Microsoft Azure Contracting Requirements
Public Cloud Invoice Management/Rebill Services
The Services shall include Public Cloud invoicing services provided by NTIRETY to Customer (the “Invoicing Services”). Each such invoice will reflect all charges on the Customer’s Public Cloud accounts.
Customer acknowledges that NTIRETY cannot guarantee that the fees for the Public Cloud services will remain the same. If the Public Cloud provider increases its fees for the Public Cloud services, NTIRETY may proportionately adjust its Public Cloud services fees under this SOW.
Public Cloud Usage & Billing Access
In the event that the applicable Public Cloud provider requires that Customer take any action to allow NTIRETY to provide the Services in accordance herewith, Customer agrees to promptly take such action, which may include, without limitation, the execution of any agreement, document, instrument or certificate required by the Public Cloud provider in connection therewith.
Customer agrees that, so long as no material default by NTIRETY has occurred and is in existence at the applicable time (subject to the applicable notice, grace and cure periods), during the term of this SOW, Customer shall not take any action that, directly or indirectly, causes NTIRETY to fail to obtain or maintain usage and billing access to Customer’s Public Cloud accounts for purposes of providing the Services hereunder. Customer acknowledges that NTIRETY bills in arrears with respect to the Services, and if Customer causes NTIRETY to fail to maintain usage and billing access to Customer’s Public Cloud accounts in accordance herewith, in addition to such other remedies as NTIRETY may have at law, in equity, by contract or otherwise, Customer agrees to pay NTIRETY for Services provided during the invoicing cycle in which Customer terminates such access in the amount of the prior month’s invoice plus ten percent (10%). NTIRETY may suspend the affected Services in the event and for the period of time that NTIRETY shall not have such required access to Customer’s Public Cloud accounts; provided, that Customer shall pay NTIRETY all amounts for the Services during the period of suspension as if no suspension had occurred.
Data Ownership; Return of Customer Data
As between NTIRETY and Customer, Customer is the sole owner of all rights, title and interest in and to any Customer data that is provided by or on behalf of Customer to NTIRETY under the MSA or this SOW (the “Customer Data”). In the course of providing the Services, NTIRETY, the applicable Public Cloud provider and their respective affiliates, subsidiaries and service providers may only process Customer Data in accordance with Customer’s instructions or the MSA, any SOW or any Addendum. Customer shall be responsible for ensuring that Customer: (i) has given adequate notice and made all appropriate disclosures to the data subjects regarding Customer’s use and disclosure and NTIRETY’s, the applicable Public Cloud provider’s and their respective affiliates’, subsidiaries’ and service providers’ processing of Customer Data, including, without limitation, for the provision of the Services; and (ii) has or obtains all necessary rights and, where applicable, all appropriate and valid consents from the data subjects to disclose such Customer Data and to permit such processing of Customer Data for the purposes of the provision of the Services under the MSA, this SOW and each Addendum or as may be required by applicable law.
NTIRETY will maintain Customer Data for a period of thirty (30) days after the expiration or the termination of the MSA or this SOW, after which time Customer Data will be permanently destroyed in accordance with NTIRETY’s and the applicable Public Cloud provider’s standard procedures. Within this retention time period, and upon receipt of a written request from Customer, NTIRETY will return to Customer all Customer Data and account credentials, in a format and method to be mutually agreed upon by the Parties. After this retention time period has expired, NTIRETY shall remove any infrastructure and software that NTIRETY uses in the provision of the Services under this SOW; and remove any non-customer identity and access management (IAM) accounts, groups, roles and federation that NTIRETY uses in the provision of the Services under this SOW. Notwithstanding the foregoing, NTIRETY shall not be obligated to return or destroy Customer Data to the extent that it is infeasible or has been electronically archived in accordance with NTIRETY’s and the applicable Public Cloud provider’s standard procedures, so long as the Customer Data is retained subject to Section 6 (Confidential Information) of the MSA.
Third Party Software
To the extent that any third party software (“Third Party Software”) is included or incorporated in the Services, Customer agrees that it shall only use such Third Party Software in conjunction with the Services. For any Third Party Software that is subject to the terms of a third party software license (a “Third Party License”), the terms of the applicable Third Party License will apply to the Third Party Software independent of the terms of the MSA. If Customer does not agree to abide by such Third Party Licenses, Customer shall not use such Third Party Software. NTIRETY retains all rights that are not expressly granted in this MSA to Customer
Microsoft Cloud Addendum
Customer acknowledges that certain of the Services described herein are provided by or through Microsoft Corporation’s Microsoft Azure (“Azure”) (such services are referred to herein as, the “Azure Services”). Customer shall not use the Azure Services unless it has executed NTIRETY’s form of Microsoft Cloud Addendum (the “Microsoft Cloud Addendum”).
NOTWITHSTANDING ANY COMMUNICATIONS BETWEEN NTIRETY AND CUSTOMER, NEITHER NTIRETY NOR ANY OF ITS EMPLOYEES, AFFILIATES OR AGENTS MAKES ANY WARRANTIES OF ANY KIND REGARDING THE AZURE SERVICES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, COMPLETELY SECURE, ERROR-FREE, NON-INTERRUPTION, NON-INTERFERENCE, OR NON-INFRINGEMENT. THE AZURE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CUSTOMER’S USE OF THE AZURE SERVICES SHALL BE AT ITS OWN RISK. EACH OF THESE DISCLAIMERS SHALL APPLY UNLESS PROHIBITED BY APPLICABLE LAW.
Unless NTIRETY and Customer have executed NTIRETY’s form of Business Associate Agreement for the exchange of “protected health information” (as defined in 45 CFR 160.103) in relation to the Azure Services, and unless Customer shall at all times maintain compliance with such Business Associate Agreement, including, without limitation, identifying to Microsoft Corporation and NTIRETY each account that uses the Azure Services to store or transmit protected health information and maintaining the required security configurations described in such Business Associate Agreement, if any, Customer hereby represents that Customer will not use the Azure Services or Customer’s Azure accounts to store or transmit (directly or indirectly) any such protected health information to Microsoft Corporation or NTIRETY. NTIRETY’s form of Business Associate Agreement for the Azure Services is available upon Customer’s written request.