ROOT16 MICROSOFT CLOUD SERVICES PROVIDER AGREEMENT

ROOT16
MICROSOFT CLOUD SERVICES PROVIDER AGREEMENT

RECITALS

A. Customer desires to contract with Provider for Provider to provide Microsoft Azure Cloud Services (the “Cloud Services”) to Customer.

B. Provider is authorized to provide the Cloud Services on the terms set forth below.
NOW, THEREFORE, in consideration of the above recitals and mutual promises set forth in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

1. Engagement.

Customer engages Provider, and Provider accepts the engagement, to provide Cloud Services on the terms and conditions set forth in this Agreement.

2. Services.

A. Provider shall provide Customer with access to the Microsoft Cloud Services related to the subscription identification numbers identified in the Cloud Software Subscription Form, which is incorporated by reference and is made part of this Agreement. Customer shall provide Provider with Contributor or Administrator rights in the Azure Portal and/or Office 365 Tenant for the resources under the subscription that are part of the Cloud Services (Acting On Behalf Of permissions).

B. Separate Microsoft Agreement. In addition to executing this Agreement, Customer shall execute Microsoft’s standard Microsoft Cloud Agreement (the “MCA”), as amended, replaced or restated from time to time, and shall provide Provider with proof of such continuing MCA with Microsoft upon request. Any interruption or other failure of the Cloud Services shall be governed by the MCA and/or Service Level Agreements (“SLA”) which pertain to the services being licensed by Customer from Microsoft, and Customer agrees that in no event shall Provider be liable to Customer for such interruption or other failure of the Cloud Services.

3. Payment/Remedies. Provider shall invoice Customer monthly for the Cloud Services. Invoices shall be paid within thirty (30) days after receipt. Customer acknowledges and agrees that time is of the essence in payment of invoices for Cloud Services because Provider is paying for the Cloud Services and charging such amounts back to Customer. Accordingly, should Customer fail to timely pay invoices for Cloud Services, Provider shall be entitled to: (a) assess interest at the rate of 2% for all Cloud Services invoices which remain unpaid forty-five (45) days after issuance; and (b) upon twenty-four (24) hours notice to Customer, shut off Customer’s access to the Cloud Services should any Cloud Services invoice remain unpaid sixty (60) days after issuance.

4. Pricing. Amounts payable to Provider by Customer for the Cloud Services shall be as set forth on the Microsoft website, as those amounts shall be posted and may change from time to time, such amounts being publicly available to Customer. Customer acknowledges and agrees that amounts paid by Provider for the Cloud Services are subject to change without notice, and, therefore, the amounts payable to Provider by Customer are subject to change immediately, as will be evident from invoices provided to Customer.

5. Term and Termination.

A. This Agreement shall commence on the date set forth in the Root16 Cloud Software Subscription form and shall continue until terminated in accordance with the provisions of this Agreement.

B. This Agreement may be terminated by either Party with sixty (60) days’ written notice. Customer shall remain responsible for all Cloud Services fees up through and including the date on which Provider ceases to be Customer’s Cloud Services reseller. Electronic mail to Customer’s or Provider’s designated primary contact shall be deemed sufficient termination notice under this Section 5.

C. The obligations of either Party that have been incurred prior to the effective date of termination (including, but not limited to, any payment obligation for Cloud Services and rendered prior to the effective date of termination) shall continue in full force and effect despite the termination of this Agreement.

D. After termination, Customer shall be solely responsible for all costs associated with migrating its Cloud Services to its successor provider. Provider can support the migration at Customer’s option, with consulting services fees to be charged as agreed by the Parties in a separate document.

6. Indemnification. The Parties agree, to the full extent permitted by applicable law, to indemnify and hold each other harmless, and defend each other (with counsel of such indemnified Party’s choice) from and against any and all claims, losses, suits, liabilities, obligations, costs, judgments, penalties and expenses of any kind (including reasonable legal fees and disbursements) related to or arising out of any breach of any obligation, covenant, and/or representation under this Agreement.

7. Independent Status. Customer and Provider are independent contractors in relation to each other and with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association, or employment relationship between the parties.

8. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois.

9. Limitation of Liability. THE MAXIMUM LIABILITY OF THE PARTIES, THEIR AFFILIATES, EMPLOYEES, DIRECTORS AND OFFICERS TO EACH OTHER FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND EACH PARTY’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE TOTAL FEES PAID BY CUSTOMER TO PROVIDER HEREUNDER FOR THE PORTION OF THE SERVICES GIVING RISE TO ANY CLAIM. IN NO EVENT SHALL EITHER PARTY OR ITS DIRECTORS AND OFFICERS BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE SERVICES PROVIDED UNDER THIS AGREEMENT, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THIS LIMITATION OF LIABILITY PROVISION SHALL NOT APPLY TO CLAIMS FOR WHICH INDEMNIFICATION APPLIES.