Terms and Conditions

Last Updated 4th April 2016.

This is a legally binding agreement between you (you or your) and Australian Cloud Solutions (ACS) (we, us or our).

These terms to be read in conjunction with but does not take precedence over any signed and active ACS Cloud Server Reseller Agreement.

Standard Terms

1. Form of Agreement

1.1 This Cloud Server Reseller Agreement (Agreement) consists of: (a) these Standard Terms and Conditions; and (b) the details in Schedule A (Key Details) andSchedule B (Charges)

1.2 If there is any inconsistency between the Standard Terms and Conditions and the Special Conditions, the Special Conditions will prevail to the extent of the inconsistency.

2. Term

2.1 This Agreement will start on the Start Date and end on the expiry of the Initial Term, unless terminated earlier or extended in accordance with the terms of this Agreement.

2.2 Unless either party notifies the other that it does not wish to renew at least 30 days before the expiry of the Initial Term or any Renewal Term, the Term will be automatically extended for successive periods equal to the Renewal Term

3. Provision of Cloud Server Platform

3.1 ACS will provide the Cloud Server Platform in accordance with this Agreement, in order that the Reseller may resell and make the Cloud Server Platform available to End Users.

3.2 For the avoidance of doubt, the Reseller shall not be entitled to resell and make the Cloud Server Platform available to End Users following termination or expiry of this Agreement other than those End Users who have a subsisting End User Agreement already in place at the time of such termination or expiry.

4. Service Levels

4.1 In respect of the Cloud Server Platform, ACS will use reasonable endeavours to meet the Service Levels. ACS does not represent or warrant that the Cloud Server Platform will be secure, confidential, uninterrupted, error-free, accurate, complete or current.

4.2 If ACS fails to meet any Service Levels, the Reseller’s sole and exclusive remedy is to claim a Service Credit in accordance with the terms and conditions set out in Annexure A.

4.3 The Reseller must promptly notify ACS of any faults in relation to the Services.

4.4 ACS may charge the Reseller for fault resolution services at ACS’s then current time and materials rates if ACS respond to a request from the Reseller and determine that the fault was not caused by any acts/omissions or any breach of ACS’s obligations under this Agreement.

4.5 The Reseller acknowledges and agrees that ACS is not responsible for resolving faults caused by any software, hardware or other components outside the ACS network, circumstances beyond ACS’s reasonable control or Scheduled Outages.

5. Third Party Products

5.1 The Cloud Server Platform may include Third Party Products. The Reseller acknowledges that:

(a) its use of the Third Party Products will be subject to the Third Party Contract(s); and

(b) the Third Party Contract(s) will be between the Reseller and the Third Party Supplier.

5.2 The Reseller authorises ACS to enter into the Third Party Contract(s) on its behalf.

6. The Website

6.1 ACS does not represent or warrant that the operation of the Website will be secure, confidential, uninterrupted, error-free, accurate, complete or current.

6.2 ACS regularly updates and carries out scheduled maintenance on the Website, so ACS may have to suspend access to, or functionality on, the Website from time to time.

7. Reseller obligations

7.1 The Reseller must:

(a) provide the Reseller Deliverables and the Reseller Services;

(b) observe and comply with:

(i) its obligations under this Agreement;

(ii) any reasonable direction given by ACS; and

(iii) all applicable laws, including any relevant codes of practice or codes of conduct;

(c) perform its obligations in a professional, honest and efficient manner;

(d) not do anything to cause damage to the name and reputation of ACS, the ACS Cloud Platform and/or any other services provided by ACS;

(e) not make any false, misleading or deceptive statements or representations in relation to ACS, the Service and any other services provided by ACS;

(f) not use the Cloud Server Platform to send, or allow the sending, of unsolicited emails to third parties;

(g) not use, or allow the use of, the Cloud Server Platform for any unlawful activities; or

(h) not use, or allow the use of, the Cloud Server Platform to publish any materials or store content that is unlawful, pornographic, defamatory, abusive, insulting, threatening, obscene, inflammatory, offensive or otherwise inappropriate or objectionable.

7.2 The Reseller must nominate a dedicated account manager who will have primary responsibility for managing the day-to-day relationship between the Reseller and ACS.

7.3 The Reseller must ensure that it has sufficient sales and technical resources to perform its obligations under this Agreement.

7.4 The Reseller must ensure all information and material provided to ACS:

(a) is accurate, complete and current;

(b) is provided promptly or otherwise within the agreed timeframes;

(c) does not infringe the intellectual property or other rights of any person; and

(d) is not misleading, deceptive, unlawful, fraudulent or defamatory.

7.5 The Reseller must, and must ensure that End Users, comply with all the Policies, as amended and updated from time to time.

8. Support Services

8.1 In respect of the Cloud Server Platform:

(a) the Reseller will provide Reseller Support; and

(b) ACS will provide ACS Support.

8.2 ACS will, in its absolute discretion, determine whether the assistance sought by the Reseller falls within ACS Support. If the assistance sought does not fall within the ACS Support, ACS may charge an additional fee for the provision of such assistance.

9. Training

9.1 ACS will provide initial training services to the Reseller’s staff with respect to the Cloud Server Platform, with the intention that the Reseller will appoint a knowledge officer within their team to perform ongoing training for its staff. If additional training is required by the Reseller, ACS will charge, and the Reseller will pay, the charges invoiced by ACS for such training.

9.2 The Reseller must bear the full cost of its resources attending such training, including travel, accommodation, meals and personal expenses.

10. Relationship with Reseller and Reseller’s relationship with End Users

10.1 The relationship between ACS and the Reseller is that of principal and independent contractor. Nothing in this Agreement will be taken as giving rise to a relationship of employment, agency or partnership.

10.2 The Reseller acknowledges and agrees that ACS has no contractual relationship with, nor any liability to, End Users. Use by End Users of the Cloud Server Platform shall be subject to terms of any End User Agreement.

10.3 Without limitation as to clauses or 10.2:

(a) the Reseller has no authority to enter into any agreement on behalf of the ACS; and

(b) the Reseller must not incur any liability on behalf of ACS.

10.4 The Reseller agrees that it will not make the Cloud Server Platform available to any End User without first entering into an End User Agreement with such End User.

10.5 Subject to clause 10.6, on termination or expiry of this Agreement, subject to the Reseller continuing to pay the Charges applicable in respect of the continuing End User Agreements:

(a) each End User Agreement which is operative as at the date of termination or expiry of this Agreement will continue until it terminates or expires according to its terms;

(b) the Reseller must continue to comply with its obligations in relation to such continuing End User Agreements;

(c) the Reseller may not agree to any amendment or extension of any such continuing End User Agreement without the prior written consent of ACS; and

(d) ACS will continue to provide agreed levels of ACS Support to End Users under such continuing End User Agreements.

10.6 If the Reseller elects not to carry out its obligations in relation to any continuing End User Agreements, it must immediately notify ACS, upon which ACS may, at its sole discretion, request a novation or assignment of any End User Agreement from the Reseller, and the Reseller must do all things reasonably necessary to give effect to such novation or assignment in favour of ACS. All costs in connection with novation or assignment will be borne by the Reseller.

11. Charges and invoices

11.1 In consideration of ACS providing the Cloud Server Platform, the Reseller must pay ACS the Charges.

11.2 All amounts specified are exclusive of GST unless specified otherwise. If GST is payable on any supply made by ACS under this Agreement, the Reseller must pay ACS an additional amount equivalent to the GST at the time that payment to ACS is due.

11.3 The Reseller agrees that the Charges are due and payable to ACS whether or not the Reseller has received moneys from an End User for use of the Cloud Server Platform which relates to those Charges.

11.4 The Reseller will be billed the Charges on or close to the first calendar day of each month.

11.5 With respect to the first month’s billing, there will be a pro-rata charge based on the total usage on the last calendar day of the first month divided by the number of calendar days in that particular month multiplied by the number of days to the end of the month from the activation date of the Services

11.6 The Reseller will pay each invoice within 7 days of the date of invoice (Payment Date).

11.7 If the Reseller wishes to dispute any invoice, the Reseller must within 10 days of the date of the invoice notify ACS with details of the dispute.

11.8 ACS will consider the details of the dispute notified by the Reseller, and consult with the Reseller. If ACS determines that the invoice in question has been correctly rendered, it will notify the Reseller of its findings, and the Reseller must pay all withheld Charges (if any) in accordance with the notification by ACS.

11.9 ACS will at all times act reasonably in resolving any billing dispute with the Reseller.

11.10 If ACS does not receive notification of any dispute from the Reseller under clause 11.7, the Reseller will be deemed to have accepted the Charges set out in the invoice.

11.11 If the Reseller fails to pay the Charges, ACS may in addition to any other rights it has under this Agreement, charge interest at the rate of 1.5% on any overdue amounts.

12. Suspension, cancellation and termination for non-payment of Charges

12.1 If the Reseller fails to pay the Charges by the relevant Payment Date, ACS may issue a Suspension Notice to the Reseller giving it 48 hours notice for payment.

12.2 If a Suspension Notice is sent to the Reseller and payment is not received within the period stipulated in the Suspension Notice, ACS has the right to immediately suspend all Reseller and End User access to the Cloud Server Platform.

12.3 Failure to pay the Charges due within 5 Business Days after the period stipulated in the Suspension Notice may result in ACS sending the Reseller a Cancellation Notice giving a final period of 7 days for payment.

12.4 ACS may immediately terminate this Agreement if payment has not been made within the period specified in the Cancellation Notice.

12.5 ACS may terminate this Agreement if the Reseller suffers an Insolvency Event in accordance with clause 14.1(a)

13. Consequences of termination for non-payment and/or Insolvency Event

13.1 On termination of this Agreement under either clause 12.4,12.5 or 14.1:

(a) all Charges and other amounts owing by the Reseller for the Cloud Server Platform for the remaining part of the Initial Term or Renewal Term or End User Agreements (as the case may be), as per Schedule B, will become immediately due and payable to ACS (such outstanding amounts being called Termination Fees); and

(b) ACS will be entitled to provide the ACS Cloud Platform directly to End Users under an agreement directly between ACS and each End User in the manner contemplated in clauses 10.5 and 10.6. Where ACS contracts directly with an End User, the amount of revenue received by ACS from the End User for the remaining part of the Initial Term or Renewal Term (as the case may be) will be offset against the Termination Fees due and payable by the Reseller to ACS in respect of that particular End User.

13.2 The parties agree that the Termination Fees are a genuine pre-estimate of the loss and damage that ACS will suffer if this Agreement is terminated under either clauses 12.4 or 12.5, and that ACS shall be entitled to recover such amounts from the Reseller as liquidated damages and not as a penalty.

14. Termination of Agreement

14.1 For cause

A party may by written notice to the other party terminate this Agreement immediately if:

(a) the other party is subject of an Insolvency Event;

(b) the other party has breached a material term of this Agreement and the breach is not capable of being remedied; or

(c) the other party has breached a material term of this Agreement, the breach is capable of remedy and the other party has failed to remedy the breach within 20 Business Days of being notified of the breach.

14.2 Mutual Consent

Both parties may mutually agree to terminate this Agreement.

15. Privacy

15.1 A party is under no obligation to provide any Personal Information to the other party where that disclosure is not permitted by Privacy Laws.

15.2 Where the Reseller is a small business or a small business operator within the meaning of section 6D of the Privacy Act, the Reseller:

(a) must comply with the Privacy Act in relation to Personal Information, as if the Reseller is an organisation for the purposes of the Privacy Act but not a small business or small business operator as those terms are defined in section 6D of the Privacy Act; and

(b) agrees to choose to be treated as an organisation bound by the Privacy Act in accordance with section 6EA of the Privacy Act.

15.3 The Reseller agrees to comply with Australian Privacy Principle 1.3 contained in the Privacy Act in relation to Personal Information about its End Users which it discloses to ACS under this Agreement.

15.4 The Reseller agrees that the ACS Privacy Policy as amended from time to time at https://aucloud.net.au/privacy-policy is applicable to the Services provided under this Agreement.

16. Reporting and audits

16.1 During the Term and for a period of 2 years after the end of the Term, the Reseller must:

(a) maintain current, complete and proper records relating to the performance of its obligations under this Agreement.

(b) give ACS (at its cost) access, on reasonable notice, to the Reseller’s records relating to the Cloud Server Platform in electronic or paper form as ACS reasonably requires in order to enable ACS to review and audit the Charges charged to the Reseller.

16.2 If the audit establishes that the Reseller has been undercharged, the Reseller shall pay the so undercharged within 14 days, together with the costs of the audit incurred by ACS.

17. Subcontracting

17.1 The Reseller must not sub-contract, assign, novate or transfer the Reseller’s rights and obligations under this Agreement without the prior written consent of ACS.

17.2 Notwithstanding ACS’s approval of the engagement of any subcontractor:

(a) the Reseller will be liable for the acts and omissions of its subcontractors as if they were the acts and omissions of the Reseller; and

(b) the Reseller will not be relieved of any of its obligations under this Agreement.

17.3 ACS may subcontract, assign, novate or transfer the Reseller’s rights and obligations under this Agreement without notice to the Reseller.

18. Warranties

18.1 The Reseller warrants that:

(a) it will perform its obligations under this Agreement:

(i) with due care and skill, using suitably qualified and competent personnel; and

(ii) in an professional and timely manner;

(b) in performing its obligations under this Agreement, the Reseller:

(i) will not be in breach of any obligation owed to any person;

(ii) will not infringe the intellectual property rights of any person; and

(iii) will comply with all applicable laws.

18.2 ACS warrants to the Reseller that the Cloud Server Platform will be provided using reasonable care and skill.

18.3 ACS does not represent or warrant that the operation of the Cloud Server Platform will be secure, confidential, uninterrupted, error-free, accurate, complete or current. The Reseller also agrees that ACS shall not be responsible for faults caused by any software, hardware or other components outside the ACS network or arising from circumstances beyond ACS’s reasonable control.

18.4 Apart from any express warranties made in this Agreement, ACS excludes all statutory or implied conditions or warranties to the extent permitted by law.

19. Confidentiality

19.1 The parties will:

(a) keep confidential the Confidential Information;

(b) use the Confidential Information for the sole purpose of performing their obligations under this Agreement;

(c) not commercially exploit and/or manufacture, or be directly or indirectly involved in the commercial exploitation and/or manufacture by any third party, of the Confidential Information; and

(d) not disclose the Confidential Information to any person other than those Associates of the party who need to know the Confidential Information, provided that the party who receives the Confidential Information ensures that all such Associates are aware of, and agree to comply with the obligations of confidentiality set out in this clause 19.

20. Intellectual Property Rights

20.1 ACS is the sole owner of all intellectual property rights in and to the ACS Cloud Platform and the Cloud Server Platform, and all related source code, content, documents and other materials (including the ACS name, logo and other marks).

20.2 The Reseller must not reverse-engineer, decompile, disassemble, copy or reconstruct the Service, the source code or any associated software for the Service.

20.3 ACS grants to the Reseller a non-exclusive and royalty-free licence to use and reproduce the ACS name and logo for the sole purpose of promoting and selling the Cloud Server Platform.

20.4 The Reseller must comply with any Brand Guidelines provided by ACS to the Reseller from time to time.

21. Insurance

21.1 The Reseller must effect and maintain the Insurance Policies during the term of this Agreement and for 6 years thereafter. The Reseller must provide ACS with a copy of the certificates of currency upon request.

22. Liability

22.1 The Reseller indemnifies ACS and its Associates (those indemnified) against all claims, damages, costs, expenses (including legal fees), losses or liabilities that are suffered or incurred by those indemnified arising from, or in connection with:

(a) any breach of this Agreement by the Reseller or its Associates;

(b) the use or attempted use of the Cloud Server Platform;

(c) any claim by an End User in respect of the Cloud Server Platform;

(d) any negligent, wrongful or unlawful act or omission of the Reseller or its Associates;

(e) any personal injury or death, or loss of, or damage to, property caused by any act or omission of the Reseller or its Associates; or

(f) any infringement of a third party’s intellectual property or other rights.

22.2 If ACS breaches any condition or warranty implied by law which cannot lawfully be excluded, to the extent permitted by law the liability of ACS is limited, at its option, to:

(a) in the case of services, the resupply of, or payment of the cost of resupplying, the service; and

(b) in the case of goods:

(i) the replacement of the goods or the supply of equivalent goods;

(ii) the repair of the goods;

(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or

(iv) the payment of the cost of having the goods repaired.

22.3 To the extent permitted by law:

(a) under no circumstances will ACS’s total liability in connection with this Agreement, whether based upon warranty, contract, statute, tort (including negligence) or otherwise, exceed the fees and charges paid by the Reseller to ACS under this Agreement; and

(b) ACS excludes liability to the Reseller for any Consequential Loss arising in connection with this Agreement.

23. Force Majeure

23.1 Neither party will be liable to the other party for failing to comply with this Agreement as a result of events or circumstances beyond that party’s reasonable control (including earthquakes, cyclones, floods, fires, lightening, storms or other acts of God).

24. General

24.1 This Agreement contains the entire understanding between the parties concerning the subject matter of the Agreement and supersedes all prior communications.

24.2 This Agreement cannot be amended or varied except in writing and signed by the parties.

24.3 If any term or provision of this Agreement is held by a court to be illegal, invalid or unenforceable under the applicable law, that term or provision will be severed from this Agreement and the remaining terms and conditions will be unaffected.

24.4 This Agreement is governed by, and construed in accordance with the laws of Western Australia. The parties submit to the non-exclusive jurisdiction of the courts of Western Australia.

25. Definitions

25.1 In this Agreement:

(a) Agreement means this agreement, schedules and any annexures, as amended by the parties in writing from time to time;

(b) Approved Service Name means the name specified as such in Schedule A;

(c) Associates, in relation to a party, means the officers, directors, employees, contractors and agents of that party;

(d) Charges means those fees and charges set out in Schedule B;

(e) Confidential Information means the confidential, proprietary and commercially-sensitive information of a party (irrespective of the form or the manner in which the information is disclosed, or the time of such disclosure) including information which:

(i) is identified by that party as confidential or ought to have been known by the party receiving such information to be confidential;

(ii) relates to the business affairs and practices of a party and its related bodies corporate (as defined in the Corporations Act 2001 (Cth)), including financial information, business opportunities, business plans, business processes and methodologies, information relating to customers, suppliers and resellers;

(iii) the terms and conditions of this Agreement;

but does not include information which is in, or comes into, the public domain other than by a breach of this Agreement, or which is independently known to a party as evidenced by its written records;

(f) Consequential Loss means, in the case of loss or damage resulting from a breach of contract, indirect, remote or unforeseeable loss including (i) loss of actual or anticipated profits; (ii) loss of revenue; (iii) loss of savings; (iv) loss of denial of opportunity; (v) loss of access to markets;

(vi) loss of goodwill; (vii) loss of business or business interruptions; (viii) loss of business reputation, future or publicity; (ix) damage to credit rating; (x) loss of use; (xi) loss of property or mineral rights; (xii) loss in respect of a third party, or any other similar loss occasioned by that reach, whether or not in the reasonable contemplation of the parties at the time of execution of this Agreement;

(g) End User means an end user of the Cloud Server Platform;

(h) End User Agreement means the agreement to be entered into between an End User and the Reseller, under which the Reseller makes the Cloud Server Platform available to the End User;

(i) GST means the tax imposed by A New Tax System (Goods and Services Tax) Act 1999 and A New Tax System (Goods and Services Tax) Transition Act 1999 and related tax imposition Acts of the Commonwealth of Australia;

(j) Initial Term means the term specified as the “Initial Term” in Schedule A;

(k) Insolvency Event means (i) bankruptcy proceedings are commenced against a party, or a party is declared bankrupt; (ii) any step is taken to enter into any scheme of arrangement between a party and its creditors; (iii) any step is taken by a mortgagee to enter into possession or dispose of the whole or any part of a party’s assets or business; (iv) any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, an administrator or other like person to a party or to the whole or any part of a party; (v) a party suspends payment of its debts generally; or (vi) a party is or becomes unable to pay its debts when they are due or a party is or is presumed to be insolvent for the purposes of any provision of the Corporations Act 2001 (Cth);

(l) ACS Cloud Platform means the cloud-based infrastructure platform operated by ACS;

(m) ACS means Australian Cloud Solutions Pty Ltd and its related bodies corporate (as defined in the Corporations Act 2001 (Cth));

(n) ACS Support means the technical support to be provided to Reseller [and to End Users] by ACS, as detailed in Schedule C – Responsibilities.

(o) Reseller Deliverables means the deliverables required to be provided by the Reseller in order to enable ACS to provide the Cloud Server Platform as detailed in the ACS Reseller Deliverables document;

(p) Reseller Services means the services to be provided by the Reseller in respect of the Cloud Server Platform, including (without limitation) Reseller Support;

(q) Reseller Support means any other support to be provided to Reseller’s Associates and to End Users by Reseller, other than ACS Support

(r) Polices means any of ACS’s policies which can be accessed at https://www.australiancloudsolutions.com.au, including without limitation, ACS’s Privacy and Security Policy and ACS’s Acceptable Use Policy, as amended from time to time;

(s) Renewal Term means the term specified as the “Renewal Term” in Schedule A;

(t) Service Levels means the service levels set out in Annexure A

(u) Special Conditions means the special conditions specified as “Special Conditions” in Schedule A (if any);

(v) Specification means the specification for the Cloud Server Platform as agreed in writing between ACS and the Reseller. In the absence of any such agreement, the Specification shall be identical to the specification of ACS’s standard ACS Cloud Platform as at the Start Date;

(w) Start Date means the date specified as the “Start Date” in Schedule A;

(x) Term means the term of this Agreement as determined in accordance with clause 2;

(y) Cloud Server Platform means a version of the ACS Cloud Platform to be provided by ACS to the Reseller, that is to branded with the Approved Service Name and provided in accordance with the Specification.

Annexure A: Service Level

Please see https://australiancloudsolutions.com.au/service-level-agreement/

Annexure B: Fees, invoicing and payment

Fees

You must pay:

• the fees and charges for the Services and/or the Additional Services at the rates specified in the Order; and

 any additional fees and charges (as set out on our Website) applicable to this Agreement (including, without limitation, late payment fees and administration fees).

You will incur the Fees on an hourly basis, starting from the second in which time of your first instance provisioning. You will be billed in 1 second intervals, at the rates quoted by the hour

Invoicing

We will invoice the Fees on a monthly-in-arrears basis on or near the first Business Day of each calendar month.

Payment

You must pay the Fees by credit card or Direct Deposit into our nominated bank account.

You authorize us to charge your credit card for the Fees and for any additional amounts incurred in connection with your account (including, without limitation, late payment fees, interest charges, cancellation fees and any adjustments to the Fees).

If any charge to your credit card is declined, you authorise us to continue to charge your credit card account for the outstanding amount, together with any other applicable fees and charges until payment has been received.

If your credit card has insufficient funds or has expired, you must make alternative arrangements to pay the invoiced amount in full within 3 days of the due date for payment. If you fail to do so, we may suspend the Services and/or Additional Services without notice to you.

Annexure C Additional Services

Traffic

1. You must pay for traffic charges based on either of the following options:

(a) on a flat rate, where your traffic charges are fixed and do not vary in relation to traffic usage; or

(b) based on usage, where your traffic charges are calculated at the rates specified in the Order.

2. We calculate the volume of inbound and outbound traffic by the number of gigabytes. Our calculations are final and binding on the parties.

Upgrades

3. We will process an upgrade immediately upon our receipt of your request, unless you specify an alternative date.

4. If the upgrade is effective on the monthly anniversary of the Commencement Date, we will charge you an increased fee to reflect the upgrade. However, if the upgrade is effective after the monthly anniversary of the Commencement Date, we will pro-rate the increased fee based on the number of days remaining in the current billing cycle.

Downgrades

5. We will process a downgrade immediately upon our receipt of your request, unless you specify an alternative date.

6. We will apply a credit to your account for the difference of any pro-rated pre-paid amount less the pro-rated cost of the new plan.

7. We may charge you an administration fee for a downgrade request. You may also be required to pay additional fees if we have to perform work to process your request (for example, reseller hosting to single hosting, intercontinental transfers, inter-server transfers).

Supply of Microsoft Products

8. At your request, we may provide products from the Microsoft Corporation, or an affiliate of the Microsoft Corporation (“Microsoft Products”), including software, media, printed material and electronic documentation, to you.

9. You acknowledge and agree that we can only provide Microsoft Products to you under our existing Microsoft Services Provider License Agreement with the Microsoft Corporation and only in accordance with the Microsoft Volume Licensing Services Provider Use Rights found at http://www.microsoftvolumelicensing.com/DocumentSearch.aspx?Mode=3&DocumentTypeId=2 and you agree to be bound by any provision of these terms that Microsoft Corporation and its licensors require to apply to any person to whom we licence Microsoft Products.

10. In addition to the terms referred to at paragraph 13, if you choose to use the Microsoft Products, the Microsoft Corporation and its licensors require that you agree to these additional terms and conditions, which ACS does not have the authority to vary, alter or amend:

(a) OWNERSHIP OF MICROSOFT PRODUCTS: The Microsoft Products are licensed to ACS and all title and the Microsoft Corporation owns all rights and intellectual property in relation to them. Your possession, access, or use of the Microsoft Products does not transfer any ownership of the Microsoft Products or any intellectual property rights to you.

(b) USE OF MICROSOFT PRODUCTS: The Microsoft Products are neither sold nor distributed to you and you may use it solely in conjunction with the services provided to you by ACS

(c) COPIES: You may not make any copies of the Microsoft Products or any printed materials accompanying the Microsoft Products.

(d) PROHIBITION ON IP: You are prohibited from removing, modifying or obscuring any copyright, trademark or other proprietary rights notices that are contained in or on the Products

(e) LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION AND DISASSEMBLY: You may not reverse, engineer, decompile, or disassemble the Microsoft Products, except and only to the extent that applicable by law

(f) NO RENTAL: You may not rent, lease, lend, pledge, or directly or indirectly transfer or distribute the Microsoft Products to any third party, and you may not permit any third party to have access to and/or use the functionality of the Microsoft Products

(g) PRODUCT SUPPORT: The Microsoft Corporation does not provide support for the services provided to you by ACS. ACS should provide all support for these services. Do not contact the Microsoft Corporation for support.

(h) NO WARRANTIES, LIABILITIES OR REMEDIES BY MICROSOFT: The Microsoft Corporation disclaims all warranties, liabilities or remedies as provided by ACS. These are ACS’s representations and not made by the Microsoft Corporation.

(i) TERMINATION: Without prejudice to any other rights, ACS may terminate your rights to use the Microsoft Products if you fail to comply with these terms and conditions. In the event of termination or cancellation, you must stop using and/or accessing the Microsoft Products, and destroy all copies of the Microsoft Products and all of its component parts.

(j) MICROSOFT END USER: Microsoft will be an intended third party beneficiary of the End User Agreement, with the right to enforce provisions of the End User Agreement and to verify the compliance of the End User

(k) LIABILITY FOR BREACH: In addition to any liability you may have to ACS, you agree that you will also be legally responsible directly to Microsoft for any breach of these terms and conditions.

(l) The Microsoft Products may contain technology that is not fault tolerant and is not designed, manufactured, or intended for use in environments or applications in which the failure of the Microsoft Products could lead to death, personal injury, or severe physical, property or environmental damage.

(m) NO HIGH RISK USE: You are not granted any right to use the Microsoft Products in any application, controlling aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, weaponry systems, or any similar scenario (collectively, “High Risk Use”). The Microsoft Corporation and its suppliers disclaim any express or implied warranty of fitness for High Risk Use. High Risk Use does not include utilization of the Microsoft Products for administrative purposes, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non-controlling applications may communicate with the applications that perform the control, but must not be directly or indirectly responsible for the control function.

(n) LEGAL JURISDICTION: The Microsoft Products are of U.S. origin for purposes of U.S. export control laws. You agree to comply with all applicable international and national laws that apply to the Microsoft Products, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For additional information see http://www.microsoft.com/exporting/

Annexure D Additional Support

1. ACS only provides Level 3 technical support. This is limited to an issue with the ACS Cloud Platform, and does not include the end user environment.

2. The Reseller must carry out, at a minimum, the first and second level of technical support and use all reasonable efforts to determine the nature of any End User issues prior to contacting ACS.

3. ACS will, in its absolute discretion, determine whether the assistance sought by the Reseller falls within ACS Support. If the assistance sought does not fall within the ACS Support, ACS may charge an additional fee for the provision of such assistance at the rates outlined in Schedule B.