2. CUSTOMER OBLIGATIONS
Compliance with Law; Compliance with Agreement. Customer will comply with all laws, rules and regulations applicable to its use of the Services. Customer acknowledges and agrees that Customer is responsible for ensuring that it and its End Users use the Services in accordance with the Google TOS.
2.1 Customer Administration of the Services. Customer is responsible for: (A) maintaining the confidentiality of the password and administrative account(s) provided to Customer by Google for the purpose of administering End User accounts; (B) designating those of Customer’s employees and Serverless Solutions’ employees who are authorized to access the administrative account; and (C) ensuring that all activities that occur in connection with Customer’s administrative account comply with the Google TOS. Customer acknowledges and agrees that Google is merely a data processor and that neither Serverless Solutions’ nor Google’s liability extends to the internal management or administration of the Services for Customer.
2.2 Consents. Customer is responsible for providing the necessary notices to, and obtaining and maintaining any consents required from, End Users to allow Serverless Solutions and Google to perform their respective contractual obligations under this Agreement and the Google TOS, as applicable.
2.3 Privacy. Customer agrees to protect the privacy rights of its End Users in accordance with all applicable laws and regulations.
3. CHARGES AND PAYMENT
3.1 Payment. Customer’s use of the Services is subject to payment of the fee(s) set forth in the Ordering Document. Unless otherwise provided in the Ordering Document, Customer will pay for the Services on a full prepaid basis for the Initial Term and each Renewal Term (both as defined in Section 4.1), to the extent applicable. Fees are due 30 days from the invoice date and are non-refundable, except as otherwise provided in the Google TOS. Serverless Solutions will have the right to change the fee once each year, effective with the next renewal date. Serverless Solutions will notify Customer of any fee increase at least 30 days prior to the expiration of the then-current term.
3.2 Support Charges. Any front-end, telephone-based support to be provided by Serverless Solutions under Section 1.2 of this Agreement will be available to Customer on business days between the hours of 9:00 a.m. to 6:00 p.m. Central Standard Time, at no additional cost. Any support services requested by Customer which require hands-on assistance from Serverless Solutions personnel, and/or technical details which require escalation of the issue(s) by Serverless Solutions to Google, will be billed to Customer at an hourly rate of $295.00, except support required to resolve Customer’s “P1” issues (defined as any defect or outage causing the software or product to be unusable, and/or the unavailability of a major functions, for which Serverless Solutions is unable to determine an acceptable bypass or work-around), for which Serverless Solutions’ support services shall also be rendered anytime at no additional cost.
3.3 Taxes. Customer is responsible for applicable taxes associated with Customer’s purchase and receipt of the Services (except for any taxes assessable against Serverless Solutions based on its income, property or employees) and Customer will pay Serverless Solutions without any reduction for such amounts. If Serverless Solutions is obligated to collect or pay taxes, the taxes will be invoiced to Customer (in the case of invoiced fees) or added to Customer’s credit card charges (in the case of credit card payments), unless Customer provides Serverless Solutions with a valid tax exemption certificate authorized by the appropriate taxing authority. If Customer is required by law to withhold any taxes from its payments to Serverless Solutions, Customer will increase the payment to Serverless Solutions so that the amount received by Serverless Solutions is the same as it would have been if no taxes were withheld.
3.4 Late Payments. Customer is responsible for all reasonable expenses (including legal fees) incurred by Serverless Solutions in collecting unpaid or overdue amounts, except where these unpaid or overdue amounts are due to billing inaccuracies attributable to Serverless Solutions.
4. TERM, TERMINATION, SUSPENSION AND ADDITIONAL END USER ACCOUNTS
4.1 Term. The term of this Agreement will begin on the Effective Date and will continue for an initial period as set forth in the Ordering Document (such period, the “Initial Term”). At the end of the Initial Term, this Agreement will renew automatically for consecutive renewal terms of 12 months (each, a “Renewal Term”), unless terminated by either party by providing the other party written notice of nonrenewal at least 60 days prior to the end of the then-current term. All terms and conditions of this Agreement shall apply during each Renewal Term, except for the fees. The fee for each Renewal Term will be the rates then in effect as described in Section 3.1. Serverless Solutions will invoice Customer, and Customer agrees to pay, for the renewal of the Services as set forth in the Ordering Document and Article 3 above.
4.2 Termination. Either party may terminate this Agreement for cause upon written notice if the other party fails to cure any material breach of this Agreement within 30 days after receiving written notice of such breach; provided, however, that the period to cure a breach with respect to payment shall be ten days. Other than as may be provided elsewhere in this Agreement, such termination will be Customer’s sole and exclusive remedy in the case of a material breach of this Agreement by Serverless Solutions. This Agreement will also terminate upon termination of the Google TOS by either Customer or Google.
4.3 Effects of Termination. If this Agreement terminates, then the rights granted hereunder by any party to the other will cease immediately and Customer’s access to the Services will cease. Unless this Agreement is terminated due to breach by Serverless Solutions or Google, all payments owed by Customer under this Agreement are immediately due, including any unpaid fees still owing for the then-current term (regardless of whether such term has been terminated early). Customer’s access to Customer Data following termination will be as set forth in the Google TOS.
4.4 Suspension of Services. Without prejudice to Serverless Solutions’ rights under Section 4.2 (Termination), if Customer is in breach of its payment obligations under this Agreement and has failed to cure such breach within ten days of notice from Serverless Solutions regarding such breach, Serverless Solutions may suspend Customer’s access to the Services until such breach is cured.
4.5 Additional End User Accounts. Customer may increase the number of End User accounts per Customer domain at any time. For End User accounts added during the Initial Term or any Renewal Term, the initial term for such End User accounts will be pro-rated, beginning on the date of the applicable order and ending on the expiration of the applicable term. Customer may request End User accounts by notifying its designated Serverless Solutions account manager. For each purchase of End User accounts, Serverless Solutions will issue a quote to Customer. End User accounts automatically renew in accordance with the terms of this Agreement, unless terminated by either party in accordance with the terms of this Agreement. The number of End User accounts cannot be reduced during a term, but may be reduced at the next renewal date. In addition, Serverless Solutions cannot transfer End User Accounts from one Customer domain name to another.
5. CONFIDENTIAL INFORMATION; PASSWORDS
5.1 Confidential Information. The provisions of the Google TOS regarding Confidential Information are incorporated into this Agreement by reference and govern the exchange of Confidential Information between Serverless Solutions and Customer under this Agreement. The exchange of Confidential Information between Customer and Google is governed by the Google TOS.
5.2 Passwords. For the avoidance of doubt, Serverless Solutions will only change or reset Customer or End User passwords if and/or as instructed by Customer.
6. PROCESSING OF PERSONAL DATA ON CUSTOMER’S BEHALF
6.1 Non-European Data Protection Legislation. Except to the extent that the European Data Protection Legislation (as defined in Section 6.4) applies to Serverless Solutions’ processing of any personal data on behalf of Customer, Serverless Solutions will, with respect to any personal data that it processes on Customer’s behalf:
(A) comply with, and only act on, instructions from or on behalf of Customer regarding the processing of such personal data;
(B) not process such personal data for any purpose other than the performance of Serverless Solutions’ obligations under this Agreement;
(C) ensure that appropriate technical and organizational measures are taken to avoid unauthorized or unlawful processing of such personal data and loss or destruction of, or damage to, such personal data;
(D) ensure the reliability of, and be responsible for, all of Serverless Solutions’ employees, agents and contractors who will have access to such personal data;
(E) not, by any act or omission, place Customer in breach of Non-European Data Protection Legislation (as defined in Section 6.4);
(F) inform Customer immediately of any suspected or confirmed data protection breaches or unauthorized or unlawful processing, loss, or destruction of, or damage to such personal data;
(G) ensure that any third-party subcontractor engaged by Serverless Solutions to process such personal data on behalf of Customer only uses and accesses such personal data in accordance with the terms of this Agreement and is bound by written obligations requiring it to provide at least the level of data protection required under this Section 6.1.
6.2 European Data Protection Legislation. If the European Data Protection Legislation applies to Serverless Solutions’ processing as processor of any personal data on behalf of Customer as controller (if, for example, the processing (x) is carried out in the context of the activities of an establishment of Customer in the European Economic Area (“EEA”) or (y) the personal data relates to data subjects who are in the EEA and the processing relates to the offering to them of goods or services in the EEA or the monitoring of their behavior in the EEA), Serverless Solutions will:
(A) only process personal data in relation to which Customer is the data controller in accordance with written instructions from or on behalf of Customer, unless EU or EU Member State law to which Serverless Solutions is subject requires other processing of such personal data, in which case Serverless Solutions will inform Customer (unless that law prohibits Serverless Solutions from doing so on important grounds of public interest);
(B) not process such personal data for any purpose other than for the performance of Serverless Solutions’ obligations under this Agreement;
(C) ensure that appropriate technical and organizational measures are taken to avoid unauthorized or unlawful processing of that data and loss or destruction of, or damage to, such personal data;
(D) ensure that all of Serverless Solutions’ employees, agents and contractors who will have access to such personal data have committed themselves to confidentiality or are otherwise under an appropriate obligation of confidentiality;
(E) not, by any act or omission, place Customer in breach of the European Data Protection Legislation;
(F) inform Customer promptly and without undue delay of any data protection breaches or unauthorized or unlawful processing, loss, or destruction of, or damage to, such personal data;
(G) obtain prior consent to engage any third-party subcontractor to process such personal data on behalf of Customer, and ensure such third-party subcontractor only uses and accesses such personal data in accordance with the terms of this Agreement and is bound by written obligations requiring it to provide at least the level of data protection required under this Section 6.2;
(H) taking into account the nature of the processing, assist Customer by appropriate technical and organizational safeguards, insofar as this is possible, for the fulfillment of Customer’s obligations under the European Data Protection Legislation to respond to requests for exercising the data subject’s rights;
(I) assist Customer in ensuring compliance with any applicable obligations under the European Data Protection Legislation related to security; breach notification; data impact assessments and prior consultation with the supervisory authorities, taking into account the nature of processing and the information available to Serverless Solutions;
(J) at the option of Customer (as evidenced in writing), delete or return all the personal data to Customer upon the expiration or termination of this Agreement, and delete existing copies unless prohibited from doing so by applicable EU or EU member state law;
(K) make available to Customer all information necessary to demonstrate Serverless Solutions’ compliance with the obligations imposed by this Agreement in respect of such personal data and allow for and cooperate with audits, including inspections, conducted by Customer or an auditor chosen by Customer; and
(L) not process, or cause to be processed, such personal data outside the EEA unless Serverless Solutions adopts a compliance solution that achieves compliance with the terms of Article 25 of the Directive or Article 44 of the GDPR (as applicable).
(M) Customer as Controller. Customer agrees that Serverless Solutions and Google are processors, and Customer is the controller, of any personal data referenced in this Article.
(N) Definitions. For purposes of this Agreement, “European Data Protection Legislation” means, as applicable: (A) any national provisions adopted pursuant to Directive 95/46/EC of the European Parliament and of the Council on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data (the “Directive”); (B) the Federal Data Protection Act of 10 June 1992 (Switzerland); (C) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/E (the “GDPR”); and/or (D) any other data protection or privacy legislation in force in the EEA or Switzerland. The term “Non-European Data Protection Legislation” means any applicable data protection and privacy legislation, guidelines and industry standards, other than the European Data Protection Legislation. The terms “processing”, “personal data”, “processor”, and “controller” as used in this Article have the meanings given such terms in the European Data Protection Legislation.
7. INTELLECTUAL PROPERTY RIGHTS
Except as expressly stated otherwise in this Agreement, neither party will acquire any rights, title or interest, in and to any of the Intellectual Property Rights belonging to the other party, or the other party’s licensors. All ownership rights, title, and Intellectual Property Rights in and to the content accessed through any Services are the property of the applicable content owner and may be protected by copyright or other applicable laws. The parties acknowledge and agree that Google owns all Intellectual Property Rights in the Services.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, NONE OF SERVERLESS SOLUTIONS, GOOGLE OR GOOGLE’S LICENSORS AND SUPPLIERS MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NON-INFRINGEMENT.
The Google TOS includes certain indemnification obligations of Google to Customer. Customer agrees to indemnify Serverless Solutions against third party claims to the same extent it indemnifies Google under the terms of the Google TOS.
10. LIMITATION OF LIABILITY
NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. NEITHER PARTY MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID BY CUSTOMER TO SERVERLESS SOLUTIONS FOR THE SERVICES DURING THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. These limitations of liability apply to the fullest extent permitted by applicable law, but do not apply to breaches of confidentiality obligations, violations of a party’s Intellectual Property Rights by the other party, or indemnification obligations.
11. GENERAL PROVISIONS
11.1 Notices. All notices, consents, approvals, acknowledgements and waivers under this Agreement must be in writing and delivered to the applicable party, sent to Customer’s address set forth in the Ordering Document in the case of Customer, and in the case of Serverless Solutions, sent to the attention of Serverless Solutions’ Chief Financial Officer at the address set forth in the preamble to this Agreement. Serverless Solutions and Customer each agree that notices and other communications under this Agreement may be received by email, unless otherwise required by law. Notice will be deemed given: (A) when verified by written receipt if sent by personal courier, overnight courier, or when received if sent by mail without verification of receipt; or (B) when verified by automated receipt or electronic logs if sent by email. A party may change its address or designee for notification purposes by giving the other party written notice of the new address or designee and the date upon which it will become effective.
11.2 Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the state of Texas, excluding that state’s choice of law rules. For any litigation that may arise under this Agreement, the parties consent to personal jurisdiction in and the venue (and waive any claim of forum non conveniens) of the state and federal courts located in Harris County, TX. Notwithstanding the foregoing, if the parties have entered into a Master Professional Services Agreement, the parties consent to the personal jurisdiction and venue set forth in the Master Professional Services Agreement with respect to any litigation that may arise under this Agreement.
11.3 Authorization; Binding Nature and Assignment. Each party represents and warrants to the other that: (A) it has the requisite corporate power and authority to enter into this Agreement and to carry out the transactions contemplated by this Agreement; and (B) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement have been duly authorized by the requisite corporate action on the part of such party. This Agreement will be binding upon the parties and their respective successors and assigns. Serverless Solutions may assign this Agreement in connection with a merger, change of control, consolidation, or sale or other disposition of all or substantially all of its assets. Customer may assign this Agreement to an Affiliate without Serverless Solutions written consent, but only if: (A) the assignee agrees in writing to be bound by the terms of this Agreement; (B) Customer remains liable for obligations incurred under this Agreement if the assignee defaults on them; and (C) Customer has notified Serverless Solutions of the assignment. Any other assignment is void, except with the other party’s prior written consent.
11.4 Publicity. Customer hereby consents to Serverless Solutions inclusion of Customer’s name (together with any identifying Customer trade name, trademark and/or logo) in a customer list, but only if Customer is not the only customer appearing on the list. Other than this, neither party may make any public statement regarding the relationships contemplated by this Agreement without the consent of the applicable party.
11.5 Third Party Beneficiary. The parties agree that Google is a third-party beneficiary of this Agreement. There are no other third-party beneficiaries of this Agreement.
11.6 Independent Contractors; No Agency. Serverless Solutions, Google and Customer are independent contractors with respect to Serverless Solutions’ resale of the Services, and this Agreement does not create an agency, partnership or joint venture. Customer acknowledges that Serverless Solutions is not an agent of Google and has no authority to bind Google or to change any terms, conditions, warranties or covenants made by Google.
11.7 No Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver.
11.8 Survival. The following provisions will survive any termination of this Agreement: Section 4.3 (Effects of Termination), Article 5 (Confidential Information; Passwords), Article 6 (Processing of Personal Data on Customer’s Behalf); Article 7 (Intellectual Property Rights), Article 8 (Disclaimer), Article 9 (Indemnification), Article 10 (Limitation of Liability), and this Article.
11.9 Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party’s reasonable control. This Section will not, however, apply to Customer’s payment obligations under this Agreement.
11.10 Severability. If any provision of this Agreement is found unenforceable, the balance of the Agreement will remain in full force and effect.
11.11 Entire Agreement. This Agreement and the Ordering Document(s) constitute the entire agreement of the parties with respect to the subject matter hereof and supersede any prior or contemporaneous agreements on that subject. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in this Agreement or the Google TOS.
11.12 Amendment and Waiver. Any amendment must be in writing and expressly state that it is amending this Agreement. If Customer requires a purchase order in connection with its invoice, Customer’s purchase order terms and conditions will not apply to or modify this Agreement. No change, waiver or discharge of any term of this Agreement will be valid unless made in writing and signed by an authorized representative of the party against which such change, waiver of discharge is sought to be enforced.
11.13 Counterparts; Electronic Signature. The parties may enter into this Agreement in counterparts, including facsimile, PDF or other electronic format, which taken together will constitute one instrument.
CUSTOMER ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE LEGALLY BOUND BY IT.