These Terms and Conditions for Google Apps and/or Google Vault (“Agreement“) permits a customer (“Customer“) to purchase from Techsense Labs Private Ltd . (“Techsense Labs”) a right to use certain software-as-a-service or online products provided by Google Inc. (“Google Services“), pursuant to Techsense Labs order forms referencing this Agreement (“Order Form(s)“). The Google Services will be activated by Techsense Labs, 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 Techsense Labs the Google Services set forth in an Order Form.
2. GOOGLE TERMS OF SERVICE
Customer understands and agrees that Techsense Labs 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. Techsense Labs is not responsible for the operation or performance of Google Inc. or the Google Services. Techsense Labs 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 Techsense Labs’s and Google’s responsibilities and liabilities do not extend to the internal management or administration of Customer’s electronic messaging system and that Techsense Labs 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 Techsense Labs 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. IF CUSTOMER FAILS TO COMPLY WITH THE OBLIGATIONS SET FORTH IN SECTION 3.2 AND/OR SECTION 3.3, Techsense Labs 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.
4. SUBSCRIPTION TERM, FEES & PAYMENT
4.1. 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 Order Form. Subscriptions shall automatically renew for additional periods of one (1) year at Techsense Labs’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.
4.2. Subscription Fees. Customer shall pay all fees as specified on the applicable Order Form. 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 Order Form. Customer may purchase additional Subscriptions for Google Services by entering into additional Order Forms with Techsense Labs. The Subscription fee for each additional Subscription will be Techsense Labs’s then-current Subscription fee for Google Services. Techsense Labs 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 Indian Ruppee 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 Techsense Labs. 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 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 (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.
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 the Google Services, this Agreement will 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 Techsense Labs’s request, return) any and all copies of any Techsense Labs 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. Techsense Labs shall have no liability from any termination of this Agreement in accordance with the terms of this Agreement.
5.5. Transfer/Withdraw -Customer want to quit with another reseller or want to withdraw subscription services from Techsense Labs 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.
5.6. 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).
6. WARRANTY DISCLAIMER
ALL GOOGLE SERVICES SOLD UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND WITH ALL FAULTS. Techsense Labs, 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. Techsense Labs 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 Techsense Labs. Techsense Labs 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 Techsense Labs 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, Techsense Labs’S ENTIRE LIABILITY RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO Techsense Labs 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 Techsense Labs 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.
7.1 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 Techsense Labs 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.
8. 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.