MICROWAREHOUSE TERMS AND CONDITIONS OF TRADE

Last updated: October 2022

1 PARTIES

1.1 We are MicroWarehouse Limited, with company number 198114 and registered address at Unit 13 Heaney Avenue, Park West, Nangor Road, Dublin 12, Ireland (“we”, “our” or “us”).
1.2 In the Contract, “you” or “your” means the person, firm or organisation who places an Order for the Goods and/or Resold Cloud Services. If you are buying Goods or Resold Cloud Services on behalf of your firm or organisation, you confirm that you have the legal authority to bind them to the Contract.

2 STRUCTURE AND INTERPRETATION

2.1 A “Contract” for each individual delivery of Goods or the supply of Resold Cloud Services comprises:

2.1.1 the Order;
2.1.2 these terms and conditions, including its Schedules (“Terms”); and
2.1.3 any additional terms and conditions you and we expressly agree in writing and/or make available to you (“Special Conditions”).

2.2 “Resold Cloud Services” shall mean any resource that is provided over the internet by a Cloud Service Provider and sold by us to you including, subject to clause 15.13, any additional support services under a Contract. The Resold Cloud Services may include, but is not limited to, Email as a Service, Software as a Service, Platform as a Service and Infrastructure as a Service. Further details in relation to the Resold Cloud Services may be set out in the Order and additional documentation and information provided by the Cloud Service Provider relating to the sale and usage of those Resold Cloud Services.
2.3 To the extent of any inconsistency or conflict:

2.3.1 the order of precedence for the purposes of interpretation is: (1) Special Conditions; (2) Order; and (3) these Terms.
2.3.2 between any terms of a Schedule and clauses ‎1 to ‎26 of these Terms, clauses ‎1 to ‎26 of these Terms take priority for the purpose of any interpretation.

2.4 The Contract constitutes the entire agreement between you and us and supersedes and extinguishes all previous contracts, promises, assurances, warranties, representations and understandings between you and us, whether written or oral, relating to the subject matter.
2.5 When we use the words “writing” or “written” in these terms, this includes emails. In the Contract, the singular includes the plural and the masculine includes the feminine and neuter and vice versa. The headings in the Contract are for convenience only and do not affect interpretation. Any ambiguities in the interpretation of the Contract will not be construed against the drafting party.

3 TERMS

3.1 These Terms set out the basis on which we provide, as a distributor and/or cloud service provider indirect provider on behalf of an independent third party vendor, the Goods and Resold Cloud Services to you for onward sale to an end customer (the “End Customer”). You accept these Terms by making any purchase.
3.2 These Terms apply to the Contract and all other terms which are implied by Law, trade custom, practice or course of dealing, are expressly excluded.
3.3 We have the right to make changes to these Terms or any other policies and rules at any time. This will not affect any Orders you have placed with us, but the updated Terms will apply to any future purchases for Goods or Resold Cloud Services made by you. Before you place any order, please read the Terms. You accept the most recent version of the Terms by making any purchase. Further, in the case of Resold Cloud Services, if you continue to use Resold Cloud Services after we have changed the Terms you will be deemed to have accepted the updated Terms. In the case of Resold Cloud Services, updated Terms, policies and rules will be made available via the Resold Cloud Services Portal (as defined below). Any amendment, variation or modification you propose to these Terms will not bind us and has no legal effect.
3.4 Nothing in the Contract shall preclude us from providing goods and/or services equivalent or similar to the Goods and/or Resold Could Services, or other goods or services, to any person, firm or company.
3.5 The Contract does not create any obligation on us to provide any other goods and/or services to you, including any services introduced through a change in the legislative or regulatory environment.

4 COMPLIANCE

4.1 In performing its obligations under the Contract, each party will comply with all applicable laws, statutes, regulations and legally binding codes issued by a regulator, in all cases from time to time in force (“Laws”) applicable to it.

5 QUOTES

5.1 At your request, we may send you a written quote for goods (“Quote”).
5.2 Unless we tell you otherwise, a Quote is only valid on its date of issue and subject to stock availability, after which time we may alter or withdraw it without giving you notice.
5.3 We reserve the right to vary a Quote in circumstances where there is a genuine and obvious error contained in a Quote.

6 ORDERS AND CONTRACT

6.1 You are deemed to have placed an order with us when you:

6.1.1 in respect of an order for goods (or any part of them) (“Goods”):

(A) send us a written acceptance of a Quote; or
(B) request Goods from us at any time by sending us your purchase order form or by placing an order on our order management system and we issue a written acceptance of that request; or
(C) request Goods from us by e-mail or phone and we issue written acknowledgement of the order placed by phone or email;

6.1.2 in respect of orders for Resold Cloud Services:

(A) request Resold Cloud Services (or request any change to an existing subscription for Resold Cloud Services) from us by e-mail at [email protected] and the order is displayed on the audit log or electronic subscription feed made available by us; or
(B) place an order for Resold Cloud Services (or request any change to an existing subscription for Resold Cloud Services) on our Resold Cloud Services Portal and the order is displayed on the audit log or electronic subscription feed made available by us;
each an “Order”, at which point the Contract becomes effective and in relation to the Resold Cloud Services only continues in force for the Term, unless it terminates earlier in accordance with its terms.

6.2 You are responsible for the accuracy and completeness of any Orders you place. We are not responsible for any incorrect or incomplete Orders you place. Before we accept an Order, we may require you satisfy us as to your credit worthiness.
6.3 At our discretion, we reserve the right to not accept an Order you submit and not to supply Goods and/or Resold Cloud Services to you for any reason. We will not be liable to you for any loss you incur due to our exercising of our rights under this clause.
6.4 By placing an order for Goods and/or Resold Cloud Services with us, you represent and warrant that you have obtained and, if applicable, shall maintain any and all relevant third party vendor certification(s) required by such third parties for onward sale and/or distribution. You indemnify us for any claim by a third party, loss, damage or expense incurred by us as a result of your failure to obtain and, if applicable, maintain such certifications in breach of this clause 6.4.
6.5 By placing an order for a change to a subscription to Resold Cloud Services, you agree that you shall comply with the applicable Cloud Service Provider programme rules.
6.6 Subject to clause 6.6, once you submit an Order for Goods to us, you may only cancel that Order with our written approval within two (2) working days and you remain liable for all of our costs (including the cost of all labour and materials used), damages, charges and expenses incurred by us as a result of the cancellation.
6.7 Orders for certain goods, including but not limited to custom order or customised goods, (“Special Order Goods”) cannot be cancelled in any circumstance.

7 DESCRIPTION OF GOODS SOLD

7.1 Any samples, drawings, descriptive material, weights, photographs or advertising we produce and any descriptions, illustrations and performances in our catalogues, pamphlets, price lists or other advertising matter are for the sole purpose of giving an approximate description of the Goods. They do not form part of the Contract or of the description applied to the Goods and do not have any contractual force. You are responsible for ensuring that the terms of any Order you place and any applicable specification of the Goods are complete, accurate and meet your requirements.
7.2 Any typographical or other errors or omissions in any sales literature, quotation, price list, website, confirmation of sale, invoice or other document or information we issue is subject to correction without any liability on our part. We accept no liability for any error or omissions in such materials or matters and are not liable in any circumstances for any loss or damage resulting from your reliance on such descriptions.

8 DESIGNS

8.1 In respect of any designs, specifications, formulae, drawings or other particulars, in any format (“Designs”) that we prepare, you acknowledge that the Designs are our valuable and confidential assets and that we retain all rights, including Intellectual Property Rights, in respect of the Designs.
8.2 If you supply any Designs to us:

8.2.1 you are fully responsible for the accuracy and detail of the Designs and we are not liable for any loss or damage you suffer or incur in respect of Goods supplied and based on your Designs which are either incorrect, misleading or inaccurate, unsuitable or unusable for any reason or are not of sufficient quantities for your intended use or purpose;
8.2.2 we may refuse any Order where, in our reasonable opinion, you fail to provide sufficient detail in the Designs to enable us to provide the requested Goods; and
8.2.3 you warrant that your Designs do not infringe any Intellectual Property Rights of any third party and you indemnify us on demand against any costs incurred, suffered or paid out by or, claims or proceedings made against us, arising from our use of or reliance on Designs you supply.

9 PRICE

9.1 The price for the Goods is the agreed price for the Goods at the date of dispatch.
9.2 We may, by giving notice to you at any time up to two (2) days before delivery, vary the price of the Goods, including to reflect any increase in the cost of the Goods that is due to:

9.2.1 any factor beyond our control (such as foreign exchange fluctuations, increases in taxes and duties, or increases in labour, materials and other manufacturing costs); or
9.2.2 any request by you to change the delivery dates, quantities or types of Goods ordered, or the specification; or
9.2.3 any delay your instructions cause or your failure to give adequate or accurate information or instructions.

9.3 The price of the Goods:

9.3.1 excludes amounts in respect of value added tax (VAT), import duties and any similar taxes, duties and levies of any kind, which you must pay to us at the prevailing rate; and
9.3.2 excludes the costs of packaging, loading, transport and carriage insurance against all risks for the full replacement value of the Goods, which we will add to your invoice unless we expressly state otherwise in our written confirmation of acceptance of your Order. We may charge you a surcharge for payments made by credit card.

9.4 Any customisation or modification of the Goods to meet your requests or requirements, will be at your expense even if a Quote or Order omits those costs.
9.5 Any disputes, queries on price or claims made in respect of price differences on Goods or Resold Cloud Service must be received by us in writing within three (3) working days from the date of delivery addressed to our Finance Department by e-mail to: [email protected].
9.6 The price of Resold Cloud Service is the price listed on the Resold Cloud Services Portal which excludes amounts in respect of value added tax (VAT), import duties and any similar taxes, duties and levies of any kind, which you must pay to us at the prevailing rate.
9.7 You acknowledge that any third party provider of the Resold Cloud Services in relation to which we act as a CSP indirect provider (the “Cloud Service Provider”), may unilaterally amend, vary, alter or update the Resold Cloud Services, the associated Cloud Service Terms and associated pricing. To the extent possible, we endeavor to provide you with thirty (30) days’ notice in advance of any such changes taking effect however we shall have no liability to you where we fail to provide such notice.

10 PAYMENT AND INVOICING

10.1 Subject to you having a current and valid credit account with us, we have the right to invoice you for the Goods on or at any time after delivery. Notwithstanding the foregoing, during the course of trade, there may arise circumstances whereby the Goods are invoiced and must be paid for prior to the delivery of the Goods. You must pay each invoice (without deduction or set-off) within thirty (30) days of the month end of the relevant invoice for the Goods (unless otherwise agreed by us in writing).
10.2 Unless otherwise provided in the Additional Terms, we will issue monthly invoices for the Resold Cloud Services. Where you purchase Resold Cloud Services provided by different Cloud Service Providers, we will issue an invoice(s) on an individual Cloud Service Provider basis. You must pay each invoice without deduction or set-off within thirty (30) days of the month end of the relevant invoice for the Resold Cloud Services.
10.3 Subject to clause ‎9.7, if there has been an alteration in the price of Resold Cloud Services by the Cloud Service Provider it will be effective immediately and will be reflected in each subsequent invoice.
10.4 You must pay all invoices in full and in cleared funds to a bank account nominated in writing by us. Time is of the essence for all payments by you under the Contract. Where so provided, if discounted prices are not paid by the due date for payment as shown on the invoice, then the standard current recommended price applies.
10.5 You assume all responsibility for the recovery of payment from End Customers. Delay and/or failure by you to recover fees from End Customers shall not relieve you of your payment obligations to us in respect of Goods and/or Resold Cloud Services under these Terms.
10.6 If you do not pay an invoice by the due date, then, without limiting other remedies available to us, we may:

10.6.1 require you to pay interest on any unpaid amounts from the due date until payment of the overdue amount, whether before or after judgment. Interest under this clause ‎10.6.1 accrues each day at seven percent (7%) a year above the European Central Bank’s base rate from time to time;
10.6.2 terminate the Contract and suspend any further deliveries of Goods, the provision of Resold Cloud Services to you (and the End Customer) and/or the Services, as applicable;
10.6.3 require immediate payment of all other amounts due on account for Goods;
10.6.4 suspend and/or terminate any credit facilities provided by us to you;
10.6.5 issue legal proceedings to recover any overdue amounts;
10.6.6 in respect of Resold Cloud Services, suspend access and subscription to each and all Resold Cloud Services, access to the Resold Cloud Services Portal and require all fees payable for Resold Cloud Services; and
10.6.7 recover possession of or resell the Goods (or both), and we may enter your premises or any other premises at which the Goods are located for that purpose. You must pay all costs we incur in relation to recovering the overdue amounts and recovering or reselling, or attempting to recover or resell, the Goods, including legal fees on a full indemnity basis.

11 DELIVERY

11.1 When the Goods are ready, we will make all reasonable efforts to deliver them to you at the time and location set out in the Order. Delivery is complete when the Goods are delivered to you. We may facilitate collection of Goods, if so requested, by you. In such circumstances, delivery is complete when the Goods are collected by you.
11.2 If, for any reason, you fail to accept delivery of any of the Goods on the date we deliver the Goods, or if we are unable to deliver the Goods on that date because you did not provide appropriate instructions, addresses, documents, licences or authorisations, we may, at our option, arrange to store the Goods, at your cost and risk, until you either (i) collect the Goods; or (ii) pay additional costs payable for the redelivery of the Goods.
11.3 If we provide you with a delivery date this is an approximate date only and assumes you have given us all necessary information to properly process your Order. Time of delivery is not of the essence. We are not responsible for any, direct or indirect, loss or damage arising from any late delivery or non-delivery of Goods. We may deliver the Goods in advance of the estimated delivery date.
11.4 We may, in our sole discretion, deliver the Goods in any number of instalments unless you have specifically requested no instalment delivery of the Goods. Each shipment will constitute a separate sale and incur separate shipping costs which we will invoice, and you will pay for, separately. Any delay in delivery or defect in an instalment does not entitle you to cancel any other instalment and will not be deemed a repudiation of the Contract.
11.5 All claims made in respect of:

11.5.1 partial or total non-delivery of goods must be received in writing within three (3) working days from the expected date of delivery by our Logistics Department on fax number: +353 1 6232800 or by e-mail: [email protected];
11.5.2 damaged or returned products must be received in writing within three (3) working days from date of delivery by our Customer Services Department on fax number: +353 1 6232800 or by e-mail: [email protected]; and
11.5.3 any other requests for returns must also be received in writing by our Customer Services Department by e-mail: [email protected] within twenty-one (21) days from date of delivery and if accepted may be subject to a restocking fee of up to 20% of the price of the Goods.

11.6 A standard delivery charge plus VAT is applicable on all Orders for Goods. If the Goods you purchase are any or all of the following (1) over 25 kilogrammes; (2) delivered by non-standard delivery; or (3) delivered internationally, they shall incur non-standard delivery charges plus VAT.

12 RISK AND TITLE OF GOODS

12.1 Risk of damage to or loss of Goods shall pass to you at the time of delivery or if you (or the End Customer) unjustifiably fails to take delivery of Goods the time when we have attempted delivery of the Goods.
12.2 We remain the legal and beneficial owner of the Goods until we receive payment (including any interest and taxes due) in full, in cleared funds, for the Goods (“Purchase Price”). Title to the Goods, including full legal and beneficial ownership, only passes to you when we receive the Purchase Price.

13 RETURN OF GOODS

13.1 Subject to clause ‎13.3, you may only return Goods for credit if we deliver the Goods in error or we otherwise agree to accept return of Good. Where we otherwise agree to accept the return of the Good, we may at our discretion either replace a Good with a Good which is similar to the returned Good if the returned Good has been discontinued or is in short supply by the suppliers, or credit the returned Good at the lower of the original purchase price and the then current list price.
13.2 We will only accept return of Goods for credit if:

13.2.1 you notify us in writing of the error within three (3) days of delivery of the Goods; and
13.2.2 you provide the correct order reference from our original invoice on the return; and
13.2.3 the returned Goods are clean, without tickets or other markings and properly packed in original cartons, which are in an undamaged and resalable condition; and
13.2.4 you have received an RMA number from our customer services department which you provide with the returned Goods.

13.3 If you return Goods other than as a result of us delivering the Goods in error or delivering defective Goods, we reserve the right to will deduct an amount of up to 20% from any credit we refund to you to cover our handling and re-stocking costs.
13.4 Any Goods we receive from you as returns must be in the same condition in which you received them. You are responsible for taking reasonable care of the products while they are in your possession and making sure they are handled, stored and cared for in the right way. You are not entitled to return Goods for any fault or damage caused by misuse, neglect, accident, improper storage, installation or handling or by repair or alteration.
13.5 If you return Goods as a result of us delivering the Goods in error, we will pay return delivery costs provided our nominated carrier is used, the Goods are correctly addressed to the return address below and the delivery is charged to our account at the same address. If you return Goods for any other reason, you are responsible for all packing, delivery and insurance costs to return Goods.
13.6 We cannot guarantee that we will receive a product that you return. Accordingly, if you are returning Goods you should consider using a recorded delivery service or otherwise obtain official proof of posting or shipping insurance cover to the value of the products.
13.7 This clause 13 shall not apply to Special Order Goods.

14 DEFECTS AND WARRANTY OF GOODS

14.1 You must inspect all Goods received as soon as practicable after delivery.
14.2 If you believe any of the delivered Goods are defective you must notify us in writing of the defect within three (3) days of delivery of the Goods. If we ask, you must return the defective Goods by insured means to our warehouse at your cost. You are deemed to have accepted the Goods unless you notify us otherwise in writing within three (3) days of delivery of the Goods.
14.3 Your acceptance of the Goods waives any future rights to claims of damage against us to the maximum extent allowed by Law.
14.4 If, when we inspect the defective Goods, we are satisfied that the Goods are defective, then we may, at our option, replace the Goods or refund you the amounts you have paid us for the Goods supplied (including the cost of returning them to us).
14.5 If, when we inspect the defective Goods, we are not satisfied that the Goods are defective or we determine that the Goods are only defective because:

14.5.1 you make any further use of the Goods after giving notice in accordance with clause ‎14.2;
14.5.2 the defect arises because you failed to follow oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
14.5.3 someone other than us alters, combines with third party equipment or software, or repairs the Goods without our written consent;
14.5.4 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
14.5.5 the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements,
(each a “Customer Cause”), you must collect the Goods from us (at your own cost) within fourteen (14) days of notice from us to you that the Goods are not defective. If you do not collect the Goods within that time: (a) you must pay on demand any unpaid amounts and we reserve all rights in relation to the recovery of these charges; and (b) we may sell or otherwise deal with those Goods to the extent necessary to pay the costs of storing those Goods (with such costs being recoverable from you as additional charges) and may take any other action to otherwise mitigate our loss.

14.6 Notwithstanding any other term in the Terms, Goods are provided by us to you:

14.6.1 on an “as is” basis and expressly subject to the disclaimer in clause ‎18.2; and
14.6.2 may be subject to warranty, if so provided by the third party manufacturer of the Goods (the “Manufacturer”) and we shall pass through to you any warranties of the Manufacturer.
14.7 Notwithstanding any other term in the Terms, you agree and acknowledge that our liability to you, or any End Customer of the Goods, arising from the Goods will be limited and excluded to the same extent as the relevant Manufacturer’s liability to us is limited and excluded, and that you can only recover a loss from us arising from the Goods to the extent that we can recover the same loss from the Manufacturer.

15 CLOUD SUBSCRIPTION SERVICES
General

15.1 We act as a CSP indirect provider in respect of certain third-party cloud subscription services (the “Resold Cloud Services”).
15.2 Resold Cloud Services are provided by us to you:

15.2.1 on an “as is” basis and expressly subject to the disclaimer in clause ‎18.2; and
15.2.2 subject always to the terms and conditions on which the Cloud Service Provider makes its Resold Cloud Services available to you for resale (“Cloud Service Terms”).

15.3 You shall familiarise yourself and comply with the Cloud Service Terms as if you were a customer party to such Cloud Service Terms. Additionally, you shall accept any and all agreements that such Cloud Service Provider requires you to accept and enter with such Cloud Service Provider prior to the resale by you of the Resold Cloud Services.
15.4 In addition to the Cloud Service Terms, the Resold Cloud Services are subject to (i) the applicable provisions of these Terms; and (ii) any additional specific terms and conditions as may be set out in ‎Schedule 1 to these Terms, or as otherwise made available to you on the Resold Cloud Services Portal (“Additional Terms”).
15.5 Ownership and all right, title and interest (including all Intellectual Property Rights throughout the world) in proprietary material owned or licenced by a Cloud Service Provider shall at all times remain with the relevant Cloud Service Provider.
15.6 Notwithstanding any other term in the Terms, you agree and acknowledge that our liability to you, or any End Customer of the Resold Cloud Services, arising from the Resold Cloud Services will be limited and excluded to the same extent as the relevant Cloud Service Provider’s liability to us is limited and excluded, and that you can only recover a loss from us arising from the Resold Services to the extent that we can recover the same loss from the Cloud Service Provider.

End Customer Agreements

15.7 You will not distribute any Resold Cloud Services to any End Customers unless an End Customer enters into an agreement with you (the “End Customer Agreement”) that at a minimum (i) requires the End Customer to agree that all End Customer use of the Resold Cloud Services is lawful and to ensure that each End Customer complies with all applicable laws and regulations in any of its dealings with the Resold Cloud Services; (ii) prohibits the End Customer from reselling or distributing the Resold Cloud Services; (iii) indemnifies and holds you [and us] from and against any third party-claims arising out of or relating to the End Customer’s (or its authorised users) use of the Resold Cloud Services; (iv) makes no representations or warranties on behalf of us; (v) completely disclaims all liability of us [and you] for all matters arising out of or related to this Agreement or the Resold Cloud Services to the extent permissible by applicable law [and instead look to the Cloud Service Provider];and (vi) commits the End Customer to the applicable subscription term.
15.8 Orders for Resold Cloud Services are made by you via our cloud services portal available at www.cloud.mwh.ie or http://www.cloud.mwh.ie(“Resold Cloud Services Portal”) or, if applicable, by your End Customers via our “white label” cloud services portal to which you affix your branding and grant End Customers access (the “Partner Portal”). Orders made for cloud services via the Partner Portal shall be deemed a Resold Cloud Service ordered by you and shall be subject to these Terms, as applicable. The placing by you of any order for Resold Cloud Services indicates your acceptance of these Terms, including any applicable Additional Terms. The Resold Cloud Services Portal or the Partner Portal lists all current pricing and Resold Cloud Services which are currently available for subscription. We retain an activity and transaction log in respect of all orders made for Resold Cloud Services on the Resold Cloud Services Portal and/or the Partner Portal. We will require at least one contact and email address to which all correspondence related to the purchase and/or subscriptions to the Resold Cloud Services can be sent. You must keep your contact details up to date on the Resold Cloud Services Portal.
15.9 Resold Cloud Services are provided on an annual subscription (unless otherwise provided in the applicable Additional Terms, Schedule 1, or otherwise agreed by you and us in writing) (the “Term”). The Term shall automatically renew for subsequent twelve (12) month periods in the event that you do not disable the automatic renewal setting on the Resold Cloud Services Platform.

Your responsibilities

15.10 If you are using the Resold Cloud Services, you are responsible for holding and maintaining any certifications or competencies needed in order to effectively support the sale, deployment or service of specific products and to maintain these throughout the course of business. As a reseller of the Resold Cloud Services you are responsible for (i) sales; (ii) usage management; (iii) customer satisfaction; (iv) retention; and (v) the provision of First Level Support.
15.11 You shall provide the first level of support for Resold Cloud Services to End Customer, including but not limited to (i) initial support for set up and configuration of Resold Cloud Services; and (ii) the triage and escalation of issues to us (“First Level Support”).

Our responsibilities

15.12 We will provide:

15.12.1 subject to clause ‎15.13, “second level of support” (escalation to relevant Cloud Service Provider where such support services are made available by the relevant Cloud Service Provider);
15.12.2 quarterly reseller training (at discounted rates); and
15.12.3 where so required, provide additional specific support services on terms and payment rates as to be agreed between us.

Cloud Service Provider Support

15.13 Certain Resold Cloud Services are made available by the Cloud Service Provider without support services. It is your obligation to familiarise yourself with the specification and cloud service offering (including the inclusion or otherwise of support services) of any Resold Cloud Service prior to purchase.

16 SERVICES, ELECTRONIC SERVICES AND PARTNER PLATFORM SERVICES

16.1 We may from time to time provide you with certain training, deployment assistance and other services (the “Services”) which may be set out in an applicable Statement of Work or order.
16.2 The fees for the Services will be as set out in an applicable Statement of Work or order form.
16.3 We shall (i) use reasonable care and skill in providing the Services; and (ii) use reasonable endeavours to provide the Services in a timely and efficient manner. Notwithstanding clause 16.3(ii), time shall not be of the essence for the Services and you accept that we do not guarantee that the Services will be error free.
bWe may make available to you access to various electronic services to, including but not limited to, web shops, the Resold Cloud Portal, the Partner Portal and electronic feeds (including, APIs and price/stock feeds) (together, the “Electronic Services”). You acknowledge that (i) certain Electronic Services are licensed to us by third parties; (ii) the Electronic Services may be changed, require maintenance and may experience disruption out of our control; and (iii) the Electronic Services are subject to change and we may amend, cease or implement new Electronic Services at any time and without notice.
16.5 We accept no responsibility and in no circumstances shall be liable for losses of any kind or description which you may incur as a result of the occurrence of any event described at section 16.4(ii) or (iii).
16.6 You agree that your use of the Electronic Services is subject to the terms as set out in the Electronic Services Acceptable Usage Policy at Schedule 2 of the Terms.

17 REPRESENTATIONS AND WARRANTIES

17.1 Each party to the Terms represents and warrants to the other that:

17.1.1 it is validly existing under the Laws of its place of incorporation and has the power and authority to carry on its business as that business is now being conducted;
17.1.2 it has the power and authority to enter into and perform its obligations under these Terms; and
17.1.3 entering into and performing its obligations under these Terms will not breach any contractual obligations it owes to any other person.

17.2 You represent and warrants to us that you will hold, maintain and comply in full with, all authorisations, certificates, consents, approvals, licences, permits and registrations, required by Law, us or any Cloud Service Provider to enable you to receive the Goods and/or Resold Cloud Services and your other obligations under the Contract.
17.3 The representations and warranties we provide in these Terms are the only representations and warranties we make with respect to the Goods, Resold Cloud Services and Electronic Services. To the maximum extent permitted by Law, we exclude all other representations, warranties, conditions and terms of any kind, whether express, implied, statutory or otherwise, including as to quality, performance, suitability, accuracy, availability, merchantability, fitness for purpose, title or non-infringement. You acknowledge that the exclusion is fair and reasonable and that you are not relying on any other representations or warranties accepting these Terms.
17.4 You acknowledge that you are not dealing as a consumer for the purposes of the Sale of Goods Acts 1893 and 1980 and the Sale of Goods and Supply of Services Act 1980. If any End Customer is dealing as a consumer for the purposes of the Sale of Goods Acts 1893 and 1980 and the Sale of Goods and Supply of Services Act 1980, you agree that it is your responsibility to give effect to the rights and obligations therein.

18 INTELLECTUAL PROPERTY RIGHTS

18.1 In the Contract, “Intellectual Property Rights” “Intellectual Property Rights” means all intellectual property rights and related rights, including:

18.1.1 inventions, patents, copyright (including software and source code), circuit layouts, designs, database rights, trade and service marks (including goodwill in those marks), business methods, rights in get-up and trade dress, goodwill and the right to sue for passing off, moral rights, domain names and trade names, and the right to keep confidential information (including trade secrets and know how) confidential;
18.1.2 any application or right to apply for registration of any of the rights referred to in clause ‎18.1.1; and
18.1.3 all rights of a similar nature to any of the rights in clause ‎18.1.1 and ‎18.1.2‎18.1.2 that may exist anywhere in the world,
whether or not such rights are registered or capable of being registered.

18.2 You agree that we and/or our Cloud Service Providers and/or our Manufacturers own and shall own all Intellectual Property Rights in the Resold Cloud Services and/or Goods, as applicable.
18.3 You must comply with any Cloud Service Terms which set out rights and obligations in respect of Intellectual Property Rights, including but not limited to use of Cloud Service Provider’s trade marks in marketing, promotional or sales materials.
18.4 You acknowledge and agree that we have not, and have no duty to indemnify, defend or hold you or a third party harmless from or against any claims, losses, liabilities, damages, costs and expenses, judgments or settlements arising out of or in connection with the actual or alleged infringement of a third party (including a Cloud Service Provider’s) Intellectual Property Rights.
18.5 You acknowledge and agree that we own and shall own all Intellectual Property Rights in any know how, business methods and other proprietary information provided by us to you in the provision of Resold Cloud Services and/or Services. You further acknowledge and agree that all such know how is subject to the confidentiality obligations as set out in clause 22.

19 CYBERSECURITY

19.1 You shall use all reasonable endeavours to ensure that no software program or code intended to destroy, interfere with, corrupt, or cause undesired effects on program files, data or other information, executable code or application software macros, whether or not its operation is immediate or delayed (“Virus”) or other disabling code is introduced into the Resold Cloud Services, operating systems and any network.
19.2 You shall immediately notify us upon the discovery of any such Virus and take all necessary remedial action to eliminate the virus from the affected item and mitigate any loss of operational efficiency or data.

20 LIABILITY

20.1 The limitations and exclusions in the Contract apply to every liability arising under or in connection with the Contract whether in contract, tort (including negligence), statute, misrepresentation, restitution or otherwise.
20.2 Nothing in the Contract limits or excludes:

20.2.1 a party’s liability for fraud or fraudulent misrepresentation;
20.2.2 your liability arising under clauses ‎8.2.3 or ‎21;
20.2.3 a party’s liability for any breach of confidentiality under clause ‎22;
20.2.4 your liability to pay the Purchase Price or the price of the Resold Cloud Services; or
20.2.5 any liability which cannot be limited or excluded under applicable Law.

20.3 Subject to clause ‎20.2, to the fullest extent allowed by Law, we, our related companies and our and their respective officers, employees, contractors, agents, representatives and suppliers wholly exclude and under no circumstances are liable to you (or anyone else) for:

20.3.1 any claim action or proceeding by a third party (including End Customers) against you;
20.3.2 any claim, liability or proceeding by a third party against us (or any loss or damage you incur or suffer as a result of any such claim, liability or proceeding);
20.3.3 any loss or damage you incur; or
20.3.4 loss of profits, loss of income or revenue, loss of sales or business; loss of contracts, loss of anticipated savings, loss of goodwill, corruption or loss of data, business interruption, or waste of management or office time, or any indirect or consequential loss even where we have been advised of the possibility of such loss or damage,
arising out of, or in connection with the Contract or any of the Goods, or any of the Resold Cloud Services, or the Electronic Services, or the supply, use or operation of the Goods, the Resold Cloud Services, or the Electronic Services including any customisation or modification of any Goods by us at your request.

20.4 Subject to clauses 15.6, ‎20.2 and ‎20.3, to the maximum extent allowed by Law, for any liability which we cannot lawfully exclude, but can limit, our liability is limited to the total sums paid or payable by you to us (under this Contract) in the twelve (12) month period prior to the event giving rise to liability.
20.5 Your remedies set out in the Contract are the exclusive remedies available to you. The parties acknowledge that the exclusions and limitations set out in the Contract are integral to the price charged in connection with providing the Goods to you, and that, if we have to assume any further liability other than as set out in the Contract, the price would of necessity be set substantially higher.

21 INDEMNITY

You indemnify, defend and hold harmless us, our related companies and our and their respective officers, employees, contractors, agents, representatives and suppliers, on demand, against any and all losses, liabilities, penalties, fines, damages costs and expenses (including reasonable legal fees), that any of them suffer, incur or pay out, arising out of or in connection with:

21.1.1 your violation of the Contract;
21.1.2 any claim or proceeding by a third party in connection with the Goods or Resold Cloud Services, Electronic Services or their supply;
21.1.3 any marketing, advertising, promotion or sale of any product containing the Goods and/or the Resold Cloud Service;
21.1.4 failure to store, display or handle the Goods in accordance with our instructions; or
21.1.5 use of Goods in combination with any products, materials or equipment supplied by a person other than us.

22 CONFIDENTIAL INFORMATION

22.1 You must at all times keep secure and confidential all information (regardless of the form of disclosure or the medium used to store it) treated by us as confidential and of which you first become aware either through disclosure by us to you; or otherwise through your involvement with us, including information about our finances, pricing, discounts, designs, products, samples, customer lists, know how, affairs or business operations, (the “Confidential Information”).
22.2 You must only use our Confidential Information to perform your obligations under this Contract. You are only permitted to disclose Confidential Information to those of your employees, agents and subcontractors who need to know it for the purpose of discharging your obligations under the Contract. You must ensure that those employees, agents and subcontractors comply with the obligations set out in this clause ‎22 as though they were a party to the Contract. You may also disclose our Confidential Information if you have to do so under Law, regulatory authority or by a court of competent jurisdiction. You must tell us immediately if this happens, unless Law prevents you from telling us.
22.3 At any time on our request, you must promptly destroy or return (whichever we specify) our Confidential Information and all other documents and materials received from us in connection with the Contract. Without restricting our right to claim damages or any other form of relief, we may obtain urgent or equitable relief (including injunctive relief) to prohibit or restrain you from any breach or threatened breach of this clause ‎22. This clause does not apply to information that:

22.3.1 is in the public domain other than as a result of a breach of confidence;
22.3.2 you know at the time of disclosure free of any obligation of confidence; or
22.3.3 you rightfully obtain on a non-confidential basis from a third party.

23 DATA PROTECTION

23.1 In its performance of the Contract each party must:

23.1.1 comply with any applicable privacy and data protection laws, including the General Data Protection Regulation ((EU) 2016/679), the Data Protection Acts 1988 – 2018, and the EU ePrivacy Directive 2002/58/EC as amended by Directive 2009/136/EC, and any implementing, derivative or related legislation, rule, regulation and binding regulatory guidance, in each case as such legislation is amended, revised or replaced from time to time (“Data Protections Laws”); and
23.1.2 not do, or omit to do, anything that would cause the other party to violate any applicable Data Protection Laws.

23.2 We process personal data in accordance with the terms of our Privacy Policy available at: https://www.mwh.ie/privacy-policy/.

24 TERMINATION

24.1 We may, in our discretion, terminate the Contract, in whole or in part, for convenience at any time, by giving at least 60 (sixty) working days’ prior written notice to you.
24.2 Without limiting our other rights or remedies under the Contract or at law, we have the right to suspend provision of all or any of the Goods and/or Resold Cloud Services or terminate the Contract immediately if:

24.2.1 you commit a material breach of any term of the Contract that you do not remedy within ten (10) days of receiving notice from us to do so; or
24.2.2 you are declared insolvent, appoint an administrator, examiner or receiver, are unable to pay your debts when they are due, enter into an arrangement with your creditors, anyone takes action intended to wind up your business, or we believe any of these things is likely to happen; or
24.2.3 your financial position deteriorates to such an extent that we believe your capability to adequately fulfil your obligations under the Contract is in jeopardy; or
24.2.4 you fail to pay any amount due under a Contract on the due date for payment; or
24.2.5 the third party vendor of the Resold Cloud Services terminates the agreement with us for the provision of Resold Cloud Services for any reason.

24.3 Any exercise by us of our right to terminate under this clause ‎24 is not a breach or repudiation of the Contract.
24.4 Any rights of either party to terminate the Contract are not exclusive rights and are in addition to every other remedy or right a party may have.
24.5 On expiry or termination of the Contract for any reason:

24.5.1 you must immediately pay us any outstanding unpaid invoices and interest and, in respect of supplied Goods and/or Resold Cloud Services for which no invoice has been submitted, we will submit an invoice, which you must pay immediately on receipt.
24.5.2 all licences and rights to granted to you under the Contract end;
24.5.3 each party will promptly destroy or return to the other party (at the other party’s choice) all Confidential Information of the other party then in its possession and, in the case of destruction, certify to the other party that it has done so.

24.6 Termination or expiry of the Contract does not affect any of our rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry. Clauses ‎10, ‎14.6, ‎14.7, ‎15, ‎16, ‎18, ‎19, ‎21 and ‎22 any other provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

25 NOTICES

25.1 Any notice, demand, consent, approval or other communication given or made under or in connection with the Contract is only effective if it is in writing and addressed to a party at its respective registered address, or to another address a party notifies to the other in writing from time to time.

26 GENERAL

26.1 We may, at any time, assign, transfer, subcontract, delegate, or deal in any other manner with all or any of our rights or obligations under the Contract.
26.2 You may not transfer or assign this Contract, in whole or in part, or delegate or subcontract any of your obligations hereunder, to another party, without our prior written consent.
26.3 The relationship between you and us is that of independent contractors. Nothing in the Contract creates any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between you and us, and neither party has any authority to contract for or bind the other party in any manner.
26.4 You are only allowed to bring a claim or action in connection with the Contract within the first twelve (12) months of the date the cause of action accrued.
26.5 Any variation of the Contract that you propose is only valid if in writing and signed by an authorised representative of you and us.
26.6 You are responsible for complying with all applicable import and export control laws, import clearance, and any applicable local taxes or import duties.
26.7 No failure or delay by us in exercising any right or remedy provided under the Contract or by law constitutes a waiver of that or any other right or remedy, and it doesn’t prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy prevents or restricts the further exercise of that or any other right or remedy.
26.8 We shall not be in breach of the Contract and are not liable for any delay in performing, or failure to perform, any of our obligations under this Contract if such delay or failure results from events, circumstances or causes beyond our reasonable control (a “Force Majeure Event”). The time for performance of such obligations shall be extended accordingly. A Force Majeure Event may include, without limitation, acts of government, war, vandalism, criminal damage or theft, terrorism, riot, fire, floods, strikes, natural disasters, any epidemic, virus, disease or pandemic (and for the avoidance of doubt would include such events affecting a Cloud Service Provider or another contractor or supplier of ours).
26.9 You will keep and maintain full and proper records pertaining to your performance of this Contract and allow us (or our nominee) on reasonable notice, access to such records for the purpose of inspecting compliance with (i) this Contract or (ii) the terms of a Cloud Service Provider applicable to the Resold Could Services. You will retain such records for a period of at least three (3) years from the date of termination of this Contract.
26.10 If a court of competent jurisdiction determines any provision or part-provision of the Contract invalid, illegal or unenforceable, it will be deemed deleted, but that does not affect the validity and enforceability of the rest of the Contract.
26.11 The existence, formation, interpretation, operation and termination of the Contract and all matters or disputes (whether contractual or non-contractual) arising out of or in connection with the Contract or its subject matter will be governed by and interpreted in accordance with the laws of Ireland. Each party irrevocably and unconditionally agrees that the courts of Ireland have exclusive jurisdiction to settle all matters or disputes (whether contractual or non-contractual) arising out of or in connection with the Contract or its subject matter.

SCHEDULE 1

ADDITIONAL TERMS – RESOLD CLOUD SERVICES
MICROSOFT CLOUD SOLUTIONS

The following additional terms apply to Resold Cloud Services where the Cloud Service Provider is Microsoft Corporation or any of its affiliates (“Microsoft”):

1 ENROLMENT IN MICROSOFT PARTNER NETWORK

In order to resell Microsoft Cloud Solutions purchased from us as a Resold Cloud Service you must (i) be enrolled in the Microsoft Partner Network (the “MPN”); (ii) have an active MPN, (iii) be enrolled as an indirect provider and (iv) abide by the Microsoft Partner Agreement (“MPA”) and remain enrolled during the course of current subscriptions of relevant Resold Cloud Services. If, for any reason, your MPN number changes you must promptly let us know of such change.

2 MICROSOFT CLOUD SERVICES CONTRACT

All Resold Cloud Services which are Microsoft Cloud Solutions are governed by the terms and conditions as outlined in the Microsoft Cloud Agreement (the “MCA”).
It is your sole responsibility to ensure that End Customers agree to the (1) the then current and applicable, terms and conditions including secure End Customer’s acceptance of the Microsoft Customer Agreement in a manner which creates a legally enforceable contract between Microsoft and the End Customer and (2) the service level agreements as detailed in the MCA.

3 CLOUD SOLUTIONS – SUBSCRIPTION TYPES

3.1 Seat-based subscriptions- “LEGACY”

The following terms apply to seat-based subscriptions:

(A) The term shall be for a period of twelve (12) or 36 months during which the unit price is fixed.
(B) Invoices shall be issued for all transactions in the previous monthly billing period monthly or annually in advance.
(C) Additional seats may be purchased or seats may be decreased during the term.
(D) You may suspend access to Resold Cloud Services by End Customers during the term.
(E) We assume no responsibility or liability in connection with your suspension of access to Resold Cloud Services to End Customers.

3.2 Seat Based Subscriptions -New Commerce Experience
When you purchase Resold Cloud Services (“NCE Subscription Services”), such services are subject to the following:

3.1.2 a minimum subscription period of one (1), twelve (12) or thirty-six (36) months (the “NCE Term”);
3.1.3 a 5 day cooling off period from the start of the subscription (or on renewal) (the “Cancellation Period”) to reduce or cancel seats. The Cancellation Period is strictly 7 calendar days (including weekends) and during this period pro-rated charges may be incurred and payable;
3.1.4 After the expiration of the Cancellation Period, the sole permitted changes to the NCE Subscription Services are the upgrading of plans or addition of new users;
3.1.5 After the expiration of the Cancellation Period, you may suspend subscriptions to End Customers, however all fees will still be incurred in respect of the NCE Subscription Services;
3.1.6 Subject to the continued availability of the NCE Subscription Services, subscriptions shall default to autorenew and will autorenew after the expiration of the NCE Term for the equivalent term and the then current seats, unless autorenewal is disabled by you on the Resold Cloud Services Portal no later than 24 hours prior to the renewal date;
3.1.7 Invoices for NCE Subscription Services shall be issued separately to the Legacy Seat Microsoft Cloud Solutions subscriptions;
3.1.8 NCE Subscription Service transactions from the previous calendar month and are subject to the payment terms as provided in the Terms; and
3.1.9 You must ensure that End Customers are aware of and accept the NCE Terms.

2.3 Usage based subscriptions
The following terms apply to usage-based subscriptions:

(A) The relevant Resold Cloud Service shall be billed based on actual usage in the preceding month.
(B) Usage based subscriptions pricing can vary monthly and are subject to the payment terms as provided in these Terms.

4 SUPPORT

4.1 Support Tickets

4.1.1 Tickets for second level support can be raised:

(A) By phone:

(1) During 9:00am – 5:30pm (Irish Time)(“Business Hours”): 01 6160448;
(2) Outside Business Hours: 01 6160448 or 021 4971212

(B) By email:

(1) [email protected] – monitored 24 /7
(2) [email protected] – is monitored during Business Hours and can be used for support queries along with any pre- and post-sale technical queries.

4.1.2 We will require the following information from you when raising a ticket for support:

(A) Office 365 Ticket

(1) company name.
(2) (Microsoft) – primary domain / tenant – e.g. ABC.com.
(3) contact phone number (for engineer to call).
(4) contact name.
(5) product affected – e.g. excel, sharepoint.
(6) description of issue.

(B) Azure Ticket

(1) company name.
(2) (Microsoft) – primary domain / tenant – e.g. ABC.com.
(3) subscription ID number.
(4) contact phone number (for engineer to call).
(5) contact name.
(6) product affected – e.g. excel, sharepoint.
(7) description of issue.

4.1.3 Once a support ticket has been raised, a confirmation email will be sent to the requestor, confirming the reference number, and the contact number the MS engineer will contact the requestor on if necessary.

SCHEDULE 2

ELECTRONIC SERVICES ACCEPTABLE USAGE POLICY

In accessing and using the Electronic Services, you agree to:

1. manage all users which access our Electronic Services on your behalf and ensure only those users which access our Electronic Services on your behalf do so with the proper authorization and have the skills required to transact with us;
2. regularly audit your companies use of the Electronic Services, in particular you must ensure that all subscriptions, transactions and orders made by you using the Electronic Services, or otherwise, are correct;
3. use all reasonable security standards to protect and prevent any unauthorized access to our Electronic Services;
4. where we make the Partner Platform available to you for access and use by your customers you must ensure they are used correctly, you are responsible for their proper use;
5. not use the Electronic Services, or make any information available to use via the Electronic Services, in a manner which violates applicable data protection laws;
6. not violate or infringe any third party intellectual property rights;
7. use the Electronic Services responsibly; and
8. immediately cease using any Electronic Services if you are no longer trading with us and/or these Terms are terminated and no longer in effect.