Terms & Conditions

360 VISIBILITY INC.

INTELLECTUAL PROPERTY LICENSE AGREEMENT

THIS INTELLECTUAL PROPERTY AGREEMENT (“License”) is entered into between you (the entity that has entered into this agreement) (“Licensee”) and 360 Visibility Inc. (“360 Visibility”). This License consists of the below terms and conditions regarding Licensee’s use of the Licensed Software (defined below).   This License is effective on the date you accept it or upon your first use of the Licensed Software linking to this License.

TERMS & CONDITIONS

Definitions

Confidential Information means any and all information provided by one party (“Discloser”) to the other party (“Recipient”) pursuant to this License and specifically designated by the Discloser as “confidential” (or which should be considered confidential by the parties) relating to the research, development, products, processes, trade secrets, business plans, customer, finances, and personnel data related to the business of Discloser. Confidential Information does not include any information (i) which has become publicly known through no wrongful act of the Recipient; (ii) which the Recipient developed independently, as evidenced by appropriate documentation; or (iii) which the Recipient becomes aware of from any third party not bound by non-disclosure obligations to the Discloser and with the lawful right to disclose such information to Recipient. Notwithstanding the foregoing, specific information will not be deemed to be within the foregoing exceptions merely because it is contained within more general information otherwise subject to such exceptions.

Copyrights means any and all copyrighted and copyrightable materials, whether or not registered, published, or containing a copyright notice, in any and all media, and further including but not limited to, any and all moral rights and corresponding rights under international agreements and conventions, Derivatives, and any and all applications for registrations, registrations, and/or renewals of any of the foregoing.

Derivative means an adaptation, enhancement, improvement, modification, revision, derivation, or translation of or to the functionality that exists in the Intellectual Property as of the date of this License.

Intellectual Property means any and all (a) Confidential Information; (b) Copyrights; (c) Patents; (d) Derivatives; (e) Technical Information; (f) Technology; and (g) any and all other intellectual property or proprietary rights relating to or arising from any or all of the foregoing.

Licensed Software means the 360 VISIBILITY developed software, in object and/or source code format, as the parties may agree, along with any documentation provided by 360 Visibility pursuant to this License. The definition of Licensed Software specifically includes all Confidential Information and Intellectual Property in or relating or referring to the Licensed Software, as well as any and all Derivatives of the Licensed Software, whether created by 360 Visibility or Licensee or both of them.

Patents means any and all patents, patentable materials, letters patent and utility models, including reissues, divisional, continuations, continuations in part, renewals, and extensions of any of the foregoing and applications therefor (and patents which may issue on such applications) in Canada & foreign nations.

Technical Information: means data and other technical information including, but not limited to: (a) engineering documentation, such as development records, production software information, algorithms, flow charts, design information, drawings, specifications and data sheets; (b) manufacturing documentation such as manufacturing drawings, instructions, specifications, procedures, methods, standards documentation, tooling and fixture drawings, process specifications and instructions; (c) quality and reliability documentation such as quality plans, specifications, instructions, procedures, test plans, test records and regulatory documentation; and (d) user manuals, on-line help, training materials, installation instructions, release notes, problem reports and resolutions, and marketing studies, which may be disclosed by the party in possession thereof without violating obligations to a third Party, and further including any and all Intellectual Property therein, or relating or referring thereto.

Technology means know-how, show-how, procedures, systems, processes, trade secrets, inventions (whether or not patentable and whether or not reduced to practice), algorithms, formulae, research and development data; manufacturing, development and production techniques; and all other proprietary information relating thereto, and further including any and all Intellectual Property therein, or relating or referring thereto.

Trial Term means 30 days.

2.0          Software License

2.1          License Grant: 360 Visibility grants to Licensee a non-exclusive, non-sub-licensable, non-transferable, trial license to use the Licensed Software, in object and/or source code format, as the parties may agree, solely for the internal business purpose of Licensee. This License is specifically limited to the Trial Term. The License granted is on a temporary basis for use during the Trial Term. Licensee may not transfer the License granted under this agreement.

2.2          Limitations on Use by Licensee.

  1. Licensee expressly acknowledges and agrees that the Licensed Software is wholly proprietary to and owned by 360 Visibility. 360 Visibility retains all right, title, and interest in the Licensed Software, and Licensee has no rights to the Licensed Software other than as expressly set forth in this License.
  1. Other than as expressly permitted by this License, Licensee agrees not to use, publish, reproduce, sublicense, distribute, dispose of, create Derivatives of, reverse engineer, reverse compile, or disassemble the Licensed Software, use the Licensed Software for any commercial purpose, for software hosting services, or for operating as a service bureau.
  1. Licensee agrees that it will not directly or indirectly export or transmit the Licensed Software, in whole or in part, or any technical data relating thereto, to any country to which such export or transmission is restricted by any applicable Canadian or international regulation or statute, without prior written consent of 360 Visibility.
  1. Except for the limited licenses expressly granted herein, 360 Visibility will and does retain all right, title and interest (including, without limitation, all Intellectual Property Rights) in and to all of the Licensed Software, including all modifications or enhancements to any of the Licensed Software, except as otherwise provided herein. Licensee shall take any action reasonably requested by 360 Visibility to evidence, maintain, enforce or defend 360 Visibility's Intellectual Property Rights. Licensee shall not take any action to jeopardize, encumber, limit or interfere in any manner with 360 Visibility's, or their respective licensors', ownership of and rights with respect to any of the Licensed Software. All rights not expressly licensed to Licensee hereunder are hereby expressly reserved by 360 Visibility. Notwithstanding the foregoing, Licensee retains all ownership rights to its data.

2.3          Audit Right. During normal business hours and at any time during which the Licensed Software is being utilized, 360 Visibility or its authorized representative shall have the right upon advance notice of three (3) days or more to audit and inspect Licensee’s utilization of such, for the sole purpose of verifying compliance with the terms of this License. All audits will be conducted in a manner that does not interfere with Licensee’s business activities. 360 Visibility shall be responsible for all costs and expenses incurred by it or its representatives in the course of such audit or inspection. If verification or self-audit reveals any unlicensed use, you must promptly order sufficient Licenses to cover your past and present use. If material unlicensed use is found, you must reimburse us for the costs we incurred in verification and acquire the necessary additional Licenses at retail license cost within 30 days.

3.0          Confidential Information

3.1          Recipient agrees to use commercially reasonable care, but in no event no less than the same degree of care that it uses to protect its own confidential and proprietary information, to prevent the unauthorized use, disclosure, publication or dissemination of the Confidential Information. Recipient will provide Discloser's Confidential Information to its employees and contractors only on a “need to know” basis, subject to the terms of this License, provided that Recipient’s employees and contractors have entered into a written Confidential and Non-Disclosure Agreement with Recipient substantially in accordance with these terms and conditions.

3.2          Recipient agrees not to use Confidential Information for its own or any third party benefit without the prior written approval of Discloser. Notwithstanding the foregoing, Recipient may disclose such Confidential Information if and to the extent required by any judicial or governmental request, requirement or order, provided that Recipient agrees to take reasonable steps to give Discloser sufficient prior written notice in order to enable Discloser to contest such request, requirement or order. Recipient will return all tangible Confidential Information, including but not limited to all computer programs, documentation, notes, plans, drawings, and copies thereof, to Discloser immediately upon Discloser's written request.

3.3          All Confidential Information, including any and all Derivatives thereof created by Discloser or Recipient, will be and remain the property of Discloser and no license or other rights to such Confidential Information is granted or implied. Discloser warrants only that it has the right to disclose the Confidential Information to Recipient. All Confidential Information is provided “AS IS” and without any warranty, express, implied or otherwise, regarding its accuracy or performance.

3.4          The terms and conditions of this License will be deemed Confidential Information of both parties.

3.5          The obligation of Recipient to maintain the confidentiality of Confidential Information will survive the expiration or termination of this License for as long as the information in issue is within the definition of Confidential Information or otherwise agreed to in writing by Discloser.

4.0          Notice of Applicable Law; Exemption under Public Records Disclosure Laws

4.1          Licensee is solely responsible for advising 360 Visibility of any applicable public records disclosure or other statute, law, rule, regulation or order that does or may apply to this License, its performance by 360 Visibility or Licensee, or any product or service provided or to be provided by 360 Visibility pursuant to this License.

4.2          In the event Licensee is a government entity subject to state or federal public records disclosure law, it expressly acknowledges and agrees that all 360 Visibility Confidential Information and Intellectual Property constitutes and/or will constitute “trade secrets” as defined by the Uniform Trade Secrets Act as enacted, and/or pursuant to other applicable state or Federal law. 360 Visibility expressly claims exemption from disclosure of this License under any public records law that is or may be applicable to this License. Licensee agrees that prior to any statutorily mandatory disclosure of such 360 Visibility Confidential Information or Intellectual Property, it will promptly notify 360 Visibility of any request for disclosure so that 360 Visibility may take such action or actions it deems necessary to prevent such disclosure.

4.3          Licensee agrees to defend and indemnify 360 Visibility, and pay all costs, fines, penalties, duties, attorneys’ fees or other damages incurred by 360 Visibility as a result of Licensee’s failure to timely provide the information required pursuant to section 5.1 above. Licensee further agrees to hold 360 Visibility harmless from, and that Licensee is solely liable for, any and all costs, fines, penalties, duties, attorneys’ fees or other damages incurred by Licensee as a result of Licensee’s failure to timely provide 360 Visibility with the information required pursuant to section 5.1 above.

5.0          Disclaimer and Limited Liability

360 VISIBILITY EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY FOR INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER ARISING OUT OF CONTRACT OR TORT OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL 360 VISIBILITY ’S TOTAL LIABILITY ARISING OUT OF OR IN ANY MANNER RELATED TO THIS LICENSE EXCEED FIVE DOLLARS (US$10.00).

6.0          Warranties and Representations

6.1          360 VISIBILITY LICENSES THE LICENSED SOFTWARE “AS IS” AND MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITAL OR NON-INFRINGEMENTREGARDING THE LICENSED SOFTWARE, OR ITS USE AND OPERATION.

6.2          360 VISIBILITY MAKES NO REPRESENTATIONS OR WARRANTIES THAT ACCESS TO OR USE OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.

6.3          ALL THIRD-PARTY SOFTWARE INCORPORATED IN THE LICENSED SOFTWARE IS PROVIDED “AS IS”. 360 VISIBILITY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE THIRD PARTY SOFTWARE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR ITS USE AND OPERATION.

7.0          Indemnification

7.1          360 Visibility agrees to defend, indemnify and hold harmless Licensee against any loss, liability, damage, cost or expense, including reasonable legal fees, arising out of any claim or suit which may be brought or made against Licensee arising from any allegation that use of any or all of the Licensed Software, in the form and manner provided by 360 Visibility to Licensee and not (a) modified, altered, or otherwise changed by a person or entity other than 360 Visibility , or (b) a Derivative of the Licensed Software created by or on behalf of Licensee by a person or entity other than 360 Visibility, infringes or otherwise violates the Intellectual Property of a third party.

7.2          360 Visibility will have no liability or obligation of indemnification for any allegation of Intellectual Property infringement where such claim or suit arises from (a) the combination, operation, or use of the Licensed Software with any third party goods or services not specifically provided or authorized by 360 Visibility, if such claim of infringement would have been avoided but for such combination, operation or use or (b) any modifications, alterations, changes or Derivatives of the Licensed Software created by or on behalf of Licensee by a person or entity other than 360 Visibility. 360 Visibility will have sole control over the selection of counsel and the defense of any claim or any settlement thereof, and Licensee will provide 360 Visibility with its reasonable assistance in the defense of such claim, at the expense of 360 Visibility, provided that in no event will 360 Visibility enter into any settlement with any such third party that would bind Licensee to such third party in any manner without the express prior written consent of Licensee.

7.3          In the event that any or all of the Licensed Software is determined to infringe the Intellectual Property of a third party, by either judicial determination or agreement between 360 Visibility  and such third party, 360 Visibility will have the right, as Licensee’s sole remedy against 360 Visibility , to elect to take any of the following actions, at 360 Visibility ’s sole discretion: (i) modify the Licensed Software to be non-infringing, (ii) obtain a license from such third party to enable Licensee to continue to use the Licensed Software, or (iii) terminate this License.

7.4          Licensee agrees to defend, indemnify and hold harmless 360 Visibility against any loss, liability, damage, cost or expense, including reasonable legal fees, arising out of any claim or suit which may be brought or made against 360 Visibility arising from (a) the combination, operation, or use of the Licensed Software with any third party goods or services not specifically provided or authorized by 360 Visibility, if such claim of infringement would have been avoided but for such combination, operation or use, (b) any Derivatives of, or other modifications, alterations, or other changes to, the Licensed Software created by or on behalf of Licensee by a person or entity other than 360 Visibility, (c) any unauthorized use of the Licensed Software by Licensee, and/or (d) any breach of this License by Licensee. Licensee will have sole control over the selection of counsel and the defense of any claim or any settlement thereof, and 360 Visibility will provide Licensee with its reasonable assistance in the defense of such claim, at the expense of Licensee, provided that in no event will Licensee enter into any settlement with any such third party that involves the Licensed Software in any way and/or would bind Licensee to such third party in any manner, without the express prior written consent of 360 Visibility.

7.5          Notification. In the event one party seeks indemnification under this Section, it will immediately notify the other party in writing of any claim or proceeding brought against it for which it seeks indemnification hereunder.

7.6          Expiration. The provisions of this Section will survive the expiration or other termination of this License.

8.0          Term and Termination

8.1          This Licensee will commence on the date Licensee accepts it or upon Licensee’s first use of the Licensed Software and continue for the duration of the Trial Term, unless otherwise terminated pursuant to this section 8.0.

8.2          Without prejudice to any rights which it may have under this License or in law, equity or otherwise:   i) Licensee may cancel the License at any time during the Trial Term. A cancellation will be effective at the conclusion of the Trial Term.  ii) 360 Visibility has the right to terminate this License immediately if Licensee is in breach of any other term of this License.

8.3          On termination of this License for any reason or at the expiration of the Trial Term, the licenses granted to Licensee will immediately terminate and revert in full to 360 Visibility. Licensee will immediately stop any further use of the Licensed Software, uninstall it and return the Licensed Software (including all third party software provided by 360 Visibility), copies, reproductions, Derivatives (including all notes, documentation, and other work product), documentation, and other materials relating to the Licensed Software to 360 Visibility, and provide 360 Visibility  with a notarized statement of compliance with the requirements of this Section.

9.0         General

9.1         Independent Contractor. This License does not constitute and will not be construed as constituting a partnership or joint venture between 360 Visibility and Licensee. Neither party shall have any right to obligate or bind the other party in any manner whatsoever, and nothing herein contained shall give, or is intended to give, any rights of any kind to any third persons.

9.2         Notices. All notices given pursuant to this License may be sent by certified mail, confirmed email or facsimile, hand-delivery, or any other confirmed method of delivery, to the signatories of this License, at their respective business addresses.

9.3         Assignment. Licensee may not assign any of its rights or obligations under this License without the prior written approval of 360 Visibility, which may be given or withheld at the discretion of 360 Visibility. Any assignment made in violation of this Section will be void, unenforceable, and deemed a breach of this License.

9.4         Waiver, Amendment or Modification. Any waiver, amendment or modification of this License will be effective only if made in writing and signed by the parties. No failure or delay by either party in exercising any right, power or remedy with respect to any of its rights hereunder shall operate as a waiver thereof in the future.

9.5         Compliance with Laws. Licensee will comply with all federal, state, and local laws, codes, ordinances, rules, and regulations in its use of the Licensed Software, and in performing its duties, responsibilities, and obligations pursuant to this License.

9.6         Law and Venue. This License will be expressly and solely interpreted and construed in accordance with and governed by the laws of the Province of Ontario.

9.7         Entire Agreement. This License constitutes the entire agreement between the parties and supersedes all previous agreements or representations, oral or written, relating to this License.

9.8         Cost of Enforcement. Should either party institute legal action concerning this License, the prevailing party will be entitled, in addition to such other relief as may be granted, to recover reasonable attorneys’ fees and all other related court costs.

Microsoft Cloud Agreement
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 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 your Reseller provisions your Subscription. Key terms are defined in Section 10.


1. Grants, rights and terms.

All rights granted under this agreement are non-exclusive and non-transferable and apply as long as neither Customer nor any of its Affiliates is in material breach of this agreement.

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.
(iii) Downgrade rights. Customer may use an earlier version of Software than the version that is current on the date Customer orders the Software. In that case, the Use Rights for the current version apply to the use of the earlier version. If the earlier Software version includes features that are not in the new version, then the Use Rights applicable to the earlier version apply with respect to those features.

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. 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.

c. Ordering.
(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 Customer’s Reseller.

e. Renewal.
(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.

Microsoft reserves the right to verify eligibility at any time and suspend the Online Service if the eligibility requirements are not met.

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.


4. Security, privacy, and 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.

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.


5. Warranties.

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. Defense 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 defense 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.


9. Miscellaneous.

a. Notices. You must send notices by mail, return receipt requested, to the address below.

Notices should be sent to:

Microsoft Corporation
Volume Licensing Group
One Microsoft Way
Redmond, WA 98052
USA

Via Facsimile: (425) 936-7329

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, except that (i) if you are a U.S. Government entity, this agreement is governed by the laws of the United States, and (ii) if you are a state or local government entity in the United States, this agreement is governed by the laws of that state. Any action to enforce this agreement must be brought in the State of Washington. This choice of jurisdiction does not prevent either party from seeking injunctive relief in any appropriate jurisdiction with respect to violation of intellectual property rights.

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.


10. Definitions.

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.

“Subscription” means an enrollment for Online Services for a defined Term as established by your Reseller.

“Term” means the duration of a Subscription (e.g., 30 days or 12 months).

“Use Rights” means the use rights or terms of service for each Product published on the Licensing Site and updated from time to time. The Use Rights supersede the terms of any end user license agreement that accompanies a Product. The Use Rights for Software are published by Microsoft in the Product Terms. The Use Rights for Online Services are published in the Online Services Terms.

Microsoft Cloud Agreement
Financial Services Amendment

This Financial Services Amendment (“Amendment”) is entered into between Customer and the Microsoft Affiliate who are parties to the Microsoft Cloud Agreement (the “Agreement”), and the parties agree that this Amendment supplements the Agreement.

Customer is subject to oversight by a Regulator (defined below). In the event that Customer has separately entered into an amendment with Microsoft to help Customer meet its privacy, security and regulatory requirements as an entity subject to oversight by a Regulator, the parties agree that the rights and obligations included in such amendment apply when Customer purchases Online Services (defined below) from a reseller through the Cloud Solution Provider Program and supplement the Agreement. For avoidance of doubt, this extension of rights is for the sole benefit of Customer and applies only to Customer’s use of the Online Services.

If Customer does not have a separate amendment with Microsoft that addresses Customer’s requirements as an entity subject to oversight by a Regulator, the parties agree that the Agreement is amended as follows:


1. Defined Terms
Capitalized terms used but not defined in this Amendment will have the same meanings as provided in the Agreement or the Online Services Terms (“OST”). The following definitions are used in this Amendment:

“Customer” means, for purposes of this Amendment, any Affiliates that are subject to oversight by a Regulator and are consuming Online Services.

“Microsoft Online Services FSI Customer Compliance Program” or “FSI Customer Compliance Program” means an optional, fee-based program available to Microsoft customers or affiliates of those customers that are subject to oversight by a Regulator.

“Online Services” means, for purposes of this Amendment, the Microsoft Dynamics 365 Core Services, Office 365 Services, Microsoft Azure Core Services, Microsoft Intune Online Services and Microsoft Power BI Services, each as defined in the “Data Processing Terms” section of the OST.

“Regulator” means any financial services regulator that has examination or supervisory rights over Customer or Microsoft as the provider of Online Services to Customer.


2. Enabling Customer Compliance
a. Effective Access to Data and Business Premises. As set forth in this Amendment and for clarity and to be consistent with applicable regulations, Microsoft will provide Customer, Customer’s internal and external auditors (both of which are defined as “Customer Auditor” herein) and Customer’s Regulator, with effective access to data related to the activities outsourced to Microsoft, as well as reasonable access to Microsoft’s business premises (see Section 2(b)(ii) and Section 2(c)(iii)). Customer will at all times have direct access to Customer Data, including Customer’s virtual machines and applications deployed in the Online Services. This includes the ability for Customer to conduct vulnerability and penetration testing of Customer’s deployments in the Online Services or other similar testing as applicable to a specific Online Service that Customer is using. For avoidance of doubt, Customer must conduct any testing in accordance with Microsoft’s terms and conditions, which may require, among other things, Customer to provide Microsoft with advance notice of any tests and prohibit Customer from targeting any other Microsoft customer.

b. Regulator Right to Examine.
(i) In the event that Customer’s Regulator requests information relating to Customer’s use of the Online Services, Customer will, in the first instance, use the standard features of the Online Services and the information provided to Customer to respond to such request.
(ii) In the event that the Regulator requests to examine the Online Services operations and controls in order to meet the Regulator’s supervisory obligations of Microsoft as a service provider of Customer, Microsoft will provide the Regulator with a direct right to examine the Online Services, including the ability to conduct an on-premises examination; to meet with Microsoft personnel and Microsoft’s external auditors; and to access any related information, records, reports and documents. Such activities may take place at Microsoft’s offices, at other locations where activities relating to the Online Services provided to Customer and its Affiliates are performed, and as otherwise requested by the Regulator.
(iii) Microsoft will not disclose Customer Data to the Regulator except as described in the General Privacy and Security Terms in the OST, and the Regulator will not be allowed access to data belonging to any other Microsoft customer.
(iv) Customer will at all times have access to Customer Data using the standard features of the Online Services and may delegate its access to Customer Data to representatives of the Regulator.
(v) Customer and Microsoft will be responsible for their own costs associated with any of the activities described in this Section 2(b).
(vi) For clarity, Microsoft and Customer will work together to resolve each Regulator request through discussion and interaction between Customer, Microsoft and the Regulator. Microsoft and Customer acknowledge that the provisions relating to the Regulator right to examine are not intended to contravene or interfere with any applicable laws or regulations, and nothing in this section should be construed as an impediment to the Regulator’s ability to examine the Online Services.

c. Customer Examination, Monitoring and Audits Rights. To enable Customer to meet its examination, oversight and control, and audit requirements, Microsoft has developed specific rights and processes that provide Customer, and other customers that are subject to oversight by a Regulator, with access to information, Microsoft personnel and Microsoft’s external auditors. Such rights and processes are designed to provide Customer with effectively the same access to information and personnel that Microsoft would provide to a Regulator, while preserving Microsoft’s ability to operate the Online Services and protect the privacy and confidentiality of other customers’ data. Specifically, Microsoft will provide Customer, including Customer Auditor, with the rights described below. The activities described in Section 2(c)(iii) below may occur onsite in Microsoft’s offices or at other locations where activities relating to the Online Services are performed.
(i) Online Services Information Security Policy. As set forth in the OST, each Online Service follows a written data security policy (“Information Security Policy”) that complies with certain control standards and frameworks. Microsoft will make each Information Security Policy available to Customer, along with descriptions of the security controls in place for the applicable Online Service and other information reasonably requested by Customer regarding Microsoft security practices and policies.
(ii) Audits of Online Services. On behalf of customers including Customer and Customer’s Auditor, as well as any Regulator, Microsoft will cause the performance of audits of the security of the computers, computing environment and physical data centers that it uses in processing Customer Data (including personal data) for each Online Service. Each audit will result in the generation of an audit report (“Audit Report”), as set forth in the OST. Pursuant to the terms set forth in the OST, if Customer requests, Microsoft will provide Customer with each Audit Report.
(iii) FSI Customer Compliance Program. Customer may participate in the optional FSI Customer Compliance Program at any time under this Agreement, which enables Customer to have additional monitoring, supervisory and audit rights and additional controls over the Online Services as described in Sections 2(c)(iii)(1) - (2) below.

1) Supervisory Access to Online Services Information and Microsoft Personnel.
A. Additional Microsoft Support. Through Customer’s Premier Support Services engagement, Customer will have access to Microsoft personnel for raising questions and escalations relating to the Online Services.
B. Audit Webcasts. Subsequent to Microsoft receiving an Online Services Audit Report, Microsoft will invite all FSI Customer Compliance Program members (“Members”) to participate in a webcast, hosted by Microsoft, for Members to discuss the results of the audit. Each webcast will include an assessment of whether: (1) the control procedures were suitably designed to provide reasonable assurance that the stated internal control objectives would be achieved if the procedures operated as designed, and (2) the control procedures operated effectively during the reporting period. Upon request from Members that attend the audit webcast, Microsoft will provide detailed information regarding planned remediation of any deficiencies identified by the audit.
C. Significant Events. Microsoft will provide communications to all Members regarding (1) the nature, common causes, and resolutions of security incidents and other circumstances that can reasonably be expected to have a material service impact on
Members’ use of the Online Services; (2) Microsoft risk-threat evaluations; and (3) significant changes to Microsoft’s business resumption and contingency plans, or other circumstances, that might have a serious impact on Members’ use of the Online Services.
D. Penetration Testing. At least annually, Microsoft will conduct third party penetration testing against the Online Services, including evidence of data isolation among tenants in the multi-tenant Online Services. Upon request, Microsoft will provide Members with a summary report of the results of such penetration testing.
E. Transparency of Online Services Through Program Events. Microsoft will make subject matter experts for the Online Services available to all Members through group events such as webcasts or in-person meetings, including an annual summit event. Such events will include a roadmap of planned developments, an opportunity for Members to provide structured feedback and/or suggestions regarding the FSI Customer Compliance Program and its desired future evolution, and reports of significant events (as described in this section). These events will also provide an opportunity for Members to discuss common issues with each other and raise them with Microsoft. The format and frequency of community events may vary over time; provided, that the objectives set forth in this paragraph will be accomplished not less than annually.
F. Additional Member Requests for Information. For Online Services that have been audited pursuant to SSAE 16 SOC 1 Type II and SSAE 16 SOC 2 Type II, as reflected in the OST, Members may request additional information from Microsoft subject matter experts not addressed through the standard features of the Online Services, the provisions in Section 2 or other available resources, on a fee-based per diem basis. In order to respond to any such request, Microsoft will prepare a statement of work with estimated fees, based on a per diem rate of US$4,000 per day for each Microsoft employee, plus reasonable travel expenses. Members will not be charged the full per diem fee for a Microsoft engineering resource who is needed for only a portion of a single day. Microsoft will only charge fees for work performed on a pro rata basis. Further, Microsoft will not charge fees for any Microsoft employee performing administrative tasks, such as meeting coordination, escorting visitors or document copying. The statement of work must be executed by both parties before work can commence. Invoicing, payment and tax terms will be the same as for Professional Services under the Microsoft Premier Support Services Agreement.

If a Member is not reasonably satisfied by the sufficiency of the information provided by Microsoft employees, the Member may submit a written request to meet with one of Microsoft’s external auditors. Microsoft will request that the external auditor that has audited the relevant Online Service meet with the Member to discuss any questions. Any such discussion will be subject to the agreement of the external auditor, will be at the Member’s expense, and will be subject to the Member signing confidentiality documentation in form and content satisfactory to the external auditor.

2) Ability to Influence the Online Services and Programs – Suggestions for Additional Testing.
Microsoft will provide each Member with advanced details on existing and future certifications, audit plans and scope and will solicit feedback on any potential changes to current certifications. For each Microsoft audit, 100% of the existing controls in scope for that audit type will be subject to testing by the auditor, and the expectation is that all controls for each audit scope will be tested within a 3-year audit cycle. As part of the FSI Customer Compliance Program, each Member may suggest additional controls to be included in a future audit scope. Microsoft will consider each such suggestion and, if not accepted, will provide a reasoned basis for refusal. For any given audit cycle, across all suggestions from all Members, Microsoft will include a minimum of five Member-specified controls (from the existing control set) in the audit instructions and will inform the auditor that these controls were selected by the Members. Compliance with these controls will be validated using tests that are consistent with the type of audit (e.g., ISO or SSAE) undertaken.

If the total number of Members in the FSI Customer Compliance Program exceeds 15, Microsoft will establish an executive committee (“Executive Committee”). For a given audit cycle, the Executive Committee will determine the five controls described above on behalf of all Members. Microsoft may, at its discretion, include additional controls requested by Members.

The Executive Committee will be comprised of at least one representative from each key regulated market with a participant in the FSI Customer Compliance Program. If there are multiple Members from a given market, the Executive Committee member for that market will be determined by (1) majority agreement among the Members from that market that have more than 10,000 active seats in the Office 365 Services or more than US$500,000.00 annual commitment of Microsoft Azure Core Services, or (2) a regulator having authority over all Members from that market. The key regulated markets shall, at a minimum, include Canada, United States, United Kingdom, France, Germany, Japan and Italy. Microsoft may add key regulated markets or increase the number of Members on the Executive Committee only in consultation with all Members.

For clarity, nothing in this section precludes Members from requesting that new controls or additional details for a given product, feature or Online Service be included in the roadmap for future audits. Microsoft will consider each such request and, if not accepted, will provide a reasoned basis for refusal.

3) FSI Customer Compliance Program Conditions and Processes.
A. Conditions. Customer’s participation in the FSI Customer Compliance Program is conditioned on Customer (a) being regulated by a Regulator; (b) maintaining an active, paid subscription to one or more Online Services through the Agreement; and (c) maintaining an active, paid Microsoft Premier Support Services agreement. Customer also must pay a US$50,000 annual fee for each year Customer participates.
B. Onboarding. If Customer decides to join the FSI Customer Compliance Program, an authorized Customer representative shall notify Microsoft by sending Customer contact information and purchase order details for the annual fee to the following Microsoft email address: fsicomppro@service.microsoft.com.
C. Termination. Customer may terminate its membership in the FSI Customer Compliance Program at any time by notifying Microsoft. Microsoft may terminate Customer’s membership in the FSI Customer Compliance Program if Customer fails to satisfy any of the conditions set forth in Section 2(c)(iii)(3)(A) above.

3. Security Incident: Limited Reimbursement for Certain Costs
To the extent that a Security Incident (as defined in the OST) results from Microsoft’s failure to comply with its obligations under the Agreement, and subject to the limitations of liability applicable to each Online Service, Microsoft will reimburse Customer for reasonable out-of-pocket remediation costs incurred by Customer in connection with that Security Incident. “Reasonable out-of-pocket remediation costs” consist of (a) actual costs of payments, fines, penalties, sanctions, attorneys’ fees, court costs or fees, or other remedies or liabilities, and any interest thereon, imposed by a court, tribunal, arbitration panel, government body or regulatory agency for a Microsoft-caused Security Incident; (b) additional commercially-reasonable out-of-pocket expenses incurred by Customer or its Affiliates to manage or remedy the Microsoft-caused Security Incident including, without limitation, costs associated with restoring, correcting, or repairing the affected Online Service; (c) commercially-reasonable out-of-pocket expenses for legally-required notifications of Customer’s end users of the Microsoft-caused Security Incident (but not the costs of any professional third-party services, including those relating to crisis management, public relations or media relations services, which are indirect and consequential damages under the Agreement). Customer must document all such expenditures and, upon Microsoft’s request, those expenditures must be validated by an independent, internationally-recognized third party financial services industry expert chosen by both parties. For avoidance of doubt, the costs reimbursed by Microsoft under this paragraph will be characterized as direct damages subject to the limitation on liability in the Agreement, and not as indirect, consequential, special or incidental damages excluded in the Agreement.

4. Customer Termination Rights

a. Termination at the Direction of Regulator. Customer may terminate an Online Service at the express direction of a Regulator with reasonable notice.

b. Termination for Regulatory Compliance. In the event Customer becomes subject to a new government law, regulation, requirement, decision, order or other ruling that Customer determines it cannot comply with because Customer is using the Online Service(s), Microsoft will discuss with Customer how to accommodate Customer's requirements. The parties may contemplate adding additional products or services, procuring those products or services from a third-party provider, or adding other solutions, each at Customer’s expense. If the parties are not able to satisfy Customer's new regulatory requirements, Customer may terminate the applicable Online Service without cause by giving 60 days’ prior written notice to Microsoft.

5. Business Continuity of Online Services
Microsoft acknowledges that Customer may be required by its Regulator to ensure that it is able to continue to carry on its business in the event of (1) regulatory or other legal action impacting Customer or one of its Affiliates; or (2) termination of the Agreement. Microsoft and Customer agree as follows:

a. Continuity after Customer Transfer of Rights.
1) In the event of the insolvency, reorganization, liquidation or some other action impacting Customer or one of its Affiliates, as provided by applicable law or regulation for the financial industry (e.g., “too big to fail”, “recovery and resolution”, “special administration”, and similar regulations and actions), and to the extent required to maintain continuity of Microsoft’s provision of the Online Services purchased by Customer under the Agreement, Microsoft will consent to Customer assigning, sublicensing or transferring its rights under the Agreement to (A) one or more of its Affiliates, or (B) a third party that purchases or otherwise succeeds to any or all of the business or assets or equity of Customer. In each case, the entity to which rights are transferred is the “Transferee,” and Transferee will have access to Customer Data through Microsoft’s standard processes and tools.
2) Microsoft will neither terminate the Agreement nor suspend or delay the performance of its obligations under the Agreement, subject to the following conditions:
A. The Transferee must pay all fees and charges payable by Customer to Microsoft under the terms of the Agreement for services provided before the transfer and through the renewal or replacement of the Agreement.
B. The Transferee and Microsoft will work in good faith to renew the Agreement or, as appropriate, to replace the Agreement with appropriate terms for Microsoft to provide the Online Services to the Transferee.
C. If Microsoft and the Transferee cannot agree on terms, as described in clause B, within 12 months after the transfer of rights to Transferee, then Microsoft may terminate the Agreement by providing notice to Transferee.
D. The aggregate liability of Microsoft and its Affiliates to Customer, Customer’s Affiliates and the Transferee will not exceed the aggregate liability of Microsoft and its Affiliates under the Agreement.
3) In the event the Transferee would like to enter into a new Agreement, the parties will work in good faith to put in place terms that are appropriate in light of the transfer under this Section 5(a).

b. Continuity after Termination of Agreement. If the Agreement terminates for any reason, then Customer may elect to extend the Online Services on a month-to-month basis for up to twelve months from the date of termination by providing notice of such election to Microsoft. During such period, Microsoft will continue to provide, and Customer will continue to receive and pay for, the Online Services pursuant to the terms and conditions of the Agreement. In addition, during such period Customer will be able to retrieve its Customer Data through Microsoft’s standard processes and tools. Customer may cancel the extended service by providing a notice of cancellation to Microsoft. Cancellation will be effective at the end of the month following thirty days after Microsoft receives the notice of cancellation.

c. Reversibility. In the event of a termination of the Agreement as described in Section 4 and this Section 5 and Customer chooses to migrate to a different online service, Customer may request that Microsoft provide assistance in such transition through Microsoft’s Professional Services Organization at the then-current rates for such services.
Customer may request migration or transition assistance and support from Microsoft’s Professional Services Organization at any time during the extended service period described in Sections 5(a) and 5(b).

6. Miscellaneous
a. Confidentiality. This Amendment, the Information Security Policy, the Audit Reports, and all information regarding and provided through the FSI Customer Compliance Program are Microsoft Confidential Information. Customer may disclose these items to a Customer Auditor or consultant or a Regulator, provided that (1) Customer first redacts all terms that are unrelated to regulatory oversight and approval, including pricing information and order quantities; and (2) other than disclosures to a Regulator, Customer must comply with the Confidentiality terms of the Agreement as if the disclosure was a disclosure of Microsoft Confidential Information by Customer to a Customer Representative.

b. Term and termination. Subject to Section 4 and Section 5 above, this Amendment will terminate automatically upon any termination of the Agreement.
Except for changes made by this Amendment, the Agreement identified above remains unchanged and in full force and effect. If there is any conflict between any provision in this Amendment and any provision in the Agreement identified above and any provision in the OST, this Amendment shall control.

Microsoft Azure Terms of Service

The 360 Visibility Online Service is provided in connection with Microsoft Windows Azure Services (the “Service Provider”) and its licensors including, where applicable, Microsoft. In order to receive the services, you must agree to the following terms and condition prior to activation of your account.

BY ACCEPTING THIS AGREEMENT, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT") GOVERNING YOUR USE OF SERVICE PROVIDER’S MICROSOFT AZURE SERVICES (THE "SERVICE"). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST SELECT THE "I DECLINE" BUTTON AND MAY NOT USE THE SERVICE.

  1. General (i) This Agreement, including any and all documents incorporated herein by reference, constitutes the entire Agreement between the Customer and 360 Visibility relating to provision of Services. (ii) Headings are used throughout this Agreement for convenience only and no provision, term or condition of this Agreement shall be construed by reference to any heading of this Agreement. (iii) 360 Visibility’s failure to insist on or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision, term, condition or right of 360 Visibility contained in this Agreement. (iv) If any of the terms, conditions or provisions of this Agreement is determined to be void, invalid or otherwise unenforceable by any court of competent jurisdiction, the same shall be severable from the rest of this Agreement and such determination shall not affect the remaining provisions contained in this Agreement. (v) This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein and the courts of such province shall have exclusive jurisdiction to adjudicate any claim or dispute relating to this Agreement. (vi) Customer may not make any re-sale of any of the Services provided hereunder. (vii) 360 Visibility shall not be liable for any delay or failure in performance of Services due to war, riot, embargoes, strikes, casualties, accidents, fire, earthquake, flood, acts of God, supplier or vendor failure, or other occurrence beyond 360’s direct control.
  2. 360 Visibility (and its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Service and any ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service or the intellectual property rights owned by 360 Visibility.
  3. The Customer shall indemnify and hold 360 Visibility and the Service Provider, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with a claim arising from the breach by you or your users of this Agreement, provided in any such case that 360 Visibility and the Service Provider (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release 360 Visibility and the Service Provider of all liability and such settlement does not affect 360 Visibility and the Service Provider's business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.
  4. SERVICE PROVIDER AND 360 VISIBILITY AND LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE. SERVICE PROVIDER AND 360 VISIBILITY AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY 360 VISIBILITY AND THE SERVICE PROVIDER AND ITS LICENSORS.
  5. IN NO EVENT SHALL 360 VISIBILITY OR THE SERVICE PROVIDER’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY YOU FOR USE OF THE SERVICE IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  6. 360 Visibility and the Service Provider reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, by providing notice by means of an email message to your administrator e-mail address on record in 360 Visibility’s Customer Account Contact Information, or by written communication sent by first class mail or pre-paid post to your address on record in 360 Visibility’s Customer Account Contact Information. Continued use of the Service after any such changes shall constitute your consent to such changes.
  7. This Agreement shall be governed by Ontario law and applicable Canadian federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the provincial courts located in Toronto, Ontario. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between the Customer and 360 Visibility or the Service Provider as a result of this agreement or use of the Service. The failure of 360 Visibility and the Service Provider to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by 360 Visibility in writing. This Agreement comprises the entire agreement between the Customer and 360 Visibility and the Service Provider and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.

 

360 Visibility Online Subscription Agreement

ACCEPTANCE OF TERMS OF SERVICE

BY ACCEPTING THIS AGREEMENT, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT") GOVERNING YOUR USE OF 360 VISIBILITY ONLINE SUBSCRIPTION SERVICES (THE "SERVICE"). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST SELECT THE "I DECLINE" BUTTON AND MAY NOT USE THE SERVICE.

The Customer agrees, without limitation or qualification, that their users will comply with 360 Visibility Online Subscription Services. The customer expressly acknowledges, and represents and warrants that it shall be fully responsible and liable for any and all violations by their End Users of this agreement, including but not limited to any unauthorized use or exploitation by End Users of the software provided by vendors. Failure to comply with the Terms of Service can lead to suspension, termination or revision to the services.

Fees & Payment

Fees The Customer shall pay 360 Visibility the fees listed with the Customers accepted Order Form. Fees for additional services added in the middle of a monthly period are prorated. We reserve the right to change prices for any Renewal Term with at least (60) days’ notice to you prior to the expiration of the immediately preceding Initial Term or Renewal Term, as applicable. All fees are payable in the currency listed within the Customers Order Form.

Payment Process All fees hereunder shall be paid by pre-authorized debit (PAD). The Customer shall complete the pre-authorized debit form and hereby authorizes 360 Visibility Inc. to electronically charge Customer’s account for payment for Services. Customer authorizes 360 Visibility to (i) make such charges as necessary for payment of current and outstanding bills and invoices; and (ii) make additional attempts to charge should the initial attempt fail.

Invoicing & Payment 360 Visibility Inc. shall invoice the Customer monthly in advance based upon estimated service usage and any optional add-ons selected by the Customer.

Overdue Payments You may dispute any fee or charge in good faith. However, if a payment is later determined to have been due, it shall be subject to a late charge equal to 1.5% of the outstanding balance per month or the maximum rate permitted by law, whichever is less, from the due date until paid. In addition, you shall pay our reasonable legal fees for collecting any amounts due to 360 Visibility under this Agreement.

Suspension of Service If your account has charges which are (30) days or more overdue, we reserve the right to suspend the Service until such amounts are paid in full. We shall not charge you for suspended Services, but you are liable for all accrued liabilities and obligations. We reserve the right to impose a reconnection fee if your access to the Service is suspended and you thereafter request access to the Service.

Term and Termination

Term of Agreement This Agreement commences on the Effective Date and shall remain in effect for (3) year (“Initial Term”). This Agreement shall automatically renew for additional (1) year terms (each a ‘Renewal Term”); provided the Agreement shall not automatically renew if the Customer provide us, or 360 Visibility provides the Customer, notice of non-renewal at least (60) days prior to the end of the Initial Term or any Renewal Terms. Other than as expressly set forth herein, the Customer may not cancel the Service without 360 Visibility written consent.

Termination for Cause Notwithstanding, a party may terminate this Agreement: (a) upon 30 days’ written notice of a material breach by the other party if the breach remains uncured at the expiration of such period; and (b) if the other party becomes insolvent or the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

Termination for Convenience Notwithstanding, you may terminate this Agreement at any time upon (30) days' written notice, provided that you pay 360 Visibility an amount equal to lesser of (a) six times the Minimum Monthly Fee set forth in the Order Form, or (b) the Minimum Monthly Fee for each of the remaining months in the Initial Term or Renewal Term, as applicable.

Return of Customer Data Within (30) days following the Customers written request and payment of all amounts the Customer owe to 360 Visibility, so long as the Customer is not in breach of this Agreement, we shall provide the Customer, to the extent technically feasible without undue cost or expense, a file, in a standard format, containing Customer Data in our possession or under our control, in such form as it exists on the date of termination or expiration of this Agreement. Notwithstanding anything in this Agreement or otherwise, we shall have no obligation to maintain or provide any Customer Data more than (30) days after termination or expiration of this Agreement for any reason. Thereafter, unless legally prohibited, we shall delete all Customer Data in our possession or under our control. Furthermore, we reserve the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, and we shall have no obligation to maintain or forward any Customer Data.

360 Visibility Responsibilities The Customer may designate up to (2) named "Super Users," who shall receive unlimited online standard support including access to: (i) Online Help, Knowledge Base and Documentation, (ii) 360 Customer Care Portal and review of issues and status, (iii) e-mail issue submission, (iv) Recorded video education and training materials (v) access to 360 User Group Forums. Super Users will also receive in addition up to (2) hours per month of telephone support during standard business hours. We shall use commercially reasonable efforts to make the Service generally available 99.7% of each calendar month, except for: (a) planned downtime with at least 48 hours' advance notice and scheduled to the extent reasonably practicable during the weekend hours from 9:00 p.m. EST Friday to 6:00 a.m. EST Monday; and (b) downtime caused by circumstances beyond our reasonable control, including acts of nature, acts of government, flood, fire, civil unrest, war, terrorism, strike or other labor problem not involving our employees, telecommunications or computer failures or delays, and network intrusions or denial of service attacks. We shall use commercially reasonable efforts to maintain the security and integrity of the Service.

The Customer Responsibilities In addition to your other obligations, you are solely responsible for: (a) determining whether the Service shall meet your needs; (b) issuing appropriate secure passwords for Users or asking us to do so on your behalf; (c) selecting and training appropriate individuals to use the Service; (d) all activities that occur under User accounts; (e) using commercially reasonable efforts to prevent unauthorized access to or use of the Service or any Content in whole or in part; (f) notifying us promptly of any actual or suspected unauthorized access/use; (g) abiding by all applicable local, state, national, and foreign laws, treaties and regulations, including those related to data privacy, communications, and the transmission of technical or personal data; (h) the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (i) your “Super users” and Users completing all required training; (j) complying with our 360 Customer Care policies, as published from time-to-time, to obtain support and other services under this Agreement; (k) not impersonating another User or providing false identity information for any purpose; (l) providing, installing, and maintaining computer equipment and communications tools and access as we specify from time to time; and (m) establishing adequate backup plans if there is any Service or other malfunction. (n) Customer assumes sole responsibility for the use of all productions and services and any information entered, used and stored thereon, including, without limitation, protection of data from viruses, or any unintended modification, destruction or disclosure, and for the accuracy and integrity of the results from the use of the licensed Microsoft products. 360 Visibility Inc. assumes no responsibility for Customer’s negligence or failure to protect data from viruses, or any unintended modification, destruction, or disclosure.

Use of Customer Name

360 Visibility Inc. may use the name of the Customer and refer to the performance of 360 Visibility online services without disclosing any confidential information regarding the Customer, in marketing and publicity materials, as an indication of its experience.