SBS Group Cloud Marketplace Terms and Conditions

By acknowledging acceptance below, you are agreeing to the following terms and conditions. "Client", "you", and "your(s)" refer to you as your organization's representative and your organization if any.  "SBS", "us", or "we" refers to Signature Business Systems Consulting, Inc. DBA SBS Group.

1. Definitions

You have a need for ongoing Microsoft cloud services and subscriptions..  This agreement includes the following definitions:

"Authorized Users" shall mean those persons designated by you in writing to the Company who shall have access to Client's Software on the Servers.

"Client's Software" shall mean software other than System Software which you have purchased prior to or as part of this SOW and which you have licensed directly from the publisher of such software.

"Data Center" shall mean a facility provided by us or our cloud partner to house the Servers.

"Designated Location" shall mean any office location where you operates your business.

"Liaison Officer" shall mean the person you designate to (a) act as the exclusive liaison between both of us; (b) have overall responsibility for directing and coordinating all of your activities hereunder, and shall be vested with all necessary authority to fulfill that responsibility; and (c) provide guidance to us on issues that relate to your organizational structure.

"Marketplace" shall mean SBS Group's Stratos Cloud Marketplace found at https://shop.sbsgroupusa.com.

"Servers" are collectively the shared computer equipment, operating system, and System Software required to support your Authorized Users according to the terms and conditions of this agreement.

"Services" are collectively the services to be provided by SBS Group to you hereunder, which are specified in the appendices to this SOW, as such appendices may be modified from time to time by agreement of the parties.

"Stratos Order" shall mean an electronic order placed through the Marketplace's electronic ordering capabilities.

"System Software" shall mean software provided to you under a subscription license agreement by SBS Group or our cloud partner to operate the Servers.

"Support Services" shall mean collectively the services set forth in Section 2.

"Term" shall means the duration of the subscription and the period set forth in Section 6.

"Unauthorized User" shall mean any person who is not an Authorized User.

"Microsoft Cloud Agreement" means the agreement and its provisions attached as Exhibit F to this agreement.

2. Our Responsibilities

We shall provide the Services to the Client. We shall use our own personnel and/or contractors retained by us, and at our expense, to support and maintain the operating environment for Client's Software, at our Data Center for Client's day-to-day business use.  We reserve the right at our discretion to rely on a cloud partner to provide the Data Center and other IT infrastructure services and obligations described in this agreement.

2.1. Availability

We will make the Services available subject to the terms Exhibit F - Microsoft Cloud Agreement.

2.2. Basic Application Support

We agree to maintain appropriate application experts available to you to provide the support services described in Exhibit C.  Support activities in excess of the services described on Exhibit C is not included in the negotiated monthly fee, but is available under a separate Statement of Work. 

2.3. Backup/Disaster Recovery

We will provide backup and disaster recovery services as detailed in Exhibit F - the Microsoft Cloud Agreement.

You acknowledge that in the event of a force majeure event described in the Agreement, the Services will be unavailable until repairs and/or replacements can be made. Client further acknowledges that the Services may be unavailable for an extended period of time. IN NO EVENT SHALL WE OR OUR CLOUD PARTNER BE LIABLE FOR ANY CLAIMS FOR SERVICE DISRUPTIONS RESULTING FROM A SYSTEM FAILURE AND/OR RECOVERY OF THE COMPANY DATA CENTER, INCLUDING, BUT NOT LIMITED TO LOSS OF YOUR BUSINESS INCOME CAUSED BY A FORCE MAJUERE EVENT.

2.4. Security

Security shall be provided for under the terms Exhibit F - the Microsoft Cloud Agreement.

2.5. Anti-Virus and Anti-Spyware Protection

Unless specified, we are not providing any anti-virus or anti-spyware protection beyond what is provided by Exhibit F - the Microsoft Cloud Agreement.  You agree to maintain and keep current commercially available Anti-Virus and Anti-Spyware software for all of your computer workstations and/or servers that are not managed by SBS Group and have network access to the services provided for under this agreement.  Failure to maintain and keep current such Anti-Virus and Anti-Spyware software may result in the termination of access to the Services until acceptable protection is made current. We may provide you, at an additional cost, centrally administered Anti-Virus and Anti-Spyware software for the protection of all of your Microsoft Windows based computers.

3. Your Responsibilities

3.1. Organization Responsibilities

You agree to be responsible for designating a single Liaison Officer. You shall promptly notify us in writing of any successor or replacement Liaison Officer.

3.2. Computing Environment – Client's Designated Location(s)

You agree to be responsible for (i) the proper licensing, use, and operation of your hardware, third party software and your Software; (ii) implementing and maintaining security policies and procedures consistent with applicable laws and regulations including but not limited to, the implementation of industry standard firewall protection for Internet connections and active and current protection against viruses, spyware, and appropriate user security authentication; (iii) providing SBS Group personnel with the necessary physical access to the Designated Location, during normal working hours to allow us to perform our obligations under thisSOW; (iv) providing remote access to appropriate hardware and third party components at your Designated Location(s) for purposes of us performing any services or audits under this Agreement; and (v) informing us of any legal or regulatory requirements of your business that may affect our performance of our obligations hereunder. You will be responsible for all long distance, toll and line charges associated with such remote access; and procuring and maintaining all device drivers, third party operating systems and other products and services that may be required to operate Client's Software or your hardware.

3.3. Data and Reports

You agree to be responsible for (i) all data entry; (ii) the quality, reliability, accuracy, timeliness, and completeness of all data that you or any Authorized User causes to be entered into Client's Software; (iii) validating the information presented on any reports produced by the System Software and/or Client's Software; (iv) any decisions made by you or any Authorized User based on any of the data or reports produced using your data, and the results of such decisions; (v) providing related data and explaining internal procedures and legal requirements in writing to us; (vi) providing such record layouts, data, or other information as requested by us to fulfillour responsibilities under this SOW; (vii) results obtained from use and operation of Client's Software, provided however nothing contained in this subsection shall affect the limited warranty contained in the Agreement;and (viii) determining the recommended conversion approach for your Designated Location and procuring the necessary resources to unload the data from the relevant existing system; (ix) any disclosures by yourofficers, employees, agents and Authorized Users of data maintained on your Server; and (x) any further requirements under applicable federal, state or local laws or regulations.

3.4. Equipment and Software

You shall be responsible for procuring at your expense all equipment, software, network and internet access, and taking all actions at your Designated Location necessary for it to: (i) access Client's Software; (ii) access the Data Center; (iii) provide to us all information required by this SOW to permit us to perform our obligations under this SOW; and (iv) ensure such level of security and privacy as may be required by us from time to time in connection with the provision of Services hereunder.  As part of your obligation to provide such equipment, software, and network and Internet access, your are responsible for ensuring that all of your personal computers, workstations and servers to be used to interface with or use information from Client's Software are properly configured, including but not limited to the base PC operating system, web browser and network and internet connectivity.

3.5. Network

You are responsible for the equipment, installation and monthly costs of your network and internet connection to our Data Center. We may recommend the ordering and implementation of any communication lines required to connect the Designated Location to the Data Center, and may recommend hardware (i.e. routers, hubs, switches) which you may need to purchase to effect such connectivity. The costs associated with such connectivity (installation and monthly charges) and hardware will be solely your responsibility.

3.6. Identification of Authorized Users

You control access by Authorized Users and shall maintain a list of those Authorized Users via our management portal or through a portal provided by the publisher of the services you have contracted for. You agree that anyone you identify as an Authorized User shall comply with all applicable disclosure rules. You shall promptly update such list whenever an Authorized User is added or removed.  If you, at any time, desire to terminate any Authorized User's access to the Servers and Client's Software (in connection with termination of employment of the Authorized User or otherwise) then you shall promptly notify us in writing of such termination of access, and we shall terminate such Authorized User's access to the Servers and Client's Software within 24 hours of the date we receive such written notice. You shall utilize the number of users stated in your order as the minimum required number for the entire period of this contract as a minimum user level.  The user minimum may not be reduced without prior approval by SBS Group.

3.7. Responsibilities for Authorized Users and Unauthorized Users

You shall be responsible for all acts and omissions of: (i) Authorized Users, and (ii) all Unauthorized Users who access the Data Center by use of any password, identifier or log-on received or obtained, lawfully or unlawfully, from you or any Authorized User, with respect to the Servers and Client's Software.  All such acts and omissions shall be deemed to be your acts and omissions.

3.8. Data from External Sources and Data Conversions

You agree to be responsible for reviewing, confirming and validating all data, reports, and/or generated forms (collectively, "Outputs") that may be generated by Client's Software or data loaded into your database which does not originate from the application, including data conversions provided by us or data received from external sources (collectively "Inputs"), and will notify us immediately if errors are found.  We shall not be obligated to review any of the Outputs generated by Client's Software, and in no event shall we be responsible or liable for inaccurate or incomplete Inputs or Outputs. You shall comply with all local, state, and federal laws pertaining to the use and disclosure of any data.

4. Service Levels

4.1. Uptime and System Availability

The commitments we make regarding delivery and or performance of the Microsoft Cloud Services is contained in the Service Level Agreement (SLA) detailed in Exhibit F - the Microsoft Cloud Agreement.

5. Completion Criteria

SBS Group will have fulfilled its obligations under this SOW when any one of the following first occurs:

5.1.   Either of us terminates the project in accordance with the provisions of the Agreement, or

5.2.   The End Date is reached, or extended in any subsequent Change Authorization.

6. Charges

Charges for the Services provided will be invoiced as described below. The Services are described in greater detail in Section 2 Our Responsibilities:

6.1.   Our fees are detailed in the order you submitted.

6.2.   The Term of your order will be as designated in the specific services and offers you select. Unless otherwise notes, your order will automatically renew for successive terms of one year unless either party provides the other with ninety (90) days written notice prior to the automatic renewal date.

6.3.    We will invoice our charges to you monthly, based on the actual charges incurred unless both of us agree to other arrangements in writing.  Your payment is due by the 10th of each month unless otherwise stated. Each month during the Term, You will pay us (by ACH, wire transfer or other method providing immediately available funds and reasonably acceptable to the Company) for the Cloud Fees, Support Service Fees, and other monthly fees detailed in Exhibit B.  In addition, we will invoice you for any other consulting services, if any.

6.4.   We reserve the right to charge additional service fees if regulatory and/or other third party entities effect a change that impacts your use of the Services. During the Term, we may increase the fees specified in the Appendix upon ninety (90) days prior written notice.

6.5.   Any amounts disputed in good faith may be deducted from the invoice and the remainder must be paid by the due date.  The disputed amount should be notified in writing to SBS Group within 30 days of receipt of the invoice giving the reasons for withholding payment.  Upon receipt of your dispute notice, SBS Group and you will work together in good faith to resolve such disputes in a prompt and mutually acceptable manner.  You agree to pay any disputed amounts within 10 days once the issues have been resolved.  If any invoice is past due by 10 days or more, SBS Group has the right to disable your user accounts.

6.6.    In addition to our net charges, you agree to reimburse us for all out-of-pocket expenses such as travel, lodging and meals associated with travel, courier charges, long distance telephone charges and other similar expenses.  We will obtain your approval before we incur any such expenses that will result in total reimbursements exceeding five percent of our net charges.

6.7.   Expenses will be invoiced bi-monthly.  Your payment is due on receipt of our invoice.

6.8.   Either party may terminate this contract if there is a material breach by the other party and only if the other party is given written notice of the breach and fails to cure it within 30 days.  Either party may also choose to terminate the Work Order prior to completion of the contract, for any reason, with or without cause, upon ninety (90) days written notice to the other party. At termination, Customer agrees to pay for any outstanding service fees owed up to the date of the termination.  Notwithstanding the foregoing, Client's failure to timely make required payments under this Cloud Supplement on three occasions during a twelve month period shall constitute a material breach for which notice and cure shall not be required.

7. Changes and Deliverables Control

7.1  If a change to this Agreement is required, both parties agree to submit a Change Order (called "CO") as the vehicle for communicating change.  The CO will describe the change, the cost of the change and the effective date of the change.

8. Confidentiality

8.1  SBS agrees that information labeled as confidential by you and all financial, customer, statistical, marketing and personnel data relating to your business, in each case as disclosed to SBS in connection with this Agreement, are your confidential information ("Client Confidential Information").  You agree that information labeled as confidential by SBS and SBS's methodologies, products, tools and proprietary software, training materials, industry templates and data, and any updates, changes and additions to the foregoing, in each case as disclosed to you in connection with this Agreement, are confidential information of SBS ("SBS Confidential Information"). Client Confidential Information and SBS Confidential Information are collectively referred to as "Confidential Information".  Neither party will, without the prior written consent of the other, disclose to any third party any Confidential Information which is received from the other party for the purposes of providing or receiving Services.   Each party agrees that any such Confidential Information received by it from the other may be used by its (and its respective Affiliates') personnel only for the purposes of providing or receiving Services under this or any other contract between the parties.  These restrictions will not apply to any information which (i) Is or becomes generally available to the public other than as a result of a breach of an obligation under this Clause 6; (ii) Is acquired from a third party without an obligation of confidentiality; (iii) Is or has been independently developed by the recipient (or one of its Affiliates) or was known to it or them prior to receipt; or (iv) is generally known or easily ascertainable by non-parties of ordinary skill in computer or process design or programming or in the business of Client. Neither party will be liable to the other for inadvertent or accidental disclosure of Confidential Information if the disclosure occurs notwithstanding the party's exercise of the same level of protection and care that such party customarily uses in safeguarding its own confidential information. Confidential Information disclosed under this Agreement will be subject to this Clause 6 for 2 years following the initial date of disclosure.

8.2  Notwithstanding Clause 6.1 above, each party will be entitled to disclose Confidential Information of the other: (i) to its respective insurers or legal advisors; and (ii) to a third party, to the extent that this is required by any court of competent jurisdiction, by a governmental or regulatory authority, or where there is a legal right, duty or requirement so to disclose, provided that in the case of sub-Clause 6.2 (ii), where reasonably practicable (and without breaching any legal or regulatory requirement) not less than 2 business days' notice in writing is first given to the other party.  Notwithstanding anything to the contrary, SBS may disclose Confidential Information referred to in this Clause 6 to (i) SBS's Affiliates or (ii) a third party as may be necessary for the delivery of the Services, subject to such third party agreeing, in writing, to be bound by similar terms and conditions. SBS may similarly retain the engagement work papers in 'hard copy' or electronic format for SBS's or its Affiliates' internal use. 

9.0 Data Privacy

9.1 In addition to the parties' obligations under this agreement, the following provisions contained at www.sbsgroupusa.com/dataprivacy shall apply in the event that one party makes Personal Data available to the other.

10.0 Liability     

10.1 Limitation - Circumstances may arise where, because of a default on SBS's part or other liability, you are entitled to recover damages from SBS.  Subject to the limitations set forth below, SBS and Client each agree to indemnify, defend and hold the other harmless against any action to the extent that SBS software, third party software or confidential information by the indemnitor or any other party infringes upon the intellectual property rights of any third party.

Regardless of the basis on which you are entitled to claim damages from SBS (including fundamental breach, negligence, misrepresentation, or other contract or tort claim), SBS is liable for no more than:

10.1.1 Payments referred to in the Copyrights clause below.

10.1.2 The amount of any other actual direct damages up to the charges or the amounts paid or due and payable to SBS (if recurring, 12 months' charges apply) under the Statement of Work.

10.2 This limit also applies to any of SBS's subcontractors and Affiliates.  It is the maximum for which SBS, its Affiliates, and its subcontractors are collectively responsible.

10.3 Items for Which SBS Is Not Liable - Under no circumstances are SBS, its Affiliates, or its subcontractors liable for any of the following, even if informed of their possibility:

1.  Loss of or damage to data. 
2.  Special, incidental, or indirect damages or for any economic consequential damages; or 
3.  Lost profits, business revenue, goodwill, or anticipated savings.

11.0 General

11.1 Subcontracting – SBS may subcontract any part of the Services to one or more subcontractors selected by SBS.   Any reference to SBS's personnel in this Agreement includes SBS's agents and subcontractor staff.

11.2 Affiliates – In this Agreement, "Affiliate" means an authorized member of the SBS Group Partner Network.

11.3 Force Majeure – Neither party will be liable to the other for any failure to fulfill obligations caused by circumstances outside its reasonable control.  This clause does not apply to any of your obligations to pay charges for services provided. 

11.4 Assignment – Neither party may assign, transfer, charge or otherwise seek to deal in any of its respective rights or obligations under this Agreement without the prior written consent of the other party, except that SBS may, without consent, assign or transfer its rights and obligations to (i) a person or persons whose identity SBS may provide to you in writing, to whom all or part of its business is transferred; or (ii) an Affiliate. SBS is also permitted to assign its rights to receive payments under this Agreement without obtaining your consent. References in this Agreement (including without limitation in Clause 8) to a "party" or the "parties" will include their respective assignees and transferees under this Clause 10.4, unless the context reasonably requires otherwise.

11.5 Waiver – Subject to Clause 11.9, no delay by either party in enforcing any of the terms or conditions of this Agreement will affect or restrict such party's rights and powers arising under this Agreement.   No waiver of any term or condition of this Agreement will be effective unless made in writing.

11.6 Notices – Notices must be in writing and served either personally, sent by prepaid registered mail or faxed to the address of the other party given in this Agreement or to any other address as the relevant party may have notified to the other during the period of this Agreement.   Any notice sent by mail will be deemed to have been delivered 48 hours after sending.  Any notice sent by fax or served personally will be deemed to have been delivered on the first working day following its delivery. 

11.7 Electronic Communications – To the extent permitted under applicable law, each of us may communicate with the other by electronic means and such communication is acceptable as a signed writing. 

11.8 Amendment – Any amendment to this Agreement will not be effective unless agreed in writing and signed by both parties. Additional or different terms in any written communication from you (such as an order) are void.

11.9 Survival and Validity of Agreement Provisions – The provisions of this Agreement which expressly or by implication are intended to survive its termination or expiration will survive and continue to bind both parties. If any provision of this Agreement is held to be invalid, in whole or in part, such provision (or relevant part, as the case may be) shall be deemed not to form part of this Agreement.    In any event, the enforceability of the remainder of this Agreement will not be affected.  Neither party will bring a legal action arising out of or related to this Agreement more than two years after the cause of action arose.

11.10 Working for Other Clients – SBS and its Affiliates will not be prevented or restricted by anything in this Agreement from providing services for other clients.

11.11 Relationship of Parties - SBS is an independent contractor, and is responsible for the payment of all employer contributions and taxes measured by the remuneration paid to SBS employees as required by all applicable federal, provincial and local laws.  You are responsible for the results obtained from the use of the services.

11.12 Copyrights 

11.12.1 If a third party claims that Deliverable Materials SBS provides to you infringe that party's copyright, SBS will defend you against that claim at its expense and pay all costs, damages, and attorney's fees that a court finally awards or that are included in a settlement approved by SBS, provided that you:

i. Promptly notify SBS in writing of the claim; and
ii. Allow SBS to control, and cooperate with SBS in, the defense and any related settlement negotiations.

11.12.2 Remedies - If such a claim is made or appears likely to be made, you agree to permit SBS to enable you to continue to use the Deliverable Materials, or to modify them, or replace them with Deliverable Materials that are at least functionally equivalent.  If SBS determines that none of these alternatives is reasonably available, you agree to return the Deliverable Materials to SBS on SBS's written request.  SBS will then give you a credit equal to the amount you paid SBS for the creation of the Deliverable Materials. 

This is SBS's entire obligation to you regarding any claim of infringement.

11.12.3 Claims for Which SBS is Not Responsible -

SBS has no obligation regarding any claim based on any of the following:

i.                 anything you provide which is incorporated into the Deliverable Materials or SBS's compliance with any designs, specifications, or instructions provided by you or by a third party on your behalf;

ii.                Your modification of Deliverable Materials; or

iii.               The combination, operation, or use of the Deliverable Materials with any product, data, apparatus, or business method that SBS did not provide, or the distribution, operation or use of the Deliverable Materials for the benefit of a third party (excluding your Affiliates).

11.13 Third Party Claims - You agree that this Agreement will not create any right or cause of action for any third party, nor will SBS be responsible for any third party claims against you except as described in the Copyrights clause above or as permitted by the Liability clause above for bodily injury (including death) or damage to real or tangible personal property for which SBS is legally liable.

11.14 Business Contact Information - You agree to allow SBS and its Affiliates to store and use your business contact information, including names, business phone numbers, and business e-mail addresses, anywhere they do business.  Such information will be processed and used in connection with our business relationship, and may be provided to contractors acting on SBS's behalf, SBS business partners, who promote, market and support certain SBS products and services, and assignees of SBS and its Affiliates for uses consistent with our business relationship. 

11.15 Entire Agreement - This Agreement, including any attachment, invoice, or referenced document, forms the entire agreement between you and SBS relating to the Services. It replaces and supersedes any previous proposal, correspondence, understanding or other communication, whether written or oral.  Neither party is liable to the other, in equity nor otherwise, for any representation that is not set out in this Agreement. Each party acknowledges that it has not relied on or been induced to enter into this Agreement by a representation other than those expressly set out in this Agreement.  The headings and titles in this Agreement are included to make it easier to read, but do not form part of this Agreement.

11.16 Agreement not to recruit – You agree not to recruit or hire any individual of SBS who are or have been assigned to perform work until two (2) years after the completion of the engagement(s) in effect between the us. If this condition is breached, you agree to compensate SBS with a sum equal to four (4) times the average monthly compensation received by such individual from SBS during the last six (6) months which the individual was engaged by SBS.

12. Warranties

SBS warrants that it performs each of the Services using reasonable care and skill and according to its current description (including completion criteria) contained in the SOW.    THESE WARRANTIES ARE YOUR EXCLUSIVE WARRANTIES AND REPLACE ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OR CONDITION OF NON-INFRINGEMENT.

SBS does not warrant uninterrupted or error-free operation of a Product or Service or that SBS will correct any or all defects.

13. Geographic Scope, Governing Law and Dispute Resolution

13.1 Geographic Scope - The rights, duties, and obligations of each of us are valid in the United States, except where all licenses are valid as specifically granted.

13.2 Applicable Law - Both you and SBS consent to the application of the laws of the United States and the state of New Jersey to govern, interpret, and enforce all of your and SBS's rights, duties, and obligations arising from, or relating in any manner to, the subject matter of this Agreement without regard for conflict of law principles.

13.3 Resolving Disputes - Should any dispute arise between you and SBS, the parties will attempt to resolve the dispute in good faith by negotiations.  Unresolved disputes, the parties agree to resolve such disputes through arbitration by a single arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association (AAA) then in effect, and judgment upon the award entered by the arbitrator may be entered in any court having jurisdiction. Any such arbitration will be conducted in the city nearest SBS' main US office having an AAA Regional Office. The prevailing party shall be entitled to receive from the other party its attorney's fees and costs incurred in connection with any action, proceeding or arbitration hereunder.

 

Appendix C "Application Support Services"

Microsoft Cloud Application Support

Scope of Customer Care - Services

You may submit an unlimited number of support requests for the following services. These are offered in support of the Microsoft Cloud products/services identified in your order. The examples provided under each of the following headings are intended to provide a list of reference activities for each heading.  The lists are not meant to be all inclusive.

Processing Issue (break/fix)

This service ensures that we are responding to issues that arise during the normal course of business.  Examples include but are not limited to the following topics:

a)      An error message is appearing in a window and the user cannot determine the root cause.

b)      A user cannot log in or lacks the appropriate security to complete a process.

c)      A user enters data and cannot save the data, or "saved" data appears to be missing.

d)      A print job or a workflow will not execute.

 "How Do I…"

We will work with your users to answer generic, "out of the box" functional questions.  Our goal is to assist your users with functional questions that will allow them to take advantage of inherent functionality within the application.  Please note this is not meant to be "User Training", nor is it meant to be "process engineering". 

Out of Scope Services

We offer Project based professional services for your organization's needs that are in excess of the scope of this agreement.  In general, any services deemed to be too complex, risky or lengthy will be defined and performed under a separate Statement of Work.  Important Note - Professional Services required or requested outside the scope of this agreement may not be exchanged for services within this agreement.

1.      Upgrades - All upgrades are performed as a separate project.

2.      Enhancements - Any enhancements to the system (e.g. screen or report changes, making fields required, building a workflow, creating an import/export routine, etc.).

3.      Integrations - Any new integration that needs to be created requires design, build and test time, thereby resulting in an effort that is outside the scope of Customer Care.

4.      User Training - Any user training in excess of the "How do I" described above.

5.      New Module or ISV Implementation - The process required to select, configure, train and implement any new module or ISV (e.g. Fixed Assets).

6.      Changes to Integrations not Built by SBS Group - Any integration that has not been designed, developed and tested by SBS Group will be supported by our Professional Services team on a "best effort" basis.  Please note that situations may arise where documentation for the existing integration does not exist, and some level of documentation may need to be created prior to making the change.

7.      Resolving user generated data problems - Situations arise where a user has inadvertently affected data integrity or quality and remediation efforts need to take place.  Often times the situation can only be resolved by running a Microsoft Dynamics utility, importing historical data, performing manual data entry, or by updating records via direct table changes in SQL.  All of these remediation activities are beyond the scope of this agreement.  The only exception is the "Data Restore from a Recent Backup" scenario listed in the "In Scope" section of this agreement.

8.      Self-Upgrades - Remediation or system failures due to the client performing a self-upgrade, service pack or hot fix.

9.      Disaster Recovery Services – includes any data restoration activities.

10.   Workstation Installations

 

Support Hours, Mechanisms and Response

Our standard support hours are 8 AM to 8 PM Eastern Time, Monday through Friday, excluding SBS Group Holidays. Support requests received after-hours, on weekends or on SBS Group recognized holidays will be responded to on the next business day.

Support Request Mechanisms

We provide the following mechanisms for contacting Stratos Support to initiate a request:

1.      Phone – Support requests can be made by telephone (Toll Free 877-301-9845) to the Stratos Support team.  All support requests are logged into our service database for tracking and follow-up purposes.  Support requests of an urgent nature should always be called into the toll free number above.

2.      Email – Support requests can be made by email (StratosSupport@Sbsgroupusa.com).  All email requests are logged into our service database for tracking and follow-up purposes.  Email should not be used to report urgent issues. Please provide the following information at a minimum:

o   Company Name

o   Phone Number

o   Contact Name

o   Description of the issue

Response

Unless premium support options are chosen, our standard response time is next business day.  Request resolution times are on a best effort schedule, with no guaranteed SLA.  Support requests are responded to in the order in which they are received and the perceived urgency of the request.  Some requests may require escalation to SBS Group Professional Services, Microsoft, or an ISV for resolution.  Premium Support will respond in less than 2 hours when chosen.

Assumptions

1.      Microsoft Support – SBS Group will maintain an active Microsoft support contract and will utilize Microsoft support incidents on behalf of the client when required to resolve an issue.

2.      Source Code – You are responsible for maintaining copies of all source code for all applications not developed by us and will make it available to us as needed. If source code changes have been made to the application we will assist client to the best of our ability but may not be able to effectively resolve the issues.

3.      Third Party Changes - You will provide full disclosure to us if any third party provides Microsoft related services to Client.  The ability of SBS Group to support applications may be hindered if other third parties have made changes to the installation.    

Exhibit F – Microsoft Cloud Agreement

Microsoft Cloud Agreement

This Microsoft Cloud Agreement is between the entity you represent, or, if you do not designate an entity in connection with a Subscription purchase or renewal, you individually ("you" or "your"), and Microsoft Corporation ("Microsoft", "we", "us", or "our").  It consists of the terms and conditions below, as well as the Online Services Terms, and the SLA (together, the "agreement"). It is effective on the date that your Reseller provisions your Subscription.  Key terms are defined in Section 11.

1.              Use of Online Services.

a.      Right to use.  We grant you the right to access and use the Online Services and to install and use the Software included with your Subscription, as further described in this agreement. We reserve all other rights.

b.     Choosing a Reseller.  You must choose and maintain a Reseller authorized within your region.  If Microsoft or Reseller chooses to discontinue doing business with each other, you must choose a replacement Reseller or purchase a Subscription directly from Microsoft, which may require you to accept different terms. 

c.      Reseller Administrator Access and Customer Data.  You acknowledge and agree that (i) once you have 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, you may request additional administrator privileges from your Reseller; (ii) Reseller's privacy practices with respect to Customer Data or any services provided by Reseller may differ from Microsoft's privacy practices; and (iii) Reseller may collect, use, transfer, disclose, and otherwise process Customer Data, including personal data.  You consent to Microsoft providing Reseller with Customer Data and information that you provide to Microsoft for purposes of ordering, provisioning and administering the Online Services.

d.     Acceptable use.  You may use the Product only in accordance with this agreement. You may not reverse engineer, decompile, disassemble, or work around technical limitations in the Product, except to the extent applicable law permits it despite these limitations. You may not disable, tamper with, or otherwise attempt to circumvent any billing mechanism that meters your use of the Online Services.  You may not rent, lease, lend, resell, transfer, or host the Product, or any portion thereof, to or for third parties except as expressly permitted in the Online Services Terms.

e.      End Users.  You control access by End Users, and you are responsible for their use of the Product in accordance with this agreement.  For example, you will ensure End Users comply with the Acceptable Use Policy.

f.       Customer Data.  You are solely responsible for the content of all Customer Data.  You will secure and maintain all rights in Customer Data necessary for us to provide the Online Services to you without violating the rights of any third party or otherwise obligating Microsoft to you or to any third party.  Microsoft does not and will not assume any obligations with respect to Customer Data or to your use of the Product other than as expressly set forth in this agreement or as required by applicable law.

g.     Responsibility for your accounts.  You are responsible for maintaining the confidentiality of any non-public authentication credentials associated with your use of the Online Services.  You must promptly notify customer support about any possible misuse of your accounts or authentication credentials or any security incident related to the Online Services.

h.     Eligibility for Academic, Government and Nonprofit versions. You agree that if you are purchasing an academic, government or nonprofit offer, you meet 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.

i.       Preview releases.  We 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.  We may change or discontinue Previews at any time without notice.  We also may choose not to release a Preview into "General Availability."

2.              Subscriptions, ordering.

a.      Available Subscription offers.  The Subscription offers available to you will be established by your Reseller and generally can be categorized as one or a combination of the following:

(i)     Commitment Offering.  You commit in advance to purchase a specific quantity of Online Services for use during a Term and to pay upfront or on a periodic basis in advance of use.  

(ii)   Consumption Offering (also called Pay-As-You-Go).  You pay based on actual usage with no upfront commitment.  

(iii) Limited Offering.  You receive 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.

b.     Ordering. 

(i)     Orders must be placed through your designated Reseller.  You may place orders for your

Affiliates under this agreement and grant your Affiliates administrative rights to manage the Subscription, but, Affiliates may not place orders under this agreement. You also may assign the rights granted under Section 1.a to a third party for use by that third party in your internal business.  If you grant any rights to Affiliates or third parties with respect to Software or your Subscription, such Affiliates or third parties will be bound by this agreement and you agree to be jointly and severally liable for any actions of such Affiliates or third parties related to their use of the Products.

(ii)   Your Reseller may permit you 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.    

c.      Pricing and payment.  Prices for each Product and any terms and conditions for invoicing and payment will be established by your Reseller.

d.     Renewal.  

(i)     Upon renewal of your Subscription, you may be required to sign a new agreement, a supplemental agreement or an amendment to this agreement.

(ii)   Your Subscription will automatically renew unless you provide your Reseller with notice of your intent not to renew prior to the expiration of the Term.  

e.      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, and suspension.

a.      Agreement term and termination. This agreement will remain in effect until the expiration or termination of your Subscription, whichever is earliest.  You may terminate this agreement at any time by contacting your Reseller.  The expiration or termination of this agreement will only terminate your right to place new orders for additional Products under this agreement. 

b.     Cancellation or transfer of Subscription.  Your Reseller will establish the terms and conditions, if any, upon which you may cancel or transfer a Subscription.

c.      Suspension.  We may suspend your use of the Online Services if: (1) it is reasonably needed to prevent unauthorized access to Customer Data; (2) you fail to respond to a claim of alleged infringement under Section 6 within a reasonable time; or (3) you do not abide by the Acceptable Use Policy or you violate other terms of this agreement. If one or more of these conditions occurs, then: 

(i)     For Limited Offerings, we may suspend your use of the Online Services or terminate your Subscription and your account immediately without notice.

(ii)   For all other Subscriptions, a suspension will apply to the minimum necessary part of the Online Services and will be in effect only while the condition or need exists. We will give notice to the named administrators for your Subscription, which may be you and/or your Reseller, before we suspend, except where we reasonably believe we need to suspend immediately. If you do not fully address the reasons for the suspension within 60 days after we suspend, we may terminate your Subscription and delete your Customer Data without any retention period.  We may also terminate your Subscription if your use of the Online Services is suspended more than twice in any 12-month period.

4.              Security, privacy, and data protection.

a.      You consent to the processing of personal information by Microsoft and its agents to facilitate the subject matter of this agreement.  You 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.  You will obtain all required consents from third parties under applicable privacy and data protection laws before providing personal information to Microsoft.

b.     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 your Reseller.

c.      You consent and authorize Microsoft (and its service providers and subcontractors), at Reseller's direction or as required by law, to access and disclose to law enforcement or other government authorities data from, about or related to you, including the content of communications (or to provide law enforcement or other government entities access to such data).

d.     As and to the extent required by law, you 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 you shall obtain the users' consent to the same.

e.      You appoint Reseller as your agent for purposes of interfacing with and providing instructions to Microsoft for purposes of this Section 4.

5.              Warranties.

a.      Limited warranty. 

(i)     Online Services.  We warrant that the Online Services will meet the terms of the SLA during the Term. Your only remedies for breach of this warranty are those in the SLA.

(ii)   Software.  We warrant for one year from the date you first use the Software that it will perform substantially as described in the applicable user documentation.  If Software fails to meet this warranty we will, at our option and as your exclusive remedy, either (1) return the price paid for the Software or (2) repair or replace the Software.

b.     Limited warranty exclusions.  This limited warranty is subject to the following limitations:

(i)     any implied warranties, guarantees or conditions not able to be disclaimed as a matter of law will last one year from the start of the limited warranty;

(ii)   this limited warranty does not cover problems caused by accident, abuse or use of the Products in a manner inconsistent with this agreement or our published documentation or guidance, or resulting from events beyond our reasonable control; 

(iii) this limited warranty does not apply to problems caused by a failure to meet minimum system requirements; and

(iv)  this limited warranty does not apply to Previews or Limited Offerings.

c.      DISCLAIMER.  Other than this warranty, we provide no warranties, whether express, implied, statutory, or otherwise, including warranties of merchantability or fitness for a particular purpose.  These disclaimers will apply except to the extent applicable law does not permit them.  

6.              Defense of claims.

a.      Defense. 

(i)     We will defend you against any claims made by an unaffiliated third party that a Product infringes that third party's patent, copyright or trademark or makes unlawful use of its trade secret. 

(ii)   You will defend us against any claims made by an unaffiliated third party that (1) any Customer Data, Customer Solution, or Non-Microsoft Products, or services you provide, directly or indirectly, in using a Product infringes the third party's patent, copyright, or trademark or makes unlawful use of its trade secret; or (2) arises from violation of the Acceptable Use Policy.

b.     Limitations. Our obligations in Section 6.a won't apply to a claim or award based on: (i) any Customer Solution, Customer Data, Non-Microsoft Products, modifications you make to the

Product, or services or materials you provide or make available as part of using the Product; (ii) your combination of the Product with, or damages based upon the value of, Customer Data, or a Non-Microsoft Product, data, or business process; (iii) your use of a Microsoft trademark without our express written consent, or your use of the Product after we notify you to stop due to a third-party claim; (iv) your redistribution of the Product to, or use for the benefit of, any unaffiliated third party; or (v) Products provided free of charge.

c.      Remedies. If we reasonably believe that a claim under Section 6.a.(i) may bar your use of the Product, we will seek to: (i) obtain the right for you to keep using it; or (ii) modify or replace it with a functional equivalent and notify you to stop use of the prior version of the Product. If these options are not commercially reasonable, we may terminate your rights to use the Product and then refund any advance payments for unused Subscription rights.

d.     Obligations. Each party must notify the other promptly of a claim under this Section 6. The party seeking protection must (i) give the other sole control over the defense and settlement of

the claim; and (ii) give reasonable help in defending the claim.  The party providing the protection will (1) reimburse the other for reasonable out-of-pocket expenses that it incurs in giving that help and (2) pay the amount of any resulting adverse final judgment or settlement. The parties' respective rights to defense and payment of judgments (or settlement the other consents to) under this Section 6 are in lieu of any common law or statutory indemnification rights or analogous rights, and each party waives such common law or statutory rights.

7.              Limitation of liability.

a.      Limitation. The aggregate liability of each party for all claims under this agreement is limited to direct damages up to the amount paid under this agreement for the Online Service during the 12 months before the cause of action arose; provided, that in no event will a party's aggregate liability for any Online Service exceed the amount paid for that Online Service during the Subscription.  For Products provided free of charge, Microsoft's liability is limited to direct damages up to $5,000.00 USD.

b.     EXCLUSION. Neither party will be liable for loss of revenue or indirect, special, incidental, consequential, punitive, or exemplary damages, or damages for lost profits, revenues, business interruption, or loss of business information, even if the party knew they were possible or reasonably foreseeable.  

c.      Exceptions to limitations. 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.              Software.

a.      Additional Software for use with the Online Services.  To enable optimal access and use of certain Online Services, you may install and use certain Software in connection with your use of the Online Service.  The number of copies of the Software you will be permitted to use or the number of devices on which you will be permitted to use the Software will be as described in the Online Services Terms in the product specific license terms for the Online Service.  We may check the version of the Software you are using and recommend or download updates, with or without notice, to your devices. Failure to install updates may affect your ability to use certain functions of the Online Service.  You must uninstall the Software when your right to use it ends.  We may also disable it at that time.  Your rights to access Software on any device do not give you any right to implement Microsoft patents or other Microsoft intellectual property in software or devices that access that device. 

b.     License confirmation.  Proof of your Software license is (1) this agreement, (2) any order confirmation, and (3) proof of payment.

c.      License rights are not related to fulfillment of Software media.  Your acquisition of Software media or access to a network source does not affect your license to Software obtained under this agreement. We license Software to you, we do not sell it.

d.     Transferring and assigning licenses.  License transfers are not permitted.    

9.              Support.

Support services for Products purchased under this agreement will be provided by your Reseller.

10.          Miscellaneous.

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

Notices should be sent to:Copies should be sent to:

Microsoft Corporation

Volume Licensing Group

One Microsoft Way

Redmond, WA 98052

USA

Via Facsimile: (425) 936-7329

Microsoft Corporation

Legal and Corporate Affairs

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.     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.

h.     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 Microsoft Online Subscription Agreement, (2) the Online Services Terms, and (3) any other documents in this agreement. 

i.       Survival. The terms in Sections 1, 2.e, 5, 6, 7, 10 and 11 will survive termination or expiration of this agreement. 

j.       U.S. export jurisdiction. The Products are subject to U.S. export jurisdiction.  You must comply with all applicable 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. For additional information, see http://www.microsoft.com/exporting/.

k.      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.

l.       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.

11.          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.  

"Customer Solution" 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, or any user of a Customer Solution.

"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 terms that apply to your use of the Products available at http://www.microsoft.com/licensing/onlineuserights.  The Online Services Terms include terms governing your use of Products that are in addition to the terms in this agreement.

"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 any Online Service (including any Software).

"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 the commitments we make regarding delivery and/or performance of an Online Service, as published at http://www.microsoftvolumelicensing.com/csla, or at an alternate site that we identify.

"Software" means software we provide for installation on your device as part of your Subscription or to use with the Online Service to enable certain functionality. 

"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).