These General Terms apply to all Goods and Services provided by Umbrellar Limited and any other company in the Umbrellar Group (as defined below) (Umbrellar) to any person (each a Customer).
1.1 Agreement: All Goods and Services will be supplied by Umbrellar upon the specific terms applicable to those Goods or Services (specific service terms) and these General Terms (together the Agreement).
1.2 Conflict: If there is any conflict between these General Terms and the specific service terms, the specific service terms will prevail.
1.3 Service confirmation: Umbrellar will give the Customer an order, a set up email or other written confirmation detailing the Services to be supplied and the commencement date. The Customer is deemed to have accepted, and be bound by, the Agreement from the commencement date and any services self-provisioned that attract a fee.
1.4 Fixed term arrangements: If the Goods or Services are to be provided for a fixed term, then, upon the expiry of the term, Goods and Services will continue to be provided on a monthly basis at the fee applying during the fixed term. Clause 9.1 will apply in regard to termination.
1.5 Commencement of Services: Umbrellar will use its reasonable endeavours to commence the Services on the commencement date, provided that Umbrellar will not be liable for any delay in doing so resulting from any act or omission of the Customer or any other person, including any failure by the Customer or any other person to supply information, inputs, hardware, software or other systems necessary to commence the Services.
1.6 Variations: If the Customer wishes to change the Services, Umbrellar will provide a further written confirmation pursuant to clause 1.3, which will supersede any previous written confirmation.
1.7 Service level: Where applicable, Umbrellar will use its reasonable endeavours to supply the Services to the applicable service level specified in the specific service terms.
2.1 Payment: The Customer will pay (in New Zealand currency) all applicable fees and charges (without deduction or set off) in the manner specified in the specific service terms, or if no payment method is specified, then as follows:
(a) for Goods or Services to which an advanced monthly fee applies, the fee must be paid in advance before the first day of the month for which it applies. If Services
commence intra month, the fees for that month will be added to the fees payable for the following calendar month; and
(b) for Goods or Services to which a one off fee applies, including fees payable for support and other services that are not included in any set charges, payment must be made inline with the NET period on the invoice unless Umbrellar requires otherwise.
2.2 Credit card payments: Payments by credit card may incur a surcharge.
2.3 Cheque payments: If the Customer's cheque is returned by the bank as unredeemable, the Customer will be deemed to be in default of its payment obligations and liable for a returned cheque charge of $25.
2.4 GST/taxes: The Customer will pay goods and services tax (GST) and all other applicable duties and taxes. Umbrellar will advise the Customer of the GST payable on its invoices.
2.5 Variations: Umbrellar may change its charges and fees, or any pricing structure, at any time, provided that such change will not take effect until one month after Umbrellar gives notice. If the Customer does not accept the change, it may terminate the Agreement pursuant to clause 9.1.
2.6 Interest: Accounts in default are subject to a late payment charge of $25, and interest at a rate of 2% above Umbrellar's bank's commercial overdraft rate, from the date payment was due to the date Umbrellar receives payment in cleared funds.
2.7 Withholding payment: The Customer shall not withhold or set off any amount payable to Umbrellar.
2.8 Third party charges: Unless Umbrellar agrees otherwise in writing, the Customer must pay all fees and other charges of those third parties engaged by the Customer or Umbrellar in relation to the performance of the Services, including services relating to the installation of telephone lines, internet or any equipment.
2.9 Enforcement costs: The Customer is liable for all costs and expenses (including all legal costs and expenses incurred on a solicitor/client basis) incurred by Umbrellar in the enforcement of any of its rights under the Agreement.
2.10 Deposit: Umbrellar may require the Customer to pay a security deposit of an amount specified by Umbrellar before providing any Goods or Services. Umbrellar may keep all or any of the deposit as compensation for any costs, losses or liability suffered or incurred by Umbrellar due to the acts or omissions of the Customer, or any of its employees, agents, contractors or any other person for whom the Customer is responsible. Umbrellar will return the balance once it is satisfied the Customer has complied with all its obligations under the Agreement.
2.11 Refunds: If the Customer terminates this Agreement, it may claim a refund of any overpayment or of any pre-paid fees which are unused as at the date of termination. Any claim for a refund must be received by Umbrellar within one (1) month from the date of termination of Services. No refunds will be given for claims received outside of this period. It is the Customer's responsibility to ensure that any direct credit instructions are terminated at the time its Services are terminated. Refunds for overpayment (where this Agreement has not been terminated) will be paid as credit notes against future invoices.
3.1 Compliance: The Customer must at all times:
(a) comply with the terms of this Agreement, including any specific service terms and third party software terms incorporated within it;
(b) comply with all laws applicable to the use of the Goods and Services;
(c) ensure the Customer holds, maintains and complies with all software licenses relating to the use of the Goods and Services;
(d) refrain from transferring, storing or using offensive, unlawful or objectionable materials or images;
(e) refrain from engaging in spamming, attacking or any other form of malicious or unlawful conduct;
(f) refrain from engaging in any other conduct, which in Umbrellar's view, affects, or may affect, Umbrellar's ability to provide Goods or Services to the Customer or to any other person, or causes, or may cause, harm or loss to Umbrellar or any other person.
3.2 Prohibited publications: Without limiting clause 3.1(a), the Customer must not publish, transmit, store or file the following content when using the Goods or Services (including pictures, links and texts):
(a) any material, which in Umbrellar's view, breaches or infringes, or may breach or infringe, Umbrellar or any other person's copyright, or trademark, patent, design or other rights;
(b) any material that is defamatory or unlawful;
(c) any material that is intended to cause harm to an individual or group of individuals;
(d) any material which, in Umbrellar's view, is or contains anything obscene, pornographic or offensive, including links to any such material;
(e) distribution lists to be used via unsolicited email or other mass electronic mailing; or
(f) IRC clients, bots, servers.
3.3 Removal of content: Umbrellar exercises no control whatsoever over the content of the information passing through Umbrellar's servers or transmitted or stored using the Services, and does not monitor its customers' websites or use of Services. Umbrellar may remove or suspend any content or information the Customer stores or publishes using the Services ("Content"), or suspend any Goods or Services supplied to the Customer, if Umbrellar:
(a) receives a complaint alleging that the Content is defamatory, infringing, threatening, harassing, obscene or breaches applicable laws (including the Harmful Digital Communications Act 2015); or
(b) is required to do so under applicable laws; or
(c) otherwise considers (acting reasonably) that the Content breaches this Agreement or applicable laws.
Umbrellar will use reasonable endeavours to notify the Customer if it removes the Customer's Content pursuant to this Agreement, using the billing contact details provided by the Customer from time to time. The Customer will have the right to respond to any complaint made to, or decision taken by, Umbrellar. If Umbrellar has removed Content as a result of a third party complaint, the Customer's right to respond creates no obligation on Umbrellar to reinstate the Content. Umbrellar will not be liable to pay any refund of service charges if it takes any action under this clause 3.3, nor shall it be liable for any damages, costs, harm or loss suffered as a result of any actions taken hereunder.
4.1 Account information: The Customer must maintain the confidentiality of the Customer's user name, login, password, and any other account information and/or identifier provided to the Customer in relation to the Services.
4.2 Use of account:
(a) System accounts cannot be transferred or used by anyone other than the Customer. The Customer accepts complete responsibility for all use of its account and of the Customer's identifier(s), and Umbrellar is entitled to rely entirely upon use of any password or other identifier as evidence of the Customer's identity and authority.
(b) No more than one login session may be used at any time by the Customer or any system account. If the Customer has multiple accounts, the Customer is limited to one login session per system account at any time. User programs may be run only during login sessions.
4.3 Deletion of Customer data: The Customer agrees that Umbrellar may delete all data, files or other information that is stored in the Customer's account if the Customer's account with Umbrellar is terminated, for any reason, by either Umbrellar or the Customer. It is the Customer's responsibility to back-up and maintain any data, files and other content or information stored in the Customer's account or using the Services.
5.1 Ownership: The Customer shall at all times retain ownership of the Customer Information and Umbrellar shall at all times retain ownership of the Umbrellar Information, including for the avoidance of doubt, Umbrellar's Intellectual Property.
5.2 Customer Representation: The Customer represents and warrants that it has the necessary rights to the Customer Information and any data, software, programmes or services that it uses from time to time in connection with its access to or use of Goods or Services supplied by Umbrellar.
5.3 Use: Subject to clause 11.4, the Customer and Umbrellar may only use each other's Confidential Information in relation to the use, provision and performance of the Goods and Services. Each party must use their best endeavours to keep the other party's Confidential Information secure and at all times confidential.
(a) No party shall disclose any of the other party's Confidential Information to any person, and must also ensure their employees, agents, and contractors do not disclose such information, except as required for the proper use and performance of the Goods and Services, and then on a confidential basis.
(b) The parties will immediately inform the other if they become aware or suspect there has or could be an unauthorised disclosure of Confidential Information, or they are required by law to disclose it.
5.5 Expiry/termination: Upon the expiry or termination of the Agreement, the parties will either return or destroy each other's Confidential Information (at the option of the owner) and all copies of it, other than information to be retained for audit or regulatory purposes.
5.6 Publication of information:
(a) The Customer is responsible for all information and material transmitted, distributed or accessed by them.
(b) Umbrellar does not check, monitor or vet any information transmitted, distributed or made available through the servers and networks provided or access as part of the Services. The Customer engages in these activities at its own risk.
5.7 Joint promotion: Subject to clause 11.4, the Customer permits Umbrellar to publicise the business relationship between it and Umbrellar for marketing and promotional purposes, excluding confidential and commercial terms relating to the particular Goods and Services provided to the Customer.
5.8 IP addresses: Umbrellar retains control and ownership of all IP numbers and addresses that may be assigned to the Customer, and Umbrellar may at any time change or remove any IP numbers or addresses.
6.1 Provision of Services: Umbrellar shall not be liable for any interruption or delay in the provision of any Goods or Services as a consequence of:
(a) any act or omission of the Customer or any third party, including any of the Customer's employees, contractors or agents, any internet service provider or any other utility provider (such as power and telephone companies); or
(b) any cause reasonably beyond Umbrellar's control (Force Majeure) including without limitation fire, earthquake, volcanic eruption, tornado, lightening, flood, storm, any other act god, burglary or vandalism.
6.2 Limitation on liability:
(a) Umbrellar shall not be liable to the Customer, whether in contract, tort (including negligence) or otherwise, for loss of profits, business, revenue, goodwill, opportunity, loss of data or any other form of indirect or consequential loss or damage.
(b) To the maximum extent permitted by law, Umbrellar's total liability under the Agreement whether in contract, tort (including negligence) or otherwise, is limited to an amount equal to the total fees and charges paid or payable for the applicable Goods or Service giving rise to such liability, in the first 6 month period of the Agreement.
6.3 Implied warranties:
(a) The Customer acknowledges that where the Goods or Services are being provided for business purposes or in trade, the provisions of the Consumer Guarantees Act 1993 are expressly excluded.
(b) All terms, conditions, guarantees or warranties (including implied warranties as to merchantable quality and fitness for purpose), which may be implied into the Agreement are excluded to the maximum extent permitted by law. If legislation implies any such term, condition, guarantee or warranty into the Agreement, and such legislation does not permit the exclusion or modification of it, Umbrellar's liability for any breach is limited, to the maximum extent permitted by law, and at its option, to:
(i) replacing the Goods or paying another person acceptable to Umbrellar to provide similar Goods; or
(ii) repairing the Goods;
(iii) re-performing the Services; or
(iv) paying another person acceptable to Umbrellar to re-perform the Services.
7.1 The Customer indemnifies and holds Umbrellar harmless, to the fullest extent permitted by law, against all costs, expenses (including all legal costs and expenses on a solicitor/own client basis and Taxes), losses and other liability sustained or incurred by Umbrellar, and against any claims made or proceedings brought against Umbrellar as a result of:
(a) a breach of these General Terms, any specific service terms or any software license by the Customer, or any of the Customer's employees, agents, contractors, customers, clients, or any other person for whom the Customer is responsible;
(b) any security breach, attack or error caused or made by the Customer or its employees, agents, contractors, customers, clients, or any other person for whom the Customer is responsible;
(c) any other act or omission by the Customer, or by any of the Customer's employees, agents, contractors, customers or clients, or any other person for whom the Customer is responsible, including any breach or violation of any law; and
(d) any fault or failure of, or damage to, any of the Customer's property located at Umbrellar's premises.
The Customer shall pay to Umbrellar upon demand, the amount (including all legal costs and expenses on a solicitor/own client basis) which Umbrellar certifies as being required to compensate Umbrellar for the cost, loss, expense or liability it has incurred.
8.1 Suspension: Umbrellar may from time to time, without notice, suspend a Service, or disconnect or deny the Customer access to any Goods or Services:
(a) if the Customer fails to comply with any provision of the Agreement or any software licence, including any failure to pay any charge or other amount payable to Umbrellar within 10 Business Days after the due date for payment, until the breach or failure is remedied to Umbrellar's satisfaction. The Customer shall continue to pay all charges and other amounts payable for the Goods and Services during the period of suspension;
(b) if Umbrellar believes suspension is necessary to preserve or protect any person or property, including the information or property of another customer;
(c) or suspension is required by law; or
(d) in accordance with clause 3.3 of these General Terms.
8.2 Notice: Umbrellar will endeavour to give the Customer at least two Business Days prior notice by email if it intends suspending the Goods or Services due to charges or other amount being overdue.
9.1 Notice: Unless the Goods and Services are to be provided for a fixed term, the Agreement may be terminated by either the Customer or Umbrellar giving the other at least 30 days' prior written notice unless service are self served/decommissioned by the Customer.
9.2 Termination for breach: Umbrellar may terminate the Agreement immediately upon written notice to the Customer if:
(a) the Customer fails to pay any amount owing to Umbrellar on the due date for payment;
(b) the Customer breaches any provision of the Agreement or any software license, and in Umbrellar's opinion such breach is not capable of remedy, or if in Umbrellar's opinion it is capable of remedy, the Customer fails to remedy the breach within seven Business Days after receiving written notice of the breach from Umbrellar;
(c) Umbrellar is instructed to do so by any law enforcement or government agency;
(d) the Customer ceases or threatens to cease to conduct its business, or disposes of, or threatens, or agrees to dispose of, all or a substantial part its assets;
(e) A receiver, administrator or similar official is appointed in respect of the Customer or its assets;
(f) the Customer is unable to pay its debts as they fall due or is deemed to be so under any law;
(g) the Customer stops or suspends payment of any of its indebtedness or threatens to do so, or begins negotiations or takes proceedings to reschedule any of its indebtedness;
(h) Umbrellar is unable to provide the Services for a period exceeding one week due to a Force Majeure; or
(i) any other event occurs which, in Umbrellar's opinion, may have a material adverse effect on the Customer's ability or willingness to comply with the Agreement.
9.3 Consequences of termination: Upon termination pursuant to this clause 9, the Customer will:
(a) immediately pay to Umbrellar all outstanding amounts, and all other amounts payable by the Customer under the Agreement, including interest and Umbrellar's enforcement costs and expenses (including legal costs and expenses on a solicitor/own client basis);
(b) where Goods or Services were to be supplied to the Customer for a specified period, the Customer will immediately pay to Umbrellar all amounts that would have been payable by the Customer up to the expiry of that period; and
(c) immediately return to Umbrellar, all of Umbrellar's equipment, property and all Umbrellar Information.
9.4 Return of Customer property: If applicable, and if requested by the Customer, Umbrellar will return all the Customer's property, equipment and Customer Information in Umbrellar's possession or control to the Customer.
10.1 Variation: Umbrellar may change, amend or replace these General Terms at any time, provided that such changed, amended or new General Terms will not take effect until one month after Umbrellar gives the Customer written notice of it.
10.2 Survival: Clauses 2.1, 2.5, 2.8, 5, 6, and 7 survive the termination or expiry of the Agreement.
10.3 Notices: Each party will give any required notice to the other party at the physical or email address last known to the party giving notice. Each notice will be deemed to be effective if, delivered by hand,
immediately, if delivered by post, 3 days after it was posted, and if sent by email, when successfully sent from the sender's email.
10.4 Privacy/use of information: Notwithstanding clause 5, Umbrellar may collect and disclose personal and credit information about the Customer (including the Customer's account information and information about any Customer defaults) to debt collection agencies, credit reporting agencies, Umbrellar's lawyers and accountants, and to any person with which Umbrellar does business, for the following purposes:
(a) if Umbrellar is required to disclose such information to any government or law enforcement agency, or otherwise by law;
(b) obtaining a credit report or other information about the Customer to decide whether to provide Goods or Services to them, to manage the Customer's account with Umbrellar, and/or to recover any amounts payable by the Customer, including in relation to any enforcement or Court action or proceedings;
(c) to provide the Customer with offers or information of other goods or services Umbrellar, or any of those above persons may be able to provide to the Customer, or for other marketing purposes, unless the Customer tells Umbrellar not to in writing,
and the Customer authorises those persons to provide such information to Umbrellar.
10.5 The Customer acknowledges that information disclosed to credit reporting agencies may be disclosed by them to other third parties as part of their collection and credit reporting services to help those third parties to decide whether to provide goods, services or credit to the Customer or to recover money the Customer owes them.
(a) The Customer must not assign any of its rights or obligations under the Agreement without the prior written consent of Umbrellar. Umbrellar may assign its rights and obligations under the Agreement without the Customer's consent.
(b) Any change in the effective control or management of the Customer or any parent company of the Customer, shall be deemed to be an assignment requiring the prior written consent of Umbrellar, which consent will not be unreasonably withheld.
10.7 Waiver: No waiver or breach of, or failure to enforce, any provision of, the Agreement will in any way limit the right of Umbrellar to enforce and compel strict compliance with the provisions of such Agreement.
10.8 Entire agreement: The Agreement constitutes the entire agreement between the parties as to its subject matter, and to the maximum extent permitted by law, supersedes all previous agreements and understandings on the subject matter.
10.9 Governing law: The laws of New Zealand govern the Agreement.
8.30 am to 5.30 pm from Monday to Friday, but excludes statutory public holidays in Auckland, New Zealand.
any day that is not a Saturday, Sunday or statutory public holiday in Auckland, New Zealand.
all information, content and data about the Customer, its business and its clients which is disclosed to, or acquired by, Umbrellar in the performance of the Services, and includes all data stored on Umbrellar's servers.
Customer Information and Umbrellar Information other than
information that is or becomes:
(a) part of the public domain (other than through any breach of confidentiality by a party);
(b) lawfully known to the recipient on a non-confidential basis before being disclosed;
(c) available to the recipient from another person who is in possession of it lawfully and can disclose it on a non-confidential basis; or
(d) required to be disclosed by law.
these general terms and conditions as amended from time to time, and includes any replacement terms.
means Umbrellar Limited and any of its parent or subsidiaries as may change from time to time.
all information, content and data about Umbrellar, its business and its other customers, all information content and data about the business and clients of Umbrellar's other customers, Umbrellar's Intellectual Property, and all information, content and data that is developed by Umbrellar while providing the Goods and Services.
Umbrellar's Intellectual Property
all intellectual property in and associated with the business of Umbrellar and its other customers, including all trade names, trade and service marks, discoveries, improvements, systems, specifications, manuals, trade secrets, know-how, procedures, computer software and programs (whether denominated software, firmware or otherwise), formulae, designs, writings, diagrams, logos, domain names, websites, drawings, copyright materials and the benefit of any applications or registrations in respect of the above and any other intellectual property and industrial property whatsoever and howsoever recorded or stored (if at all).
(a) references to the parties include their respective executors, administrators, successors and permitted assigns;
(b) references to a person includes any form of entity including an individual, company, partnership, firm, trust, any central or local government department, and any other entity, or any other association or persons, either incorporated or unincorporated;
(c) words in the singular include the plural and vice versa;
(d) words importing one gender include the other genders;
(e) any obligation not to do anything includes an obligation not to suffer, permit or cause that thing to be done; and
(f) headings have been inserted for convenience only and will not affect the construction of the Agreement.
Umbrellar’s SLA is written in conjunction with the Terms and Conditions as noted above and is constructed in the following manner for ease of reading and relevancy. Note: not all sections will be relevant to your Contract with Umbrellar. If there are any doubts which sections of the SLA are relevant to your procured service then please contact Umbrellar for further clarification. Note that SLAs are only honored for services delivered from Umbrellar operated data centres only.
The set is constructed as:
(1) Schedule A - General SLA (Including):
(2) Service Specific SLA’s:
(3) Microsoft Cloud Agreement:
This SLA describes the service level commitments provided to you by Umbrellar New Zealand Limited:
1. DEFINITION OF TERMS
The following words and expressions shall have meanings hereby assigned to them except where the context otherwise requires:
"Company”, "us", "we" and "our", means Umbrellar New Zealand Limited;
"You", “Your”, means the party or parties who utilise services provided by Umbrellar New Zealand Limited and are appropriately contracted with Umbrellar New Zealand Limited.
2. TECHNICAL SUPPORT
Umbrellar will provide you with certain technical support on set-up of your account. This will be provided free of charge and cover usual configuration type queries. More bespoke set up/configuration requirements may attract set up costs and these will be notified to you on your Hosting Contract.
Umbrellar provides technical support to Customers based on the attached SLA requirements and those recorded in the Terms and Conditions above. Umbrellar also provides higher levels of contracted support to certain clients that sign Customer specific support contracts. Details of these contracts can be obtained from Umbrellar. The following obligations are Umbrellar’s standard SLA obligations. If you have signed a Customer specific support contract then please refer to that document and read in conjunction with the standard obligations recorded in this Agreement.
Under no circumstances will Umbrellar provide development-related support for web applications, scripts, or components from third parties or those developed by you unless specifically agreed in writing and subject to agreed further terms and conditions and a support contract.
Email and phone support is available 24 hours a day and is charged subject to the agreed support products have been subscribed to. Please be prepared to provide a full description of the problem and your Account ID to allow our staff to efficiently deal with your query.
The Company's standard response time to technical support issues is dependant on your contacted Services. This time depends on the complexity of the inquiry and support request volume. The support team assigns the highest priority to customer inquiries related to the network and service unavailability and to customers with higher levels of support contracts. These issues are addressed first upon notification from a customer.
Email Address: firstname.lastname@example.org
Email Hours: 24 hours a day (response depending on contracted SLA)
Phone Number: 0800 344 493
Phone Hours: 24 hours a day (response depending on contracted SLA)
3. SCHEDULED MAINTENANCE
To maximize optimal performance and security of the servers, the Company will perform routine maintenance on the services on a regular basis, requiring elements of the service to be removed from service. The Company reserves one hour of unavailability per month for maintenance purposes. This server unavailability will not be included in server uptime calculations. The maintenance is typically performed during off-peak hours.
A minimum of 48 hours notification of maintenance will be provided except where maintenance is considered to be critical. Notification will be provided via the Service Status page: http://www.umbrellar.com
Umbrellar's primary objective is to provide leading hosting and related services to all our customers. Sometimes technical issues arise, which are unavoidable. Umbrellar offers the following schedule of remedies for any failure to meet the express guarantees in this Service Level Agreement.
4.1 NETWORK AVAILABILITY
Umbrellar guarantees at least 99.99% Network Availability. Network Availability is defined as the ability to pass incoming and outgoing TCP/IP traffic through the network. Application and mail server unavailability resulting from loss of Network Availability is not included in Mail Server Availability or Application Server Availability calculations or if the Network Availability loss is caused by any factor(s) beyond the Company's control, including such factors as problems on domestic and international backbones or on the customer's portion of the network, and denial of service or similar attacks directed at the Company servers or the Company’s network.
4.1.1 PENALTY FOR NON-COMPLIANCE
Upon your written or email notice to the Company, if network availability for any three month rolling period is below the guaranteed level, Umbrellar will issue a refund to you according to the schedule below. Note: monthly fee relates to the fee relevant to the network unavailability only i.e. excludes domain names etc which may have been invoiced but not impacted by any network availability issues.
Network Availability 99.90% - 99.99%
5% of monthly fee credited
Network Availability 99.80% - 99.89%
10% of monthly fee credited
Network Availability 99.70% - 99.79%
15% of monthly fee credited
Network Availability 99.60% - 99.69%
25% of monthly fee credited
Network Availability 99.59% or below
50% of monthly fee credited
4.5 HARDWARE FAILURE
In the event of a server or network device hardware failure, the Company shall replace or repair hardware within 24 hours of determination that the hardware has failed so far as practicable where the particular hardware asset does not have full redundancy in place. Where full redundancy is in place Umbrellar will repair or replace such hardware as soon as practicable noting that other provisions in this agreement capture service level commitments.
4.6 APPLYING FOR A REFUND
To receive a refund, send an email or written refund request to the Accounts Department at email@example.com. You must provide your Account ID and all dates and times of the alleged server or network unavailability.
REFUND REQUESTS MUST BE RECEIVED BY THE ACCOUNTS SERVICES TEAM WITHIN FOUR WEEKS OF THE END OF THE MONTH FOR WHICH YOU ARE REQUESTING A REFUND. NO REFUNDS WILL BE CONSIDERED OUTSIDE OF THIS WINDOW.
4.7 MAXIMUM TOTAL PENALTY
The total refund to you for any account may not exceed 50% of the monthly fees charged to that account during the month for which the refund is to be issued.
Customer shall not receive any refunds under this SLA in connection with any failure or deficiency of website availability caused by or associated with:
any negligence, willful misconduct, or use of the Services in breach of the Company's Terms and Conditions and Acceptable Use Policy;
5. STORAGE CAPACITY / DATA TRANSFER
Each account is allotted storage capacity and data transfer amounts on Umbrellar’s servers and storage devices according to the plan, offer, subscription or resource options selected by you. This storage size and data transfer allotments can be increased for an additional fee. The servers may stop accepting, processing, or delivering data when the purchased limit is reached thus causing server unavailability or data loss. The Company shall not be held responsible for such unavailability or data losses. Umbrellar also offers dedicated storage services for which different fee structures are levied. Please refer to dedicated server SLA’s below for the applicable obligations for these devices.
6. DATA INTEGRITY
The Company provides services at customers own risk. It is recommended that suitable Backup, Continuity and Disaster Recovery plan be in place in case of an event that outcomes in data loss. sophisticated RAID techniques to ensure the integrity of the data on its servers; the data is written to two or more disks simultaneously to prevent data loss in the event of hardware failure.
7. CUSTOMER RESPONSIBILITIES
To access Umbrellar New Zealand Limited’s services you must provide at the very minimum:
Schedule A (“General Service Level Agreement”) above includes SLA terms for the following areas of service. Schedule B refers to specific responsibilities relevant to Managed Compute and Umbrellar Cloud, Cloud Connect.
1. MANAGED COMPUTE, UMBRELLAR CLOUD AND CLOUD CONNECT AVAILABILITY:
Umbrellar guarantees at least 99.9% availability of these services. Availability is defined as the ability to retrieve a successful response from probes on core hardware node services responsible for managing the service environment. Availability is calculated on a three month rolling basis. The Company will not monitor availability of individual service instances but only monitors the service availability as a whole.
Denial of service attacks or other types of attacks targeting sites hosted on the servers supplied to the Customer by the Company and contributing to downtime will not be included in Server Availability calculations.
SPECIFIC SLA TABLE
Umbrellar Cloud – App Service
Covers Web, API, Mobile & Function
Umbrellar Cloud – Virtual Machine*
Umbrellar Cloud – Storage - Table
Umbrellar Cloud – Storage - Queue
Umbrellar Cloud – Storage - Blob
Umbrellar Cloud - Functions
As part of an App Service Plan
Cloud Connect - Endpoint Availability
* For all Virtual Machines that have two or more instances deployed in the same Availability Set, we guarantee you will have Virtual Machine Connectivity to at least one instance at least 99.95% of the time.
1.1 AVAILABILITY MONITORING
To verify that Availability, the Company will probe core hardware node services on the server every five minutes, with a 30-second failure threshold. If the probe is not successful, the server is considered non-operational and it is immediately escalated to technical support and system engineers.
If two or more consecutive server probes fail, server downtime will be registered as the number of minutes between the first and the last failed tests. The Company will calculate server uptime and refund eligibility amounts based on this type of server monitoring.
1.2 PENALTY FOR NON-COMPLIANCE
Upon your written or email notice to the Company, if server availability for the full month is below the guaranteed level, the Company will issue a refund to you according to the schedule below. The following availability times are excluding scheduled maintenance and/or any downtimes associated with routine patches or firmware updates.
Availability 99.50% - 99.90%
5% of monthly fee credited
Availability 99.00% - 99.49%
10% of monthly fee credited
Availability 98.50% - 98.99%
15% of monthly fee credited
Availability 98.00% - 98.49%
25% of monthly fee credited
Availability 97.99% - or below
50% of monthly fee credited
1.3 MAINTENANCE WINDOWS
Periodically the Company will perform maintenance on the Services. Scheduled maintenance windows will not be included in Availability calculations. Services may be unavailable at times during the maintenance window while services are restarted.
A minimum of 48 hours notification of maintenance will be provided except where maintenance is considered to be critical.
Notification will be provided via the Service Status page on www.Umbrellar.com
7:30am to 8:30am NZST
Typical Outage Duration
2. VIRTUAL SERVER OPERATING SYSTEM AVAILABILITY:
The company guarantees at least 99.9% on single instance virtual server availability on a three month rolling average basis. A virtual server is considered available when it is:
Note that higher availability figures are achievable through the use ‘availability sets’ within Umbrellar Cloud (Azure Stack) and Azure natively.
VIRTUAL SERVER AVAILABILITY DOES NOT INCLUDE DOWNTIME CAUSED BY ANY SOFTWARE RUNNING ON THE VIRTUAL SERVER, INCLUDING SUCH SOFTWARE AS OPERATING SYSTEM SOFTWARE, APPLICATION SOFTWARE OR ANY OTHER SOFTWARE THAT RUNS ON THE OPERATING SYSTEM. THESE ARE THE CUSTOMER’S RESPONSIBILITY AS UMBRELAR CANNOT CONTROL PATCHES / UPDATES ETC.
2.1 SUPPORT RESPONSE TIMES
Umbrellar will respond to emergency faults 24 hours a day 7 days a week 365 days of the year within the contracted support time period based on your support agreement.
Email Address: firstname.lastname@example.org
Email Hours: 24 hours a day (response depending on contracted SLA)
Phone Number: 0800 344 493
Phone Hours: 24 hours a day (response depending on contracted SLA)
Emergency faults include:
EMERGENCY FAULTS COVER VIRTUAL MACHINE DOWN AND NETWORKING FAULTS ONLY AND DO NOT COVER OPERATING SYSTEM / SOFTWARE / APPLICATIONS OR ASSOCIATED ISSUES.
Umbrellar may reclassify any issues misclassified as falling into one of the emergency categories listed above, and such issues will not qualify for emergency treatment. All other support issues will be handled during Umbrellar’s standard business hours unless you have a Customer specific support package in place.
2.2 PENALTIES FOR NON COMPLIANCE
Upon your written or email notice to the Company, if virtual machine availability for the three month rolling average is below the guaranteed level, the Company will issue a refund to you according to the schedule below.
Virtual Machine Availability 99.97% - 99.93%
10% of monthly fee credited
Virtual Machine Availability 99.92% - 99.46%
25% of monthly fee credited
Virtual Machine Availability 99.46% +
50% of monthly fee credited
Refer to clause 4.6 in Schedule A (“General Service Level Agreement”) for steps to make a refund request.
Customers shall not receive any refunds under this SLA in connection with any failure or deficiency of virtual machine availability caused by or associated with:
Schedule A (“General Service Level Agreement”) above includes SLA terms for the following areas of service. Schedule B refers to specific responsibilities relevant to VPS and Cloud Server Availability. This Schedule refers to SLA terms relating to dedicated servers.
1. PROACTIVE HARDWARE MONITORING FOR ENTERPRISE SERVERS
Umbrellar will proactively monitor the health of the server hardware by sending SNMP GET OID requests to the server's management interface.
The following hardware components of a dedicated server are monitored:
Proactive hardware monitoring is provided 24 hours a day, 7 days a week, 365 days of the year for enterprise servers.
In the event of failure the Umbrellar Network Operations Centre (NOC) will alert Umbrellar Systems Administrators who will assess the severity of the fault. If the fault is deemed to be service impacting, the customer will be notified immediately before any work is performed and will be provided with an estimated resolution time (ERT). Non-service impacting faults will be addressed by the engineer at the time of the fault.
PROACTIVE HARDWARE MONITORING IS ONLY AVAILABLE FOR ENTERPRISE DEDICATED SERVERS.
2. HARDWARE GUARANTEE AND REPLACEMENT
Umbrellar will repair or remove and install reasonably comparable replacements if it determines, in its sole discretion, that the hardware is defective, at no cost to the customer. Hardware repair/replacement begins upon such determination and is guaranteed to be completed within 90 minutes. The 90 minute repair/replacement time refers only to the time required to physically repair or replace the failed hardware component(s) and does not apply to any time spent: (a) addressing data, operating systems, or other software or systems corrupted or destroyed by hardware failures; or (b) communicating with the customer regarding permissions or instructions.
In the event that it takes us more than 90 minutes to repair/replace faulty hardware within the limits defined above, Umbrellar will credit the client 5% of the monthly fee per additional hour of down time (up to 100% of client's monthly fee).
UMBRELLAR IS NOT RESPONSIBLE FOR THE RESTORATION OF DATA TO SERVER. IF HARDWARE FAILURE IS EXPERIENCED AND SUBSEQUENT DATA LOSS OCCURS, THE CUSTOMER IS ULTIMATELY RESPONSIBLE FOR DATA RESTORATION. UMBRELLAR SHALL NOT BE LIABLE FOR LOSS OF DATA UNDER ANY CIRCUMSTANCES.
3. POWER AVAILABILITY
Umbrellar will provide both A and B power to the Customer's dedicated server, fed from independent power systems, where dedicated servers come equipped with dual power supplies. Umbrellar guarantees 100% power availability to the dedicated server from at least one of these systems at any time. A power failure is a loss of electrical power or a voltage fluctuation exceeding normal operational ranges in any part of the delivery system (mains power supply, on-site generator, UPS, power distribution units) which causes Customer’s hardware to shut down. A period of power-related failure is measured from the time the Customer lodges a fault to the time the electrical supply is restored, and does not include any time required to remedy any issues resulting from the electrical failure.
Umbrellar will credit the client 5% of the monthly fee per hour of down time (up to 50% of client's monthly fee).
4. COOLING AND ENVIRONMENT
Umbrellar will provide environmental conditions suitable to run the Customer's dedicated servers 24 hours a day, 7 days a week, 365 days of the year include:
Both temperature and relative humidity values are averages from several measurements taken from environmental monitoring sensors. Umbrellar will monitor but is not required to report to customers on environmental conditions in its Data Centres.
5. PHYSICAL DATA CENTRE SECURITY
Umbrellar will monitor the Data Centre facility 24 hours a day, 7 days a week, 365 days of the year. Only authorised Umbrellar engineering personnel will have access to the Data Centre. If contractors are required to carry out work in the Data Centre, Umbrellar will ensure these contractors are escorted at all times, either by an authorised Umbrellar employee or an authorised agent.
6. SUPPORT RESPONSE TIMES
Umbrellar will respond to emergency faults 24 hours a day 7 days a week 365 days of the year within the contracted support time period based on your support agreement.
Emergency server faults include:
EMERGENCY SERVER FAULTS COVER HARDWARE AND NETWORKING ISSUES ONLY AND DO NOT COVER OPERATING SYSTEM / SOFTWARE / APPLICATIONS OR ASSOCIATED ISSUES.
Umbrellar may reclassify any issues misclassified as falling into one of the emergency categories listed above, and such issues will not qualify for emergency treatment. All other support issues will be handled during Umbrellar's standard support hours (Monday-Friday 8:00AM - 6:00PM NZST).
7. APPLYING FOR A REFUND
Refer to clause 4.6 in Schedule A (“General Service Level Agreement”) for steps to make a refund request.
Customers shall not receive any refunds under this SLA in connection with any failure or deficiency of dedicated server availability caused by or associated with:
This Microsoft Cloud Agreement is entered into between the entity you represent, or, if you do not designate an entity in connection with a Subscription purchase or renewal, you individually (“Customer”), and Microsoft Regional Sales Corporation (“Microsoft”). It consists of the terms and conditions below, Use Rights, SLA, and all documents referenced within those documents (together, the “agreement”). It is effective on the date that Umbrellar provisions your Subscription. Key terms are defined in Section 10.
1. Grants, rights and terms. a. Software. Upon acceptance of each order, Microsoft grants Customer a limited right to use the Software in the quantities ordered.
(i) Use Rights. The Use Rights in effect when Customer orders Software will apply to Customer’s use of the version of the Software that is current at the time. For future versions and new Software, the Use Rights in effect when those versions and Software are first released will apply. Changes Microsoft makes to the Use Rights for a particular version will not apply unless Customer chooses to have those changes apply.
(ii) Temporary and perpetual licenses. Licenses available on a subscription basis are temporary. For all other licenses, the right to use Software becomes perpetual upon payment in full.
b. Online Services. Customer may use the Online Services as provided in this agreement.
(i) Online Services Terms. The Online Services Terms in effect when Customer orders or renews a subscription to an Online Service will apply for the applicable subscription term. For Online Services that are billed periodically based on consumption, the Online Services Terms current at the start of each billing period will apply to usage during that period.
(ii) Suspension. Microsoft may suspend use of an Online Service during Customer’s violation of the Acceptable Use Policy or failure to respond to a claim of alleged infringement. Microsoft will give Customer notice before suspending an Online Service when reasonable.
(iii) End Users. Customer controls access by End Users, and is responsible for their use of the Product in accordance with this agreement. For example, Customer will ensure End Users comply with the Acceptable Use Policy.
(iv) Customer Data. Customer is solely responsible for the content of all Customer Data. Customer will secure and maintain all rights in Customer Data necessary for Microsoft to provide the Online Services to Customer without violating the rights of any third party or otherwise obligating Microsoft to Customer or to any third party. Microsoft does not and will not assume any obligations with respect to Customer Data or to Customer’s use of the Product other than as expressly set forth in this agreement or as required by applicable law.
(v) Responsibility for your accounts. Customer is responsible for maintaining the confidentiality of any non-public authentication credentials associated with Customer’s use of the Online Services. Customer must promptly notify customer support about any possible misuse of Customer’s accounts or authentication credentials or any security incident related to the Online Services.
c. License transfers. License transfers are not permitted, except that Customer may transfer only fully-paid perpetual licenses to (1) an Affiliate or (2) a third party, solely in connection with the
transfer of hardware or employees to whom the licenses have been assigned to the third party as part of (a) a divestiture of all or part of an Affiliate or (b) a merger involving Customer or an Affiliate. Upon such transfer, Customer and its Affiliates must uninstall and discontinue using the licensed Product and render any copies unusable. Attempted license transfers that do not comply with this agreement are void.
d. Reservation of rights. Products are protected by copyright and other intellectual property rights laws and international treaties. Microsoft reserves all rights not expressly granted in this agreement. No rights will be granted or implied by waiver or estoppel. Rights to access or use Software on a device do not give Customer any right to implement Microsoft patents or other Microsoft intellectual property in the device itself or in any other software or devices.
e. Restrictions. Customer may use the Product only in accordance with this agreement. Customer may not (and is not licensed to): (1) reverse engineer, decompile or disassemble any Product or Fix, or attempt to do so; (2) install or use non-Microsoft software or technology in any way that would subject Microsoft’s intellectual property or technology to any other license terms; or (3) work around any technical limitations in a Product or Fix or restrictions in Product documentation. Customer may not disable, tamper with, or otherwise attempt to circumvent any billing mechanism that meters Customer’s use of the Online Services. Except as expressly permitted in this agreement or Product documentation, Customer may not distribute, sublicense, rent, lease, lend, resell or transfer and Products, in whole or in part, or use them to offer hosting services to a third party.
f. Preview releases. Microsoft may make Previews available. Previews are provided “as-is,” “with all faults,” and “as-available,” and are excluded from the SLA and all limited warranties provided in this agreement. Previews may not be covered by customer support. Previews may be subject to reduced or different security, compliance, and privacy commitments, as further explained in the Online Services Terms and any additional notices provided with the Preview. Microsoft may change or discontinue Previews at any time without notice. Microsoft also may choose not to release a Preview into “General Availability.”
g. Verifying compliance for Products.
(i) Right to verify compliance. Customer must keep records relating to all use and distribution of Products by Customer and its Affiliates. Microsoft has the right, at its expense, to verify compliance with the Products’ license terms. Customer must promptly provide any information reasonably requested by the independent auditors retained by Microsoft in furtherance of the verification, including access to systems running the Products and evidence of licenses for Products that Customer hosts, sublicenses, or distributes to third parties. Customer agrees to complete Microsoft’s self-audit process, which Microsoft may request as an alternative to a third party audit.
(ii) Remedies for non-compliance. If verification or self-audit reveals any unlicensed use of Products, then within 30 days (1) Customer must order sufficient licenses to cover its use, and (2) if unlicensed use is 5% or more, Customer must reimburse Microsoft for the costs Microsoft incurred in verification and acquire the necessary additional licenses at 125% of the price, based on the then-current price last and customer price level. The unlicensed use percentage is based on the total number of licenses purchased for current use compared to the actual installed base. If there is no unlicensed use, Microsoft will not subject Customer to another verification for at least one year. By exercising the rights and procedures described above, Microsoft does not waive its rights to enforce this agreement or to protect its intellectual property by any other legal means.
(iii) Verification process. Microsoft will notify Customer at least 30 days in advance of its intent to verify Customers’ compliance with the license terms for the Products Customer and its Affiliates use or distribute. Microsoft will engage an independent auditor, which will be subject to a confidentiality obligation. Any information collected in the self-audit will be used solely for purposes of determining compliance. This verification will take place during normal business hours and in a manner that does not unreasonably interfere with Customer’s operations.
2. Subscriptions, ordering.
a. Choosing a Reseller. Customer must choose and maintain a Reseller authorized within its region. In this case the reseller is Umbrellar Limited. If Microsoft or Reseller chooses to discontinue doing business with each other, Customer must choose a replacement Reseller or purchase a Subscription directly from Microsoft, which may require Customer to accept different terms.
b. Available Subscription offers. The Subscription offers available to Customer will be established by its Reseller and generally can be categorized as one or a combination of the following:
(i) Online Services Commitment Offering. Customer commits in advance to purchase a specific quantity of Online Services for use during a Term and to pay upfront or on a periodic basis for continued use of the Online Service.
(ii) Consumption Offering (also called Pay-As-You-Go). Customer pays based on actual usage with no upfront commitment.
(iii) Limited Offering. Customer receives a limited quantity of Online Services for a limited term without charge (for example, a free trial) or as part of another Microsoft offering (for example, MSDN). Provisions in this agreement with respect to the SLA and data retention may not apply.
(iv) Software Commitment Offering. Customer commits in advance to purchase a specific quantity of Software for use during a Term and to pay upfront or on a periodic basis for continued use of the Software.
(i) Orders must be placed through Customer’s designated Reseller. Customer may place orders for its Affiliates under this agreement and grant its Affiliates administrative rights to manage the Subscription, but, Affiliates may not place orders under this agreement. Customer also may assign the rights granted under Section 1.a and 1.b to a third party for use by that third party in Customer’s internal business. If Customer grants any rights to Affiliates or third parties with respect to Software or Customer’s Subscription, such Affiliates or third parties will be bound by this agreement and Customer agrees to be jointly and severally liable for any actions of such Affiliates or third parties related to their use of the Products.
(ii) Customer’s Reseller may permit Customer to modify the quantity of Online Services ordered during the Term of a Subscription. Additional quantities of Online Services added to a Subscription will expire at the end of that Subscription.
d. Pricing and payment. Prices for each Product and any terms and conditions for invoicing and payment will be established by Umbrellar Limited.
(i) Upon renewal of a Subscription, Customer may be required to sign a new agreement, a supplemental agreement or an amendment to this agreement.
(ii) Customer’s Subscription will automatically renew unless Customer provides its Reseller with notice of its intent not to renew prior to the expiration of the Term.
f. Eligibility for Academic, Government and Nonprofit versions. Customer agrees that if it is purchasing an academic, government or nonprofit offer, Customer meets the respective eligibility requirements listed at the following sites: (i) For academic offers, the requirements for educational institutions (including administrative offices or boards of education, public libraries, or public museums) listed at http://go.microsoft.com/academic;
(ii) For government offers, the requirements listed at http://go.microsoft.com/government; and
(iii) For nonprofit offers, the requirements listed at http://go.microsoft.com/nonprofit.
g. Taxes. The parties are not liable for any of the taxes of the other party that the other party is legally obligated to pay and which are incurred or arise in connection with or related to the transactions contemplated under this agreement, and all such taxes will be the financial responsibility of the party who is obligated by operation of law to pay such tax.
3. Term & Termination
a. Agreement term and termination. This agreement will remain in effect until the expiration or termination of Customer’s Subscription, whichever is earliest. Customer may terminate this agreement at any time by contacting its Reseller. The expiration or termination of this agreement will only terminate Customer’s right to place new orders for additional Products under this agreement.
b. Termination for cause. If either party breaches this Agreement, the other party may terminate the breached agreement (in whole or in part, including orders) upon notice. If the breach is curable within 30 days, then the terminating party must provide 30 days’ notice to the breaching party and an opportunity to cure the breach.
c. Cancel a Subscription. Customer’s Reseller will establish the terms and conditions, if any, upon which Customer may cancel a Subscription.
d. To the extent necessary to implement the termination provisions of this agreement, both parties waive any rights they have, or obligation that they may have, now or in the future under any applicable law or regulation, to request or obtain the approval, order, decision or judgment of any court to terminate this agreement.
4. Security, Privacy & Data Protection
a. Reseller Administrator Access and Customer Data. Customer acknowledges and agrees that
(i) once Customer has chosen a Reseller, that Reseller will be the primary administrator of the Online Services for the Term and will have administrative privileges and access to Customer Data, however, Customer may request additional administrator privileges from its Reseller; (ii) Customer can, at its sole discretion and at any time during the Term, terminate its Reseller’s administrative privileges; (iii) Reseller’s privacy practices with respect to Customer Data or any services provided by Reseller are subject to the terms of Customer’s agreement with its Reseller and may differ from Microsoft’s privacy practices; and (iv) Reseller may collect, use, transfer, disclose, and otherwise process Customer Data, including personal data. Customer consents to Microsoft providing Reseller with Customer Data and information that Customer provides to Microsoft for purposes of ordering, provisioning and administering the Online Services.
Microsoft reserves the right to verify eligibility at any time and suspend the Online Service if the eligibility requirements are not met.
b. Customer consents to the processing of personal information by Microsoft and its agents to facilitate the subject matter of this agreement. Customer may choose to provide personal information to Microsoft on behalf of third parties (including your contacts, resellers, distributors, administrators, and employees) as part of this agreement. Customer will obtain all required consents from third parties under applicable privacy and data protection laws before providing personal information to Microsoft.
c. Additional privacy and security details are in the Online Services Terms. The commitments made in the Online Services Terms only apply to the Online Services purchased under this agreement and not to any services or products provided by a Reseller. If Customer uses software or services that are hosted by a Reseller, that use will be subject to Reseller’s privacy practices, which may differ from Microsoft’s.
d. As and to the extent required by law, Customer shall notify the individual users of the Online Services that their data may be processed for the purpose of disclosing it to law enforcement or other governmental authorities as directed by Reseller or as required by law, and Customer shall obtain the users’ consent to the same.
e. Customer appoints Reseller as its agent for purposes of interfacing with and providing instructions to Microsoft for purposes of this Section 4.
a. Limited warranty.
(i) Software. Microsoft warrants that each version of the Software will perform substantially as described in the applicable Product documentation for one year from the date Customer is first licensed for that version. If it does not, and Customer notifies Microsoft within the warranty term, then Microsoft will, at its option, (1) return the price Customer paid for the Software license or (2) repair or replace the Software.
(ii) Online Services. Microsoft warrants that each Online Service will perform in accordance with the applicable SLA during Customer’s use. Customer’s remedies for breach of this warranty are in the SLA.
The remedies above are Customer’s sole remedies for breach of the warranties in this section. Customer waives any breach of warranty claims not made during the warranty period.
b. Exclusions. The warranties in this agreement do not apply to problems caused by accident, abuse or use inconsistent with this agreement, including failure to meet minimum system requirements. These warranties do not apply to free or trial products, Previews, Limited Offerings, or to components of Products that Customer is permitted to redistribute.
c. Disclaimer. Except for the limited warranties above, Microsoft provides no warranties or conditions for Products and disclaims any other express, implied, or statutory warranties for Products, including warranties of quality, title, non-infringement, merchantability and fitness for a particular purpose.
6. Defence of third party claims.
The parties will defend each other against the third-party claims described in this section and will pay the amount of any resulting adverse final judgment or approved settlement, but only if the defending party is promptly notified in writing of the claim and has the right to control the defence and any settlement of it. The party being defended must provide the defending party with all requested assistance, information, and authority. The defending party will reimburse the other party for reasonable out-of-pocket expenses it incurs in providing assistance. This section describes the parties’ sole remedies and entire liability for such claims.
a. By Microsoft. Microsoft will defend Customer against any third-party claim to the extent it alleges that a Product or Fix made available by Microsoft for a fee and used within the scope of the license granted under this agreement (unmodified from the form provided by Microsoft and not combined with anything else), misappropriates a trade secret or directly infringes a patent, copyright, trademark or other proprietary right of a third party. If Microsoft is unable to resolve a claim of infringement under commercially reasonable terms, it may, as its option, either: (1) modify or replace the Product or fix with a functional equivalent; or (2) terminate Customer’s license and refund any prepaid license fees (less depreciation on a five-year, straight-line basis) for perpetual licenses and any amount paid for Online Services for any usage period after the termination date. Microsoft will not be liable for any claims or damages due to Customer’s continued use of a Product or Fix after being notified to stop due to a third-party claim.
b. By Customer. To the extent permitted by applicable law, Customer will defend Microsoft against any third-party claim to the extent it alleges that: (1) any Customer Data or non-Microsoft software hosted in an Online Service by Microsoft on Customer’s behalf misappropriates a trade secret or directly infringes a patent, copyright, trademark, or other proprietary right of a third party; or (2) Customer’s use of any Product or Fix, alone or in combination with anything else, violates the law or harms a third party.
7. Limitation of liability.
For each Product, each party’s maximum, aggregate liability to the other under this agreement is limited to direct damages finally awarded in an amount not to exceed the amounts Customer was required to pay for the applicable Products during the term of this agreement, subject to the following:
a. Online Services. For Online Services, Microsoft’s maximum liability to Customer for any incident giving rise to a claim will not exceed the amount Customer paid for the Online Service during the 12 months before the incident; provided that in no event will Microsoft’s aggregate liability for any Online Service exceed the amount paid for that Online Service during the Subscription.
b. Free Products and distributable code. For Products provided free of charge and code that Customer is authorized to redistribute to third parties without separate payment to Microsoft, Microsoft’s liability is limited to direct damages finally awarded up to US$5,000.
c. Exclusions. In no event will either party be liable for loss of revenue or indirect, special, incidental, consequential, punitive, or exemplary damages, or damages for loss of use, lost profits, revenues, business interruption, or loss of business information, however caused or on any theory of liability.
d. Exceptions. The limits of liability in this section apply to the fullest extent permitted by applicable law, but do not apply to: (1) the parties' obligations under section 6; or (2) violation of the other's intellectual property rights.
8. Support and Professional Services.
Customer’s Reseller will provide details on support services available for Products purchased under this agreement. Support services may be performed by Reseller or its designee, which in some cases may be Microsoft. If Customer purchases Professional Services under this agreement, the performance of those Professional Services will be subject to the terms and conditions in the Use Rights.
a. Notices. You must send notices by mail, return receipt requested, to the address below.
Microsoft Regional Sales Corporation
Dept. 551, Volume Licensing
438B Alexandra Road, #04-09/12, Block B
You agree to receive electronic notices from us, which will be sent by email to the account administrator(s) named for your Subscription. Notices are effective on the date on the return receipt or, for email, when sent. You are responsible for ensuring that the email address for the account administrator(s) named for your Subscription is accurate and current. Any email notice that we send to that email address will be effective when sent, whether or not you actually receive the email.
b. Assignment. You may not assign this agreement either in whole or in part. Microsoft may transfer this agreement without your consent, but only to one of Microsoft’s Affiliates. Any prohibited assignment is void.
c. Severability. If any part of this agreement is held unenforceable, the rest remains in full force and effect.
d. Waiver. Failure to enforce any provision of this agreement will not constitute a waiver.
e. No agency. This agreement does not create an agency, partnership, or joint venture.
f. No third-party beneficiaries. There are no third-party beneficiaries to this agreement.
g. Use of contractors. Microsoft may use contractors to perform services, but will be responsible for their performance, subject to the terms of this agreement.
h. Microsoft as an independent contractor. The parties are independent contractors. Customer and Microsoft each may develop products independently without using the other’s confidential information.
i. Agreement not exclusive. Customer is free to enter into agreements to license, use or promote non-Microsoft products or services.
j. Applicable law and venue. This agreement is governed by Washington law, without regard to its conflict of laws principles. Subject to sections (i) and (ii) below, if Microsoft brings an action to enforce this agreement, Microsoft will bring it in the jurisdiction where Customer has its headquarters. If Customer brings an action to enforce this agreement, Customer will bring it in the State of Washington, U.S.A. This choice of jurisdiction does not prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights.
(i) If Customer’s principal place of business is in Brunei, Malaysia or Singapore, Customer consents to the non-exclusive jurisdiction of the Singapore courts.
(ii) If Customer’s principal place of business is in Bangladesh, Cambodia, India, Indonesia, Macau SAR, the People's Republic of China, Sri Lanka, Thailand, The Philippines, or Vietnam, any dispute arising out of or in connection with this agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC”), which rules are deemed to be incorporated by reference into this subsection. The Tribunal shall consist of one arbitrator to be appointed by the Chairman of SIAC. The language of the arbitration shall be English. The decision of the arbitrator shall be final, binding and incontestable and may be used as a basis for judgment thereon in the above-named countries or elsewhere. To the maximum extent permitted by applicable law, the parties waive their right to any form of appeal or other similar recourse to a court of law. For the purpose of this agreement only, the People's Republic of China does not include Hong Kong SAR, Macau SAR and Taiwan.
k. Entire Agreement. This agreement is the entire agreement concerning its subject matter and supersedes any prior or concurrent communications. In the case of a conflict between any documents in this agreement that is not expressly resolved in those documents, their terms will control in the following order of descending priority: (1) this agreement, (2) the Product Terms, (3) the Online Services Terms, and (4) any other documents in this agreement.
l. Survival. All provisions survive termination of this agreement except those requiring performance only during the term of the agreement.
m. U.S. export jurisdiction. Products are subject to U.S. export jurisdiction. Customer must comply with all applicable international and national laws, including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, and end-user, end-use and destination restrictions issued by U.S. and other governments related to Microsoft products, services, and technologies.
n. Force majeure. Neither party will be liable for any failure in performance due to causes beyond that party’s reasonable control (such as fire, explosion, power blackout, earthquake, flood, severe storms, strike, embargo, labor disputes, acts of civil or military authority, war, terrorism (including cyber terrorism), acts of God, acts or omissions of Internet traffic carriers, actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of Online Services)). This Section will not, however, apply to your payment obligations under this agreement.
o. Contracting authority. If you are an individual accepting these terms on behalf of an entity, you represent that you have the legal authority to enter into this agreement on that entity’s behalf.
p. Government customers should consult with Microsoft. Government customers should consult with Microsoft prior to acceptance. If Customer is a government customer, beforemaccepting this agreement, Customer should consult with its Microsoft representative to assure full compliance with local laws and governmental procurement processes.
q. Consumer remedies. The following provision is only applicable to customers in Australia:
r. Statutory liability. The following provision is only applicable to customers in New Zealand.
(i) Business. Where Microsoft acts as a “supplier” (as that term is defined in the Consumer Guarantees Act 1993 (“CGA”)) of a Product, Customer confirms that the Product provided
Notwithstanding anything in this agreement, consumers may have the benefit of certain, rights or remedies pursuant to the Competition and Consumer Act 2010 (Cth) and similar state and territory laws in Australia in respect of which liability may not be excluded. If so, then to the maximum extent permitted by law, such liability is limited, at Microsoft’s option, in the case of goods to either (1) replacement of the goods or (2) correction of defects in the goods, and in the case of services to either (1) resupply of the services or (2) the cost of the resupply of the services. Australian law requires Microsoft to notify consumer purchasers of Microsoft goods that: “Microsoft’s goods come with guarantees that cannot be excluded under the Australian Consumer Law. Customer is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. Customer is also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.”
If Microsoft under this agreement is acquired for the purposes of a business (as that term is defined in the CGA) and that the CGA does not apply to the Product supplied by Microsoft.
(ii) Consumers. Nothing in this agreement is intended to limit the rights of a “consumer” under the CGA where that Act applies, except to the extent permitted by that Act, and the terms of this agreement are to be modified to the extent necessary to give effect to this intention.
Any reference in this agreement to “day” will be a calendar day.
“Acceptable Use Policy” is set forth in the Online Services Terms.
“Affiliate” means any legal entity that a party owns, that owns a party, or that is under common ownership with a party. “Ownership” means, for purposes of this definition, control of more than a 50% interest in an entity.
“Consumption Offering”, “Commitment Offering”, or “Limited Offering” describe categories of Subscription offers and are defined in Section 2.
“Customer Data” is defined in the Online Services Terms.
“End User” means any person you permit to access Customer Data hosted in the Online Services or otherwise use the Online Services.
“Fix” means a Product fix, modifications or enhancements, or their derivatives, that Microsoft either releases generally (such as Product service packs) or provides to Customer to address a specific issue.
“Licensing Site” means http://www.microsoft.com/licensing/contracts or a successor site.
“Non-Microsoft Product” is defined in the Online Services Terms.
“Online Services” means any of the Microsoft-hosted online services subscribed to by Customer under this agreement, including Microsoft Dynamics Online Services, Office 365 Services, Microsoft Azure Services, or Microsoft Intune Online Services.
“Online Services Terms” means the additional terms that apply to Customer’s use of Online Services published on the Licensing Site and updated from time to time.
“Previews” means preview, beta, or other pre-release version or feature of the Online Services or Software offered by Microsoft to obtain customer feedback.
“Product” means all products identified in the Product Terms, such as all Software, Online Services and other web-based services, including Previews.
“Product Terms” means the document that provides information about Microsoft Products and Professional Services available through volume licensing. The Product Terms document is published on the Licensing Site and is updated from time to time.
“Professional Services” means Product support services and Microsoft consulting services provided to Customer under this agreement. “Professional Services” does not include Online Services.
“Reseller” means an entity authorized by Microsoft to resell Software licenses and Online Service Subscriptions under this program and engaged by you to provide assistance with your Subscription.
“SLA” means Service Level Agreement, which specifies the minimum service level for the Online Services and is published on the Licensing Site.
“Software” means licensed copies of Microsoft software identified on the Product Terms. Software does not include Online Services, but Software may be a part of an Online Service.