Microsoft 365 CSP Resale Terms
These CSP Licensing Terms (“Terms”) set out the terms and conditions for the purchase and sale of the CSP Subscription through KMicro. The CSP 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 Services statement of work, and such other service offerings that KMicro may add from time to time, where the Customer has selected the Microsoft CSP Subscriptions (each, a “QUOTE”). Capitalized terms used herein and not otherwise defined shall have the meaning set out in the Quote.
Before the Solution Provider can order CSP products and services for the Client, the Client must confirm acceptance of the Solution Provider Client agreement digitally or through virtue of signing of this Agreement Microsoft Customer Agreement.
This licensing contract/agreement is an annual recurring contract between the Solution Provider and the Client.
In consideration of the mutual promises contained herein, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Pricing and Payment.
If Client orders from Solution Provider, the Solution Provider will set Client’s pricing and payment terms for that order, and Client will pay the amount due to the Solution Provider.
Fixed term CSP Subscriptions are sold for a term of 12 months or 36 months, unless provided otherwise in this Agreement or on the price list. Depending on credit application results, Client may choose to be billed and pay for fixed term CSP Subscriptions on a monthly or annual or triennial basis as follows:
- If billed monthly, new CSP Subscriptions will expire 12 or 36 full calendar months after the date on which Client purchases the CSP Subscription. For those new CSP Subscriptions billed monthly, Client will be billed in advance for each month at Client’s scheduled invoice date, based on the applicable monthly CSP Subscription price.
- If billed annually, new CSP Subscriptions will expire 12 or 36 full calendar months after the date on which Client purchases the CSP Subscription. The unit price for the Online Service will not change during the term of the CSP Subscription (e.g., the price of the CSP as of the CSP Subscription start date will apply for all 12 or 36 months of the fixed term). Any subsequent additions to CSP Subscriptions (e.g., adding seats/subscriptions) made mid-billing cycle will be calculated and prorated for the terms of the contract and post-billed on a separate invoice.
- CSP Subscriptions will automatically renew for 12 or 36 months (if available) at the end of a subscription term. Renewal pricing will be based on the then-current pricing at renewal. If Client chooses to not renew, Client must notify the Solution Provider with 90 days’ notice to cancel the CSP Subscription in advance of the next scheduled renewal.
Payment Method. Solution Provider to invoice Client 30 days prior with payment option specified on Quote.
Invoices. Solution Provider may withdraw Client’s eligibility at any time and for any reason. Client must promptly notify Solution Provider of any changes in its Client name or location and of any significant changes in the ownership, structure, or operational activities of the organization.
- Invoice Payment terms. Each invoice will identify the amounts payable by Client to Solution Provider for the period corresponding to the invoice. Client will pay all amounts due within thirty (30) calendar days following the invoice date.
- Late Payment. Solution Provider may, at its own discretion, assess a late fee on any payments to Solution Provider that are more than fifteen (15) calendar days past due at a rate of two percent (2%) of the total amount payable, calculated and payable monthly, or the highest amount allowed by law, if less.
- Cancellation fee. If a Client cancels the subscription before the end of the subscription or billing period, Client will be charged for the full term of the subscription and may be charged a cancellation fee. Refer to Cancellations section for further details.
- Recurring Payments. For subscriptions that are paid automatically, Client authorizes Solution Provider to charge Client’s payment method periodically for each subscription or billing period until the subscription is terminated. By authorizing recurring payments, Client authorizes Solution Provider to process such payments as either electronic debits or fund transfers, or as electronic drafts from the designated bank account (in the case of Automated Clearing House or similar debits), as charges to the designated card account (in the case of credit card or similar payments) (collectively, “Electronic Payments”). If any payment is returned unpaid or if any credit card or similar transaction is rejected or denied, Solution Provider or its service providers reserve the right to collect any applicable return item, rejection or insufficient funds fee to the maximum extent permitted by applicable law and to process any such fees as an Electronic Payment or to invoice Client for the amount due.
- Taxes. Solution Provider prices exclude applicable taxes unless identified as tax inclusive. If any amounts are to be paid to Solution Provider, Client shall also pay any applicable value added, goods and services, sales, gross receipts, or other transaction taxes, fees, charges, or surcharges, or any regulatory cost recovery surcharges or similar amounts that are owed under this Agreement and that Solution Provider is permitted to collect from Client. Client shall be responsible for any applicable stamp taxes and for all other taxes that it is legally obligated to pay including any taxes that arise on the distribution or provision of Products by Client to its Affiliates. Solution Provider shall be responsible for all taxes based upon its net income, gross receipts taxes imposed in lieu of taxes on income or profits, and taxes on its property ownership
If any taxes are required to be withheld on payments invoiced by Solution Provider, Client will promptly notify Solution Provider and provide proof of required tax withholdings. Client will ensure that any taxes withheld are minimized to the extent possible under applicable law.
Support. Solution Provider will be the first point of contact for client support issues directly related to the procurement, license key access/activation and product media/download fulfillment of Products deemed to be Software Perpetual License or Software Subscription offers. Solution Provider will diagnose and resolves issue to the best of their ability. In the event of Solution Provider being unable to resolve a Client support issue, Solution Provider can escalate to Microsoft via appropriate commercial or technical support channels. CSP Subscriptions include Standard support, additional Technical support options are available for purchase, please contact your sales representative for details. Please note that a Reseller Relationship request will be sent to Client and though Global Admin isn’t required to provision the licenses it is a requirement if the customer would like Solution Provider to submit a support ticket with Microsoft on their behalf.
2. Microsoft Customer Service Level Agreement.
The current Online Services Service Level Agreement can be found on Microsoft Licensing Terms and Documentation. Direct Link: https://www.microsoftvolumelicensing.com/…DocumentId=18897.
3. CSP Subscriptions Term and Termination.
- Term. This Agreement is effective for the term indicated under “Subscription term” under the “Pricing” table on the Quote.
- Cancellations. Solution Provider will follow the PST time zone for cancellations. There will be a full refund issued if canceled on day 1, and a pro-rated refund if cancelled on days 2 and 3.
Example of Cancellation Policy:
Customer A buys product B on 2/7 at 7am PST here is what their days looks like:
Day 1: 2/7 7am-11:59pm PST (full refund)
Day 2: 2/8 12-11:59pm PST (partial refund)
Day 3: 2/9 12-11:59pm PST (partial refund)
Cancellations or license count decreases are not possible after 72 hours of initial subscriptions provisioning and Client is responsible for paying the balance which equate to the value of the subscriptions for the term. If a CSP Subscription is canceled before its fixed term expires and during Client’s billing cycle Solution Provider will invoice Client for any future scheduled billings for that CSP Subscription as Early Termination Charges. Early Termination Charges equate to the value of the subscriptions for the term.
- Additions. New licenses will carry their own term equivalent to the contract term. For example, if the contract term is 12 month and Client adds 10 licenses on month 2, the new licenses will have their own 12 month term from the date they are provisioned. These new licenses carry the same terms and conditions as the original Agreement.
- Trials. Trials will provision 25 licenses that are valid for 30 days and cannot be canceled. Trials will automatically convert to paid offer unless Client cancels and will not have trial alerts from Microsoft. Solution Provider will notify you of upcoming trial conversions and there are two conversion options:
Automatic trial conversion
– All 25 seats convert to paid offer
– Paid Subscription starts on the next day
– Term duration: Solution Provider will renew on Monthly Terms
– Billing cycle monthly
Manual trial conversion
– Trials can be converted to paid offers at any time during the trial period
– At the conversion point, the 72-hour cancellation period starts when seats can be reduced
– Client can choose the same SKU or an upgrade
- Suspension. Solution Provider may suspend use of a CSP subscription if Client defaults on payment without terminating this Agreement during any period of material breach. Solution Provider will give Client notice before suspending a CSP subscription when reasonable. Client will still be responsible for payment for the entire Agreement term.
- Termination for regulatory reasons. Solution Provider may modify, discontinue, or terminate a Product in any country or jurisdiction where there is any current or future government regulation, obligation, or other requirement, that (1) is not generally applicable to businesses operating there; (2) presents a hardship for Solution Provider to continue offering the Product without modification; or (3) causes Solution Provider to believe these terms or the Product may conflict with any such regulation, obligation, or requirement. If Solution Provider terminates a subscription for regulatory reasons, Client will receive, as its sole remedy, a credit for any subscription fees, including amounts paid in advance for unused consumption for any usage period after the termination date.
- Change of Channel/Partner. Change of channel is not permitted by Microsoft outside of the subscription term renewal. Change of channel is only possible at the term renewal, within the 3 day window.
– Customer wanting to purchase through a different partner
– Partner wanting to purchase through a different distributor
– A partner going from direct to indirect
For mergers and acquisitions, Microsoft may allow this scenario in the future to be exempt from the change of channel policy but as it stands today, the licenses must remain with the partner and provider they have been purchased from.
- Telco Pay-As-you-Go-Over-on-Azure. Some license-based products include services with allocated calling plans. These typically come with per-license allocations for minutes per month. Previously, on the legacy offer there was no way to enable service usage beyond the monthly limits, which resulted in customers needing to purchase communication credits. If a telco offer is initiated, the customer has the option to enable overages via consumption pay-as-you-go-over. To enable overages, a customer must have an Azure Plan tied to the tenant. If the customer does not have an Azure Plan, the partner will have to check out one prior to purchasing the Telco offer. Client will be invoiced for the charges on this Azure Plan on a monthly basis as charges are accrued.
4. Delegated Admin Privileges.
During the onboarding process, KMicro will request Delegated Admin Privileges (“DAP”) via an invitation sent to the Customer’s Microsoft Store for Business. DAP provide KMicro the ability to administer the Customer account on their behalf, including the ability to create and edit users, add users or domains, reset passwords, and escalate Customer issues directly to Microsoft to assist in trouble ticket resolution. Provided that Customer accepts the invitation to grant this access to KMicro, KMicro will be authorized as a delegated administrator, and can then access the Customer’s Azure account and administer the services on their behalf. Note: granting DAP access is optional and can be revoked by the Customer at any time, however KMicro will not have the ability to manage the Customer’s Microsoft environment or escalate any issues to Microsoft unless the DAP access is granted.
5. Warranty Disclaimer.
KMICRO MAKES NO WARRANTIES, REPRESENTATIONS OR CONDITIONS IN CONNECTION WITH THE CSP 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.
6. No Indemnification from KMicro.
KMicro does not directly provide any indemnities in connection with the Microsoft CSP 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.
7. 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 Quote, 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 CSP Subscription in a way not authorized by the Quote, these Terms, and/or the Microsoft Agreement.
8. Limitation of Liability.
- 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 CSP SUBSCRIPTION, THESE TERMS, OR THE QUOTE 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.
- 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 CSP 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.
- 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.
9. Export Sales.
Customer agrees that it will comply with all applicable import, re-import, export, and re-export control laws and regulations.
10. 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 CSP Subscription if the eligibility requirements are not met.
- Choice of Law. For Customers in the United States of America, these terms shall be governed by the laws of the State of California, without regard to its conflict of laws rules. 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. The Parties hereby irrevocably attorn to the exclusive jurisdiction of the courts of the county of Orange and the federal courts located therein. In either case, the United Nations Convention on Contracts for the International Sale of Goods shall not apply.
- 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, CSP 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.
- Notices. Any notices sent hereunder shall be delivered by reliable means to the addresses listed in the first paragraph above, shall reference the Quote and, in the case of KMicro, shall be delivered to KMicro’s Legal Department located at 3525 Hyland Ave, Suite 265, Costa Mesa, CA 92626.
- 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 Quote shall survive the termination or expiration of the Quote. 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 Quote or any rights or obligations under the Quote 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 Quote to any person or entity directly or indirectly controlling, controlled by, or under common control with KMicro. The Quote, and these Terms contain the complete agreement between the Parties relating to the subject matter hereof and supersedes all prior negotiations, representations and understandings.
Latest update: March 3, 2022