Surface Commercial Breadth Reseller Compliance Terms and Conditions
(Last updated April 17, 2023)


These Surface Commercial Breadth Reseller Compliance Terms and Conditions (“Terms and Conditions”) are entered into by and between the Authorized Microsoft Surface Commercial Device Distributor (“Distributor”) and the Breadth Reseller (“Breadth Reseller”) entities identified below and shall apply to all orders and purchases of Surface Devices by Breadth Reseller from Distributor. The parties agree as follows:


1. Definitions
“Affiliate” means any legal entity that owns, is owned by, or that is under common ownership with an entity. Ownership means control of more than 50% of the equity interests of, or the right to direct the management of, an entity for so long as such control exists.
“Surface Devices” means all Microsoft products and technologies Microsoft makes available to Distributor and that a Distributor is permitted to make available to Breadth Reseller for sale to Customers in the Territory. Currently, “Surface Devices” only includes Microsoft Surface-branded devices and their peripheral products and Microsoft Surace Hub-branded devices and their peripheral products. For a complete list of permitted Surface Devices and their respective stock keeping units (SKUs) in the Territory, contact Distributor.
“Customer” means any legal entity (other than Breadth Reseller or an Affiliate of Breadth Reseller) that is a commercial business, government, or education institution within the Territory that acquires Surface Devices for use as an end user, and not for distribution or resale.
“Microsoft” as used herein means Microsoft Pty Ltd and its Affiliates.
“Term” means the period that begins as of the later of the two signature dates below and continues through June 30, 2024, unless cancelled or terminated earlier.
“Territory” means Australia

2. Authorization.
(a) Subject to these Terms and Conditions, Breadth Reseller shall receive a limited, non-exclusive right during the Term to purchase Surface Devices from Distributors for resale to Customers in the Territory.
(b) Except as otherwise provided for herein and to the maximum extent permitted under applicable laws Breadth Reseller is not authorized to do the following: (i) resell, distribute, market, or otherwise dispose of Surface Devices outside the Territory; (ii) collect orders or receive payments for Surface Devices from any Customer outside the Territory; or (iii) accept orders or receive payments for Surface Devices from any entity other than a Customer
(c) Where Breadth Reseller is engaged in online sales of Surface Devices, Breadth Reseller will take steps to ensure that it has a “business login portal” which will permit Customers to see prices but will restrict such prices from being viewed by consumers or other individuals or entities not in the commercial, governmental, or educational business.
(d) Breadth Reseller authorizes Microsoft to confirm the existence of Breadth Reseller’s relationship with the Distributor and consents to Distributor sharing that information, together with the sales reporting information set out in Section 3 below and any other information contemplated herein, with Microsoft and Microsoft’s Affiliates

3. Sales Reporting.
Breadth Reseller will provide Distributor with sales data for sales of Surface Devices acquired from Distributor. Breadth Reseller authorizes Distributor, as applicable, to share all such sales data with Microsoft and Microsoft’s Affiliates and, to the extent applicable, Breadth Reseller will obtain and is solely responsible for all necessary Customer consents required in order to share such sales data in the manner contemplated herein.

4. General Restrictions
(a) No Internal Use Rights. Except as otherwise provided in these Terms and Conditions, Breadth Reseller may not (i) use Surface Devices acquired under these Terms and Conditions for its own internal use or (ii) distribute or otherwise transfer Surface Devices acquired under these Terms and Conditions to any Affiliates of Breadth Reseller for their internal use.
(b) Proprietary Notices. Breadth Reseller may not remove any copyright, trademark, patent, or similar notices from the other party’s materials.
(c) No Alterations or Modifications. Breadth Reseller may not modify any Surface Devices (or any packaging or materials provided with the Surface Devices); Breadth Reseller will only distribute Surface Devices in unopened packages.
(d) Use of Microsoft Marks. Except as expressly provided for herein, these Terms and Conditions do not grant Breadth Reseller any right, title, interest, or license in or to any of trademarks, trade names, trade dress, or logos of Microsoft (the “Microsoft Marks”). Breadth Reseller may use Microsoft Marks in plain text (but not logos, trade dress, designs, or word marks in stylized form) to accurately identify and refer to Microsoft and the Surface Devices. However, in making such references, Breadth Reseller must refrain from use that is likely to cause confusion about Breadth Reseller’s relationship with Microsoft and must comply with Microsoft’s usage guidelines at: https://www.microsoft.com/enus/legal/intellectualproperty/Trademarks/EN-US.aspx. Breadth Reseller will promptly correct any misuse on notice
e) Publicity. Breadth Reseller will not make public statements relating to these Terms and Conditions without written approval.

5. Compliance with Laws.
Breadth Reseller will conduct its respective business activities under these Terms and Conditions in full compliance with all applicable laws. Without limiting the foregoing, Breadth Reseller acknowledges that the devices, services, software, and related technology ("Items") may be subject to applicable Trade Laws (as hereinafter defined) in one or more countries. Breadth Reseller will comply with all relevant laws and regulations applicable to the import or export of the Items, including but not limited to, trade laws such as the U.S. Export Administration Regulations or other end-user, end use, and destination restrictions by the U.S. and other governments, as well as sanctions regulations administered by the U.S. Office of Foreign Assets Control. Breadth Reseller will comply with all Legal and Regulatory Compliance practices detailed in Microsoft’s Standards of Business Conduct, including trade laws and notice requirements as applicable] (“Trade Laws”). These Terms and Conditions may be suspended or terminated immediately to the extent that continued performance would violate Trade Laws or put Distributor or Microsoft at risk of becoming subject to sanctions or penalties under Trade Laws. For additional information, see www.microsoft.com/exporting. Breadth Reseller shall timely provide information, assistance, and cooperation as necessary to comply with Trade Laws or to register (or renew registration) or report to any governmental agency or certification body that regulates or certifies the use, licensing, or distribution of Surface Devices.

6. Business Conduct.
Breadth Reseller will:
(a) conduct its business activities with integrity;
(b) comply with anti-corruption laws and other laws prohibiting bribery, corruption, inaccurate books and records, inadequate internal controls, and money-laundering;
(c) ensure that none of its representatives directly or indirectly pays or offers to pay anything of value (including gifts, travel, hospitality, charitable donations, or employment) to any candidate for political office or to any official or employee (including elected officials or any private person acting on behalf of a public sector entity) of any governmental entity, public international organization, or political party, to improperly influence any act or decision of such person for the purpose of promoting the business interests of either party;
(d) refrain from making any unauthorized representation or commitment in connection with the sale of Surface Devices;
(e) ensure that all communications to its customers and to Distributor are complete, truthful, accurate, not misleading, and include any required disclosures; and
(f) refrain from retaliating against anyone who has, in good faith, reported a possible violation of the foregoing commitments.

7. Monitoring and Reporting.
If either party has a good-faith reason to believe that the other party is in violation of anti-corruption laws or Trade Laws in connection with business or sales activity relating to these Terms and Conditions, it will notify the other party with a general description of the nature of the concern, and the reason for its belief. Distributor or Breadth Reseller may also contact Microsoft’s Business Conduct Alias (BUSCOND@microsoft.com) with questions or requests for further information or guidance. The parties will confer in good faith on an appropriate and lawful approach to addressing the concern.
 
8. Right to Audit.
Distributor may use a third-party auditor, or an audit related agent, (“Auditor”) to review Relevant Records and audit Breadth Reseller premises, operations, processes, and Relevant Records during the Term and for three (3) years thereafter, to verify compliance under these Terms and Conditions. Any third-party Auditor will (i) be independent and internationally recognized, certified or chartered, (ii) not be hired on a contingent fee basis; and (iii) be instructed by Distributor to treat the Breadth Reseller’s Confidential Information in accordance with applicable professional standards and the confidentiality requirements. In the exercise of Distributor’s audit rights, Distributor may require Breadth Reseller to provide electronic downloads of relevant data. “Relevant Records” means complete and accurate records relating to Breadth Reseller’s performance under these Terms and Conditions (including the books, documents, data, records, papers, and other information and materials related to transactions and obligations contemplated by these Terms and Conditions) for the shorter of (a) the three (3) most recent years of Breadth’ Resellers participation under these Terms and Conditions; or (b) the duration of Breadth Reseller’s participation under these Terms and Conditions. Notwithstanding the foregoing, upon Distributor’s request, Breadth Reseller agrees to promptly provide information reasonably necessary to demonstrate Breadth Reseller’s compliance with these Terms and Conditions.

9. Use of Others.
Breadth Reseller may not (i) delegate any of its obligations under these Terms and Conditions to any third party (which includes Affiliates of Breadth Reseller) except as otherwise authorized in these Terms and Conditions. Breadth Reseller may only hire and use third parties to perform ancillary services in support of Breadth Reseller’s performance of its obligations under these Terms and Conditions. Breadth Reseller guarantees such third parties’ compliance with these Terms and Conditions and will be liable for the acts and omissions of each such third party.

10. Pricing.
The price at which Breadth Reseller purchases Surface Devices from Distributor will be determined and communicated by Distributor. Except as otherwise provided in these Terms and Conditions, Breadth Reseller has complete discretion to negotiate and set pricing and payment terms and conditions with its Customers. Breadth Reseller’s negotiation of those terms will not be subject to Microsoft’s review or approval in any way.

11. Warranties and Disclaimers, General.
(a) Warranty. Breadth Reseller acknowledges that Microsoft warrants its Surface Devices to Customers as described in the manufacturer’s warranty accompanying the Surface Devices. Breadth Reseller’s instructions to Customers on the use of Surface Devices must be consistent with the terms of Microsoft’s manufacturer’s warranty, product use rights, and Microsoft’s end user documentation. Breadth Reseller may sell additional service warranties to Customers provided that the terms do not conflict, contradict or void any manufacturer’s warranty provided with the Surface Devices. Breadth Reseller must not make any other representations or warranty (verbally or in writing) about the Surface Devices. (b) Breadth Reseller’s Warranties to Customers. Breadth Reseller is solely responsible for any independent or extended warranties or other offers or services it makes to Customers. (c) NO IMPLIED WARRANTIES OR REPRESENTATIONS. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND CONDITIONS, ALL SURFACE DEVICES ARE PROVIDED “AS IS.” THE FOREGOING “AS IS” WARRANTY, AND ANY WARRANTIES EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, ARE THE ONLY WARRANTIES MADE BY MICROSOFT. MICROSOFT MAKES NO OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS OR GUARANTEES TO THE OTHER RELATED TO THE SURFACE DEVICES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, MICROSOFT DISCLAIMS ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. (d) HIGH RISK USE WARNING. SURFACE DEVICES ARE NOT DESIGNED OR INTENDED FOR HIGH-RISK USE SCENARIOS WHERE FAILURE OR FAULT OF ANY KIND COULD REASONABLY BE SEEN TO LEAD TO DEATH OR SERIOUS BODILY INJURY, OR TO SEVERE DAMAGE TO TANGIBLE OR INTANGIBLE PROPERTY OR THE ENVIRONMENT. (e) NO WARRANTIES FOR THIRD-PARTY PRODUCTS OR SERVICES. MICROSOFT MAKES NO WARRANTIES, REPRESENTATIONS, OR CONDITIONS, AND ASSUMES NO LIABILITY AS TO ITEMS DISTRIBUTED UNDER A THIRD-PARTY NAME, COPYRIGHT, TRADEMARK OR TRADE NAME THAT MAY BE OFFERED OR COMBINED WITH OR INCORPORATED INTO THE SURFACE DEVICES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, MICROSOFT WILL HAVE NO LIABILITY IN CONNECTION WITH THE THIRD-PARTY ITEMS (SUCH AS IN CONNECTION WITH ANY SUPPLY OR FAILURE TO SUPPLY THEM). (f) Exception to Limitation of Liability. If applicable law gives Breadth Reseller any implied terms, despite the exclusions and limitations in these Terms and Conditions, then to the extent permitted by applicable law, Breadth Reseller’s remedies are limited to repair or replacement of the Surface Device and if Microsoft cannot repair or replace the Surface Device, Microsoft will refund the amount Breadth Reseller paid for it either directly or via the Distributor.

12. Termination.
Breadth Reseller acknowledges that Microsoft may cancel, suspend or terminate these Terms and Conditions or Distributor’s authorization to provide Breadth Reseller with Devices at any time without notice to Breadth Reseller. Breadth Reseller agrees not to bring any claims against Microsoft against such cancellation, suspension or termination, and to indemnify and hold harmless Microsoft and Microsoft’s Affiliates from and against any and all claims by Breadth Reseller, any Customer of Breadth Reseller or any other third party related to or caused by such cancellation, suspension or termination

13. Entire Agreement; Order of Precedence
These Terms and Condition together with any applicable reseller agreement or purchase terms entered into between Breadth Reseller and Distributor that govern Breadth Reseller’s orders and purchases of Surface Devices from Distributor (the “Purchase Terms”) constitute the entire agreement between Breadth Reseller and Distributor relating to the subject matter addressed herein and shall supersede any prior or contemporaneous communication and agreements in such regard. In the event of a conflict between these Terms and Conditions and the Purchase Terms of Distributor, these Terms and Conditions shall control as it relates to purchase and resale of Surface Devices.