delaware Microsoft Cloud Solution Provider Terms and Conditions


<h1> delaware Microsoft Cloud Solution Provider Terms and Conditions </h1>

<h2>1. Definitions</h2>
“Charges” means the price to be paid by the Client for the Product as set out in the respective Statement of Work.
“Client” means the legal entity signatory to this document.
“Data Protection Laws” means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to processing of Personal Data and the free movement of that data (“GDPR”), and any implementing, derivative or related legislation, rule, regulation, and regulatory guidance, as amended, extended, repealed and replaced, or re-enacted.
“delaware” means Delaware Consulting CVBA, having its registered address at Kapel ter Bede 86, 8500 Kortrijk, Belgium, and with company number 0479.117.543.
“Education Customer” means any Client that meets the education/academic customer eligibility requirements available at http://www.aka.ms/academiceligibility and that may therefore, subject to delaware’s discretion, be eligible to benefit from more favorable Charges compared to non-Education Customers.
“Microsoft Customer Agreement” means the agreement between Microsoft and the Client which sets outs the Microsoft license terms that govern the Client’s use of the Product.
“KPI” means Key Performance Indicator.
“Non-Microsoft Product” means the rights to any third party (or third-party branded) software, data, service, website or other product available through the Microsoft Azure Marketplace, Virtual Machine Gallery, or other feature of Microsoft online services.
“Personal Data” has the meaning as set forth in the GDPR.
“Processing” has the meaning as set forth in the GDPR.
“Product” means the rights to Microsoft online services, which may include Microsoft software technology, including Microsoft Dynamics Online Services, Office 365 Services, Microsoft Intune Online Services, Azure services, and Non-Microsoft Products as set out in the respective Statement of Work.
“SLA” means Service Level Agreement.
“Software” means licensed copies of Microsoft or non-Microsoft software made available by Microsoft. Software does not include Online Services, but Software may be a part of an Online Service.
“Subscription” means an enrolment for a Product for a defined Term as specified in this document. This could either be a SAAS Fixed Term Subscription, Reserved Instance Fixed Term Subscription (hereafter: “RI Fixed Term Subscription”) or a Consumption-based Subscription.
“Term” means the duration of a Subscription.

<h2>2. General</h2>
This document provides the terms and conditions under which delaware will deliver the ordered Product to the Client against Charges. Moreover, if applicable, these terms and conditions will apply on pending Subscriptions and will therefore fully replace the delaware terms and conditions for the delivery of Microsoft Cloud Services as previously accepted by the Client.

A description of the Product will be set forth in the respective Statement of Work. In addition, delaware will provide the Client operational and technical support for Products as detailed in the respective Statement of Work.
Specifically, with respect to the delivery and support of the Product, these terms and conditions will apply and prevail above any agreement between the Parties or any other terms and conditions in case of conflict, confusion or any other inconsistency.
The Client accepts and agrees that delaware has the right to modify the terms of this document from time to time upon a one-hundred and twenty (120) days’ prior notice before such changes become effective with prospective effect. After the expiration of said notice period, the changes will become effective without any further action being required of delaware and the Client.
The elements of the proposal which relate to the Product will have a validity term until the end of the month during which the proposal has been transmitted by delaware.

<h2>3. Microsoft Customer Agreement Acceptance</h2>
The Client expressly acknowledges having read, understood and accepted without any reservation the Microsoft Customer Agreement which sets out the rights and obligations between Microsoft and the Client, and by which Microsoft grants the Client a user’s license on the Product. The Client acknowledges that delaware may not revise the Microsoft Customer Agreement in any way as it constitutes a direct agreement between Microsoft and the Client.
The Client hereby acknowledges and agrees that it accepts the Microsoft Customer Agreement prior to delaware’s placement of the order with Microsoft for the requested Product(s). The then-current version of the applicable regional version (based upon the Client’s location) of the Microsoft Customer Agreement is available at: https://www.microsoft.com/licensing/docs/customeragreement. The Client acknowledges and agrees that its failure to accept the Microsoft Customer Agreement, may result in the disablement of its account with Microsoft, and that it shall indemnify delaware for any liability delaware would incur vis-à-vis Microsoft due to such failure.
As specifically mentioned in the Microsoft Customer Agreement and in avoidance of doubt, the Client agrees to accept a new version of the Microsoft Customer Agreement at the submission of a subsequent Product order (which is not an adjustment to an existing Subscription) or at the renewal of the Subscription (of which the term is set out in the respective Statement of Work) in case Microsoft updates the Microsoft Customer Agreement.

<h2>4. Order placement</h2>
The Client hereby authorizes delaware to place orders on Client’s behalf and manage Client’s purchases by associating delaware with its account. Optionally, the Client may appoint delaware as the primary administrator of its account and therefore may grant administrative privileges and access to its customer and administrator data .
The Client accepts and agrees that (i) Microsoft may, at its sole discretion, accept or reject the Client, (ii) Microsoft has no obligation to accept the order due to lack of Product availability, any Product shortage; and (iii) the delivery dates are estimates only. The Client accepts and agrees that it shall have no recourse on delaware in case of one of the foregoing events takes place or is not respected.

<h2>5. Subscriptions</h2>
<h3>5.1 SAAS Fixed Term Subscription</h3>
delaware offers the Product, except for Azure services, to the Client under a SAAS Fixed Term Subscription model. The Term of the SAAS Fixed Term Subscription is one (1) year or three (3) years for applicable Products, as explicitly specified in the respective Statement of Work. SAAS Fixed Term Subscriptions will automatically renew at the end of said terms.

<h3>5.2 RI Fixed Term Subscription</h3>
delaware offers the Azure Services to the Client under a RI Fixed Term Subscription model as set out in the the respective Statement of Work. The Term of the RI Fixed Term Subscription is one (1) year or three (3) years, starting from Client’s access to the purchased Azure services (taking into account the applicable technical requirements).
The Term of the RI Fixed Term Subscription is not automatically renewed as well as cannot be explicitly renewed upon the request of the Client. Once the RI Fixed Term Subscription expires, the Client has to place a new order.
Exchange and cancellation options are set out in the Microsoft Product Terms, as referred to in the Microsoft Customer Agreement.

<h3>5.3 Consumption-based Subscription</h3>
delaware offers Azure services to the Client under a Consumption-based Subscription model as set out in the respective Statement of Work (i.e. by default or in case the Client would require additional Azure Services on top of the RI Fixed Term Subscription). The Term of the Consumption-based Subscription is one (1) month. Consumption-based Subscriptions do not expire unless cancelled.

<h2>6. Cancellation and termination modalities</h2>
The parties agree upon the following cancellation possibilities:
<ul>
<li>The Client has the right to cancel its Subscription at any time in accordance with the terms set out in this document.</li>
<li>The Client accepts and agrees that delaware is entitled to terminate the Client’s status as a customer and/or cancel existing Subscriptions at any time if Microsoft has terminated the Client’s status as a customer and/or cancelled existing Subscriptions with delaware. In such event, delaware will promptly notify the Client of the termination upon receipt of Microsoft’s termination notice. The Client accepts and agrees that it will not have any claim against delaware or Microsoft for damages or lost profits resulting from the termination.</li>
<li>The Subscription(s) will be automatically terminated in case: (i) the Microsoft Customer Agreement between the Client and Microsoft has been terminated in accordance with the modalities as detailed in the Microsoft Customer Agreement; or (ii) if Microsoft has terminated delaware’s distribution right. In the latter case, Microsoft reserves the right to communicate with the Client and provide the Customer with the option to purchase the Product directly from Microsoft or other Microsoft resellers in order to maintain continuity of service for the Client.
The cancellation will not incur an early termination charge, except for RI Fixed Term Subscriptions. However, the Client acknowledges and agrees that early termination charges may occur in the future.
Upon cancellation, the Client will have 90 days to migrate any customer data to either (i) a new subscription with delaware; or (ii) with Microsoft directly; or (iii) to any other service. delaware will assist the Client with the migration at an additional charge to be agreed upon between delaware and the Client.</li>
</ul>

<h2>7. Pricing</h2>
The Charges for the Product purchased under a RI Fixed Term Subscription (billed in monthly instalments) and a SAAS Fixed Term Subscription , will not change during the term of the Subscription. Notwithstanding the foregoing, the Client accepts that the Charges may be modified due to exchange rate differences between USD and the currency applied between delaware and the Client.
The Charges for the Product purchased under a Consumption-based Subscription may change during the one-month Subscription period since delaware is subject to price fluctuations applied by Microsoft. Said price changes during the one-month Subscription will be applied on a prorated basis in line with the respective usage periods.

Upon renewal of any type of Subscription, delaware reserves the right to apply new Charges since delaware is subject to price fluctuations applied by Microsoft.
If the Client qualifies as an Education Customer and is therefore eligible to benefit from more favorable Charges, at delaware’s discretion, it should at all times be able to prove that it meets the Education Customer eligibility.

<h2>8. Billing</h2>
<h3>8.1 SAAS Fixed Term subscription</h3>
SAAS Fixed Term Subscriptions will be pre-billed monthly or yearly at delaware’s next scheduled invoice. Any subsequent adjustments to such Subscriptions (e.g. adding seats) made mid-billing cycle will be calculated and post-billed at the subsequent invoice.
In case the Client has invoked its right to cancel the SAAS Fixed Term Subscription before delaware’s next billing cycle, any future scheduled billings for the Client’s cancelled SAAS Fixed Term Subscription will not be invoiced.
<h3>8.2 RI Fixed Term Subscription</h3>
The invoicing mechanism for RI Fixed Term Subscriptions is detailed in the respective Statement of Work. The Charges for the RI Fixed Term Subscriptions will either be billed upfront or in periodic instalments as further detailed in the respective Statement of Work. The refunding of the unused amounts will be done in accordance with the the Microsoft Product Terms, as referred to in the Microsoft Customer Agreement .
<h3>8.3 Consumption-based Subscription</h3>
Consumption-based Subscriptions will be billed based on actual usage in the preceding month without upfront commitment.
In case the Client has invoked its right to cancel its Consumption-based Subscription before delaware’s next billing cycle, delaware will bill the actual usage generated up until the actual cancellation date.
<h2>9. Payment terms</h2>
All invoices submitted by delaware in accordance with these supplementary terms and conditions shall be paid by Client within thirty (30) days of receipt, unless otherwise agreed upon in the respective Statement of Work.
delaware is entitled to charge the Client interest on overdue amounts at the interest rate of 1,5 % of the invoice amount per month from the first day the amount is past due until the amount is paid in full. Without prejudice to the aforementioned, delaware will have the right, in its sole reasonable discretion, to suspend immediately any Product, in case the Client does not respect these payment obligations.
<h2>10. Warranty</h2>
The Client acknowledges and agrees that the Product is subjected to the warranty as described in the Microsoft Customer Agreement. delaware does not provide any representation, condition or warranty about the Product.
<h2>11. Liability</h2>
Except for the indemnification obligations as set forth in these terms and conditions, the total cumulative liability of either party to the other is limited to direct damages and shall not exceed 100% of the Charged paid, due or owing by the Client to delaware during the 12-month period prior to the date on which the claim is raised, minus any amounts paid by the liable party during the same during said 12-month period for any prior liability in relation to the Product. In the event the first claim arises in the first year of the Subscription term, the liability for direct damages will not exceed the average monthly Charges paid, due or owing, multiplied by twelve (12).

In addition to the liability exclusions as set forth in this document and to the extent permitted by law, neither party shall be liable to the other for any damages for loss of profits or revenues, business interruption, or loss of business information or data, or for any consequential, special, incidental, indirect, or punitive damages.
<h2>12. Service Level Agreement</h2>
The Client acknowledges and agrees that Microsoft warrants that each Product will perform in accordance with the applicable SLA during Client’s use, as described in the Microsoft Customer Agreement. The Client therefore acknowledges and agrees that Microsoft, and not delaware, is subjected to such service level commitments towards the Client in the SLA.
However, the Client may also address delaware in case Microsoft does not meet the SLA as provided by Microsoft. In such case delaware will escalate the claim to Microsoft for further review. Microsoft will review the claim in accordance with the standard SLA review process. In the event the claim is determined by Microsoft to be valid, delaware will credit the Client after having received by Microsoft the amount for the SLA. The Customer acknowledges and agrees that the credits cannot exceed the total monthly Subscription Charge as it is specifically mentioned in the Microsoft Customer Agreement. In the event the claim is determined by Microsoft not to be valid, delaware will not pay any credits to the Client. The Client acknowledges and agrees that it will have no recourse on delaware in such case.
Without prejudice to the abovementioned and in avoidance of doubt, delaware may provide SLA’s, KPI’s or other agreed service quality plans for the technical and operational support on the Product, as specified in the relevant presales documents and/or Statement of Work.
<h2>13. Force Majeure</h2>
Supplementary to the standard force majeure principles as accepted by Belgian law as well as taking into account the fact that the Customer obtains the Software user’s licenses directly from Microsoft, delaware cannot prevent the fact that Microsoft may modify the Product, may release a new version of a Products at any time and for any reason, may add new or remove existing features or functionality from the Software or take Products out of its offering. In such case the Client will have no recourse on delaware in the sense that delaware cannot be held liable for any delay, non-performance as a result of such scenario, such as for example, but not limited to, not meeting the SLA’s, KPI’s or other agreed service quality for support services or defaults in the interoperability between the Product and any other service.
More generally, the Client acknowledges that any delay, defaults or non-performance by Microsoft which makes it impossible for delaware to perform its obligations under this supplementary terms and conditions, will constitute a Force Majeure as a result of which delaware will not held liable.
Without prejudice to the abovementioned, delaware acknowledges that it will provide continuity as well as respect its obligations under these terms at the earliest possible time.
<h2>14. Privacy and data security</h2>
With respect to any Personal Data transferred under this agreement, the parties agree that the Client is the data controllers and delaware the data processor of the Personal Data processed. delaware will not process Personal Data under this agreement for any other purpose than the delivery of the ordered Product to the Client, the placement of the Product order on Client’s behalf and managing the Client’s account.
Without limiting the foregoing, each party will comply with the obligations imposed on it under the Data Protection Laws.
<h2>15. Governing law and jurisdiction</h2>
These terms and conditions and all contractual and extra contractual matters relating to this engagement, shall be governed by, and construed in accordance with, the Belgian law (without giving effect to the choice of law principles thereof), and shall be subject to the exclusive jurisdiction of the by parties indicated court, being the courts of Kortrijk.