NCE subscription terms

NCE subscription services shall be provided in accordance with these terms (which are hereinafter referred to as the “NCE Subscription Terms”). By placing an order for such services with CloudTech24, the Client (each as defined below) agrees to these NCE Subscription Terms and shall procure that its ends users, acknowledge and comply with these terms.

These NCE Subscription Terms are in addition to and are deemed to be incorporated into any other terms and conditions agreed between CloudTech24 and Client for services and/or products (“Agreement”).

1.    Interpretation

1.1    The following definitions in this paragraph ‎1 apply in these NCE Subscription Terms.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Cap: Microsoft Azure Cap is the total monthly volume of Microsoft Azure services which the Client is permitted to use, as specified in writing by CloudTech24 and which CloudTech24 reserves the right to change from time to time.

Consumption Subscriptions: refers to the Azure licences that are billed based on actual usage in the preceding month.

Client: the Client as identified on the Order.

Customer Agreement: the customer agreement, which is a direct agreement between the Client and Microsoft and is a condition of Cloud Solution Provider Program that the Client enters into under the agreement, the terms of which are found at https://www.microsoft.com/licensing/docs/customeragreement and which may be updated from time to time.

CloudTech24: a company registered in England and Wales under number 10272763 whose registered office is C/O Smooth Accounting Limited, C/O Smooth Accounting, 12A The Square, Wickham, Hampshire PO17 5JQ

Fees: the fees specified in the Order.

Minimum Commitment: the minimum commitment of usage or number of authorised users (as the case may be) agreed between CloudTech24 and Client in writing from time to time.

NCE: the New Commerce Experience for Microsoft products or services.

NCE Subscription Services: the services and use related to NCE subscription services and Products.

Order: the order which sets out the type of NCE Subscription Services, the support offering, the Minimum Commitment and the payment details. The Order shall form part of these NCE Subscription Terms.

Portal: where applicable, the self-serve portal made available by CloudTech24 to the Client to enable it to Order NCE Subscription Services.

Products: the Microsoft services, tools, software, hardware, or professional support or consulting services subscribed to by the Client.

Retail Prices Index: the Retail Prices Index (all Items, excluding mortgages) as published by the Office for National Statistics from time to time, or failing such publication, such other index as the parties may agree (such agreement not to be unreasonably withheld or delayed), acting reasonably, most closely resembles such index.

Subscription Period: has the meaning given in paragraph 8.1.

1.2    In the event of conflict with these NCE Subscription Terms and the Agreement (if applicable), insofar as it relates to the NCE Subscription Services, the provisions in these NCE Subscription Terms shall take precedence and in the event of a conflict with these NCE Subscription Terms and an Order (as applicable to the NCE Subscription Services), the provisions of the Order (as applicable to the NCE Subscription Services) shall take precedence over these NCE Subscription Terms.

1.3   These NCE Subscription Terms do not relieve the Client or its end users from its obligations pursuant to the Agreement (if applicable).

2. Service Provision

2.1    Orders for NCE Subscription Services can be placed and managed by the Client:

(a) manually with CloudTech24; or

(b) via the Portal if it has the appropriate access. Notwithstanding the foregoing, certain Products require CloudTech24’s prior approval.

2.2    Where the Client has access to the Portal, the Client shall be responsible for granting access to the Portal to its nominated users.

2.3    The Client shall remain liable to pay for all purchases made by it and/or on its behalf whether authorised or unauthorised.

2.4    By submitting an Order for NCE Subscription Services, the Client:

(a) represents that any subscription commitments and requirements disclosed are complete and accurate in all respects;

(b) agrees to pay CloudTech24 for all Orders it submits for the NCE Subscription Services;

(c) agrees to the terms of the Agreement (where applicable) and these NCE Subscription Terms.

2.5    Once an Order for NCE Subscription Services has been accepted by CloudTech24:

(a) NCE Subscriptions Services shall continue for the duration of the applicable Subscription Period unless terminated in accordance with paragraph 8 of these NCE Subscription Terms; and/or

(b) for NCE Subscription Services purchased on an annual or multi-year fixed term subscription basis, adjustments may only be made to increase the Minimum Commitment and not decrease below any current Minimum Commitment provisioned, save for any subscriptions purchased on a monthly term; and/or

(c) for NCE Subscription Services purchased on a monthly term, the Client may cancel or decrease the quantity of licences.

2.6    Where requested by CloudTech24, the Client shall promptly report, in writing, its use of the NCE Subscription Services to CloudTech24 for the preceding month(s) (as applicable), which the Client shall certify as being accurate and complete. In the event that the Client’s use of the NCE Subscription Services proves to be greater than the use of the NCE Subscription Services reported to CloudTech24, the Client shall reimburse CloudTech24 in full for any claims from its third parties, including Microsoft, in respect of the Client’s use of the NCE Subscription Services.

2.7    The Client confirms that CloudTech24 may engage sub-contractors in the provision of the NCE Subscription Services without seeking the prior consent of the Client. Notwithstanding the foregoing, CloudTech24 shall at all times be responsible for and liable in respect of the performance of all obligations under these NCE Subscription Terms, whether such obligations are performed by CloudTech24 itself, or any sub-contractor engaged by CloudTech24 and under the supervision of CloudTech24. For the avoidance of doubt, CloudTech24 shall not be held liable for the actions and/or omissions of third parties who are not its subcontractors.

3. Microsoft Customer Agreement

By placing an Order with CloudTech24, the Client represents and warrants that it has agreed, acknowledged and accepted, and shall adhere to the terms of, the Customer Agreement which govern the use of the NCE Subscription Services.

4.    Charges and payment

4.1    The Client shall pay the charges for the NCE Subscription Services as set out in the Order and/or Portal (as the case may be).

4.2    Any quotation or proposal given by CloudTech24 is for budgetary purposes until financial and technical validation and shall not constitute an offer. For NCE Subscription Services, it is only valid for the month in which the quote has been issued.

4.3    NCE Subscription Services sold under fixed term subscriptions are sold for the Subscription Period term as specified in the Order. The Order shall specify if such NCE Subscription Services are to be billed on an upfront, monthly or annual basis. Any subsequent adjustments to subscriptions (e.g. adding users made mid-billing cycle) will either be payable in advance or calculated post-billed at the subsequent invoice.

4.4    For all Consumption Subscriptions, the Client agrees and acknowledges that:

(a) Consumption Subscriptions do not expire unless cancelled. Consumption Subscriptions can be cancelled in accordance with the Customer Agreement and any usage before a transfer to another provider is in effect will be billed in the next scheduled invoice date;

(b) Consumption Subscriptions will be billed at the next billing cycle and will include all usage from the prior month. Pricing will be based on the pricing effective during the current billing cycle except when prices decrease or increase. The unit price for a Product sold on a consumption basis may change during the subscription period;

(c) it shall pay all such usage during the applicable Subscription Period and is responsible for monitoring its consumption needs. For the avoidance of doubt, this includes payment for all such usage where the Client has knowingly or unknowingly subscribed to such Consumption Subscriptions including any licences initiated/activated in error;

(d) the Client further acknowledges and accepts that CloudTech24 may establish or install a technical lock or barrier (the “Barrier“), which prevents the Client from utilization of the NCE Subscription Services in excess of the Cap;

(e) for the avoidance of doubt, if, in spite of paragraph 4.4(d), the Client utilizes the NCE Subscription Services in excess of the Cap, the Client shall pay to CloudTech24 the applicable charges and other expenses in accordance with its actual use. Any dysfunction or non-use of the Barrier shall not release the Client from paying charges and costs in accordance with its actual utilization of the NCE Subscription Services. CloudTech24 has no responsibilities with regards to preventing the Client from utilisation in excess of the Cap.

4.5    If the Client wishes to increase the number of subscription licences provisioned under the NCE Subscription Services, the Client can either:

(a) send a request by email to CloudTech24 at sales@cloudtech24.com stating the changes that need to be applied for; or

(b) where it has access to the Portal, via the Portal.

4.6    The Client shall pay each undisputed invoice, or undisputed amount of any disputed invoice, for the Fees in full and cleared funds (without deduction or set-off) within fourteen (14) days of the date of such invoice unless otherwise agreed in writing by CloudTech24 or unless otherwise set out in the Order. In the event the Client pays by direct debit, the details of such direct debit payments shall be set out in the Order and/or the invoice, as applicable. The Client shall pay each undisputed invoice for the Fees in full and cleared funds (without deduction or set-off) by direct debit in advance unless otherwise agreed.

4.7    All payments by the Client hereunder shall be in United Kingdom pound sterling unless otherwise agreed or set out in the Order and shall be paid to CloudTech24’s bank account as advised by CloudTech24 to the Client in writing.

4.8    The Client shall not be able to dispute any amounts which have been paid by the Client after a period of three (3) months has elapsed from the date of invoice.

4.9    CloudTech24 shall not be obliged to provide any of the Services while any duly issued invoice(s) remain unpaid, but should CloudTech24 choose to continue to do so, this shall not in any way be construed as a waiver of CloudTech24’s rights or remedies.

4.10   Notwithstanding the Client’s obligations to pay the Fees in accordance with this paragraph 4, CloudTech24 will have the right but not an obligation to invoice Client at such intervals and terms for any amounts owing pursuant to the Order and Client agrees to pay all invoices upon receipt.

4.11   If the Client in good faith believes that CloudTech24 has billed Client incorrectly, Client must notify CloudTech24 in writing no later than ten (10) days after the date of the invoice. The parties shall cooperate in good faith to resolve any billing concern raised by Client within ten (10) days after Client notifies CloudTech24.

4.12   Without prejudice to any other remedy that CloudTech24 may have, if payment of the Fees or any part thereof is overdue then unless the Client has notified CloudTech24 in writing that such payment is in dispute pursuant to paragraph 4.11, CloudTech24 may, without prejudice to any other rights or remedies, charge the Client interest on the overdue amount at the lesser of (i) the rate of four percent (4%) per annum above the Bank of England base rate from time to time; or (ii) the maximum amount allowed by law, in respect of invoiced amounts that have remained unpaid for more than fourteen (14) days from the date of such invoices. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount. If CloudTech24 pursues collection efforts against Client due to Client’s failure to pay Fees due under the Order, Client will pay CloudTech24 reasonable costs of collection, including any legal fees related thereto.

4.13   All Fees are exclusive of any taxes, levies, duties or similar governmental assessments of any nature including but not limited to, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes“). The Client will be responsible for self-assessment of and self-remission of any and all Taxes associated with these NCE Subscription Terms and the applicable collecting agency or party.

4.14   Should the Client be required by any law or regulation to make any deduction on account of tax including but not limited to withholding tax or otherwise on any sum payable under these NCE Subscription Terms, the Fees payable shall be increased by the amount of such tax to ensure that CloudTech24 receives a sum equal to the amount to be paid under these NCE Subscription Terms. In the event that CloudTech24 pays Taxes on behalf of the Client, the Client will reimburse CloudTech24 for its payment of all Taxes, fees or assessments imposed by any governmental authority upon the Services provided hereunder to Client (excluding taxes based upon CloudTech24 income).

4.15   It is agreed that all clients with a service value under £4,200+VAT shall be required to sign up for direct debit payments where invoices shall be automatically collected on or after the payment due date. If payment is not made by direct debit and under the service value of £4,200+VAT, the Client shall be responsible for an additional five percent (5%) admin charge on the total invoice amount. This charge shall be automatically added to the invoice and is non-negotiable. Payment by direct debit is required to waive this charge.

4.16   The Client shall be responsible for ensuring that sufficient funds are available in their account to cover any direct debit payments on the due date. If a direct debit payment is returned by the Client’s bank or financial institution due to insufficient funds, the Client shall be responsible for paying a returned payment fee.

4.17   All charges for the NCE Subscription Services are subject to change by Microsoft including periodic price increases at the end of the licence period in line with Microsoft’s price list. CloudTech24 may increase any charges related to the NCE Subscription Services in line with any increases imposed upon CloudTech24 by Microsoft and in line with the terms of the Customer Agreement and/or which relates to a currency fluctuation event. Any such change shall be reflected in the charges as set out in the corresponding invoice issued to the Client.

4.18   Notwithstanding paragraph 4.17 and subject to paragraph 4.19, CloudTech24 may increase charges on an annual basis with effect from each anniversary of the date of the Order in line with the percentage increase in the Retail Prices Index in the preceding 12-month period.

4.19   Subject to paragraph 4.17 and notwithstanding paragraph 4.18, CloudTech24 reserves the right, on giving the Client thirty (30) days’ notice, to increase the charges on an annual basis with effect from each anniversary date of the Order.

4.20   CloudTech24 reserves the right to suspend any NCE Subscription Services to the Client and/or end user if the charges for the NCE Subscription Services are not paid by the date such charges are due.

4.21   In the event that in CloudTech24’s reasonable opinion, the Client´s financial condition, previous payment record, or relationship with CloudTech24 merits change, CloudTech24 reserves the right to review, change or cancel orders and/or change credit or payment terms for unfilled orders.

5. Intellectual Property

5.1    The Client acquires only such limited rights to use the NCE Subscription Services as is explicitly described in the Customer Agreement. Any use by the Client of these rights beyond the scope permitted by the Customer Agreement shall constitute a material breach hereof.

5.2    CloudTech24 is not liable for defects in, or delays related to the NCE Subscription Services.

5.3    For the avoidance of doubt, if a claim for infringement concerns the NCE Subscription Services, the separate terms and conditions of the Customer Agreement shall apply and is a separate action between the Client and Microsoft.

6. Cancellation

6.1    Subject to paragraph 6.2, where the Client has procured the NCE Subscription Services from CloudTech24, the Client may cancel the applicable order in line with the terms set out by Microsoft if the Client notifies CloudTech24 within twenty four (24) hours of placing the initial order for the applicable NCE Subscription Service. For such notice to cancel to be effective, it must be received by CloudTech24 within the hours of 9am to 4pm (GMT) on a Business Day.

6.2    The Client acknowledges and accepts that any cancellation pursuant to paragraph 6.1 will only be accepted if submitted by CloudTech24 within Microsoft’s designated cancellation period for the applicable Product and is approved by Microsoft and is in accordance with any other requirements of Microsoft at the time of cancellation. If cancellation is approved by Microsoft, then the applicable Order will be cancelled.

6.3    Depending on the service or product being cancelled, if and to the extent any credit of the purchase price (in full or pro-rata) is issued by Microsoft to CloudTech24, on receipt of the same, CloudTech24 will pass on any such credit to the Client less any Microsoft handling fee as a proportion of the value of any Order submitted and approved after the designated period for the relevant Product. CloudTech24 is not liable to the Client if Microsoft do not issue a credit.

7. Limitation of liability

7.1    For the avoidance of doubt, the terms set out in the Customer Agreement govern the rights and responsibilities of the Client and Microsoft in relation to the use of the NCE Subscription Services and CloudTech24 excludes any and all liability in relation to the use of the NCE Subscription Services. All other services provided by CloudTech24 which fall outside the NCE Subscription Services are governed by the terms of the Agreement and shall take precedence over the terms of the Customer Agreement should any conflict arise over the use of such services.

7.2    Notwithstanding anything to the contrary in the Agreement, the Client shall indemnify CloudTech24 from and against any claims, including but not limited to claim for licence fees that directly or indirectly arises from the Client’s use of the NCE Subscription Services or reporting under these NCE Subscription Terms.

8. Term & Termination

8.1    The NCE Subscription Services have an initial fixed term of either one (1), twelve (12) or thirty six (36) months (or such longer period as is expressly stated in the Order) (“Subscription Period”) and shall automatically renew as set in accordance with paragraph 8.2. The Client cannot cancel the licence for the NCE Subscription Services prior to the expiry of the Subscription Period. Unless otherwise specified in the applicable Order, the Client shall remain liable for any and all payments due in respect of the licences until the end of the respective Subscription Period.

8.2    Subject to paragraph 8.3, fixed term subscriptions for NCE Subscription Services will automatically renew at the end of the applicable Subscription Period for a term equal to the initial Subscription Period, unless the Client gives at least thirty (30) days’ prior written notice in the case of monthly terms, and ninety (90) days’ prior written notice in the case of annual or multi-annual terms, of non-renewal. Such notice to expire at the next renewal date.

8.3    CloudTech24 may terminate the NCE Subscription Services immediately on giving written notice to the Client if:

(a) payment of any amount due from the Client under these NCE Subscription Terms is overdue by ten (10) Business Days or more provided that CloudTech24 has given the Client ten (10) days’ written notice of such failure to pay; and/or

(b) upon termination by Microsoft of the NCE Subscription Service; and/or

(c) in accordance with the Customer Agreement.

8.4    On termination of these NCE Subscription Terms and/or the Agreement for any reason:

(a) the Client shall pay all outstanding sums owing to CloudTech24 up to and including the date of termination including (1) all remaining amounts owing up to the end of the Subscription Term (as applicable); and (2) any termination fees that CloudTech24 incurs from Microsoft as a consequence of early termination;

(b) all licences granted under these NCE Subscription Terms will terminate immediately except for fully-paid, perpetual licences; and

(c) for metered Products billed periodically based on usage, the Client must immediately pay for unpaid usage as of the termination date.

8.5    Termination of any NCE Subscription Services will not affect any other services provided by CloudTech24 pursuant to the Agreement.

8.6    CloudTech24 shall not be liable whatsoever to the Client following any termination or suspension of the subscription for legal, regulatory or any other reason by Microsoft.