TERMS AND CONDITIONS – PRODUCTS AND ONLINE SERVICES

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THE TERMS AND CONDITIONS OF CUSTOMER’S PURCHASE OF (i) MICROSOFT PRODUCTS AND ONLINE SERVICES AND (ii) ADD-ONS AND EXTENSIONS THEREOF (COLLECTIVELY “PAOS”) FROM ARTIFEX PARTNERS LLC (“SELLER”) ARE LIMITED TO THOSE CONTAINED HEREIN.  

Important Information About These Terms and Conditions 

These Terms and Conditions constitute a binding contract between Customer and Seller and are referred to herein as either “Terms and Conditions” or this “Agreement”. In addition to any agreement that references or incorporates these Terms and Conditions, Customer accepts these Terms and Conditions by making a purchase from or placing an order with Seller on any Seller website. These Terms and Conditions are subject to change without prior notice, except that the Terms and Conditions posted on a Seller website at the time Customer places an order or signs an Order Form will govern the order in question, unless otherwise agreed in writing by Seller and Customer. 

Definitions 

“Affiliates” means, with respect to Seller, entities that control, are controlled by, or are under common control with Seller; and, with respect to Customer, entities that control, are controlled by, or are under common control with Customer. 

“Contract Year” means the 12-month period commencing on the Commencement Date of each Customer Order Form and each anniversary of such Commencement Date.

“Customer Order Form” means Seller’s standard order form, executed by both Seller and Customer.

“Force Majeure Event” means any event or circumstance arising which is beyond the reasonable control of Seller (including but not limited to any industrial dispute affecting any third party, carrier delays, embargos, acts of God or acts or laws of governmental regulations or government agencies, severe weather conditions, fire, flood, disaster, failure of power, civil riot, war or terrorism). 

“Incorporated Terms and Conditions” means Providers’ standard terms and conditions, including without limitation, Microsoft’s licensing terms found at https://www.microsoft.com/en-us/licensing/product-licensing/products, in each case as amended from time to time (“Incorporated Terms and Conditions”).

“Provider” means Microsoft and other product and service providers providing PAOS under a Customer Order Form.

Term and Termination  

Term. The initial term set forth in such Customer Order Form (the “Initial Term”) will continue in effect, unless terminated earlier pursuant to this Agreement’s express provisions, until expiration the Initial Term. Each Customer Order Form will automatically renew for additional successive one year terms unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least 90 days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term“). 

Renewal Term Pricing. Except as otherwise explicitly provided in a Customer Order Form, prices for PAOS set forth in any Customer Order Form will increase, but not decrease, on the commencement of each Contract Year by the greater of (i) changes in the consumer price index, calculated from the date that is 75 days prior to the then current Contract Year, to the date that is 75 days prior to commencement of the subsequent Contract Year, and (ii) Providers published prices for such PAOS as of 75 days prior to the commencement of such Contract Year.

Suspension and Termination. In addition to any other express suspension or termination right set forth in this Agreement: 

  1. Seller may suspend services and access to PAOS under any Customer Order Form, if Customer fails to pay any Fees due under and Order Form, and such failure continues more than 10 days after its due dates;
  2. Seller may terminate this Agreement, or any Customer Order Form, effective on written notice to Customer, if Customer fails to pay any amount when due hereunder, and such failure continues more than 30 days after its due dates;
  3. either Party may terminate this Agreement, or any Customer Order Form, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; or 
  4. either Party may terminate this Agreement, or any Customer Order Form, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. 

Effect of Expiration Termination. No expiration or termination of this Agreement or a Customer Order Form will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund. 

Governing Law 

This Agreement is governed by and construed in accordance with the internal laws of the State of Oregon without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Oregon.  Any legal suit, action, or proceeding arising out of this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Oregon in each case located in the city of Portland and County of Multnomah, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

Incorporated Terms & Disclaimer of Purchase Orders

Customer acknowledges that it is receiving products and online services under this Agreement directly from the Provider pursuant to Incorporated Terms and Conditions. Accordingly, (i) Incorporated Terms and Conditions are hereby incorporated into this Agreement, and (ii) Customer shall consider the Provider to be the contracting party, (iii) the Provider shall be the party responsible for providing PAOS to the Customer, and (iv) Customer will look solely to the Provider for any loss, claims or damages arising from or related to the provision of such PAOS.

Customer may issue a purchase order for administrative purposes only. Additional or different terms and conditions contained in any such purchase order will be null and void. No course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of these Terms and Conditions or any purchase order or invoice, or any document in electronic or written form that is signed and delivered by each of the parties for the deliver and performance of PAOS except for each, an Customer Order Form.   

Payment 

Fees. Customer shall pay Seller the fees as set forth in the Order Form and subsequently issued invoices of Seller and Seller’s Affiliates (collectively, the “Fees“). All Fees shall be made in United States Dollars. Any objections to an invoice must be made to Seller within fifteen (15) days after the invoice date. Customer agrees to pay interest on all past-due sums at the lower of one and one-half percent (1.5%) per month calculated daily and compounded monthly (19.56% per annum) or the highest rate allowed by law. In the event of a default in the payment of an invoice, Customer will be responsible for all of Seller’s costs of collection, including, but not limited to, court costs, filing fees and reasonable attorneys’ fees.

Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Seller’s income.

Warranties 

Customer acknowledges that Seller is not the provider of the PAOS purchased by Customer hereunder and the only warranties offered are those of the Provider, not Seller or its Affiliates. In purchasing POAS, Customer relies on the Provider’s product and service descriptions and the terms and conditions set forth in the Incorporated Terms and Conditions only and not on any statements, specifications, service descriptions or other specifications representing the POAS that may be provided by Seller or its Affiliates. Customer expressly waives any claim that it may have against Seller or its Affiliates based on any product liability or infringement or alleged infringement of any patent, copyright, trade secret or other intellectual property rights with respect to POAS and also waives any right to indemnification from Seller or its Affiliates against any such claim made against Customer by a third party. 

EXCEPT AS SET FORTH IN ANY CUSTOMER ORDER FORM, AND SUBJECT TO APPLICABLE LAW, SELLER MAKES NO OTHER, AND EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS AND COVENANTS, EITHER EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, COMPLIANCE WITH LAWS, SATISFACTORY QUALITY, DURABILITY, ACCURACY OR NON-INFRINGEMENT) ARISING OUT OF, OR RELATED TO, THE PAOS OR THE HARDWARE OR SOFTWARE USED TO DELIVER THE PAOS. FURTHERMORE, SELLER DOES OT WARRANT THAT THE PAOS WILL BE TIMELY, UNINTERRUPTED OR ERROR FREE OR THAT THE POAS WILL MEET CUSTOMER’S REQUIREMENTS. THE DISCLAIMER CONTAINED IN THIS PARAGRAPH DOES NOT AFFECT THE TERMS OF ANY POAS PROVIDER’S WARRANTY. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY AND LIMITED REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE. THE TERMS OF THIS PARAGRAPH DOES NOT AFFECT THE TERMS OF ANY WARRANTIES FROM THE PROVIDER. CUSTOMER ACKNOWLEDGES THAT NO REPRESENTATIVE OF SELLER OR OF ITS AFFILIATES IS AUTHORIZED TO MAKE ANY REPRESENTATION OR WARRANTY THAT IS NOT IN THESE TERMS AND CONDITIONS.  

Seller shall not be liable for any loss or damage suffered or incurred by Customer arising from Seller’s delay or failure to fulfil or otherwise discharge any of its obligations under these Terms and Conditions or any Customer Service Form or PO where such delay or failure is caused by any non-performance of its obligations by Customer, industrial dispute, sudden or substantial depletion of Seller’s staff, or any Force Majeure Event. 

Pricing Information; Availability Disclaimer 

Seller reserves the right to make adjustments to pricing and PAOS offerings for reasons including, but not limited to, changing market conditions, discontinuation, unavailability, and Provider price changes. Therefore, Seller cannot guarantee that it will be able to fulfill Customer’s orders. 

Limitation of Liability 

UNDER NO CIRCUMSTANCES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH HEREIN, WILL EITHER PARTY, ITS AFFILIATES OR ITS OR THEIR SUPPLIERS, SUBCONTRACTORS OR AGENTS BE LIABLE FOR: ANY LOSS OF PROFITS, LOSS OF SALES OR TURNOVER, LOSS OR DAMAGE TO REPUTATION, BUSINESS, REVENUES OR SAVINGS, LOSS, DAMAGE OR CORRUPTION OF DATA OR SOFTWARE, OR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES OR IF SUCH DAMAGES ARE OTHERWISE FORESEEABLE, IN EACH CASE, AND WHETHER A CLAIM FOR ANY SUCH LIABILITY IS PREMISED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY OF LIABILITY. THE ENTIRE LIABILITY OF EACH PARTY AND ITS AFFILIATES FOR DAMAGES FROM ANY CAUSE WHATSOEVER WILL NOT EXCEED THE LESSER OF: (A) THE AMOUNT PAID OR PAYABLE BY CUSTOMER FOR THE CLOUD SERVICE(S) IN THE PRIOR 12 MONTHS; OR (B) $10,000. 

ALL EXCLUSIONS AND LIMITATIONS IN THESE TERMS AND CONDITIONS AND/OR ANY PURCHASE ORDER SHALL ONLY APPLY SO FAR AS PERMITTED BY LAW. 

Notices.

Notice to Customer shall be as set forth in the Customer Order Form. Notices to Seller shall be made as follows:

Artifex Partners LLC PO Box 82356, Portland, OR 97282. info@artifexpartners.com.

All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice“) must be in writing and addressed to the Parties at the addresses set forth above (or to such other address that may be designated by the party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email, or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving party; and (ii) if the party giving the Notice has complied with the requirements of this section.

Miscellaneous 

These Terms and Conditions and the Customer Service Form, if applicable, contains the entire understanding of the Parties with respect to the subject matters herein and supersedes and replaces in their entirety any and all other prior and contemporaneous agreements and understandings, whether oral, written, electronic or implied, if any, between the Parties hereto with respect to the subject matter hereof. Each Party acknowledges that it has not relied on any statements, warranties or representations given or made by any other party under or in relation to these Terms and Conditions, save those expressly set out in these Terms and Conditions. Each Party further acknowledges that it shall have no rights or remedies with respect to such subject matter other than under these Terms and Conditions. No course of prior dealings between the Parties and no usage of trade will be relevant to determine the meaning of these Terms and Conditions or invoice related thereto. 

No provision of these Terms and Conditions or any Customer Service Order From will be deemed waived, amended or modified by either Party unless such waiver, amendment or modification is in writing and signed by both Parties. Any delay or failure by either Party to exercise any right or remedy will not constitute a waiver of that Party to enforce such rights thereafter. 

Seller may assign or subcontract all or any portion of its rights or obligations under these Terms and Conditions to any of its Affiliates or assign the right to receive payments to any of its Affiliates, without Customer’s consent. Seller shall be responsible for the performance of any of its Affiliates subcontractors or assignees under these Terms and Conditions. Customer may not assign these Terms and Conditions or any of its rights or obligations herein without the prior written consent of Seller. Subject to the restrictions in assignment contained herein, these Terms and Conditions will be binding on and inure to the benefit of the Parties hereto and their successors and assigns. If any term or condition of these Terms and Conditions is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms or conditions hereof.  

The relationship between Seller and Customer is that of independent contractors and not that of employer/employee, agency, partnership or joint venture. Accordingly, except as expressly authorized herein, no Party shall have any authority to act or make representations on behalf of the other Party, and nothing herein shall impose liability on a Party in respect of any liability incurred by another Party to a third party. 

Each Customer Order Form may be signed elctronically, in separate counterparts each of which shall be deemed an original and all of which together will be deemed to be one original.  

Revised – May 15, 2020.