These Terms and Conditions for Google Apps and/or Google Vault (“Agreement“) permits a customer (“Customer“) to purchase from CloudFirst Technology Private Limited . A right to use certain software-as-a-service or online products provided by Google Inc. (“Google Services“), pursuant to CloudFirst Purchase Invoice/Invoice referencing this Agreement (“Purchase Invoice/Invoice“). The Google Services will be activated by CloudFirst, but will otherwise be provided by Google Inc. (“Google“) as further described in this Agreement. This Agreement shall govern Customer’s initial purchase on the applicable Purchase Invoice/Invoice Effective Date, as well as any future purchases made by Customer under such Purchase Invoice/Invoice.
PURCHASE AND PAYMENT
Customer agrees to purchase from CloudFirst the Google Services set forth in an Email Purchase Invoice/Invoice.
GOOGLE TERMS OF SERVICE
CUSTOMER OBLIGATIONS
During the term of this Agreement, Customer shall have the following obligations, in addition to those set forth elsewhere in this Agreement:
Compliance with Laws - Customer is and will remain solely responsible for complying with all laws, rules and regulations regarding the management and administration of its electronic messaging system. Customer acknowledges and agrees that CloudFirst’s and Google’s responsibilities and liabilities do not extend to the internal management or administration of Customer’s electronic messaging system and that CloudFirst is merely a data-processor.
- Use Restrictions Customer agrees that it shall not resell the Google Services or create or offer derivative versions of the Google Services either directly or through a third party. The Google Services are for use with normal business messaging traffic only, and may not be used for any other purpose, including use of Google’s Message Encryption Services (if applicable) with machine generated message encryption and delivery. For each user for which Customer will be routing email and/or archiving email, if any, through the Google Services, Customer shall establish an email account in the Provider Administration Console.
- Compliance with AUP. Customer agrees to comply with the terms and conditions of the Acceptable Use Policy (“AUP“) as published or posted on the website at http://www.google.com/a/help/intl/en/admins/use_policy.html and as may be periodically amended by Google. The AUP is hereby incorporated in this Agreement.
- Customer Indemnity. Customer will indemnify, defend and hold harmless CloudFirst and its suppliers from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to: (a) the content of Customer’s electronic messages or (b) any violation by Customer of the AUP
- IF CUSTOMER FAILS TO COMPLY WITH THE OBLIGATIONS SET FORTH IN SECTION 3.2 AND/OR SECTION 3.3, CloudFirst SHALL INFORM CUSTOMER THEREOF AND RESERVES THE RIGHT TO SUSPEND THE GOOGLE SERVICES UNTIL SUCH FAILURE IS REMEDIED. NOTWITHSTANDING THE FOREGOING, THE FAILURE OF CUSTOMER TO COMPLY WITH THE OBLIGATIONS SET FORTH IN THIS SECTION 3 MAY BE DEEMED A MATERIAL BREACH OF THIS AGREEMENT.
SUBSCRIPTION TERM, FEES & PAYMENT
- Subscription Term and Renewals. The term of any subscription (each a “Subscription“) to the Google Services shall be one year, commencing on the date that the Google Services are activated for Customer, unless otherwise specified on the applicable Purchase Invoice/Invoice. Subscriptions shall automatically renew for additional periods of one (1) year at CloudFirst’s list price for Google Services in effect at the time of renewal unless either party gives the other notice of non-renewal at least 30 days prior to the end of the relevant Subscription term.
- Subscription Fees. Customer shall pay all fees as specified on the applicable Purchase Invoice/Invoice. Fees are based on services purchased and not actual usage, payment obligations are non-cancelable, fees paid are non-refundable, and the number of Subscriptions purchased cannot be decreased during the relevant Subscription Term stated on the Purchase Invoice/Invoice. Customer may purchase additional Subscriptions for Google Services by entering into additional Purchase Invoice/Invoice with CloudFirst. The Subscription fee for each additional Subscription will be CloudFirst’s then-current Subscription fee for Google Services. CloudFirst reserves the right to modify its Subscription fees at any time, upon at least thirty (30) days prior notice to Customer, which notice may be provided by e-mail.
- Payment Terms. All payments are non-refundable and shall be made in Indian Ruppee within fifteen (15) days of the date of invoice, unless otherwise specified in the applicable Purchase Invoice/Invoice. Customer shall be responsible for all sales, use, GST, value-added withholding or similar taxes or levies, whether domestic or foreign, other than taxes based on the net income of CloudFirst. Any late payments shall be subject to a service charge equal to the lesser of 1.5% per month of the amount due or the maximum amount allowed by law.
TERM AND TERMINATION
- Term. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms.
- Termination for Cause. Either party may terminate this Agreement (including all related Purchase Invoice/Invoice ) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party.
- Termination by Google. Customer acknowledges that the Google Services are provided by Google and that Google may cease to make available the Google Services. If Google ceases to make available the Google Services, this Agreement will automatically terminate.
- Effect of Termination. Upon any termination of this Agreement, Customer shall immediately cease any and all use of and access to the Google Services and delete (or, at CloudFirst’s request, return) any and all copies of any CloudFirst Confidential Information (as defined below) in its possession. Termination of this Agreement is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. CloudFirst shall have no liability from any termination of this Agreement in accordance with the terms of this Agreement.
- Transfer/Withdraw Customer want to quit with another reseller or want to withdraw subscription services from CloudFirst thus there is no provision for any kind of full or partial refund. Then Customer need to pay again to Google by date of transfer.
- Survival. The following Sections shall survive any expiration or termination of this Agreement: 2 (Google Terms of Service), 3.2 (Subscription Fees), 3.3 (Payment Terms), 4 (Term and Termination), 5 (Warranty Disclaimer), 6 (Limitation), 7 (Confidential Information), and 8 (General Terms).
WARRANTY DISCLAIMER
ALL GOOGLE SERVICES SOLD UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND WITH ALL FAULTS. CloudFirt, GOOGLE, AND ITS AND THEIR SUPPLIERS SPECIFICALLY DISCLAIM ANY AND ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE MINIMUM TIME PERIOD REQUIRED BY LAW. CloudFirt SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF CloudFirt. CloudFirt EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF CUSTOMER’S USE OF THE GOOGLE SERVICES, INCLUDING THE RESULTS OF ANY USER’S USE OF, OR INABILITY TO USE, THE GOOGLE SERVICES.
LIMITATION OF REMEDIES AND DAMAGES
NEITHER CUSTOMER NOR CloudFirt SHALL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, CloudFirt’S ENTIRE LIABILITY RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO CloudFirt DURING THE PRIOR TWELVE (12) MONTHS UNDER THIS AGREEMENT. GOOGLE SHALL NOT BE LIABLE TO CUSTOMER FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL, UNDER THIS AGREEMENT. THIS SECTION 6 SHALL NOT APPLY TO CUSTOMER WITH RESPECT TO ANY CLAIM ARISING FROM CUSTOMER’S BREACH OF SECTION 2 (GOOGLE TERMS OF SERVICE) OR TO CUSTOMER OR CloudFirt WITH RESPECT TO A PARTY’S BREACH OF SECTION 7 (CONFIDENTIAL INFORMATION). The parties agree that the limitations specified in this Section 6 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
- CONFIDENTIAL INFORMATION. Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party“) from the disclosing party (“Disclosing Party“) constitute the confidential property of the Disclosing Party (“Confidential Information“), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information. The terms and conditions of this Agreement shall be deemed Confidential Information of CloudFirt without further designation. Except as expressly authorized in this Agreement, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply and with notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information may cause substantial harm for which damages alone would be insufficient, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled seek to appropriate equitable relief in addition to whatever other remedies it might have.
GENERAL TERMS.
This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement except upon the written consent of the other party, except that either party may assign this Agreement in connection with a merger or acquisition. Any other attempt to transfer or assign this Agreement will be void. This Agreement shall be governed by and construed under the laws of the India only. Any suit or proceeding arising out of or relating to this Agreement shall be commenced exclusively in the state courts located in Delhi Only and each party irrevocably submits to the exclusive jurisdiction and venue of such courts. The parties are independent contractors and no employment, agency, or joint venture is created hereunder. All notices, requests and other communications under this Agreement must be in writing, and must be mailed by overnight courier, or delivered by hand, to the party to whom such notice is required. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable for any reason, the remaining provisions shall be unaffected and remain in full force and effect. This Agreement is the final, complete and exclusive agreement between the parties relating its subject matter, and supersedes all prior or contemporaneous understandings and agreements, whether oral or written.
Error Response.
Upon receipt of notice of an Error, CloudFirst shall assign appropriate technical personnel to the issue and provide Customer with acknowledgment that it has received such Error notice (such actions together, a “Response“). CloudFirst will use commercially reasonable efforts to promptly provide Customer with a Response to each case in accordance with the following target Response times:
CloudFirst will use commercially reasonable efforts to promptly resolve each case. Actual resolution time will depend on the nature of the case and the resolution. A resolution may consist of a fix, workaround or other solution in CloudFirst’s reasonable determination. CloudFirst shall maintain an open incident file which records all Errors referred by Customer for resolution, the nature of the problem, whether or not it has been resolved and the nature of the solution.
Customer Obligations.
Customer will provide all information and access to Customer resources as CloudFirst reasonably requires to provide Customer Support, including Internet or VPN access to Customer servers, physical access to Customer facilities, and assistance from Customer personnel. CloudFirst shall be excused from any non-performance of its obligations hereunder to the extent any such non-performance is attributable to Customer’s failure to perform its obligations. Specifically, Customer shall provide CloudFirst with sufficient support and test time on Customer’s computer system to duplicate the problem, certify that the problem is with the product, and certify that the problem has been corrected.
Conditions for Providing Customer Support.
CloudFirst’s obligation to provide Customer Support is conditioned upon the Customer: (a) following all of CloudFirst’s installation and maintenance instructions; (b) making reasonable efforts to correct any Error after consulting with CloudFirst; and (c) providing CloudFirst, per CloudFirst’s reasonable request, with data, information, assistance, materials and access to equipment as necessary.
Exclusions from Customer Support and Service Level Obligations.
CloudFirst shall have no obligation or liability relating to problems in the product arising from: (i) Customer’s equipment, software, network connections or other infrastructure; (ii) use of the product by Customer in a manner not consistent with the Documentation, (iii) modifications to the product by any party other than CloudFirst, (iv) third party acts or systems; or (iv) general Internet problems, force majeure, natural disasters, emergencies, acts of terror or war, or other factors outside of CloudFirst’s reasonable control.