ULTIMA GENERAL TERMS – CSP TERMS – ESSENTIALS ONLY

1. INTERPRETATION & DEFINITIONS

1.1 These CSP Terms form an integral part of the Agreement and are incorporated into the Agreement.

1.2 Except as expressly defined in these CSP Terms, all capitalised terms in these CSP Terms shall have the meaning given to them in the Agreement.

1.3 In these CSP Terms, the following terms have the following meanings:

Break Fix: a problem that has been caused by Microsoft, the platform or is defined in the Services that Ultima will triage and resolve under the support Services as set out in Ultima’s ‘CSP Break Fix Support – Essentials Document’ within the CSP Essentials Schedule (the “CSP Break Fix Support – Essentials Document”).

Call Volume: the volume of Service requests logged on the CSP Support Tool and is only relevant for review for specified tasks within the CSP Break Fix Support – Essentials Document.

Cap: the total monthly volume of Microsoft services which the Customer is permitted to use

Consumption Subscriptions: the licences that are billed based on actual usage in the preceding month.

CSP Essentials Schedule: the additional terms related to the provision of the CSP Services as set out here.

CSP Support Desk: the employees who are providing the support Services under the Agreement.

CSP Support Tool: the tool to be used to log tickets by the CSP Support Desk.

CSP Terms: has the meaning set out in clause 2.6.

Fair Usage Policy: the fair usage policy as set out in the CSP Essentials Schedule.

Licensed Software: the Office 365 Adjustment Portal and/or the Azure Management Portal (as appropriate).

Minimum Users: the minimum users as provisioned from time to time.

Online Service: any of the Microsoft-hosted online services subscribed to by Customer under the Agreement, including (but not limited to) Microsoft Dynamics Online Services, Office 365 Services, Microsoft Azure Services, or Microsoft Intune Online Services.

Portals: the Office 365 Adjustment Portal and the Azure Management Portal.

Products: the products as they relate to Microsoft products.

Service Desk Tokens: these are available for Customers to purchase to be used on any support vendor problem. More details, quotations and terms relating to these Tokens can be provided on request.

Statement of Work: has the meaning given to it in the Agreement. For clarity, in respect of CSP Services the Statement of Work is also referred to as the ‘Set Up Form’.

Subscription: the purchase of a Subscription Service.

Subscription Service: a right to use the Product(s) for a defined term.

Third Party Distributor: the third party who sells the Product(s) to Ultima.

2. CSP SERVICES

2.1 By submitting an order through the Statement of Work, the Customer:
(a) represents that any Subscription commitments and requirements disclosed are complete and accurate in all respects;
(b) agrees to pay Ultima for all orders it submits for Products and the CSP Services; and
(c) agrees to the terms of the Agreement and the Statement of Work.

2.2 By placing an order with Ultima, the Customer represents and warrants that the Customer has accepted and agreed to the CSP Agreement.

2.3 Once an order for a Subscription has been accepted by Ultima:
(a) Subscriptions shall continue for the duration of the SOW Term unless terminated in compliance with Clause 16 of the Agreement; and/or
(b) adjustments may only be made to increase the Minimum Users and not decrease below any current Minimum User provisioned as more fully set out in the Agreement, these terms and the Statement of Work (this is not applicable to Subscriptions purchased on a monthly term).

2.4 The Customer is responsible for giving Ultima any necessary information relating to the CSP Services within a reasonable time to enable Ultima to supply the CSP Services in accordance with the terms of the Agreement.

2.5 The Statement of Work for CSP Services shall only be deemed to be accepted when Ultima sets the Customer up on the Portal at which point, and on which date, the terms of the Agreement, these terms, the CSP Essentials Schedule and the CSP Agreement shall come into existence.

2.6 The Customer hereby acknowledges and agrees, and shall procure that its End-Users acknowledge and agree, to the terms in the CSP Essentials Terms (including the Portal-specific terms).

2.7 The Customer hereby acknowledges and agrees that in accepting the terms and conditions of the Agreement, the Customer automatically accepts the Portal-specific terms under CSP Essentials Schedule.

2.8 The Customer will:
(a) adhere to the Fair Usage Policy;
(b) not arbitrarily change settings or configuration sets in the Licensed Software or any software provided to the Customer under these terms;
(c) allow Ultima or its designated subcontractors and Third Party Distributors, global admin access to the Customer’s relevant servers and networking systems for the duration of the Agreement;
(d) where a Microsoft Cloud service is deployed / utilised within the project (Azure, Enterprise Mobility Suite or Office365), assign Ultima to the cloud subscription/s as the Claiming Partner of Record and/or Digital Partner of Record and/or Transacting Partner of Record (TPOR) and/or Partner Admin Link (PAL) and Admin on Behalf of (AOBO) for a minimum of twelve (12) months from project completion date; and
(e) confirm when required that each of the Customer’s End-Users are the primary user of a device using a Qualifying Operating System or other required operating system, as defined in the Product terms (available at https://www.microsoft.com/licensing/terms/productoffering/WindowsDesktopOperatingSystem/MCA.

3. CUSTOMER’S OBLIGATIONS

3.1 The Customer agrees to adhere to the terms of the CSP Agreement which governs the use of the Subscription Services and the Online Services.

4. FEES

4.1 Fixed Term Subscriptions:
(a) Products sold under fixed term Subscriptions are sold for a term as specified in the Statement of Work. The Statement of Work shall specify if such Subscriptions are to be billed on a monthly or annual basis.
(b) Any subsequent adjustments to annual Subscriptions (e.g. adding users) made mid-billing cycle will be invoiced and paid at the time of placing the order.
(c) Any subsequent adjustments to monthly Subscriptions (e.g. adding users) made mid-billing cycle will be calculated and post-billed at the subsequent invoice.

4.2 For all Consumption Subscriptions, the Customer agrees and acknowledges that:
(a) Consumption Subscriptions can only be cancelled in accordance with these CSP Terms (unless otherwise specified in the Statement of Work) and any usage before a transfer to another provider is in effect will be billed in the next scheduled invoice date;
(b) Consumption Subscriptions will be billed at the next billing cycle and will include all usage from the prior month. Pricing will be based on the pricing effective during the current billing cycle except when prices decrease or increase. The unit price for an Online Service sold on a consumption basis may change during the subscription period;
(c) it shall pay all such usage and is responsible for monitoring its consumption needs.

4.3 Ultima may change credit or payment terms for unfilled orders if, in Ultima’s reasonable opinion, the Customer´s financial condition, previous payment record, or relationship with Ultima merits such change.

4.4 The Fees in relation to the Office 365 Adjustment Portal are subject to the following clauses:(a) The Fees for Office 365 Adjustment Portal are based on the Microsoft price list and the number of licenses provisioned. Changes to licence counts will result in an increase to the Fees. At the end of each month Ultima shall validate the number of licenses provisioned during that month, calculated on a daily basis. The next monthly invoice shall be based on the number of licenses provisioned during the billing period, including pro-rata’s adjustments for licences added or removed during that period;
(b) Under Ultima’s CSP program the support provided is Break Fix. Ultima has detailed the support that will be provided within the CSP Break Fix Support – Essentials Document. Troubleshooting activities will have no strict limitations yet will be subject to reasonable usage. For certain administrative tasks a Call Volume has been added;
(c) Where a Customer exceeds these monthly Call Volume limits these tasks will thereafter be classed as out of scope and will be resolved at an additional fee or the purchase of Service Desk Tokens.

4.5 In the event the total Call Volume is below the agreed Call Volume, no credit or rollover is permitted.

4.6 The Fees in relation to the Azure Management Portal are subject to the following clauses:
(a) The Fees in relation to the Azure Management Portal will be provided in writing from CSP@Ultima.com based on the Customer’s initial requirements. Pricing for Azure services is delivered as a discount to Ultima from Microsoft to reflect Ultima maintaining admin rights over the Customer’s tenant for Microsoft Azure. Such admin rights are required by Microsoft. Accordingly, should the Customer choose to remove Ultima’s admin rights using the dedicated function in the Azure Management Portal, the Fees visible in the Azure Management Portal will increase and reflect within subsequent invoicing; and
(b) Hybrid or on-premise infrastructure support is out of scope of the Services and can be resolved at an additional fee or purchase of Service Desk Tokens.

4.7 Fees for any additional CSP Services shall be as set out in the applicable Statement of Work, as applicable.

4.8 All the Fees set out in this Clause 4 are subject to change by Microsoft and/or Third Party Distributors and are subject to the provisions of the remainder of this Clause 4 and Clause 2.3(b). Any such change shall be reflected in the Fees as set out in the corresponding invoice issued to the Customer.

4.9 The Customer hereby acknowledges and agrees that the Fees may vary subject to prior written notice to the Customer in the following circumstances:
(a) in relation to the Office 365 Adjustment Portal as set out in this Clause 4;
(b) in relation to the Azure Management Portal as set out in this Clause 4; and
(c) in relation to the Subscription Services, at any time in accordance with any increases imposed on Ultima by Microsoft and or its Third Party Distributor and in line with the terms of the CSP Agreement.

5. LICENCE

5.1 In consideration of the Fees paid by the Customer to Ultima (and relevant subscription), Ultima grants to the Customer a non-exclusive licence to use the Portals. The Customer may elect to subscribe to the Portals subject to completing the necessary (and applicable) Statement of Work.

5.2 The Customer will at all times protect the Portals’ access from unauthorised access, use or damage by any party. The Customer shall immediately notify Ultima in writing of any unauthorised access, use or damage of the Portals and, if requested by Ultima, report such situation to the local authorities.

5.3 The Customer acknowledges that all Intellectual Property in the Portals belongs and shall belong to Ultima, its partner providers or its licensors and the Customer shall have no rights in or to the Portals, other than the right to use them in accordance with the terms of the Agreement.

5.4 The Customer grants Ultima, its partner providers and its licensors a worldwide, non-exclusive, perpetual, irrevocable, fully paid, royalty-free, sublicensable license to use and incorporate into the Licensed Software and the software provided to the Customer under the CSP Agreement any suggestions, enhancement requests, recommendations or other feedback regarding features or functions of the software provided by the Customer relating to the software.

5.5 The Customer acquires only such limited rights to use the Products as is explicitly described in the CSP Agreement. Any use by the Customer of these rights beyond the scope permitted by the CSP Agreement shall constitute a material breach hereof.

5.6 Ultima is not liable for defects in, or delays related to the Products.

5.7 For the avoidance of doubt, if a claim for infringement concerns the Product, the separate terms and conditions of the CSP Agreement shall apply and is a separate action between the Customer and Microsoft.

6. SERVICE LEVELS

6.1 The Service Levels that are to apply to the use of the Portals are as set out in section 4 of the CSP Essentials Schedule.

7. RESTRICTIONS

7.1 The Customer shall at all times comply with the cloud provider’s specifications for any Services (and procure that all its End-Users do so). Services are not authorised for use in critical safety or other applications where a failure may reasonably be expected to result in personal injury, loss or life or property damage. In that sense, the Customer acknowledges and understands that such use or non-compliance with the specifications is at the Customer’s sole risk.

7.2 Ultima’s Office 365 Adjustment Portal, the Azure Management Portal are not designed, authorised or warranted to be suitable for use in medical, military, aircraft, space or life support equipment, nor in applications where failure or malfunction of the portals can reasonably be expected to result in personal injury, death or severe property or environmental damage, inclusion or use of the Office 365 Adjustment Portal and the Azure Management Portal in such equipment or applications, without prior authorisation in writing by Ultima, is not permitted and is done at the Customer’s and End-User’s own risk.

8. CSP LICENCE TERMS

8.1 Where the CSP Services include Microsoft Office 365 licenses and / or Microsoft Azure usage, Essentials support is included as part of the Fees, as set out in more detail in the Statement of Work.

8.2 Hybrid or on-premise infrastructure is out of scope for CSP support and can be resolved at an additional fee by procuring Service Desk Tokens.

8.3 The Customer acknowledges that Ultima has not and does not warrant or guarantee the performance of the Portals or any aspect or portion thereof including, but not limited to, warranties of merchantability, fitness for any particular purpose, title and non-infringement relating to anything provided or used under the Agreement for the provision of the Portals and that any equipment, material, goods or other tangible or intangible asset that is conveyed, sold, or otherwise provided to Customer in any manner, or as to any other matter, all of which warranties are hereby expressly excluded and disclaimed and Customer agrees that nothing in this Agreement shall be construed as any such warranty or guarantee.

8.4 The Customer shall (unless otherwise specified in the Statement of Work or as otherwise set out in this Agreement):
(a) where the Services include access to the Office 365 Adjustment Portal, comply with the terms set out in CSP Essentials Schedule;
(b) refrain from arbitrarily changing settings or configuration sets in the Licensed Software or any software provided to the Customer under the CSP Essentials Schedule; and
(c) send any details and set up to the End-User where any tooling for remote access and sharing is required. Any costs incurred would be Quoted to the Customer and accepted prior to any Statements of Work being initiated.

8.5 The Customer agrees and acknowledges the terms of the applicable Licence Agreements and the terms of the CSP Agreement form part of this Agreement.

9. DATA PROTECTION

9.1 The provisions of the Agreement apply in relation to these CSP Terms, save that Annex 1 of these CSP Terms sets out the scope, nature and purpose of processing by Ultima, the duration of the processing and the types of personal data and categories of data subject in relation to CSP Services.

10. TERM & TERMINATION

10.1 The provision of the CSP Services shall commence on the date set out in the Statement of Work.

10.2 The Customer’s perpetual licences and licences granted on a Subscription basis will continue for the duration of the Subscription period(s), subject to the terms in this Agreement. Unless otherwise specified in the applicable Statement of Work, the Customer shall remain liable for any and all payments due in respect of the licences until the end of the respective Subscription period.

10.3 Fixed term subscriptions for Products will automatically renew at the end of the initial subscription term (and each subsequent renewal term) for a term equal to the initial subscription term, unless either Party gives the other Party at least one hundred (100) days’ prior written notice of non-renewal, such notice to expire at the next renewal date.

10.4 Certain Subscriptions or Product licences may not automatically renew at the end of the term. Ultima will use reasonable endeavours to inform Customers where such purchased Subscriptions or Product licences will require manual renewal or repurchase at the end of its term. For the avoidance of doubt, Ultima is not responsible for, and has no liability in relation to, the Customer being unlicensed as a result of any non-automatic renewal of Subscriptions or Product licences.

10.5 Termination of the licences will not affect any other Services provided under the Agreement.

10.6 Ultima shall not be liable whatsoever to the Customer following any termination or suspension of the Subscription for legal, regulatory or any other reason reasons by Microsoft or the Third Party Distributor.

10.7 Ultima may terminate the Subscription Services immediately on giving written notice to the Customer if:
(a) payment of any amount due from the Customer under these terms is overdue by ten (10) Business Days or more provided that Ultima has given the Customer ten (10) days’ written notice of such failure to pay; and/or
(b) upon termination by Microsoft and/or the Third Party Distributor of the licence(s); and/or
(c) on termination of the Third Party Distributor’s agreement relating to the Customer’s subscription, in which event Ultima will not be liable whatsoever to the Customer; and/or
(d) in accordance with the CSP Agreement.

10.8 On termination of the Agreement for any reason:
(a) the Customer shall pay all outstanding sums owing to Ultima up to and including the date of termination;
(b) all licences granted herein will terminate immediately except for fully-paid, perpetual licences;
(c) for metered Products billed periodically based on usage, the Customer must immediately pay for unpaid usage as of the termination date; and
(d) if Microsoft is in breach and the Customer is entitled to a credit for any Subscription Service fees, on receipt of the same, Ultima will pass on any such credit for any Subscription Services fees, including amounts paid in advance for unused consumption for any usage period after the termination date. Ultima is not liable to the Customer if Microsoft do not issue a credit.

11. CANCELLATION

11.1 Subject to Clause 11.2, where the Customer has procured Products or Online Services from Ultima, the Customer may cancel the applicable order in line with the terms set out by Microsoft if the Customer notifies Ultima within twenty four (24) hours of placing the initial order for the applicable Microsoft Products or Online Services. For such notice to cancel to be effective it must be received by Ultima within the hours of 9am – 4pm (in London) on a Business Day.

11.2 The Customer acknowledges and accepts that any cancellation pursuant to Clause 11.1 will only be accepted if submitted by Ultima within Microsoft’s designated cancellation period for the applicable Online Service or Product and is approved by Microsoft and/or the Third Party Distributor in accordance with any other requirements of Microsoft and/or the Third Party Distributor at the time of cancellation. If cancellation is approved by Microsoft and/or the Third Party Distributor, then the order will be cancelled and depending on the service or product being cancelled.

11.3 Depending on the service or product being cancelled, if and to the extent any credit of the purchase price (in full or pro-rata) is issued by Microsoft or the Third Party Distributor to Ultima, on receipt of the same Ultima will pass on any such credit to the Customer less any Microsoft and/or the Third Party Distributor handling fee as a proportion of the value of any order submitted and approved after the designated period for the relevant Microsoft Product or Microsoft Service. Ultima is not liable to the Customer if Microsoft and/or Third Party Distributor do not issue a credit.

12. LIMITATION OF LIABILITY

12.1 Subject to Clauses 12.2 and 12.3, Ultima’s total aggregate liability to the Customer, however caused, whether in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent) restitution or otherwise, arising in connection with the performance or contemplated performance of its obligations contained in these CSP Terms is limited to a maximum of one hundred per cent (100%) of the price paid for the CSP Services during the twelve (12) month period preceding the date on which the claim arose.

12.2 For the avoidance of doubt, the terms set out in the CSP Agreement govern the rights and responsibilities of the Customer and Microsoft in relation to the use of the Subscription Services and Online Services and Ultima excludes any and all liability in relation to the use of the Products.

12.3 Notwithstanding anything to the contrary in the Agreement, the Customer shall indemnify Ultima from and against any claims, including but not limited to claim for licence fees that directly or indirectly arises from the Customer’s use of the Subscription Services or reporting under these terms or the Agreement.