Microsoft Cloud Care Agreement

GENERAL TERMS AND CONDITIONS. The Parties agree as follows:

1. DEFINITIONS.

1.1. “Affiliate” means any legal entity that owns, is owned by, or that is under common ownership with Customer. Ownership means control of more than 50% interest.

1.2. “Azure Government Services” means one or more of the services or features Microsoft makes available to a Customer (or include in an Integrator-Provided Solutions) under this Agreement and identified at http://azure.microsoft.com/en-us/regions/#services, which are Government Community Cloud Services.

1.3. “Chargeable Units” means the metric or other unit of measure for the usage of the Products upon which Fees for the Products are calculated and charged. Without limiting the generality of the foregoing, a Chargeable Unit may be a user, license, seat, device, mailbox, capacity, or bandwidth, as applicable to the Products (such applicability will be determined by Insight or Microsoft).

1.4. “CJI” Criminal Justice Information, as defined in FBI CJIS Policy.

1.5. “CJIS Covered State” means a state, as shown at https://www.microsoft.com/en-us/TrustCenter/Compliance/CJIS or another site Microsoft may provide, with which Microsoft and the applicable state have entered into a CJIS State Agreement.

1.6. “CJIS Covered Service” means, for any state-specific CJIS Amendment, the Microsoft Online Services that are listed as such in that amendment, and for which Microsoft’s CJIS representations apply.

1.7. “CJIS State Agreement” means an agreement between Microsoft and a Covered State’s CSA (or another entity to which the CSA has delegated its duties) containing terms and conditions under which the Covered State and Microsoft will comply with the applicable requirements of the CJIS Policy. Each CJIS State Agreement is consistent with the applicable state-specific CJIS Amendment, and includes Microsoft CJIS Security Addendum Certifications. For clarity, a CJIS State Agreement may be titled “CJIS Information Agreement” or “CJIS Management Agreement.”

1.8. “Customer Data” has the meaning assigned to it in the Microsoft Cloud Agreement.

1.9. “Community” means the community consisting of one or more of the following: (1) a Government, (2) a Customer using eligible Government Community Cloud Services to provide solutions to a Government or a qualified member of the Community, or (3) a Customer with Customer Data that is subject to Government regulations for which the Customer determines, and Microsoft agrees, that the use of Government Community Cloud Services is appropriate to meet the Customer’s regulatory requirements. Membership in the Community is ultimately at Microsoft’s discretion, which may vary by Government Community Cloud Service.

1.10. “Compliance Trust Center Page” means the compliance page of the Microsoft Trust Center, published by Microsoft at https://www.microsoft.com/en-us/TrustCenter/Compliance/default.aspx or a successor site Microsoft later identifies.

1.11. “Covered Entity” means any State/Local Entity in a Covered State with which you maintain a contractual relationship whose use of CJIS Covered Services is subject to CJIS Policy.

1.12. “CSA” means, for each CJIS Covered State, that state’s CJIS Systems Agency, as defined in FBI CJIS Policy. “Defense Article” has the meaning provided in 22 C.F.R. § 120.

1.13. “Defense Service” has the meaning provided in 22 C.F.R. § 120.

1.14. “End User” means any person you permit to access Customer Data hosted in the Online Services or otherwise use the Online Services, or any user of a Customer Solution. With respect to ITAR Covered Services, End User means an individual that accesses the ITAR Covered Services. With respect to IRS 1075 Covered Services, End User means an individual that accesses the IRS 1075 Covered Services.

1.15. “Federal Agency” means a bureau, office, agency, department or other entity of the United States Government.

1.16. “Fees” means the fees for the Products purchased by Customer under this Agreement, including without limitation, Subscription Fees, as described in this Agreement.

1.17. “FTI” is defined as in IRS Publication 1075.

1.18. “Government” means a Federal Agency, State/Local Entity, or Tribal Entity acting in its governmental capacity.

1.19. “Government Community Cloud Services” means Microsoft Online Services that are provisioned in Microsoft’s multi- tenant data centers for exclusive use by or for the Community and offered in accordance with the National Institute of Standards and Technology (NIST) Special Publication 800-145. Except for Azure Government Services, Products that are Government Community Cloud Services are designated as such in the Use Rights.

1.20. “IRS 1075 Covered Services” means Azure Government services listed as being in the scope for IRS 1075 at http://azure.microsoft.com/en-us/support/trust-center/compliance/irs1075/ or its successor site. Without limitation, IRS 1075 Covered Services do not include any other separately branded Online Services.

1.21. “IRS Publication 1075” means the Internal Revenue Services (IRS) Publication 1075 effective January 1, 2014, including updates (if any) released by the IRS during the term of the Enrollment.

1.22. “ITAR” means the International Traffic in Arms Regulations, found at 22 C.F.R. §§ 120 - 130.

1.23. “ITAR-controlled data” means Customer Data that is regulated by the ITAR as Defense Articles or Defense Services.

1.24. “ITAR Covered Services” means, solely with respect to this agreement, the (i) Office 365 GCC High services; and Azure Government services, listed as being in the scope for the ITAR at https://www.microsoft.com/en- us/TrustCenter/Compliance/itar or its successor site.

1.25. “Marks” means (i) either party’s names, word marks, logos, logotypes, trade dress, designs or other trademarks; (ii) the trademark and trade name “Microsoft,” and all trademarks and trade names derived from it, and the trademarks owned by Microsoft and used in association with all Products or which are set out at http://www.microsoft.com/en- us/legal/intellectualproperty, or any successor site, as Microsoft may amend; and (iii) any and all copyrights either party owns.

1.26. “Microsoft” means Microsoft Corporation.

1.27. “Microsoft Cloud Agreement” means the agreement that Microsoft uses to convey or provide Products to Customers, as set forth in Exhibit A. Microsoft may revise the Microsoft Cloud Agreement on not less than thirty (30) days’ notice.

1.28. “Non-Microsoft Product” means any third-party (or third-party branded) software, data, service, website or other product available through the Microsoft Azure Marketplace, Virtual Machine Gallery, or other feature of Microsoft online services.

1.29. “Office 365 US Government” means the Government Community Cloud Service described by the Office 365 Service Descriptions, and purchased by Enrolled Affiliate pursuant to the terms and conditions of the Enrollment.

1.30. “Office 365 GCC High” means the Government Community Cloud Service described by the Office 365 Service Descriptions, and purchased by Enrolled Affiliate pursuant to the terms and conditions of the Enrollment.

1.31. “Online Services Terms” means the additional terms that apply to a Customer’s use of online services published on the Volume Licensing Site and updated from time to time.

1.32. “Personal Data” means any information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

1.33. “Portal” means the Partner Center, the Partner Administration Center or an alternate site identified by Microsoft. The Portal will communicate the Program Guide, updates and other information relating to this Agreement.

1.34. “Product” means the rights to Microsoft online services, which may include Microsoft software technology, on the then- current price list for the Microsoft Cloud Solution Provider program.

1.35. “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 Volume Licensing Site.

1.36. “Registered Usage” means the number or quantity of Chargeable Units provisioned by Customer directly or through Insight on behalf of Customer, calculated on a prorated basis by Microsoft.

1.37. ““Service Level Agreement”” or “SLAs” means the service levels or service level agreements pertaining to, among other things, the nature and quality of the Products. The SLAs agreed upon under this Agreement, if any, shall be set forth in Exhibit B.

1.38. “SLA” means the service level agreement commitments Microsoft makes to its Customers regarding delivery and/or performance of the applicable Product.

1.39. “State/Local Entity” means (1) any agency of a state or local government in the United States, or (2) any United States county, borough, commonwealth, city, municipality, town, township, special purpose district, or other similar type of governmental instrumentality established by the laws of Customer’s state and located within Customer’s state’s jurisdiction and geographic boundaries.

1.40. “Subscription” means a right to the Microsoft online services for a defined term.

1.41. “Subscription Fees” means recurring fees for the Products during the applicable Subscription Period based on the actual Chargeable Units and the Products ordered by Customer.

1.42. “Subscription Period” means a monthly or yearly billing period, as indicated online in Insight’s cloud management portal or as my be set forth in the Order Form.

1.43. “Support Services” means a single point of contact for Customer to obtain technical assistance as set forth in Exhibit C.

1.44. “Taxes” means any federal, state, provincial or local taxes, fees, charges, surcharges, or other similar fees or charges arising as a result of or in connection with the transactions contemplated under this Agreement and include, but are not limited to, sales and use taxes, value added, gross receipts taxes, utility user’s fees, municipal occupation and license taxes, excise taxes, business and occupations taxes, 911 taxes, franchise fees, universal service fund fees or taxes, regulatory cost recovery and other surcharges, taxes imposed or based on or with respect to or measured by any net or gross income or receipts (other than taxes based upon Microsoft’s net income and any gross receipts taxes imposed in lieu of taxes on the income or profits of Microsoft), franchise taxes, stamp taxes, taxes on doing business, duties, tariffs, levies, withholding taxes, and any taxes that arise on the distribution or provision of products or services by Insight to its Affiliates or Customers.

1.45. “Technical Data” has the meaning provided in 22 C.F.R. § 120.

1.46. “Term” means collectively, the “Initial Term” and, if applicable, any “Renewal Term,” as defined in subsection 5.1 (Term of Agreement).

1.47. “Terms of Use” means Microsoft’s terms and conditions associated with the use of the Products by Customer, attached as Exhibit A of this Agreement.

1.48. “Territory” means United States of America, including Indian reservations and its possessions, territories, and commonwealths (collectively, the “U.S.”).

1.49. “Tribal Entity” means a federally-recognized tribal entity performing tribal governmental functions and eligible for funding and services from the U.S. Department of Interior by virtue of its status as an Indian tribe.

1.50. “Use Rights” means the use rights or terms of service for each Product published on the Volume 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.

1.51. “Usage Commitment” means the greater of: (i) the Registered Usage selected by Customer, or (ii) the then-current Registered Usage as reported to Insight by Microsoft and upon which Insight invoices Customer for the applicable Usage and Subscription Period during the applicable Term.

1.52. ““Vendor” or "Microsoft" ” is the entity that provides the Products, as described in the Vendor Terms and offered by Insight under this Agreement, including Third-Party Software licensors (if any).

1.53. “Vendor Terms” means, collectively, Microsoft’s terms and conditions associated with the use of the Products, including but not limited to: (i) Microsoft’s Cloud Agreement; and (ii) Microsoft's Online Services Terms, as may be further referenced in Exhibit A; and (iii) SLAs, if applicable, as may further be referenced in Exhibit B.

1.54. “Volume Licensing Site” means http://www.microsoft.com/licensing/contracts or a successor site.

2 AUTHORIZATION AND TERRITORY

2.1 Authorization

(a) Insight is authorized to participate in the Microsoft Cloud Solution Provider Program and provide certain Products to Customers.

(b) Insight is authorized to participate in the Microsoft Third-Party Offer Marketplace and provide certain third-party SaaS solutions to Customer. Third-Party Offers are provided by developers and subject to the terms of the associated Third-party Customer Agreement and policies of that developer.

(c) Customer is authorized to use the Products in the Territory.

(d) Customer acknowledges and agrees that Microsoft may modify a Product, or may release a new version of a Product at any time and for any reason including, but not limited to, to address customer needs or otherwise address competitive demands, to respond to a government regulation, order, or law, or to advance innovation in its Product offerings. Microsoft reserves the right to add new features or functionality to, or remove existing features or functionality from, a Product.

(e) Microsoft may provide Products that are identified as academic, charity or government. These Products may only be provided to Customers that meet Microsoft’s qualification criteria.

3. CUSTOMER AGREEMENT ACCEPTANCE AND SUBSCRIPTION TERMS

(a) Customer Agreement Acceptance. By signing this Agreement, Customer accepts the Microsoft Cloud Agreement. The current version of the Microsoft Cloud Agreement is referenced in Exhibit A to this Agreement.

(b) Fixed term Products. Customer will purchase the fixed term Products for a fixed Subscription term of 12 months. The quantity of Product in the Subscription can be varied on a monthly basis. Insight’s billing will be adjusted to take account of the new quantity of Product in the Subscription in the subsequent invoice.

(c) Auto-Renewal. Subscriptions will automatically renew at the end of any term. Each renewal term will be for the period equal to the previous term. Pricing for a renewal term will be Insight’s pricing in the price list in effect as of the commencement of the renewal term.

(d) Disablement. Insight may disable a Customer’s Subscription in case of subscription payments being two (2) calendar months in arrears. Insight will need to separately disable each active Subscription. Depending on the Product, Customer will have limited or no access to the Product. Neither Insight nor Microsoft will be liable in any manner whatsoever to the Customer arising out of Insight’s disablement of the Customer’s Subscriptions. Microsoft may disable a Customer’s Subscription for legal or regulatory reasons or as otherwise permitted under this Agreement and Microsoft will notify Insight of a disablement as soon as commercially reasonable. Insight agrees to notify the Customer of the same. If Microsoft disables the Customer’s Subscription, billing will be suspended until the Subscription is re-enabled.

(e) Cancellation. The Customer may cancel a Subscription for a Product as follows: 1) no refund is allowed for fees that have been paid; and 2) an “Early Termination Charge”, meaning fees due from Customer in the event of cancellation of a Subscription before its term ends, may be applied.

Upon cancellation, Customer will have ninety (90) days to migrate any Customer Data to either a new Subscription with Insight, with Microsoft directly, or some other service. The Customer shall be responsible for any migration process including any associated costs.

4. FEES AND INVOICING.

4.1. Products Fees. Subject to subsection paragraph (b) below (Changes in Usage), as consideration for the Products purchased by Customer under this Agreement, Customer shall pay Insight the Fees, which will be based upon the applicable pricing rate for the Products and the Usage Commitment. For price increases and decreases, Insight will provide Customer with not less than 60 days’ notice.

(a) Pricing Rates. For the Initial Term and unless otherwise provided, the pricing rates for the Products ordered under this Agreement shall be set forth in the Order Form or in a quote provided by Insight, which rates will be based upon the Registered Usage and the Products described therein. For any Renewal Term, the pricing rates shall be Insight’s then-current rates for such Products based upon the applicable Usage Commitment at commencement of the then-current Renewal Term, unless otherwise agreed upon by Insight in writing.

(b) Changes in Usage. Upon execution of this Order, the parties agree that all future quantities used, enabled or consumed for existing purchased Products will be invoiced on an actual use basis, including without limitation, any increases. If new Products or features are procured, Customer will need to execute a Project Change Request Form for any such net-new Products.

4.2. Invoicing. Charges for the Products will accrue on the date the Products are activated or made available by Microsoft to Customer and are non-refundable, except as expressly provided in this Agreement. Insight will invoice Customer the Service Fees on a monthly basis as set forth in the Order Form.

4.3. Payment Terms. Customer must pay all undisputed invoices in full within 30 days of the invoice date. All payment terms are measured from the date of invoice and are payable in the currency specified on the invoice. If an invoice is the subject of a bona fide dispute, Customer shall notify Insight in writing, including a description of the nature of such dispute in sufficient detail, within such 30 day period. Failure to comply with the requirements of this provision shall preclude the Customer's right to dispute such invoice. All payments must reference the invoice number. Insight reserves the right to charge interest of 1.5% per month or the maximum allowable by applicable law, whichever is less, for any undisputed past due Fees. Customer is responsible for all costs of collection, including reasonable attorneys' fees, for any payment default on undisputed Fees.

4.4 Taxes. All amounts the Customer must pay under this Agreement do not include any taxes. Customer must pay taxes imposed on or with respect to its activities in connection with this Agreement, if any, and Insight and or Microsoft will have no responsibility for the payments. Customer must pay or reimburse Insight for all taxes which are permitted to be collected by Insight under applicable law. Customer may provide a valid exemption certificate in which case Customer will not be charged the taxes covered by such certificate, and further Insight and or Microsoft will be under no obligation to apply credits for any periods for which Customer had not timely submitted a valid exemption certificate. If Customer is located in a jurisdiction that utilizes the VAT numbers for tax identification purpose, it will provide Insight with its VAT number together with its address details.

The withholding taxes referred to in this section apply to withholding taxes required by the taxing authorities on payments to Insight only and do not include any withholding taxes suffered by Customer for payments made to Customer by its customers. Those withholding taxes will be Customer’s financial responsibility.

This tax section shall govern the treatment of all Taxes arising as a result of or in connection with this Agreement notwithstanding any other section or any other document included in this Agreement.

4.5. Product Credits. In the event that a credit for the Products is due to Customer in accordance with the Vendor Terms, the parties agree that any credit due will be credited by Insight to Customer’s account within a reasonable time after Insight’s receipt the corresponding credit amount from Microsoft following Microsoft’s verification of Customer's claim. Customer expressly acknowledges and agrees that Insight is not obligated to provide any Product credit if Microsoft is unable to verify, or otherwise rejects, Customer’s claim for any reason or if Microsoft fails to provide the Products credit for any reason even if it has verified Customer’s claim. ANY CREDITS OR TERMINATION RIGHTS DESCRIBED UNDER MICROSOFT’S SLAs SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER IN CONNECTION WITH ANY UNAVAILABILITY OF THE PRODUCTS OR BREACH OF SUCH SLAs.

5. TERM; SUSPENSION; TERMINATION.

5.1. Term of Agreement.

(a) Term. This Agreement will remain in effect until one (1) year after the signature date, unless terminated earlier as set forth below. This Agreement will automatically renew for successive one (1) year terms unless either party gives the other sixty (60) days’ written notice of its intent to not renew.

(b) Termination Without Cause. Insight may terminate this Agreement at any time without cause and without intervention of the courts by giving not less than thirty (30) days’ written notice.

(c) Termination for Cause. If a party breaches any term of this Agreement, the other party can terminate this Agreement for cause. The terminating party will give the breaching party not less than thirty (30) days’ written notice and opportunity to cure the breach if the cause for termination is curable. A party will be allowed to cure a breach once, if a party breaches the Agreement for the same reason as a prior breach such as late payment, then the other party may terminate the Agreement immediately. If the cause for termination is not curable, termination is effective immediately upon written notice from the terminating party. Disclosure of confidential information including the disclosure of specially negotiated Customer terms, misappropriation of Microsoft’s intellectual property, and insolvency, bankruptcy or other similar proceedings, are grounds for immediate termination.

(d) Effect of Expiration or Termination.

(i) When this Agreement ends or is terminated, Customer must immediately stop using all rights granted by this Agreement and Customer must also pay Insight any amounts due under this Agreement.

(ii) Termination of this Agreement terminates all and any amendments or addenda under this Agreement.

(iii) If this Agreement expires or is terminated for any reason other than a breach by Customer, Insight will, subject to the terms of this Agreement, continue to provide Products to Customer for an active Subscription for the shorter of 12 months or the minimum period of required performance by Customer under this Agreement.

(e) Waiver of Rights and Obligations. Each party waives any right or obligation under any applicable law or regulation to request or obtain intervention of the courts to terminate this Agreement.

(f) Survival. 5(d) (Effect of Expiration or Termination), 5(e) (Waiver of Rights and Obligations), 5(f) (Survival), Sections 6 (Privacy; Customer Data), 7(b) (Product Warranties), 7(c) (Compliance with laws and Microsoft’s Anti-Corruption Policy), 8 (Warranty and Indemnity Obligations), 9 (Limitations on and Exclusions of Damages), 12 (Government Restrictions), 16 (General) of this Agreement will survive any termination or expiration of this Agreement.

6. PRIVACY; CUSTOMER DATA.

(a) Privacy. The Customer shall: (i) comply with all applicable legal requirements regarding privacy and data protection; and (ii) provide sufficient notice to, and obtain sufficient consent and authorization from, any party providing Personal Data to the Customer, Insight and Microsoft to permit the processing of the data by Insight and Microsoft and their respective Affiliates, subsidiaries, and subcontractors as required in order to provide the Products to the Customer.

Microsoft and Insight may collect, use, transfer, disclose, and otherwise process the Customer’s Data, including Personal Data, as described in the Microsoft Cloud Agreement. Microsoft may send direct communications to Customers related to the terms of the Microsoft Cloud Agreement or the operation or delivery of the Product. The Customer must provide Microsoft with accurate contact information for the administrator of each domain.

(b) Customer Data.

The Customer is required to pass to Insight some limited Customer Data. The Customer warrants that it is the data controller of the Customer Data. The security, privacy and data protection commitments made by Microsoft in any Microsoft Cloud Agreement only apply to the Products purchased from Microsoft and not to any services or products provided by Insight. The Customer agrees and acknowledges that in respect of any access to and processing of Personal Data: (A) Insight will only have access to and process minimal amounts of non-sensitive or non-special categories of Personal Data relating primarily to Microsoft CSP Products and related services which shall include processing for order fulfilment, account management and reporting purposes; and (B) other than the purposes described in sub-paragraph (A) above, Insight shall not be considered a data processor or data controller or in any other way have any responsibilities or liability (and Customer holds Insight harmless) in respect of the use, processing, storage, transfer or access or otherwise in respect of Personal Data by and/or between Customer on the one hand and Microsoft on the other hand which shall be subject to the arrangements and agreements entered in to directly between Customer and Microsoft.

(i) Insight shall use Customer Data only to provide Customer with the Products and the Support Services specified in Exhibit C of this Agreement and to assist Customer in the proper administration of the Products. Additionally, Insight shall only access and disclose to law enforcement or other government authorities data from, about or related to Customer, including the content of communications to the extent required by law (or to provide law enforcement or other government entities access to such data).

(ii) If Insight receives a request for Customer Data either directly from a law enforcement agency or as redirected to Insight, then Insight shall redirect the law enforcement agency to request that data directly from Customer. If compelled to disclose Customer Data to law enforcement, then Insight shall promptly notify Customer and provide a copy of the demand, unless legally prohibited from doing so.

(iii) Customer consents and authorizes Insight, Microsoft (and their service providers and subcontractors) at Customer’s direction to access and disclose to law enforcement or other government authorities data from, about or related to Customer, including the content of communications (or to provide law enforcement or other government entities access to such data). As and to the extent required by law, Customer shall notify the individual users of the Products that their data may be processed for the purpose of disclosing it to law enforcement or other governmental authorities and shall obtain the users’ consent to the same.

(iv) Neither Insight nor Microsoft provide a back-up service for the Customer Data unless additionally purchased by the Customer. The Customer is responsible for the back-up of Customer Data. Neither Insight nor Microsoft shall be liable for the loss of Customer Data as a result of the Customer’s failure to back up such Customer Data.

(v) Microsoft’s representations as it relates to its IRS 1075 Covered Services’ compliance with the Safeguarding Contract Language, are subject to the terms included as Section 9 of the Microsoft Cloud Agreement attached hereto as Exhibit A and the additional terms included as Attachment 1.

(vi) Microsoft’s representations as it relates to its CJIS Covered Services’ compliance with the FBI Criminal Justice Information Systems (“CJIS”) Security Addendum (Appendix H of FBI CJIS Policy) are subject to the terms included as Section 10 of the Microsoft Cloud Agreement attached hereto as Exhibit A.

(vii) Microsoft’s commitments in the IRS 1075 terms and conditions and state-specific CJIS terms apply only to Microsoft’s role in providing IRS 1075 Covered Services and CJIS Covered Services to Customer.

7. OTHER RIGHTS AND OBLIGATIONS

(a) Customer’s Representations and Warranties. Customer represents and warrants that it will provide access to Insight to the Customer’s Microsoft administration portal as a delegated administrator on a continuing basis.

(b) Product Warranties. Insight makes no representation, condition or warranty about the Products. Product warranties are as set out in Microsoft’s Cloud Agreement or other end user facing documentations.

(c) Compliance with Laws and Microsoft’s Anti-Corruption Policy.

(i) Compliance with laws and Microsoft’s Anti-Corruption Policy. Customer will comply with all applicable laws against bribery, corruption, inaccurate books & records, inadequate internal controls and money-laundering, including the U.S. Foreign Corrupt Practices Act (“Anti-Corruption Laws”). Customer certifies that it has reviewed and will comply with the Anti-Corruption Policy for Microsoft Representatives available at: https://www.microsoft.com/en-us/legal/compliance/anticorruption/reppolicy.aspx. Customer’s record-keeping obligations, described in the Audit Rights section below, apply to Customer’s certifications in this section and its compliance with Anti-Corruption Laws.

(ii) Audit Rights. During the term of this Agreement and for two (2) years after the later of either (i) the termination of Insight’s Agreement with Customer, or (ii) the date of issuance of final payment between Insight and Customer, Insight or its audit-related agents shall have access to, and the Customer shall maintain, any books, documents, records, papers, or other materials of the Customer related to this Agreement (the “Relevant Records”). Customer shall establish and maintain a reasonable accounting system that enables Insight and its audit-related agents to identify Customer’s assets, expenses, expenditures, costs of goods, margins, discounts, rebates or other payments and compensation received, and use of funds related to this Agreement. Customer shall maintain a system of internal controls to prevent the payment of bribes and provide reasonable assurance that financial statements and reporting are accurate. Customer shall not have undisclosed or unrecorded accounts for any purpose. False, misleading, incomplete, inaccurate, or artificial entries in the books and records are prohibited.

Insight will provide Customer with at least ten (10) days’ written notice of Insight’s intent to exercise its rights under this provision. The Relevant Records and, if requested, relevant employees, shall be made available to Insight or its audit-related agents during normal business hours at the Customer’s office or place of business. If no such location is available, then the Relevant Records, and if requested, relevant employees, shall be made available at a time and location that Insight will determine.

Insight may exercise its rights under this provision any time it has a good faith reason to believe that Customer or its representatives are in violation of any Anti-Corruption Laws in connection with this Agreement or in any manner that may impact Insight or its relationship with Customer. In addition, Insight may further exercise its rights under this provision for any other reason at any other time not to exceed once every 12-month period.

8. WARRANTY AND INDEMNITY OBLIGATIONS.

(a) Warranty. Microsoft’s warranty obligations shall be as set out in the Microsoft Cloud Agreement.

(b) No Warranty. Unless required by applicable laws, Insight gives no express warranties, representations or conditions. To the maximum extent permitted under applicable laws, Insight excludes all implied warranties and conditions, such as implied warranties of merchantability, non-infringement, and fitness for a particular purpose.

(c) Defense of Infringement Claims. Microsoft’s obligation of defense of Infringement Claims shall be as set out in the Microsoft Cloud Agreement.

(d) Customer’s Defense Obligations. Customer will defend Insight against any Third Party Claims. If there is an adverse final judgment (or settlement to which Customer consents) resulting from any Third Party Claims, Customer will pay it. Insight will promptly notify Customer in writing of the Third Party Claim, specify the nature of the claim and the relief the third party seeks. Insight will give Customer reasonable assistance in defending the Third Party Claim. Customer must have Insight’s written consent before settling any Third Party Claim. Insight will not unreasonably withhold Insight’s consent. “Third Party Claim” means any third party claims or allegations against Insight that arise out of or are connected with any default or breach or alleged default or breach of this Agreement by Customer, or any other act or omission by Customer.

9. LIMITATIONS ON AND EXCLUSIONS OF DAMAGES.

(a) Limitation. UNLESS APPLICABLE LAW REQUIRES OTHERWISE, THE ONLY REMEDY THAT EITHER PARTY WILL HAVE FOR ANYTHING RELATED TO THIS AGREEMENT IS TO OBTAIN DIRECT DAMAGES FROM THE LIABLE PARTY UP TO THE AMOUNT ACTUALLY PAID BY CUSTOMER TO INSIGHT DURING THE PRIOR ONE-YEAR PERIOD, MINUS ANY AMOUNTS PAID BY THE LIABLE PARTY DURING THAT SAME PERIOD FOR ANY PRIOR LIABILITY. NEITHER PARTY CAN RECOVER ANY OTHER DAMAGES FROM THE OTHER, INCLUDING LOSS OF REVENUE OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF DATA, LOST PROFITS, REVENUES, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION, EVEN IF THE PARTY KNEW THEY WERE POSSIBLE. THE LIMITATIONS IN THIS SECTION APPLY TO: (I) ANYTHING RELATED TO THE PRODUCTS; AND (II) CLAIMS FOR BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, NEGLIGENCE OR OTHER TORT TO THE EXTENT PERMITTED BY APPLICABLE LAW. IT ALSO APPLIES EVEN IF CUSTOMER IS NOT FULLY COMPENSATED FOR ANY LOSSES, OR INSIGHT KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF DAMAGES.

THE LIMITATIONS DO NOT APPLY TO CLAIMS FOR NON-PAYMENT, FRAUD, BREACH OF CONFIDENTIALITY, THIRD PARTY CLAIMS AND MICROSOFT CLOUD AGREEMENT. EACH PARTY’S LIABILITY FOR LOSS OR DAMAGE OF ANY KIND (INCLUDING LOSS OR DAMAGE CAUSED BY NEGLIGENCE) IS REDUCED TO THE EXTENT THAT THE OTHER’S AGENTS CAUSED OR CONTRIBUTED TO THAT LOSS OR DAMAGE.

(b) When These Exclusions May Not Apply. The provisions of any local law which implies terms into this Agreement will not apply to the extent that local law permits the parties to contract out of the law. However, the limitations and exclusions in this Agreement do not change Customer’s rights if the laws of its state, province or country do not allow. For example, the limitations on liability may not apply to Customer if applicable law does not allow it.

If applicable law gives Customer any implied terms, despite the exclusions and limitations in this Agreement, then to the extent permitted by applicable law, Customer’s remedies are limited to repair or replacement of the Product and if Microsoft cannot repair or replace the Product, Insight will refund the amount Customer paid for it.

10. INTELLECTUAL PROPERTY.

(a) Use of Marks. The Agreement does not grant either party any right, title, interest, or license in or to any of the other party's Marks.

(b) Proprietary Notices. Customer must not remove any copyright, trademark or patent notices from any of the Products. Customer must include Microsoft’s copyright notice on any documentation for the Products, including online documentation. The first time Customer mentions the name of Microsoft’s Products in communications, it must use the appropriate trademark, Product descriptor and trademark symbol (either “™” or “®”), and clearly indicate Microsoft’s (or Microsoft’s suppliers’) ownership of the trademark(s).

(c) Unsolicited Commercial Email. Neither party may use the other party's Marks in connection with the transmission or distribution of unsolicited commercial email. Neither party may use the other party’s Marks in any manner that would violate applicable law or local custom, or conflict with Microsoft’s policies.

11. RESERVATION OF RIGHTS.

At any time during the term of this Agreement, Microsoft may terminate any Customer's status as a Customer in accordance with the terms under the Microsoft Cloud Agreement. Customer will be promptly notified of such termination. Following such a notice, no further Customer orders will be accepted. Termination will not affect Insight’s right to invoice the Customer or Customer’s obligation to pay for Products ordered before such termination. If Microsoft terminates the Customer’s status as a Customer, Customer will not have any claim against Insight resulting from the termination.

12. GOVERNMENT RESTRICTIONS.

(a) Export Restrictions. Microsoft Products are subject to U.S. export jurisdiction. All parties 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 by U.S. and other governments. For additional information related to Microsoft compliance with export rules, see www.microsoft.com/exporting.

(b) Government Approvals. Customer may import or export and provide the Products in or to a country or Territory only if allowed by, and in compliance with, all applicable laws and regulations of the country or Territory, as well as this Agreement.

13. TAXATION.

All amounts the Customer must pay under this Agreement do not include any taxes. Customer must pay taxes imposed on or with respect to its activities in connection with this Agreement, if any, and Insight and or Microsoft will have no responsibility for the payments. Customer must pay or reimburse Insight for all taxes which are permitted to be collected by Insight under applicable law. Customer may provide a valid exemption certificate in which case Customer will not be charged the taxes covered by such certificate, and further Insight and or Microsoft will be under no obligation to apply credits for any periods for which Customer had not timely submitted a valid exemption certificate. If Customer is located in a jurisdiction that utilizes the VAT numbers for tax identification purpose, it will provide Insight with its VAT number together with its address details.

If income taxes are required to be withheld by any government on payments to Microsoft or Insight, Customer may deduct such taxes from the amount owed and pay them to the appropriate taxing authority; provided however, that Customer promptly secures and delivers an official receipt for those withholdings and other documents reasonably requested to claim a foreign tax credit or refund. Customer will ensure that any taxes withheld are minimized to the extent possible under applicable law. Customer remains obligated to pay Insight for the amount of tax withheld until Customer provides to Insight the official receipt and other documents reasonably requested.

The withholding taxes referred to in this section apply to withholding taxes required by the taxing authorities on payments to Insight only and do not include any withholding taxes suffered by Customer for payments made to Customer by its customers. Those withholding taxes will be Customer’s financial responsibility.

This tax section shall govern the treatment of all taxes arising as a result of or in connection with this Agreement notwithstanding any other section or any other document included in this Agreement.

14. NO UNAUTHORIZED SPECIAL OFFERS; NO SIDE AGREEMENTS.

Only the Insight entity that enters into this Agreement can agree with Customer to amend the Agreement. Neither Customer nor Insight will enter into any Side Agreement. “Side Agreement” means any arrangement between Insight and Customer, written or oral, that purports to modify the Agreement and is not signed, or otherwise agreed to, by the Insight entity that signed this Agreement. Side Agreements do not include Microsoft offers of rebates, promotions, discounts or extensions of payment terms (collectively, “Special Offers”) when the Special Offer is made pursuant to a separate written agreement generally available to Microsoft’s partners.

15. FINANCIAL INTEGRITY AND ACCOUNTING.

Customer will not provide false, misleading or inaccurate financial information to Insight or Microsoft. Customer must ensure that all orders, and the Agreement or any other documents it submits are complete and accurate.

16. GENERAL

(a) Entire Agreement. This Agreement is Insight’s entire agreement relating to Customer’s purchase of the Products under the Microsoft Cloud Solution Provider Program. It supersedes any prior or contemporaneous communications. This Agreement can be changed only if both parties who entered into this Agreement sign an amendment.

(b) Notices. All notices and requests required or permitted under this Agreement shall be in writing. Any notice or request provided for by this Agreement shall be given either by personal delivery; facsimile transmission; certified mail, return receipt requested; or recognized overnight express courier service. Notice or request shall be deemed to be effective:

(i) when it is given, in the case of notice or request by personal delivery or by facsimile transmission (provided that in the case of notice by facsimile transmission delivery is electronically confirmed by the sender's telecopier);

(ii) three days after deposit in the mail, in the case of notice or request by certified mail, return receipt requested; and

(iii) one day after delivery to the courier service, in the case of notice or request by recognized overnight express courier service.

You must send notices to the registered office address. Legal notices to Insight must be sent with a separate copy addressed to:

Insight
2701 E. Insight Way
Chandler, AZ 85286
Attn: Legal Department

A party may change its address for notification purposes by giving written notice of such change to the other party. Notwithstanding the foregoing, communications in the ordinary course of business (which do not include any notices related to payment, any dispute under or alleged breach of this Agreement, any effort to enforce the terms of this Agreement, or any notice regarding termination or modification of this Agreement or the Products) may be sent via email to the appropriate contact.

(c) Assignment. Customer may not assign or transfer this Agreement or its rights or obligations under it, whether by contract or by operation of law (such as merger or sale of Customer’s stock). Customer will provide Insight with no less than 30 days’ notice of any requested assignment and Insight’s consent will not be unreasonably withheld.

(d) Confidentiality. The following terms and conditions apply to exchanges of information under this Agreement.

(i) “Confidential information” means: (a) nonpublic information that Insight, Customer, or an Affiliate designates as being confidential; or (b) nonpublic information which, given the nature of the disclosure or the circumstances surrounding disclosure, the receiving party should treat as confidential, including but not limited to Customer Data. Customer Agreements are Confidential Information provided Customer: (1) has a need to know such Confidential Information in order fulfill the purposes of this Agreement; and (2) accepts that all such Confidential Information is to be handled in strict confidence

(ii) Generally, The Parties must not disclose any confidential information of the other for five years following the date of disclosure. However, there is no time limit on disclosure of confidential information that contains personal information (such as Customer contact information). The receiving party will not be liable for disclosure of information which: (a) it already knew without an obligation to maintain the information as confidential; (b) it received from a third party without breach of an obligation of confidentiality owed to the other party; (c) it independently developed; or (d) becomes publicly known through no wrongful act of the receiving party.

(iii) However, confidential information may be disclosed as required by a judicial or other governmental order, if the receiving party either: (a) gives reasonable notice of the order to allow the other party a reasonable opportunity to seek a protective order or otherwise prevent or restrict its disclosure; or (b) obtains written assurance from the entity issuing the order that it will protect the confidential information to the maximum level allowed under applicable law or regulation.

(e) Relationship Between Insight and Customer. Customer and Insight are independent contractors for all purposes regarding this Agreement. Insight and Customer are not a partnership (as the term is used in applicable partnership laws to refer to a legal partnership entity) or joint venture. Customer and Insight do not have any agency, franchise or fiduciary relationship.

(f) Waiver. No waiver of any breach of this Agreement shall be a waiver of any other breach, and any waiver must be in writing and signed by an authorized representative of the waiving party.

(g) No Representations. Insight has not made any representation to Customer about any Products other than as specifically stated in this Agreement. Customer has relied on its own skill and judgment (or that of its advisers) in deciding to enter into this Agreement. However, neither party limits or excludes liability for fraudulent misrepresentations.

17. APPLICABLE LAW; ATTORNEYS’ FEES.

This Agreement is governed by and interpreted in accordance with the laws of the State of Arizona. The parties consent to the exclusive jurisdiction and venue in courts sitting in Maricopa County, Arizona.

This choice of jurisdiction and venue does not prevent either party from seeking injunctive relief for:

(i) violation of intellectual property rights;

(ii) breach of confidentiality obligations; or

(iii) enforcement or recognition of any award or order in any appropriate jurisdiction.

If either party begins litigation in connection with this Agreement, the substantially prevailing party will be entitled to recover its reasonable attorneys’ fees, costs and other expenses. The 1980 United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement.

Notwithstanding the foregoing, if Customer is a Federal Agency, federal law will apply; if Customer is a State/Local Entity, (i) the terms of this Agreement will be governed by the laws of Customer’s state and (ii) disputes relating to this Agreement will be subject to the dispute resolution laws of Customer’s state without giving effect to its conflict-of-laws principles.

18. GOVERNMENT COMMUNITY CLOUD.

(a) Community requirements. Customer certifies that it is a member of the Community and agrees to use Government Community Cloud Services solely in its capacity as a member of the Community. Use of Government Community Cloud Services by an entity that is not a member of the Community or to provide services to non-Community members is strictly prohibited and could result in termination of Customer’s license(s) for Government Community Cloud Services.

(i) All terms and conditions applicable to non-Government Community Cloud Services also apply to their corresponding Government Community Cloud Services, except as otherwise noted in the Use Rights.

(ii) Customer may not deploy or use Government Community Cloud Services and corresponding non-Government Community Cloud Services in the same domain.

(iii) Any Customer that uses Government Community Cloud Services must maintain its status as a member of the Community. Maintaining status as a member of the Community is a material requirement for such services.

(b) Use Rights for Government Community Cloud Services. For Government Community Cloud Services, notwithstanding anything to the contrary in the Use Rights:

(i) Government Community Cloud Services will be offered only within the United States.

(ii) Additional European Terms, as set forth in the Use Rights, will not apply.

(iii) References to geographic areas in the Use Rights with respect to the location of Customer Data at rest, as set forth in the Use Rights, refer only to the United States.

(d) All terms and conditions applicable to non-Government Community Cloud Services also apply to their corresponding Government Community Cloud Services, except as otherwise noted herein.

(e) Customer may not deploy or use Government Community Cloud Services and corresponding non- Government Community Cloud Services in the same domain. Additionally, Office 365 US Government may not be deployed or used in the same domain as other Government Community Cloud Services

(f) Notwithstanding the Data Processing Terms section of the Online Services Terms, Office 365 GCC High and Azure Government Services are not subject to the same control standards and frameworks as the Microsoft Azure Core Services. The Compliance Trust Center Page describes the control standards and frameworks with which Office 365 GCC High and Azure Government Services comply.

(g) Operational and Ordering Consideration for Office 365 GCC High:

(i) Customer (a) acknowledges that its Tenant administrator console (when available) will appear to include more licenses than it has ordered and is entitled to; and (ii) agrees that it must order licenses for every User account it assigns. Notwithstanding anything to the contrary in the order and Product Terms, Licenses will be deemed “Reserved” for each user (and thereby subject to a True-Up Order requirement in accordance with the terms and conditions of the order), as of the day that User's account is reserved, unless a License for each such User is ordered in advance. Customer is solely responsible for keeping accurate records of the month each User is assigned to a User account, and will provide such records to Microsoft with its True-Up orders.

(ii) Customer acknowledges that (a) availability of its Office 365 GCC High tenant may follow several weeks after its initial order, and (a) the service components provided pursuant to its orders for “Suite” SKUs such as E1 and E3, as listed in the Office 365 GCC High, may differ from those components available in similar suites available in other forms of Office 365 Services.

(iii) The parties acknowledge that, as of the date this Agreement was executed, the Office 365 ProPlus “click-to-run” (C2R) feature is not yet available in Office 365 GCC High, notwithstanding anything to the contrary in the Use Rights. Accordingly, the following terms and conditions shall apply:

Until C2R functionality is made available, Customer may install up to two (2) local copies of Office Professional Plus for each User to whom E3 licenses are assigned, for the sole use of those assigned Users on Qualified Devices in Customer’s Enterprise.

Once C2R functionality is made available (the “C2R release date,” to be announced in the Office 365 Service Descriptions), Customer must cease installing additional local copies of Office Professional Plus, and shall as soon as practicable (but in no event later than 12 months following the C2R release date) replace each local copy that was installed pursuant to the preceding paragraph with a C2R-installed copy.

19. ITAR COVERED SERVICES.

Microsoft’s representations as it relates to its ITAR Covered Services’ compliance with the ITAR are subject to the terms included as Section 9 of the Microsoft Cloud Agreement attached hereto as Exhibit A. Microsoft’s obligations and responsibilities with respect to ITAR Covered Services and compliance with the ITAR only apply if Customer provides express notice to Microsoft of Customer’s intent to manage ITAR controlled data in the Customer Data during the eligibility validation phase of the online application process.

EXHIBIT A

Microsoft Customer Agreement
US Government Community Cloud

BY EXECUTING THIS AGREEMENT, CUSTOMER ACKNOWLEDGES AND CERTIFIES THAT IT HAS READ, ACCEPTS AND WILL AT ALL TIMES COMPLY WITH MICROSOFT’S CUSTOMER AGREEMENT. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR PERIODICALLY REVIEWING DESIGNATED URLS OR SUCCESSOR URLS OF MICROSOFT TO UNDERSTAND AND PERFORM IN ACCORDANCE WITH SUCH AMENDED OR OTHERWISE UPDATED VENDOR TERMS.

The Microsoft Customer Agreement is available from Customer’s tenant accessed through the Microsoft Online Services Portal;
OR
Client accepts the current applicable regional version of the Microsoft Customer Agreement available under the link below. Microsoft reserves the right to update the Microsoft Customer Agreement.
https://www.microsoft.com/licensing/docs/customeragreement

EXHIBIT B

Service Level Agreement
(ONLINE Services AND AZURE SERVICES)

The provisions of this Exhibit B (or as otherwise provided by Microsoft), specify the performance and quality commitments offered by the Microsoft to Client:

1. The Service Level Agreement for Microsoft Online Services can be found at:
https://www.microsoft.com/en-us/licensing/product-licensing/products.aspx

The terms and conditions located at the above-referenced URLs establish a direct agreement between Client and Vendor.

EXHIBIT C
Support Definitions and SLAs

Support for Modern Workplace (Office 365/Microsoft 365)

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Insight’s support role is to provide the following activities related to Office 365 and Microsoft 365:

• Troubleshoot and provide technical guidance for customer issues and escalations to Microsoft when necessary.
• Gather and validate information related to specific service requests.
• Provide issue coordination and resolution management.
• Maintain communication with the customer administrator to help ensure that issues are addressed on an ongoing basis.

Insight maintains a Premier Support Agreement with Microsoft and will escalate Office 365 issues through our support tiers as necessary. Resolution times are dependent on Microsoft for Office 365 incidents and outages. Insight adheres to Office 365 support escalations with Microsoft’s severity levels. Severity levels are assigned to a case when it is opened, based on an assessment of the issue type and customer impact.

Technical Support Initial Targeted Response Times

The following outlines the call management process used:

1. Insight’s Service Desk shall receive an incoming request via the toll-free number, self-serve support tool or email and log the information into the ticketing system.
2. Customer shall be directed, as appropriate, to a technical specialist who will coordinate Customer request, problem determination, attempt resolution, perform root cause analysis, track calls to closure.
3. Insight support representative will assign a priority level to each reported request or problem based upon information provided by Customer (reference table below).
4. Incident information will be updated in the Insight ticketing system and available on-line via customer portal.

 

Insight Packaged CSP Offers for Modern Workplace

The above Technical Support Initial Response Times apply to your Cloud Care Agreement in addition to the below features per the Packaged Offer as stated on your Client Facing Agreement. *Unless otherwise stated, if there is no defined Packaged Offer on Client Facing Agreement, Client falls under Essentials.

Insight Support for Azure

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Insight maintains a Premier Support Agreement with Microsoft and will escalate Azure issues through their support tiers as necessary. Resolution times are dependent on Microsoft for Azure incidents and outages. Insight adheres to Azure support escalations with Microsoft’s severity levels. Severity levels are assigned to a case when it is opened, based on an assessment of the issue type and customer impact.

Technical Support Initial Targeted Response Times
The following outlines the call management process used:

1. Insight’s Service Desk shall receive an incoming request via the toll-free number or support web site and log the information into the ticketing system.
2. Customer shall be directed, as appropriate, to a technical specialist who will coordinate Customer request, problem determination, attempt resolution, perform root cause analysis, track calls to closure.
3. Insight support representative will assign a priority level to each reported request or problem based upon information provided by Customer (reference table below).
4. Incident information will be updated in the Insight ticketing system and available on-line via customer portal.

Support Scope

Included:

• Break/Fix for Office 365, Microsoft 365, and Azure Issues
• How-To for Office 365, Microsoft 365, and Azure Administration
• Office 365 ProPlus Issues on Supported Desktop OS (Windows 7 and newer)
  • Licensing
  • Inoperable features
• Migration Support (if included with License purchased from Insight)
• Billing Support

Per-Case Basis:

• Break/Fix for On-Premises Hybrid Servers
  • Active Directory
  • Exchange
  • Skype – Configured with Hybrid
• How-To for On-Premises Hybrid Servers
• Configuration Changes for Office 365 and Azure
• Provide change management support for policy or configuration changes within the supported Microsoft Office 365 Cloud-based services.

Not Included:

• Break/Fix for On-Premises Only Servers
• Break/Fix for On-Premises Networking/ Bandwidth
• Configuration Changes for On-Premises Only Servers
  • On-premise deployed applications such as MS Exchange, SharePoint, or Skype for Business
• Non-Microsoft Cloud Services (SAP, Salesforce, Dropbox, etc.)
  • Includes in-house Applications or 3rd Party Applications
• Day-to-day Admin (Add, Remove, Change Users, Licenses, etc.) unless Client is under 500 seats.
• Migration Support (if NOT included with License purchased from Insight).
• Support for Non-Global Administrators in the Office 365 Tenant
• Designing SharePoint sites
• End User training
• Large and complex change requests (will be deemed project work; scoped and invoiced separately)
• Non-automated patch management
• Operating system version upgrades
• Insight will provide support only for Microsoft Office 365 and Microsoft 365 applications that have already been deployed and End Users that have already been migrated to these applications. Support for large-scale migrations/deployments is deemed out of scope.

Support Contacts

Insight's telephone number and e-mail address in connection with customer support provided under this Exhibit are as follows:

By Phone: 1-800-535-1506
By E-mail: CSP.Support@Insight.com