TERMS AND CONDITIONS – CLOUD SERVICES PROVIDER
version dated: 28/06/2021
- Terms used in these T&C shall have the following meaning:
- Tenant: A dedicated instance of Azure Active Directory (AAD) that the Client receives and owns when it signs up for a Service. AAD stores user accounts and groups and is an authentication and authorization mechanism for all Services (and other services provided by Microsoft, if applicable). The Tenant is associated with a unique DNS name (ending with onmicrosoft.com) attributed to the Client. As part of this Contract Predica can instantiate a tenant for the Client, or re-sell the Services to an existing Tenant of the Client. Unless otherwise explicitly agreed between the Parties, Predica will proceed with a new Tenant for the Client.
- User account: An Azure Active Directory account that can be created within a Tenant for an individually determined Authorized User within the Client’s organization that allows to access the Services (upon a relevant assignment).
- Admin Portal: the portal provided by Microsoft to the Client separate for each of the Services at the moment of obtaining access to the purchased Services
- Authorized Users: unless otherwise specifically provided in the Services Order, Authorized Users shall include: (i) employees of the Client, and (ii) third party contractors of the Client who do not compete with Service Provider, provided that they may use the Services only at Client’s approval. Client is fully liable for the acts and omissions of Authorized Users under these T&C and applicable Services Order.
- Microsoft Service Terms: Microsoft Customer Agreement (the ‘MCA’) and other terms agreed to with Microsoft upon subscription which are relevant to the Services ordered by the Client. By ordering the Services, the Client acknowledges that he has read and accepts the Microsoft Service Terms. As at the date of these T&C, the MCA terms are available here: https://www.microsoft.com/licensing/docs/customeragreement.
- Client: a legal person or an organizational unit that is not a legal person, carrying out business activity and using the Services for purposes related to the business activity.
- License-based Services: The Services, such as Microsoft 365 or Dynamics 365, made available for a specific number of licenses (a license to the functionality of the Services that may be used by a limited number of individual users, each of whom is identified by a unique user ID (User account), the maximum number of which is specified in the Services Order). The Fee is dependent on the type and number of licenses.
- Microsoft: Microsoft Corporation One Microsoft Way Redmond WA 98052-7329 USA or its affiliated entity or any other relevant entity from Microsoft capital group.
- Party / Parties: Service Provider and / or Client each individually and / or jointly.
- Services: Microsoft Cloud Services (the ‘MCS’), including as at the date of the T&C: Microsoft 365, Azure and Dynamics 365 offered to and purchased by the Client on an “as is” basis on behalf of Microsoft by the Service Provider as Microsoft Gold Partner and Tier 1 Authorized Reseller of Microsoft Cloud Services. The Services are made available to the Client through the Service Provider, acting as the Cloud Solution Provider (the ‘CSP’) via the Admin Portal. Depending on the Services type, one of two options are applicable to the Orders, management and settlement: License-based Services or Usage-based Services. The Services type is defined by Microsoft at its sole discretion.
- (Services) Contract: a contract concluded between the Client and the Service Provider for the management and access to the Services. The Contract may be concluded in any form whatsoever, upon confirmation by both Parties.
- (Services) Fee: compensation for the Services provided during a specified time period, payable by the Client, and collected by the Service Provider. The type, visibility, billing and amount of the Fee may vary depending on the Services ordered. The Fee is determined based on the applicable Microsoft price list and strictly dependent thereon. The Service Provider may, upon negotiations with the Client, apply a discount on the Microsoft prices.
- (Services) Order: an order for the Services made by the Client in any form agreed upon and acceptable to the Parties (normally via email), in which the Client acknowledges all material elements of the Service Contract, including selection of the Services and acceptance of the Services Fee.
- Service Provider:
a) for the Clients located in the US: Predica Inc. with its registered office in 9655 Granite Ridge Drive Suite 200 San Diego, California 92123, USA, EIN/TIN nr: 83-3505388, contact details: [email protected]
b) for the Client located in the EU and EFTA: Predica spółka z ograniczoną odpowiedzialnością with its registered office in Warsaw, 2 Altowa Street, 02-386 Warsaw, tax ID (NIP): 5783048378, KRS: 0000758912, REGON (statistical no.): 280404074, contact details: [email protected]
Service Provider’s legal entity depends on the region location of Client.
II. [GENERAL PROVISIONS]
- These T&C govern terms and conditions of ordering and making the Services available by the Service Provider to the Client under the Services Contract.
- The Client represents and warrants that the person acting for it and, on its behalf, who files a Services Order and/or uses the Services and/or accepts the T&C, is duly empowered to represent the Client and enter into binding agreement(s), especially Services Contract on its behalf.
- The Client agrees to comply with all applicable laws, regulations, and ordinances relating to these T&C and the Services. The Client is liable for breach of any rules or obligations by any user to whom it has granted access to the Admin Portal, the User account or otherwise to the Services, as well as for any other breach caused by any third party which the Client may be held liable for. The Client shall be obliged to keep login names and passwords required for the use of the Services confidential and in a safe place, and to protect it against unauthorized access by third parties with appropriate precautions, as well as to instruct its users whom it granted access to the Admin Portal or User account to obey relevant regulations.
III. [ORDERS AND CONTRACTS]
- The Client interested in obtaining access to new or additional Services (including increase of available licenses) shall submit a Services Order to the Service Provider. At the time of placing the Order, the Client independently selects the Services and the scope thereof. No later than by submitting the Order, the Client confirms that he is aware and accepts these T&C, Microsoft Service Terms, as well as the Microsoft fees and undertakes to pay the relevant Fees. By submitting the Order, the Client agrees that the Service Provider creates for its purposes related to management of the Services for the Client a Tenant (and User account(s), if applicable) including the Client’s and indicated Authorized Users’ data.
- The Contract shall be deemed concluded after submitting the Services Order by the Client and confirmation of the Services Order by the Service Provider, of which the Client is informed by an email at the email address provided by the Client, or by any other means normally used for communication purposes between the Parties. In case of a dispute regarding the date of conclusion of the Services Contract, the moment of conclusion of the Contract is the moment when the Services are made available to the Client via their User account(s).
- At latest at the moment of conclusion of the Contract, a Tenant of the Client must be available or will be created. If the Service Provider grants the Client administrative access to the Admin Portal, the Service functionalities selected by the Client may be viewed and modified by the Client to the extent of permissions granted by the Service Provider. Unless otherwise agreed between the Parties, once the Admin Portal for a given Service has been activated, the Client can manage (some) details of the Service, including e.g. creation and assignment of individual accounts and licenses for its internal users (for License-based Services) or specific resources can be chosen (for Usage-based Services). The Client acknowledges and confirms that throughout the term of the Contract, the Service Provider is authorized to access the Tenant and Admin Portal and make changes within the Services in the name and on behalf of the Client, unless the Client expressly waives such authorization.
- At the Client’s request, the Service Provider may provide the Client basic support services in relation to the Services. The scope of the basic support services (if any are available at the moment) and detailed terms of provision thereof (incl. reaction time) may differ depending on the Service Provider’s capacity and other factors. Should the Client be interested in obtaining full or more complex and guaranteed support, the Client and the Service Provider will agree on and conclude a separate contract (the “Support Contract”).
IV. [TERM AND TERMINATION OF THE CONTRACT]
- The Services Contract is concluded for an unspecified period, unless the Services Order, Microsoft Service Terms or other conditions related to a specific Service state otherwise.
- If the Services Contract is concluded for the unspecified period, it may be terminated by each Party with a thirty (30)-day notice, normally with the effect at the end of calendar month, unless the Services Order, Microsoft Service Terms or other conditions related to a specific Service state otherwise.
- The Services Contract may be terminated by the Service Provider with an immediate effect, if: (a) the Client uses the Services unlawfully or contrary to the T&C or Microsoft Service Terms; or (b) is delayed with Fee payment for at least one settlement period.
- The notice shall be deemed delivered when sent to the following email address of the Service Provider – [email protected] or to the email address provided by the Client while submitting the Services Order, respectively. Upon termination of the Services Contract the Client shall no longer have access to the Services, , while all Fees due for the full settlement period(s) must be paid. Upon the Contract termination, the Tenant and all User accounts related thereto will (or may) be deleted, while the Client is entitled to request migration of data contained therein. Such migration is performed by the Service Provider or by Microsoft directly and additional limitations or regulations, including any additional fees for the migration, may be applicable.
V. [SERVICES AND ADDITIONAL REGULATIONS]
- Subject to any limitations or restrictions contained herein, in the Services Order or in the Microsoft Service Terms, upon execution of the Contract, the Service Provider acquires on behalf and in favor of the Client access to the Services. The access to the Services indicated in the Services Order is granted a as non-exclusive and non-transferable right to access the Services as offered by Microsoft. The Services may be used for the purpose of performing the functions described in the Services Order and in Microsoft Service Terms, as limited, extended or otherwise modified at any time by Microsoft. In case of any discrepancies between the Order and the Microsoft Service Terms or Services functionalities made available by Microsoft, the two latter shall always prevail.
- The Client understands and confirms that the Service Provider is not the creator, manufacturer, distributor or licensor of the Services. When ordering and purchasing the Services, the Client is relying on Microsoft’s specifications only and is not relying on any statements, documents or specifications that may be provided by the Service Provider. The Service Provider does not guarantee quality of the Services, or fitness thereof to any purposes intended by the Client.
- Microsoft is the sole entity that determines the scope, terms and functionality of the Services.
- The Client is obliged to use the Services in compliance with all applicable laws and regulations, including Microsoft Service Terms and these T&C.
- In case of the License-based Service Client shall ensure that the number of active users is equal to or less than the number of licenses purchased by and made available to the Client. The Client is responsible for ensuring that the access to the individual accounts is not shared. Only one person may authenticate to a single account. Provided that self-management option is available in a given case, the Client may create individual accounts at any time without notifying the Service Provider, provided that the permitted number of accounts is not exceeded.
- The Client grants to the Service Provider a non-exclusive, royalty-free license to access, use, reproduce, modify, perform, display and distribute Client data as it may be reasonable or necessary for the Service Provider to perform the Contract or in relation thereto.
- Any and all terms and conditions of the Services, as set forth by Microsoft, including the Microsoft Services Terms, are made a part of and are incorporated by reference into these T&C, as far as they refer to the Client’s obligations in relation to the Services. By accepting these T&C, the Client also confirms acceptance of these additional terms and conditions. The Service Provider cannot be held liable and is not responsible for any contents, incl. provider’s obligations, under such additional regulations, as well as it has no control over and is not obliged to inform the Client about any modifications thereto.
- The Service Provider’s and the Client’s trademarks, trade names, service marks, and logos, whether or not registered, are the sole and exclusive property of the respective owning party, which owns all right, title and interest therein.
VI. [FEES AND PAYMENTS]
- The Services are payable by the Client. All official and binding fees for the Services are determined and announced unilaterally by Microsoft. Any changes of such official fees will immediately and directly impact the Fees charged by the Service Provider as of the day on which they became binding on Microsoft’s side. The Fees are free of Service Provider’s markup. When determining the Fee, the Service Provider may, after prior negotiations with the Client, apply an individual discount on the official Microsoft fees. Such discount may be granted at the Service Provider’s sole discretion and may be waived thereby at any time, with or without a cause, with the effect as of the following settlement period. The Fee for a given settlement period is normally calculated and presented to the Client at the end of each settlement period.
- In case of the License-based Services, the Fee is determined based on the number and type of the ordered licenses (users/seats) for a given settlement period.
- In case of the Usage-based Services, the due Fees are calculated by the Service Provider based on the Client’s measured usage of the Services. Notwithstanding the quantity of Usage-based Services that may be indicated in the relevant Services Order, the Client acknowledges that such quantity is an estimate only, and Client’s invoice will be based on the actual consumption of the Services. The reports in that scope are generated and delivered by the Service Provider to the Client per request. The amount indicated on a relevant invoice shall be deemed binding.
- Unless otherwise provided in the Services Order, all Fees are to be paid to the Service Provider on a monthly basis, not later than within fourteen (14) days as of receiving a relevant invoice. The Client hereby agrees to receive electronic invoices to the address indicated in the Order or otherwise announced to the Service Provider. Any late payment will be subject to costs of collection (including reasonable legal fees) and will bear interest at the maximum rate permitted by law.
- All payments will be invoiced in and must be made to the Service Provider in US Dollars – for the US Clients, and in EUR – for the Clients from EU/EFTA. The Parties may separately agree on a different payment currency. The Fee, and other amounts payable hereunder, do not include any taxes or levies (including interest and penalties). The Client shall reimburse Service Provider and hold Service Provider harmless for all sales, use, VAT, excise, property, withholding or other taxes or levies which the Service Provider is required to collect or remit to the competent tax authorities.
VII. [AVAILABILITY OF SERVICES]
- The Service Provider undertakes to act in relation to the Order, Contract and relationship between the Parties hereunder in compliance with all applicable laws and regulations. The Service Provider also undertakes to make every reasonable effort to ensure that all accepted Orders are executed and other services performed directly by the Service Provider in favor of the Client are delivered at the highest professional level. However, since the Services are provided by a third party – Microsoft – the Service Provider cannot guarantee the level of the Services or that there will be no temporary suspension of the Services availability. The Service Provider, in the widest extent permitted by law, is not liable for any disruptions, including interruptions, Internet operation caused by force majeure, unlawful actions of Client, third parties or incompatibilities with the Clients technical infrastructure.
- The Service Provider has a right to suspend access to the Services: (i) if the Service Provider reasonably believes that the Services are being used in violation of these T&C, Microsoft Service Terms or applicable law, (ii) if the Client delays with payment of the Fee by more than 3 days; (iii) if the Service Provider is requested to do so by a law enforcement or government agency or otherwise to comply with applicable law, provided that Service Provider shall use commercially reasonable efforts to notify Client prior to suspending the access to the Services, or (iv) as otherwise specified in these T&C. The Service Provider will use commercially reasonable efforts to give Client at least twelve (12) hours’ notice of a suspension, unless the Service Provider determines in its commercially reasonable judgment that a suspension on shorter or contemporaneous notice is necessary to protect the Service Provider. The Service Provider is entitled to charge full Fee for the suspension period, unless the suspension was not caused by any circumstances related to the Client.
VIII. [LIMITATION OF LIABILITY]
- Any and all software, services, confidential information and any other technology or materials provided by the Service Provider to the Client are provided “as is” and without warranty of any kind, except as otherwise expressly stated in these T&C. The Service Provider makes no other warranties, express or implied, including express or implied warranties of merchantability, fitness for a particular purpose, and noninfringement. Neither the Service Provider (nor any of its subsidiaries, affiliates, suppliers or licensors) warrants or represents that the software or services will be uninterrupted, error-free, or secure. Client acknowledges that there are risks inherent in internet connectivity that could result in the loss of Client’s privacy, data, confidential information, and property. The sole and exclusive liability for the Services shall be on the Microsoft’s side.
- To the maximum extent permitted by applicable law, in no event will the Service Provider be liable under any theory of liability, whether in an equitable, legal, or common law action arising hereunder for contract, strict liability, indemnity, tort (including negligence), attorneys fees and costs, or otherwise, for damages which, in the aggregate, exceed the amount of the Fee paid by Client for the Services in the settlement period (month) preceding the period in which the basis for any such liability occurred.
- To the maximum extent permitted by applicable law, in no event will the Service Provider be liable for any special, incidental, indirect, exemplary, punitive, or consequential damages of any kind and however caused including, but not limited to, attorneys fees and costs, business interruption or loss of profits, business opportunities, or goodwill.
- The foregoing limitations apply even if notified of the possibility of such damage and notwithstanding the failure of essential purpose of any remedy.
- Within the scope of cooperation hereunder, the Parties may exchange information that is considered proprietary and confidential. Any non-public information that is marked or otherwise identified as confidential when it is disclosed or any time thereafter, or that should reasonably be considered confidential taking into account the character thereof should be “Confidential Information”. The receiving Party shall protect Confidential Information from disclosure with the same care that it protects its own confidential and/or proprietary information, but not less than reasonable care, and shall not disclose it to any third party for any other purpose than in relation to the Services, on a need-to-know basis and under confidentiality obligation. If the receiving party receives a court order or other legal request for the other party’s Confidential Information, it will notify the disclosing party as soon as possible (unless restricted by the binding provisions of law).
- Complaints about Service Provider’s non-execution or improper execution of the Services Contract may be submitted to the following email address: [email protected] The complaint will be considered within 14 days from the date of its receipt by the Service Provider. The Client will be informed about the result of the complaint procedure by an email (sent back to the email address from which the complaint was lodged) or by any other means of communication used between the Parties.
- The Client may not assign the Contract or rights and obligations under these T&C or otherwise transfer any rights or obligations created thereunder whether by operation of law, change of control, or in any other manner, without a prior written consent of the Service Provider. Any purported assignment in violation of this paragraph will be deemed void. The Service Provider may assign, in whole or in part, its rights, interests, and obligations hereunder without limitation.
- Each provision of these T&C is a separately enforceable provision. If any provision of these T&C is determined to be or becomes unenforceable or illegal, such provision will be reformed to the minimum extent necessary in order for these T&C to remain in effect in accordance with its terms as modified by such reformation.
- The Service Provider is an independent contractor and nothing in these T&C will be deemed to make the Service Provider an agent, employee, partner, or joint venturer of Client. Neither party will have authority to bind, commit, or otherwise obligate the other party in any manner whatsoever.
- The T&C constitute an inseparable part of each Contract, unless explicitly set forth otherwise. The T&C are made available free of charge and continuously, in a way enabling to obtain and reproduce them and save content thereof at any time. The T&C may be amended by the Service Provider at any time at its sole discretion, while only the T&C made available at the time of conclusion of the Services Contract shall apply thereto.
- Subject to unconditionally binding provisions of law, any disputes related to the T&C or legal relations described therein shall be governed by: (a) the laws of Poland and courts in Warsaw – for the EU/EFTA Clients; (b)the laws of the State of California and courts In San Diego, USA – for the US clients.
- The T&C enter into force on the date indicated above.