Terms and Conditions for Google Services and/or Products
These Terms and Conditions for Google Services and/or Products (“Agreement”) permits a customer (“Customer”) to purchase from Appirio Inc. (“Appirio”) a right to use certain software-as-a-service or products provided by Google Inc. (“Google Services”), pursuant to Appirio order forms referencing this Agreement (“Order Form(s)”). The Google Services will be activated by Appirio, 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 Order Form’s Effective Date, as well as any future purchases made by Customer under such Order Form.
1. PURCHASE AND PAYMENT
Customer agrees to purchase from Appirio the Google Services set forth in an Order Form.
2. GOOGLE TERMS OF SERVICE
Customer understands and agrees that Appirio is not the provider of the Google Services, but a reseller of the Google Services. Customer’s use of the Google Services shall be subject to the applicable terms of service for the Google Services. Appirio is not responsible for the operation or performance of Google or the Google Services. Appirio does not make any representations or warranties with respect to the Google Services. The Google Services and all intellectual property rights relating to the Google Services are and shall remain the exclusive property of Google.
3. CUSTOMER OBLIGATIONS
During the term of this Agreement, Customer shall have the following obligations, in addition to those set forth elsewhere in this Agreement:
3.1. 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 Appirio’s and Google’s responsibilities and liabilities do not extend to the internal management or administration of Customer’s electronic messaging system and that Appirio is merely a data-processor.
3.2. 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.
3.3. 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.
3.4. Customer Indemnity. Customer will indemnify, defend and hold harmless Appirio 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.
3.5. Susepntion. IF CUSTOMER FAILS TO COMPLY WITH THE OBLIGATIONS SET FORTH IN SECTION 3.2, SECTION 3.3, SECTION 4.2, AND/OR SECTION 4.3, APPIRIO 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 OR SECTION 4 MAY BE DEEMED A MATERIAL BREACH OF THIS AGREEMENT.
4. SUBSCRIPTION TERM, FEES & PAYMENT
4.1. Subscription Term and Renewals. The term of any subscription to the Google Services (each a “Subscription”) shall be one (1) year, commencing on the date that the Google Services are activated for Customer, unless otherwise specified on the applicable Order Form. Subscriptions shall automatically renew for additional periods of one (1) year at Appirio’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 thirty (30) days prior to the end of the relevant Subscription term.
4.2. Subscription Fees. Customer shall pay all fees as specified on the applicable Order Form. Fees are based on products and 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 Order Form. Customer may purchase additional Subscriptions for Google Services by entering into additional Order Forms with Appirio. The Subscription fee for each additional Subscription will be Appirio’s then-current Subscription fee for Google Services. Appirio 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.
4.3. Payment Terms. All payments are non-refundable and shall be made in U.S. dollars within fifteen (15) days of the date of invoice, unless otherwise specified in the applicable Order Form. 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 Appirio. 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.
5. TERM AND TERMINATION
5.1. Term. This Agreement is effective as of the applicable Order Form’s Effective Date and expires on the date of expiration or termination of all Subscription terms.
5.2. Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (which shall include any failure to pay fees) within thirty (30) days after written notice of such breach; (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.
5.3. 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 any Google Services subject to an active Subscription, such Subscription shall automatically terminate.
5.4. 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 Appirio’s request, return) any and all copies of any Appirio 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. Appirio shall have no liability from any termination of this Agreement in accordance with the terms of this Agreement.
5.5. Survival. The following Sections shall survive any expiration or termination of this Agreement: 2 (Google Terms of Service), 3 (Customer Obligations), 4.2 (Subscription Fees), 4.3 (Payment Terms), 5 (Term and Termination), 6 (Warranty Disclaimer), 7 (Limitation of Remedies and Damages), 8 (Confidential Information), and 9 (General Terms).
6. WARRANTY DISCLAIMER
ALL GOOGLE SERVICES SOLD UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND WITH ALL FAULTS. APPIRIO, 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. APPIRIO 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 APPIRIO. APPIRIO 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.
7. LIMITATION OF REMEDIES AND DAMAGES
NEITHER CUSTOMER NOR APPIRIO 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. THE IMMEDIATELY PRECEDING SENTENCE SHALL NOT APPLY TO CUSTOMER WITH RESPECT TO ANY CLAIM ARISING FROM CUSTOMER’S BREACH OF SECTION 2 (GOOGLE TERMS OF SERVICE). NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, APPIRIO’S ENTIRE LIABILITY RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO APPIRIO 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. THE IMMEDIATELY PRECEDING SENTENCE SHALL NOT APPLY WITH RESPECT TO A PARTY’S BREACH OF SECTION 8 (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.
8. 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 Appirio 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 with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone may not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have.
9. 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, reorganization, acquisition or other transfer of all or part of its assets or voting securities. Any other attempt to transfer or assign this Agreement will be void. For the duration of this Agreement and for twelve (12) months thereafter, Customer will not hire any persons employed by Appirio, whether or not such resource had direct interaction with Customer under this Agreement. This restriction includes, but is not limited to any employee, subcontractor, or agent of Appirio. This Agreement shall be governed by and construed under the laws of the State of California. Any suit or proceeding arising out of or relating to this Agreement shall be commenced exclusively in the state courts located in San Francisco County, California, or the United States District Court for the Northern District of California located in San Francisco County, California and each party irrevocably submits to the exclusive jurisdiction and venue of such courts. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed. The parties are independent contractors and no employment, agency, or joint venture is created hereunder. All notices, requests, approvals or consents required or permitted under this Agreement will be to the address specified in the Order Form. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable or invalid for any reason, that provision shall be limited or eliminated to the minimum extent necessary and the remaining provisions of this Agreement shall be unaffected and remain in full force and effect. Any waivers or amendments shall be effective only if made in writing signed by a representative of the respective parties authorized to bind the parties. No provision of any purchase order or other business form employed by either party will supersede the terms and conditions of this Agreement, and any such document shall be for administrative purposes only and shall have no legal 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.
EXHIBIT A – GOOGLE SERVICES SUPPORT – CUSTOMER SUPPORT (RESALE)
THIS EXHIBIT A IS APPLICABLE AND IS EFFECTIVE SOLELY IN THE EVENT THAT GOOGLE SERVICES SUPPORT HAS EXPRESSLY BEEN PURCHASED BY CUSTOMER ON AN ORDER FORM.
“Business Hour” means one (1) hour during Normal Working Hours.
“Error” means a failure of an product to conform substantially to its functional specifications as set forth in the applicable documentation.
“Error Correction” means any of the following: (a) a modification or addition that, when made or applied to the non-conforming product, establishes substantial conformity of the product to the functional specifications set forth in the applicable documentation, or (b) a procedure or routine that, when observed in the regular operation of the product, eliminates the practical adverse effect on Customer of a non-conformity.
“Normal Working Hours” means 6:00am to 6:00pm Pacific Time, Monday through Friday, except for days on which banks in California are authorized or required by law to close.
Error Severity Definition Table
2. Customer Support.
During the term of the Google Services support set forth in the applicable Order Form, Appirio shall provide customer assistance (“Customer Support”) consisting of (a) online email and telephone support during Normal Working Hours regarding use and deployment of the product to one (1) of Customer’s designated employees, and (b) support with respect to Errors as set forth below. When making a Customer support request, Customer should provide as much detail as possible, including but not limited to:
(a) The Customer’s Support Contract Number, which Appirio shall provide to Customer after the Effective Date of the applicable Order Form;
(b) The name and version of the browser used;
(c) A reproducible test case that demonstrates the specific usage that causes the Error being reported;
(d) Exact wording of all related error messages;
(e) A full description of the Error and expected results; and
(f) Any special circumstances surrounding the discovery of the Error.
Note the Google provides Severity Level 1 support direct to Customer on a 24×7 basis. Customer may report Severity Level 1 problems to either Appirio or Google. All Severity Level 2 and Severity Level 3 problems must be reported to Appirio.
3. Error Designation.
Appirio’s support personnel will (a) verify Customer detected Errors, provided that the Errors can be recreated with an unmodified version of the product and (b) determine the severity of the support request and whether the support request is a Severity Level 1 Error, a Severity Level 2 Error, a Severity Level 3 Error or not an Error.
4. Error Response.
Upon receipt of notice of an Error, Appirio 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”). Appirio will use commercially reasonable efforts to promptly provide Customer with a Response to each case in accordance with the following target Response times:
(a) Severity level 1: two (2) Business Hours
(b) Severity level 2: eight (8) Business Hours
(c) Severity level 3: twenty-four (24) business hours
Appirio will use commercially reasonable efforts to promptly resolve each Error. 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 Appirio’s reasonable determination. Appirio 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.
5. Customer Obligations.
Customer will provide all information and access to Customer resources as Appirio reasonably requires to provide Customer Support, including Internet or VPN access to Customer servers, physical access to Customer facilities, and assistance from Customer personnel. Appirio 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 Appirio 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.
6. Conditions for Providing Customer Support.
Appirio’s obligation to provide Customer Support is conditioned upon the Customer: (a) following all of Appirio’s installation and maintenance instructions; (b) making reasonable efforts to correct any Error after consulting with Appirio; and (c) providing Appirio, per Appirio’s reasonable request, with data, information, assistance, materials and access to equipment as necessary.
7. Exclusions from Customer Support and Service Level Obligations.
Appirio shall have no obligation or liability relating to problems in the product arising from: (a) Customer’s equipment, software, network connections or other infrastructure; (b) use of the product by Customer in a manner not consistent with the applicable documentation; (c) modifications to the product by any party other than Appirio; (d) 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 Appirio’s reasonable control.