This G Suite by Google Cloud Service Agreement (“Agreement”) sets forth the terms and conditions of your use of the Google Inc. (“Google”) hosted services currently known as “G Suite,” “Google Vault,” and/or “Google Drive Storage,” (as these services may be renamed from time to time) (“Services”). In this Agreement, “you,” and “your” refer to you. “We”, “us,” and “our” refer to UPFLARE ONLINE, Incorporated.
The Services are provided by Google. You acknowledge and agree that your use of the Services is subject to (i) the terms of this Agreement, and (ii) the Google Terms of Service located at http://www.google.com/apps/intl/en/terms/reseller_premier_terms.html (the “TOS”). Upon your first log in to the Services and prior to using the Services, you must accept the TOS. The TOS is a contract between you and Google. We will have no liability for performance of the Services by Google other than as set forth in this Agreement. You are responsible for obtaining and maintaining any consents required from your individual end users who use the Services to allow us to perform our obligations under the Agreement.
Changes to this Agreement.
This Agreement may change over time, either through amendments by us or applicable law which may or may not be reflected in the text of this Agreement, or otherwise. Before any material changes to this Agreement become binding on you, we will notify you of such changes by, for example, sending email to you at your email address of record. If, as a result of such a change, you no longer agree with the terms of this Agreement, your exclusive remedy is to cancel your Services with us. Your continued use of the Services following notification of a change in this Agreement indicates your consent to the change. Unless otherwise specified by us, any such change binds you thirty (30) days after we notify you of the change.
Fees; Payment Issues.
You agree to pay, prior to the effectiveness of the desired Services, the applicable Service fees communicated to you. In the event any of Service fees change, we will use reasonable efforts to give you thirty (30) days prior notice of such changes on our website or by other reasonable means. Please check our website often for any changes to our Service fees. All fees are nonrefundable, in whole or in part, unless this Agreement specifically provides for a refund. At our option, we may require that you pay fees through a particular payment means (such as by credit card or by wire transfer) or that you change from one payment provider to another. In the event of a charge back by a credit card company (or similar action by another payment provider allowed by us) in connection with your payment of fees for any Services, we may suspend access to the Services or terminate this Agreement. In the event we suspend access to the Services, we may reinstate your rights to and control over these Services solely at our discretion, and subject to our receipt of the unpaid fees and any reinstatement fee communicated to you. If you have an issue with credit card or other payment charges, you should contact us regarding the issue before you contact your credit card or other payment process company to request a charge back or reversal of the charges.
Representations and Warranties.
You represent and warrant that: (i) you will not resell, distribute, lease, or allow another third party to use, the Services; (ii) you are not (a) customer of any of the Services prior to entering into this Agreement, (b) a G Suite for Government customer, or (c) a customer of any edition of G Suite other than G Suite; (iii) your business has seven hundred forty-nine (749) or fewer staff members (fulltime staff, part-time staff, or contractors); (iv) you will immediately notify us if your business grows larger than seven hundred forty-nine (749) staff members (fulltime staff, part-time staff, or contractors); and (v) your principal place of business is not within China, Cuba, Iran, Myanmar, North Korea, Sudan, or Syria. Your principal place of business will be determined by the place where the majority of your business takes place.
You agree that the Services shall be provided for the term you selected through the Services interface. Unless you terminate the Services THROUGH THE SERVICES INTERFACE prior to the end of the then extant Services term, you agree that the Services may be renewed for another term of equal duration to the immediately preceding term and that the resulting fees shall be charged to the credit card associated with your account. You agree to hereby waive any requirement which might otherwise be imposed by law which would require that we obtain your affirmative consent for ongoing billings and that your continuing consent to be billed for such renewal(s) may be presumed until such time as you terminate the Services through the Services Interface. You agree that attempts to terminate the Services other than through the Services interface (such as by sending an email to a general email address of us) are not reliable means of communication and that such a termination attempt shall not binding until accepted and acknowledged by us. In relation to renewals, you further agree that it is your obligation to keep the credit card information associated with your account current and that we shall not be obligated to contact you to update such information in the event that the charges are denied.
We may elect to terminate this Agreement without cause and discontinue offering the Services upon notice, whereupon we or Google may offer you the option to migrate to a relationship either directly with Google, or with another Service reseller. In addition, we may offer you the option to migrate to a similar service provided by a third party or by us.
We will respond to questions and complaints from you relating to your use of the Services. Google will only provide customer support to you in accordance with the Google TOS.
Service Level Agreement.
The TOS provides a service level agreement from Google to you. The service level agreement may be updated periodically by Google. In the event of a service level violation by Google, you will only be eligible to receive those remedies set out under the TOS and must request such remedies directly from us.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER WE NOR GOOGLE MAKE ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WITH RESPECT TO THE SERVICES, AND EXPRESSLY DISCLAIM THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. NEITHER WE NOR GOOGLE MAKE ANY REPRESENTATION ABOUT ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY OR THROUGH THE SERVICES.
LIMITATION OF LIABILITY.
WE WILL NOT BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF WE KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. WE WILL NOT BE LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID BY YOU TO US FOR THE SERVICES DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. GOOGLE WILL NOT BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL, ARISING FROM OUR DISTRIBUTION AND RESALE OF THE SERVICES.
The TOS provides certain indemnification obligations of Google to you. You will indemnify us against third party claims to the same extent you indemnify Google under the TOS.
This Agreement shall be construed and governed in accordance with the laws of the United States of American and the State Washington, as if the Agreement was a contract wholly entered into and wholly performed within the State of Washington. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of the agreement to arbitrate, shall be determined by arbitration in King County, Washington, before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Service of process on you by us in relation to any dispute arising under this Agreement may be served upon you by first class mail to the address listed by you in your account or by electronically transmitting a true copy of the papers to the email address listed by you in your account.
This Agreement constitutes the complete and exclusive agreement between you and us, and supersedes and governs all prior proposals, agreements, or other communications. We, you, and Google are independent contractors with respect to the resale of the Services; nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. We are the processor of any personal data processed by us on your behalf, and you are the controller of any such data, as the terms “controller”, “processed”, “processor” and “personal data” are defined in 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. We may transfer, store and process your personal data in the United States or any other country in which we or our agents maintain facilities. By using the Services, you consent to this transfer, processing and storage of your personal data. The failure of us to require your performance of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by us of a breach of any provision hereof be taken or held to be a waiver of the provision itself. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole. We will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, our original objectives and intent as reflected in the original provision. Unless specified otherwise herein, (a) all notices must be in writing and addressed to the attention of the other party’s legal department and primary point of contact and (b) notice will be deemed given: (i) when verified by written receipt if sent by personal courier, overnight courier, or when received if sent by mail without verification of receipt; or (ii) when verified by automated receipt or electronic logs if sent by facsimile or email. This Agreement may not be amended or modified by you except by means of a written document signed by both you and an authorized representative of us.