.

  4. Termination/Suspension by KMicro. KMicro may by written notice terminate the SOW or suspend right to access all or some of the Microsoft 365 Subscription as of the date specified in such notice upon:

    1. Customer’s failure to pay KMicro any amount required to be paid 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 Microsoft 365 Subscription; or

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

  5. Rights and Obligations upon Termination/Suspension. To the extent Customer’s access to the Microsoft 365 Subscription is cancelled or terminated by Customer or otherwise terminated or suspended by KMicro, 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 Microsoft 365 Subscription, including fees and charges for in process tasks completed after the date of suspension or termination;

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

    3. To the extent Customer requests KMicro’s assistance in transitioning the Customer’s Microsoft 365 Subscription to a new partner, KMicro may charge Customer the reasonable costs associated with such transition at its standard hourly rates then in effect; and

    4. 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 ninety (90) days to migrate any Customer Data that Customer has not deleted to either a new Microsoft 365 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 MICROSOFT 365 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 Microsoft 365 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 Microsoft 365 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 MICROSOFT 365 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 SUBSCRIPTION(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 MICROSOFT 365 SUBSCRIPTION OR ANY RELATED MICROSOFT 365 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 Non-profit versions.

Customer agrees that if Customer is purchasing an academic, government or non-profit 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 Microsoft 365 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, Microsoft 365 Subscription 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 Microsoft 365 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 Microsoft 365 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 Microsoft 365 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 Microsoft 365 Subscription, including in connection with discrepancies arising from inaccurate or incomplete information provided in connection with the transfer.

October 30th, 2024