Alchemy Microsoft Products Resale Agreement

_{NOTE: Thank you for choosing Alchemy as your Microsoft products reseller! Microsoft requires all customers to accept Microsoft’s standard terms and requires Alchemy to flow down specific terms into our agreement with our customers. These terms are straightforward, non-negotiable, and will apply to Microsoft Products purchased through Alchemy and any associated Alchemy support services.}

This Alchemy Microsoft Products Resale Agreement (the “Agreement”) shall apply to the resale by Alchemy Technology Group, LLC (“Alchemy”, “we” or “us”) of certain Microsoft Products to the purchasing entity (“Client”, “you” or “your”) under one or more orders placed by you. Alchemy and Client are individually referred to as a “party” and collectively as the “parties”. Capitalized terms which are not defined in the text of this Agreement are set out in the last section of these Terms.

YOU ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT SUPERSEDES ANY OTHER TERMS OR AGREEMENTS BETWEEN THE PARTIES (WHETHER OR NOT SIGNED BY THE PARTIES) RELATING TO THE RESALE AND PURCHASE OF ANY THIRD PARTY PRODUCTS AND SERVICES THROUGH ALCHEMY, UNLESS SUCH OTHER TERMS OR AGREEMENT(S) EXPLICITY STATE THAT THEY ARE APPLICABLE TO THE RESALE AND PURCHASE OF MICROSOFT PRODUCTS. YOU EXPRESSLY AGREE THAT THIS AGREEMENT FORMS THE ENTIRE AGREEMENT AND UNDERSTANDING OF THE PARTIES.

1. Scope of Agreement.

   • i. This Agreement together with all referenced and/or incorporated attachments, schedules and exhibits, and all your orders for Microsoft Products through Alchemy, constitutes the full and sole agreement between you and Alchemy for the purchase of Microsoft Products. By placing an order for, or receiving access to, the Microsoft Products, you are agreeing to this Agreement.

   • ii. Alchemy is authorized to participate in the Microsoft Cloud Solution Provider Program and provide certain Microsoft Products to Client.

   • iii. Microsoft produces, licenses and provides the Microsoft Products resold under this Agreement, and you acknowledge that Alchemy shall have no liability to you for such Microsoft Products beyond the processing of invoices and payment therefor.

   • iv. Exhibit A provides supplemental terms that apply to Client’s purchase of Microsoft Azure services (“Azure Services”). In the event of any conflict or inconsistency between the terms in Exhibit A and the terms set out in the body of this Agreement, the terms of Exhibit A prevail.

2. Reseller Only. You acknowledge and agree that: (i) the Microsoft Products purchased by you are resold by Alchemy for your internal use only; (ii) Alchemy is not the creator, provider, manufacturer or licensor of the Microsoft Products; (iii) Alchemy, its Distributor(s) and Microsoft are independent contractors and Alchemy is neither agent nor in a joint venture with Microsoft or Distributor; (iv) in purchasing the Microsoft Products, you are relying on Microsoft’s specifications only and are not relying on any statements, representations or documents that may be provided by Alchemy.

3. Use of Microsoft Products.

   • i. You acknowledge and agree that your use of the Microsoft Products is subject to the terms of the Microsoft Customer Agreement which is a separate agreement between Client and Microsoft Corporation and all other terms and conditions further referenced therein (“MCA”). The MCA terms are located at: https://www.microsoft.com/licensing/docs/customeragreement or such other webpage as Microsoft may provide. For purposes of the Microsoft Customer Agreement, the “Partner” is Alchemy. Alchemy is not a party to the MCA, and you agree to look solely to Microsoft for satisfaction of any and all claims or obligations related to the Microsoft Products. By placing an order with Alchemy for Microsoft Products, you acknowledge and certify that you have read, accepted and will at all times comply with the MCA and this Agreement, and you agree to pay Alchemy for all purchase orders and/or use of Microsoft Products (as applicable). Microsoft may accept or reject any proposed customer, at Microsoft’s sole discretion. Microsoft may make changes to the MCA from time to time; if Microsoft updates the MCA, then you, by continued utilization of the Microsoft Products thereafter, are deemed to have accepted that update at the time of the update.

   • ii. You are authorized to use the Microsoft Products in the applicable territory in accordance with the MCA. This will generally mean the country where you are located, but you should contact Alchemy if you have any questions about this.

4. Microsoft Commercial Marketplace. Alchemy is authorized to participate in the Microsoft Commercial Marketplace and provide certain Third-Party Offers to you. Alchemy makes these offerings available to you subject to the MCA and the respective program rules and the terms and conditions imposed by the developers and publishers (knowns as “ISVs”) of those offerings, and not this Agreement, except as set forth herein. The Microsoft Commercial Marketplace Terms and Conditions are set out here: https://learn.microsoft.com/en-us/legal/marketplace/marketplace-terms?context=%2Fazure%2Fmarketplace%2Fcontext%2Fcontext&WT.mc_id=email. Without limiting the foregoing Alchemy makes no warranties, commitments or indemnifications with respect to such offerings whatsoever. However, regardless of how you purchase Third-Party Offers on the Marketplace, Alchemy will still serve as your billing agent and will issue invoices in such amount, period and frequency as determined in the order and you will pay Alchemy as invoiced for your Marketplace purchases in accordance with this Agreement. Third-Party Offers may not be canceled or terminated for convenience, and any such purported termination requires approval by Alchemy, Microsoft and/or the applicable third party developer/publisher. In addition, the following terms and conditions of this Agreement shall apply to any Marketplace purchases: Sections 8 (Financial Terms), 15 (Warranties), 16 (No Indemnification from Alchemy) & 17 (Indemnification by Client), in each case such Sections shall be interpreted to refer to such offerings. Alchemy reserves the right to charge an administrative fee for any Marketplace purchase made directly with a third-party developer or publisher. For the avoidance of doubt, Third-Party Offers are not eligible for Alchemy Support Services.

5. Orders.

   • i. Microsoft Products will initially be purchased from Alchemy by requesting a quote from Alchemy and placing an order. Further orders may thereafter by placed via self-serve portal, unless otherwise required by Alchemy.

   • ii. Notwithstanding the quantity of Chargeable Units that may be indicated in an order, Client acknowledges that such quantity is an estimate only, and Client’s invoice will be based on Client’s Billable Usage for each Microsoft Cloud Product. You agree that Alchemy is not required to AND WILL NOT wait for you to issue (OR for Alchemy to receive) a further purchase order in order to invoice you for the Microsoft Products you have consumed.

   • iii. Orders placed by Client are not binding until accepted by Alchemy. All orders are subject to Microsoft availability and therefore Alchemy cannot guarantee that it will be able to fulfill orders. Alchemy shall not be liable for delays or failure of Microsoft to provide the Microsoft Products. Any Client purchase order document(s) shall be for administrative purposes only and any additional or different terms and conditions contained in any Client purchase orders shall be null and void.

   • iv. If Client has previously or is currently purchasing Microsoft Products from another reseller or Microsoft partner, Client will be required to execute a Microsoft CSP Subscription Transfer Form, and it is Client’s responsibility to ensure full and accurate completion and execution of this form.

6. Commercial Product Terms. The terms and conditions governing the Microsoft Cloud Product(s) you purchase will depend on the nature of the Microsoft Cloud Product(s). These terms are determined by Microsoft and are maintained at https://www.microsoft.com/licensing/terms/product/UniversalLicenseTerms/MCA. We have provided the table below for your convenience but, as these are subject to change by Microsoft, you are responsible for periodically reviewing the Microsoft terms applicable to your Microsoft Products. You are responsible for complying with Microsoft’s terms (including the MCA) and any consequences of your non-compliance. In the event of a conflict between Microsoft’s terms and the terms in this Agreement, Microsoft’s terms will govern.

7. Mid-Term Transfers.

   • i. Client may not transfer to another CSP provider or type of license during any Subscription term except with pre-approval by Alchemy.

   • ii. For all Microsoft Products, after cancellation any access Client retains to the Microsoft Products and/or any Client Data, and the time period permitted to migrate Client Data to either a new subscription with Alchemy, with Microsoft directly or some other services, shall be determined in accordance with Microsoft’s then-current deprovisioning policy. Client shall be responsible for any migration process including any associated costs.

8. Financial Terms.

   • i. Fees.

     • a. As consideration for the purchases made by Client under this Agreement, Client shall pay Alchemy the Fees. For price increases and decreases resulting from a change in the market price of the Microsoft Cloud Product,

     • b. Pricing Rates. For the Initial Term and unless otherwise provided, the pricing rates for the Microsoft Products ordered under this Agreement shall be (i) derived from the applicable order form (if applicable); (ii) in a quote issued by Alchemy, or (iii) based upon the Standard Rate. For any Renewal Term, the pricing rates shall be the Standard Rate for such Microsoft Products at commencement of the then-current Renewal Term, unless otherwise agreed upon by Alchemy in writing. Alchemy’s prices for Microsoft Products are available in the Portal, or through any other process designated by Alchemy.

     • c. Price rates are subject to change by Microsoft without notice. For price increases and decreases resulting from a change in the market price of the Microsoft Cloud Product, Alchemy will update the price for the affected Microsoft Products in the Portal from time to time.

   • ii. Invoicing. Alchemy will invoice you the Fees in accordance with this Agreement. Charges for the Microsoft Products will accrue on the date when, depending on the nature of the Microsoft Products, the Microsoft Products are activated or made available by Microsoft to you. Except as otherwise provided in this Agreement or approved by Microsoft and Alchemy, Fees are non-refundable.

   • iii. Payment Terms. Client must pay all undisputed invoices in full within thirty (30) days of the invoice date or as otherwise agreed in writing with Alchemy. All payments shall be made in US Dollars. If an invoice is the subject of a bona fide dispute, Client shall:

     • a. if the invoice is for a consumption-based Microsoft Cloud Product: notify Alchemy no later than five (5) business days after receipt of invoice for the applicable period so that Alchemy may pursue an appeal with Microsoft. If Client does not notify Alchemy within this period, the Microsoft consumption report will be deemed accepted. Microsoft may issue a credit based on the results of the timely Alchemy appeal. If Microsoft confirms the actual usage is correct as reflected on the consumption report, Client will be bound by Microsoft’s official determination. If Microsoft issues a credit to Alchemy to correct for an appeal, Alchemy will also process a credit to Client. Until a credit is received from Microsoft, Alchemy will expect Client’s payment of the Microsoft Products as invoiced.

     • b. for all other invoices: notify Alchemy in writing, including a description of the nature of such dispute in sufficient detail, within such 30-day period. Failure to comply with the requirements of this provision shall preclude the Client’s right to dispute such invoice.

     • c. Alchemy reserves the right to charge interest of 1.5% per month or the maximum allowable by applicable law, whichever is less, for any undisputed past due Fees. Client is responsible for all costs of collection, including reasonable attorneys’ fees, for any payment default on undisputed Fees. In addition, Alchemy may hold all pending orders, suspend further shipments, or delay Client’s access to Microsoft Products without liability, until Alchemy receives all payments due under this Agreement. If Alchemy chooses to take any of these actions, it does not waive any other right or remedy it may possess.

   • iv. Taxes. All amounts the Client must pay under this Agreement do not include any taxes. Client must pay taxes imposed on or with respect to its activities in connection with this Agreement, if any, and Alchemy and or Microsoft will have no responsibility for the payments. Client must pay or reimburse Alchemy for all taxes which are permitted to be collected by Alchemy under applicable law. Client may provide a valid exemption certificate in which case Client will not be charged the taxes covered by such certificate, and further Alchemy and or Microsoft will be under no obligation to apply credits for any periods for which Client had not timely submitted a valid exemption certificate.

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

9. Support Services. Alchemy provides support services for certain Microsoft Products purchased through Alchemy, as described in the Alchemy Microsoft CSP Support Guide for the applicable support level (“Support Services”). Standard-level Support Services are included at no additional charge for eligible Microsoft Products purchased through Alchemy. Support Services for Microsoft Products not purchased through Alchemy or higher-level Support Services may be purchased at additional cost and Client shall request a quote from Alchemy and place a corresponding order. Invoicing and term shall be per the order. Third-party Offers purchased in the Marketplace are excluded from Support Services.

10. Administration Portal Access. During the term of this Agreement, the Client shall provide to Alchemy the necessary administrative access (including any modifications to conditional access policies that otherwise prohibit Alchemy’s access to the Client’s Microsoft Online Services Portal) to enable Alchemy to perform its obligations under this Agreement, such as Support Services or to carry out additional value-add functions for the Client. At a minimum, the Client shall provide to Alchemy the necessary roles within the Granular Delegated Access Privilege (GDAP)(or equivalent access, including any successor to or replacement of GDAP by Microsoft). Client’s removal of any minimum required GDAP role: (a) shall detrimentally affect Alchemy’s ability to escalate support issues to Microsoft; and (b) may increase the price payable to Alchemy for the Microsoft Cloud Product. All pricing quoted in an order or agreed by Alchemy is conditioned upon the above administrative access being granted and maintained.

11. Provisioning Microsoft Products. Client acknowledges and agrees that Client is responsible for charges incurred for Microsoft Products(s) provisioned to their Microsoft account and that this places an obligation on Client to carefully manage access rights to the Microsoft account. Client must monitor their Microsoft Products usage and immediately report any suspicious or fraudulent activity to Alchemy at cloudsupport@alchemytechgroup.com. Alchemy is not responsible for Client errors in provisioning or de-provisioning the Microsoft Products or for any abnormal consumption or security issues that arise within Client’s environment.

12. Privacy; Client Data.

    • i. You shall: (i) comply with all applicable legal requirements regarding privacy and data protection; and (ii) provide sufficient notice to, and obtain sufficient consent and authorization from, any party providing Personal Data to you, Alchemy and/or Microsoft to permit the processing of the data by Alchemy and Microsoft and their respective Affiliates, subsidiaries, and subcontractors as required in order to provide the Microsoft Products and Support Services to you. Microsoft and Alchemy may collect, use, transfer, disclose, and otherwise process the Client’s Data, including Personal Data, as described in the MCA. Microsoft may send direct communications to you including related to the terms of the MCA or the operation or delivery of the Microsoft Products. You must provide Microsoft with accurate contact information for the administration of each domain.

    • ii. Client Data. The Client may be required to provide to Alchemy limited Client Data. The Client warrants that it is the data controller of the Client Data. The security, privacy and data protection commitments made by Microsoft in any MCA only apply to the Microsoft Products purchased from Microsoft and not to any Support Services, services or products provided by Alchemy. The Client agrees and acknowledges that in respect of any access to and processing of Personal Data: (i) Alchemy will only have access to and use minimal amounts of non-sensitive or non-special categories of Personal Data relating primarily to Microsoft CSP Products and related services which shall include processing for order fulfilment, account management, Support Services and reporting purposes; and (ii) other than the purposes described in sub-section (i) above, Alchemy shall not be considered a data processor or data controller or in any other way have any responsibilities or liability (and Client holds Alchemy harmless) in respect of the use, processing, storage, transfer or access or otherwise in respect of Personal Data by and/or between Client and Microsoft, which shall be subject to the arrangements and agreements entered in to directly between Client and Microsoft. Client agrees that Alchemy is not responsible for the security or confidentiality of any Client Data transmitted to or from or held in the Microsoft Products.

    • iii. Neither Alchemy nor Microsoft provide a back-up service for the Client Data. The Client is responsible for the back-up of Client Data. Neither Alchemy nor Microsoft shall be liable for the loss of Client Data as a result of the Client’s failure to back up such Client Data.

    • iv. Alchemy shall only access and disclose to law enforcement or other government authorities to the extent required by law data from, about or related to Client, including the content of communications (or to provide law enforcement or other government entities access to such data). If Alchemy receives a request for Client Data either directly from a law enforcement agency or as redirected to Alchemy by Microsoft, then Alchemy shall redirect the law enforcement agency to request that data directly from Client. If compelled to disclose Client Data to law enforcement, then Alchemy shall promptly notify Client and provide a copy of the demand, unless legally prohibited from doing so. As and to the extent required by law, Client shall notify the Client’s individual users of the Microsoft Products that their data may be processed for the purpose of disclosing it to law enforcement or other governmental authorities as directed by Alchemy and shall obtain the users’ consent to the same.

13. Modifications & New Releases. Microsoft may modify the Microsoft Products or may release a new version thereof at any time and for any reason including, but not limited to, to address customer needs or otherwise address competitive demands, to respond to a government regulation, order, or law, or to advance innovation in its offerings. Microsoft, and therefore Alchemy, reserves the right to add new features or functionality to, or remove existing features or functionality from, the Microsoft Products. Alchemy shall not be liable for any changes to the Microsoft Products. Such changes may include changes to Microsoft’s program terms, which in turn may require changes to this Agreement. Alchemy may modify this Agreement due to any such changes made by Microsoft and such changes shall be published via www.alchemytechgroup.com/legal, at which time that new version agreement shall govern your then-current ongoing Subscriptions and future purchases of Microsoft Products through Alchemy. Client shall be solely responsible for periodically reviewing www.alchemytechgroup.com/legal to understand and perform in accordance with such amended or otherwise updated Agreement.

14. Term, Suspension & Termination.

    • i. Term. This Agreement shall commence on the date you first purchase a Microsoft Cloud Product from Alchemy and shall remain in effect until terminated as set forth in this Agreement.

    • ii. Termination.

      • a. Without Cause. Either party may terminate this Agreement at any time without cause by giving not less than (60) days’ prior written notice of termination, provided however that if any Subscriptions shall have not expired by that date or any Fees remain unpaid, this Agreement shall continue thereafter until such Subscriptions have expired and Fees are fully paid, at which time this Agreement shall automatically expire. Ie. as long as you have an active Subscription which was purchased through Alchemy, this Agreement will be effective and govern that Subscription.

      • b. For Cause. If a party breaches any term of this Agreement, the other party can terminate this Agreement for cause. The terminating party will give the breaching party not less than thirty (30) days’ written notice (or ten (10) days for non-payment) and opportunity to cure the breach if the cause for termination is curable and provided that cure is permitted by the MCA and Microsoft, as applicable. If the cause for termination is not curable, termination is effective immediately upon written notice from the terminating party. Disclosure of confidential information including the disclosure of specially negotiated Client terms, misappropriation of Microsoft’s intellectual property, and insolvency, bankruptcy or other similar proceedings, are grounds for immediate termination. Where Alchemy terminates this Agreement under this Section 14(ii)(b), Client Data may be permanently deleted. It is the responsibility of the Client to ensure that Client Data is backed up appropriately.

      • c. Further Termination Right. This Agreement shall terminate immediately if Alchemy’s authorization to resell the Microsoft Products is terminated by Microsoft. In such event, Alchemy will immediately notify you and your access to applicable Microsoft Products will continue in accordance with Microsoft’s then-current de-provisioning policy to enable you to transfer your Subscriptions to Microsoft or another reseller.

      • d. Disablement. Alchemy may disable or suspend, or request that Microsoft so disables or suspends, Client’s access to Microsoft Products if the Client fails to make timely payments or the Client’s account is in arrears. Depending on the Microsoft Cloud Product, Client will have limited or no access to the Microsoft Cloud Product. The Client is responsible for charges for Microsoft Cloud Product during any period of suspension. Client Data will be deleted after a period of 90 days’ suspension (or such other period as Microsoft determines from time to time) and any access Client retains to Client Data following disablement or suspension shall be determined in accordance with Microsoft’s then-current deprovisioning policy. Client shall remain responsible for all storage and other applicable charges during any Client Data retention period. Neither Alchemy nor Microsoft will be liable in any manner whatsoever to the Client arising out of Alchemy’s disablement or suspension of the Client’s access. Microsoft may disable a Client’s access for legal or regulatory reasons or as otherwise permitted under the MCA and Microsoft will notify Alchemy of a disablement as soon as commercially reasonable. Alchemy agrees to notify the Client of the same. If Microsoft disables the Client’s access for legal or regulatory reasons, billing will be suspended until access is re-enabled.

    • iii. Cancellation of Subscriptions/Purchases. Client’s right to cancel its purchase or Subscriptions is set out in Section 6. No other cancellation is permitted unless authorized by Microsoft and approved by Alchemy. Client shall remain responsible for all fees and charges incurred through the date of cancellation, including fees and charges for in process tasks completed after the date of suspension or cancellation and Client shall remain responsible for any applicable fees and charges for any Microsoft Products through Alchemy to which you continue to have access.

    • iv. Effect of Termination. Upon termination of this Agreement:

      • a. Except as provided herein, you must immediately stop using all rights granted by this Agreement;
      • b. You shall remain liable to pay Alchemy any amounts payable under this Agreement, whether arising before or after termination.
      • c. Perpetual licenses shall continue in accordance with the MCA.
      • d. To the extent Alchemy has Client Data, Client agrees that Alchemy has no additional obligation to hold, export or return Client Data and that Alchemy has no liability whatsoever for deletion of Client Data pursuant to this Agreement or the MCA.

    • v. Additional Remedies. A party’s termination, disablement and/or suspension rights (as applicable) set forth above shall be in addition to and shall not limit any other rights or remedies whether under this Agreement, at law or in equity.

    • vi. Survival. Effect of Termination, Survival, Privacy; Client Data, Warranties, Compliance with Laws, Indemnity Obligations, Limitation of Liability, Client Compliance, Third Party Beneficiaries, Disclosure to Microsoft and Miscellaneous.

15. Warranties. Unless required by applicable laws, Alchemy gives no express warranties, representations or conditions about the Microsoft Products. To the maximum extent permitted under applicable laws, Alchemy excludes all implied warranties and conditions, such as implied warranties of merchantability, non-infringement, and fitness for a particular purpose. Microsoft’s product warranties are as set out in Microsoft’s Cloud Agreement or other end user facing documentation.

16. Indemnity Obligations.

    • i. No Indemnification from Alchemy. Alchemy does not provide any indemnities in connection with the Microsoft Products or other products purchased through the Microsoft Commercial Marketplace. Further, Client expressly waives any claim that it may have or allege to have against Alchemy based on any product liability or infringement or alleged infringement of any patent, copyright, trade secret or other intellectual property right and also waives any right to indemnification from Alchemy against any such claim made against Client by a third party. Microsoft’s obligation of defense of infringement claims (if any) shall be as set out in the MCA. Any obligation of defense of infringement claims (if any) for any ISV products purchased pursuant to a Third Party Offer shall be as set out in the applicable ISV end user terms.

    • ii. Indemnification by Client. Client’s Indemnity Obligations for Third Party Claims. Client will defend Alchemy against any Third Party Claims. If there is an adverse final judgment (or settlement to which Client consents) resulting from any Third Party Claims, Client will pay it. Alchemy will promptly notify Client in writing of the Third Party Claim, specify the nature of the claim and the relief the third party seeks. Alchemy will give Client reasonable assistance in defending the Third Party Claim. Client must have Alchemy’s written consent before settling any Third Party Claim. Alchemy will not unreasonably withhold Alchemy’s consent.

17. LIMITATION OF LIABILITY.

    • i. SUBJECT TO iii BELOW, EACH PARTY’S TOTAL AGGREGATE LIABILITY FOR ANY LOSS, DAMAGE, COST OR EXPENSE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT IS HEREBY LIMITED TO DIRECT DAMAGES UP TO THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER FOR THE APPLICABLE MICROSOFT CLOUD PRODUCT IN THE TWELVE (12) MONTHS BEFORE THE EVENT GIVING RISE TO LIABILITY.

    • ii. SUBJECT TO iii BELOW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY LOSSES, DAMAGES OR EXPENSES OF ANY KIND, OR FOR BUSINESS INTERRUPTION OR DOWNTIME, LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF BUSINESS INFORMATION, BUSINESS INTERRUPTION, LOSS OF USE OF SYSTEMS OR NETWORKS, OR THE RECOVERY OF SUCH, THE AVAILABILITY OF THE MICROSOFT PRODUCTS, LOST REVENUE, LOST PROFITS, LOST SAVINGS OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND, EVEN IF IT HAD BEEN ADVISED OF THEIR POSSIBLE EXISTENCE OR EVEN IF REASONABLY FORESEEABLE.

    • iii. NOTHING IN THESE TERMS SHALL EXCLUDE OR LIMIT EITHER PARTY’S LIABILITY FOR: (A) FRAUD OR FRAUDULENT MISREPRESENTATION; (B) PAYMENT OBLIGATIONS; (C) THIRD PARTY CLAIMS AND INDEMNIFICATION OBLIGATIONS; (D) ANY LOSS, LIABILITY OR DAMAGE ARISING DIRECTLY OR INDIRECTLY OUT OF CLIENT’S BREACH OF THE MCA OR CLIENT’S MISUSE OF THE MICROSOFT PRODUCTS; OR (E) MATTERS FOR WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

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

19. Third Party Beneficiaries. To the extent permitted by applicable law, Client acknowledges and agrees that Microsoft and Distributor are intended third party beneficiaries of this Agreement. Accordingly, Microsoft and/or Distributor will be entitled to enforce directly against Client any rights or remedies as if Microsoft or Distributor (as applicable) were a direct party to this Agreement.

20. Client Compliance.

    • i. Microsoft Products are subject to U.S. export jurisdiction. All parties must comply with all applicable international and national laws, including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, and end-user, end use and destination restrictions by U.S. and other governments. For additional information related to Microsoft compliance with export rules, see www.microsoft.com/exporting.

    • ii. Client agrees that it will comply with all applicable import, re-import, export, and re-export control laws and regulations. Client may import or export and provide the Products in or to a country or Territory only if allowed by, and in compliance with, all applicable laws and regulations of the country or Territory, as well as this Agreement.

21. Disclosure to Microsoft. If the Client or Microsoft brings a claim under the MCA: (i) neither the Client nor Alchemy will object to the Client or Alchemy disclosing to Microsoft the amount of any fees paid and payable by the Client under this Agreement for the Microsoft Products ; and (ii) the Client and Alchemy agree to waive any claims that the disclosure of such fees is a breach of Alchemy or the Client’s confidentiality obligations.

22. Compliance with Laws. Client will comply with all laws applicable to Client’s use of the Microsoft Products, including but not limited to, Anti-Corruption Laws.

23. Miscellaneous.

    • i. Microsoft may from time to time contract Client directly in connection with the Microsoft Products including, without limitation, in connection with billing, compliance, service issues or legal requirements. Alchemy is not responsible for Microsoft communications or decisions.

    • ii. Entire Agreement. This Agreement is Alchemy’s entire agreement relating to Client’s purchase of the Microsoft Products. It supersedes any prior or contemporaneous communications and agreements relating to the subject matter of this Agreement. Except as otherwise provided herein, this Agreement can be changed only if both parties who entered into this Agreement agree to an amendment. This Agreement shall govern and supersede any preprinted terms and conditions stated on or attached to any Client purchase order or other, which are null and void with respect to this Agreement.

    • iii. This Agreement shall be governed by the laws of the State of Texas, without regard to its conflict of laws rules. The parties hereby irrevocably submit to the exclusive jurisdiction of the courts in Harris County, Texas. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. Each party hereto irrevocably waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in any legal proceeding directly or indirectly arising out of or relating to this Agreement or the transactions contemplated hereby or subject matter hereof (whether based on contract, tort, fraud or any other theory).

    • iv. Client may not assign or transfer this Agreement or its rights or obligations under it, whether by contract or by operation of law without Alchemy’s consent. Client will provide Alchemy with no less than 30 days’ notice of any requested assignment and Alchemy’s consent will not be unreasonably withheld.

    • v. All notices, requests, demands, and other communications must be in writing and may be given by: (i) personal delivery; (ii) registered or certified mail, return receipt requested; (iii) nationally recognized overnight express courier services; or (iv) email to the party at its official corporate address. Notices to Alchemy must be sent to: Alchemy Technology Group, 11 Greenway Plaza, Suite 2600, Houston TX, 77046, Attention: Legal Department, with an email copy to legal.dept@alchemytechgroup.com.

    • vi. Headings are used for convenience only and shall not affect the interpretation of this Agreement. The words “include” or “including” shall be deemed to be followed by “without limitation”. No waiver of or failure to exercise any option, right or privilege hereunder shall be construed as a waiver of any other option, right or privilege. If any provision is determined to be invalid or unenforceable in whole or in part, such invalidity or unenforceability shall attach only to such provision or part thereof and all other remaining provisions or parts thereof shall continue in full force and effect.

24. Definitions. Unless otherwise defined in this Agreement, capitalized words used in this Agreement are as defined in the MCA:

    • i. “Affiliate” means any legal entity that owns, is owned by, or that is under common ownership with Alchemy or Client. Ownership means control of more than fifty percent (50%) of the interests in the entity.

    • ii. “Anti-Corruption Laws” means laws against bribery, corruption, inaccurate books and records, inadequate internal controls and money-laundering, including the U.S. Foreign Corrupt Practices Act.

    • iii. “Billable Usage” means the greater of: (i) the Registered Usage selected by Client, or (ii) the then-current Registered Usage as reported to Alchemy by Microsoft, and upon which Alchemy invoices Client for the applicable Usage and Subscription Period during the applicable Term.

    • iv. “Chargeable Units” means unit of measure for the usage of the Microsoft Products upon which Fees for the Products are calculated and charged including user, license, seat, device, mailbox, capacity, or bandwidth, as applicable to the Products (such applicability will be determined by Alchemy or Microsoft).

    • v. “Client Data” has the same meaning as “Customer Data” or “Client Data” in the MCA and includes any data, including Personal Data, that Client or its users upload to, or that is otherwise processed in, the Microsoft Products.

    • vi. “Consumption-based Products” means Online Services which are used and measured on a usage or consumption basis.

    • vii. “Distributor” means any distributor of the Microsoft Products through which the Microsoft Products are sold to Client under this Agreement.

    • viii. “Fees” means: (i) the fees for the Microsoft Products purchased by Client under this Agreement, including without limitation, Subscription Fees, which are calculated from the applicable pricing rate for the relevant Microsoft Products and the Billable Usage; (ii) fees for Support Services: and/or (iii) fees for Third Party Offers, as the context requires and in each case as described in this Agreement.

    • ix. “Fixed Term Products” means Online Services designated by Microsoft as “New Commerce” which are purchased for a designated and fixed term under a Subscription (for example, 1, 12 or 36 months).

    • x. “Initial Term” means (i) Client’s initial Subscription Period (for Fixed Term Products) or (ii) Client’s initial period of consumption (for Consumption-based Products), if any, in either case as set forth in the Portal or applicable order.

    • xi. “Microsoft Products” means the Online Services and/or Software, made available to Client for purchase through Alchemy under this Agreement.

    • xii. “Microsoft Cloud Solution Provider Program” means Microsoft’s program for the provision of certain Microsoft, third party, and integrated offers and services to the Client through partners such as Alchemy.

    • xiii. “Online Services” means Microsoft-hosted services to which Client subscribes, as described in the MCA. Online Services do not include Software.

    • xiv. “Perpetual Products” mean licenses for on-premises Software that a Client licenses in perpetuity.

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

    • xvi. “Portal” means the administration portal for the Microsoft Products identified by Alchemy.

    • xvii. “Registered Usage” means the number or quantity of Chargeable Units provisioned by Client directly or through Alchemy on behalf of Client, calculated by Microsoft.

    • xviii. “Renewal Term” means (i) the Client’s Subscription Period which follows the Initial Term (for Fixed Term Products), or (ii) Client’s period of consumption which follows the Initial Term (for Consumption-based Products).

    • xix. “Software” means licensed copies of Microsoft software. Software does not include Online Services, but Software may be part of an Online Service.

    • xx. “Standard Rate” means Alchemy’s pricing which is based upon the Registered Usage and the Microsoft Products at the rates set forth in the Portal.

    • xxi. “Subscription” means an order for a quantity of Products for a defined term (e.g.: 1, 12, or 36 months) as indicated in the order form or the Portal.

    • xxii. “Subscription Fees” means recurring fees for the Microsoft Products during the applicable Subscription Period based on the applicable pricing rate, actual Chargeable Units and the Microsoft Products ordered by Client.

    • xxiii. “Subscription Period” means a monthly, yearly, or multiyear period, as indicated online in the Portal or as may be set forth in an order form for a Subscription.

    • xxiv. “Term” means collectively, the Initial Term and, if applicable, any Renewal Term.

    • xxv. “Third Party Claim” means any third party claim or allegation against Alchemy that arises out of or is connected with any default or breach, or alleged default or breach, of this Agreement or the MCA by Client, or any other act or omission by Client.

    • xxvi. “Third Party Offer” means an offer available through the Microsoft Cloud Solution Provider Program to resell, manage, bill and support third party solutions along with the Microsoft Cloud Solution Provider Program through the Microsoft Commercial Marketplace. Third Party Offers are provided (directly or indirectly) by developers or publishers (ISVs) and are subject to the terms of the associated third-party end user agreement and policies of that developer or publisher.

EXHIBIT A – SUPPLEMENTAL AZURE TERMS

1. Provisioning. Following acceptance of a purchase order for Azure Services and, if applicable, following execution of a CSP Subscription Transfer Form, Alchemy shall initiate the Azure Services by creating a Microsoft CSP instance through Microsoft’s Partner Center portal or such other tools as Microsoft supplies. Client shall receive credentials to initiate and configure the Azure Services. Use, reporting and invoicing of Azure Services are based on a consumption or actual use model, as further described below. Client will be invoiced for Azure Services consumed in accordance with usage reports provided by Microsoft.

2. Consumption Reporting Tools. You will have access to consumption reports that will provide you with data based on your actual usage (the “Azure Consumption Report”). This will allow you to monitor your usage and manage overages. These reports, including links (as available), location and frequency, are subject to change by Microsoft.

3. Orders

   • a. The placement of your initial Azure Services purchase order with Alchemy, as well as your use of the Azure Services, will serve as your firm and binding commitment to pay Alchemy for the Azure Services you used or committed to in the applicable billing period. You acknowledge and understand that Alchemy will provide you an invoice based on your Azure commitment or actual usage of Azure services, whichever is greater, as reflected in the Azure Consumption Report for the applicable billing period and regardless of any usage or quantities specified in an order. You agree that Alchemy is not required to AND WILL NOT wait for you to issue (OR for Alchemy to receive) a separate purchase order in order to invoice you for the Azure services you have consumed. Alchemy will rely solely upon the Azure Consumption Report to issue invoices to you.

   • b. Azure Consumption Report Disputes. If, for any reason, you dispute the actual usage as reflected in the Azure Consumption Report, you agree to notify Alchemy no later than five (5) business days after you receive your invoice for the applicable period so that we may pursue an appeal with Microsoft. If you do notify Alchemy within this period, the Azure Consumption Report will be deemed accepted. Microsoft may issue a credit based on the results of the timely Alchemy appeal. If Microsoft confirms the actual usage is correct as reflected on the Azure Consumption Report, you will be bound by Microsoft’s official determination. If Microsoft issues a credit to Alchemy to correct for an appeal, Alchemy will also process a credit to you. Until a credit is received from Microsoft, Alchemy will expect your payment of the Azure services as invoiced.

4. Azure Purchase Options. There are different Azure purchase options which Alchemy may offer, and which are subject to change. In all instances, however, you are responsible for your minimum commitment or your actual reported usage, whichever is greater.

5. Fees. Alchemy may change the fees it charges for Azure Services due to changes in Microsoft’s pricing or changes to the Microsoft channel partner programs. Client acknowledges and agrees that if Alchemy’s administrative access (as detailed in Section 6 below) is removed from Client’s account, then Client will be invoiced 13% above either MSRP or the other agreed price (as applicable).

6. Administrative Access. Upon creation of Client’s Azure subscription, Alchemy is assigned administrative access to Client’s Azure subscriptions via the Foreign Principal Group by default. The Foreign Principal Group is a type of Azure Active Directory Group within Azure. The Foreign Principal Group grants Alchemy’s specified CSP administrators and engineers the ability to assist with managing Azure subscriptions and the resources contained within. Alchemy utilizes the Foreign Principal Group to assist Client with specific requests such as: Azure support resolution, assignment of owner rights, password resets, Azure Reserved Instances and adding new Azure subscriptions. Alchemy’s administrative access through the Foreign Principal Group is only utilized with Client’s specific authorization to perform a Client-directed request.