Webdev (“we”, “us”) provides hosting and email, domain registration and dedicated server hosting services together with such other services as are agreed between it and the customer (“the Services”).
1. Conditions
By subscribing to any of the Services and opening an account with us (“the Account”) you (“the Customer”) agree to be bound by these terms and conditions. These terms and conditions apply to all Webdev accounts. They set out the basis on which we offer our services and should be read carefully.
2. Services
2.1 Webdev will use reasonable efforts to supply a continuous service. However, Webdev is not liable for any loss of data resulting from delays outside of our control, missed or non-deliveries, service interruptions or by errors or omissions of the customer. Webdev is not responsible for any losses suffered resulting from acts of god or force majeure including civil unrest, riots, floods, drought, fire, war and imposing legislation.
2.2 You agree that Webdev is not liable to you for any special consequential damages which you may suffer as a result of loss of business, contracts, profits, savings or otherwise. Webdev is unable to exercise control over material sent over the internet and excludes all liability of any kind for the publication by the Customer of inaccurate, misleading, offensive, threatening or obscene material, or material that is in breach of UK or other applicable law.
2.3 Webdev’s customers are liable for all charges levied by their telephone service provider arising from the Customer’s use of the Services.
2.4 From time to time Webdev or its sub-contractors need to carry out maintenance on the network, which may involve temporarily shutting parts of it down. Webdev will give as much notice as possible and shall try to keep this work to the period specified in the notice. Webdev accepts no liability whatsoever arising from such a suspension of the service.
2.5 YOU acknowledge and agree that details of YOUR name, address, telephone and fax numbers together with email address(es) and assigned IP Addresses may be released to the RIPE NCC to ensure that both WE and YOU fulfil their obligations under prevailing RIPE policies and that such data may be published in whole or in part in the RIPE WHOIS database.
2.6 License costs of all third party applications and software offered with our plans are subject to change without written intimation.
2.7 Webdev reserves the right to pass on any additional charges/price increases as a result in price changes from third party software and license vendors irrespective of the hosting cycle.
3. Banned Content
3.1 Customers must use the Services provided for lawful, authorised purposes only. Transmission, storage, or presentation of any information, data or material in violation of any Zimbabwe law is prohibited. The list of banned content includes, but is not limited to :-
(a) Illegal Material – This includes illegally exploited copyrighted works, commercial audio, video, or music files, and any material in violation of any regulation or material that is perceived to be misleading.
(b) Warez – This includes, but is not limited to, pirated software, ROMS, emulators, phreaking, hacking, password cracking, IP spoofing and encrypting of any of the above. Also includes any sites which provide “links to” or “how to” information about such material.
(c) Proxy – We do not allow any proxy set-ups or connections or any sort of activity through remote proxy connections on our Shared Hosting, Reseller Hosting, VPS Hosting and Dedicated Servers. The first offense committed by the Customer will result in suspension of their Account. Any second violation will result in immediate Account termination.
(d) IRC Hosts – Hosting an IRC server that is part of or connected to another IRC network or server or has a connection to an IRC network. Servers or virtual hosting accounts, found to be connecting to or part of these networks will be immediately removed from our network without notice. The server will not be reconnected to the network until such time that you agree to completely remove any and all traces of the IRC server, and agree to let us have access to your server to confirm that the content has been completely removed. Any second violation will result in immediate account termination.
(e) Defamatory content – any website content that makes a false claim, expressively stated or implied to be factual, that may give an individual, business, product, group, government or nation a negative image.
(f) Bit Torrents: Use of software and scripts for “bit torrents” or similar is not allowed on our servers. This includes sending or receiving files using these mechanisms.
3.2 We are under no obligation to edit, review or modify the contents of your website. However, we reserve the right to remove any content without notice. For the avoidance of doubt we do not pro-actively monitor messages that you may post on our managed sites, but we reserve the right to remove such message at our sole discretion.
3.3 Any Customer found to be using the Services for any of the purposes contained in Clause 3.1 may have their Account terminated without notice.
3.4 The Customer agrees to fully and effectively indemnify Webdev against all losses, costs, actions, proceedings, claims, damages, expenses, (including legal expenses) or liabilities, howsoever suffered or incurred directly by Webdev in consequence of the Customers breach or non-observance of this Clause 3.
3.5 The Customer shall defend and pay all costs, damages, awards, fees (including legal expenses) and judgments awarded against Webdev arising from breach or breaches of this Clause 3. Webdev may in its absolute discretion defend such claims and may compromise such claims with the consent of the Customer, such consent not to be unreasonably withheld. The Customer shall provide Webdev with the assistance necessary to defend such claims, at the Customer’s sole expense.
4. Domains
4.1 We register domains through a partner company. We do not place your details on the whois output of the domain due to legal reasons however if you commit any sort of illegal activity we reserve full right to provide the appropriate personnel with your details. If you wish to have your details displayed upon the whois output please contact us and we will be glad to assist you.
4.2 “Due to a legal agreement between ENOM INC, our domain registrar, and LegitScript, customers should be aware that the domains purchased with the intent of selling prescription drugs, via a company not properly licensed in the destination country, could be frozen pending a legal appeal. Webdev Ltd. has no control over this process and disputes will need to be handled through the proper legal channels in the disputed country.”
5. Adult Content
We allow websites with legal adult content only. We do not allow pornographic or sexually-explicit images of children or any pictures/video which are obtained illegally to host on our servers.
6. Server / Resource / Staff Abuse
6.1 You agree and understand that any attempts to undermine or cause harm to any of our servers is strictly prohibited and that we take no responsibility for the use of our clients’ accounts.
6.2 If you abuse the resources we provide in any way, we reserve the unqualified right to immediately deactivate your Account without refund.
6.3 If you operate any site using what we deem to be excessive CPU cycles or any resources that cause strain to other sites, we reserve the right to impose new terms on you in exchange for the current terms that you enjoy (i.e. an upgrade). You are allowed to use up to 25% of total resources available on a shared server and if your account continues to use more than 25% of the resources, it will result in suspension.
6.4 Denial of Service (DOS) attacks directed at Webdev, or any attempts to launch a DOS attack from our servers are strictly prohibited. All infractions and or suspected infractions will be vigorously investigated and may result in immediate termination of your Account.
6.5 Webdev reserves the right to disable/delete any feature or application provided on shared hosting service without notification if that feature/application is found to be detrimental and/or is hampering the web servers’ overall health and performance.
6.6 If you are in any way disrespectful towards any member of the Webdev staff we have full right to terminate your account with us without any refund.
7. Bandwidth & Fair Use Policy
7.1 Purpose of the Fair Use Policy: The fair usage policy aims to ensure the integrity, availability and performance of our networks and servers so that all customers of our hosting services can have an optimal experience. These guidelines apply to data usage, especially in terms of outgoing bandwidth usage.
7.2 Reasonable use: You are allowed to use the available bandwidth of your dedicated server or VPS or shared hossting within the limits of what is considered reasonable for regular use of the service. This includes using the service to support your website, applications, email traffic and other legitimate purposes.
7.3 Excessive use: Excessive bandwidth use that may adversely affect other users is not permitted.
7.4 This Fair Use Policy (FUP) applies to both incoming and outgoing consumption.
7.5 Monitoring: We reserve the right to monitor the data usage of your dedicated server, VPS or other hosting services to ensure compliance with this FUP.
7.6 Action for breach: In the event of breach of this FUP, we reserve the right to take appropriate action including, but not limited to: Limiting the bandwidth of the offending service to protect other users. Taking corrective measures to reduce the impact on network performance. Suspending or terminating the service(s) provided.
8. Fair Use Policy
8.1 Purpose of the Fair Use Policy: The fair usage policy aims to ensure the integrity, availability and performance of our networks and servers so that all customers of our hosting services can have an optimal experience. These guidelines apply to data usage, especially in terms of outgoing bandwidth usage.
8.2 Reasonable use: You are allowed to use the available bandwidth of your dedicated server or VPS or shared hossting within the limits of what is considered reasonable for regular use of the service. This includes using the service to support your website, applications, email traffic and other legitimate purposes.
8.3 Excessive use: Excessive bandwidth use that may adversely affect other users is not permitted.
8.4 This Fair Use Policy (FUP) applies to both incoming and outgoing consumption.
8.5 Monitoring: We reserve the right to monitor the data usage of your dedicated server, VPS or other hosting services to ensure compliance with this FUP.
8.6 Action for breach: In the event of breach of this FUP, we reserve the right to take appropriate action including, but not limited to: Limiting the bandwidth of the offending service to protect other users. Taking corrective measures to reduce the impact on network performance. Suspending or terminating the service(s) provided.
9. Commercial Advertising- Email (SPAM)/UNSOLICITED COMMERCIAL EMAIL (UCE)
9.1 You agree and understand that spamming, sending unsolicited emails from our servers or using email addresses that are maintained by us is STRICTLY prohibited and will qualify your Account for immediate deactivation with no refund. Webdev would be the sole arbiter as to what constitutes a violation of this Clause.
9.2 You agree and understand that we have set a limit of 300 outgoing emails per hour on shared and reseller hosting.
10. Backups
10.1 Webdev will use reasonable efforts to protect and backup data for clients on a regular basis, however, Webdev does not guarantee the existence, accuracy, or regularity of its backup services and, therefore, you are solely responsible for making back-up files in connection with your use of the Services.
10.2 You agree and understand that any back-up which Webdev may carry out will not include any media files. These include (but are not limited to) mp3, mpeg, wmv or any other video/audio files.
11. Billing
11.1 If paying by a cheque, please allow 5 working days for the cheque to clear and for us to open the Account. If paying via postal orders or cash we will endeavour to set up your account on the same day.
11.2 Proforma invoices are issued prior to the official due date since all services are prepaid. Payment must be completed by the due date to prevent account suspension. If payment is not received by the official due date, your account will be suspended. Should payment not be made within 60 days of the due date, we reserve the right to permanently terminate your account and delete all associated data.
12. Security and Viruses
12.1 You are responsible for any misuse of your Account and you must take steps to ensure that others do not gain unauthorized access to your Account. You may not use your Account to breach the security of another account or attempt to gain unauthorised access to another network or server.
12.2 Your password provides access to your Account. It is your responsibility to keep your password secure.
12.3 Sharing your password and account access with unauthorized users is strictly prohibited. You must take care and prevent others from using your Account since you will be responsible for the consequences.
12.4 Attempting to obtain another user’s account password is strictly prohibited, and will result in termination of service.
12.5 You must adopt adequate security measures to prevent or minimize unauthorised use of your Account.
12.6 You may not attempt to circumvent user authentication or security of any host, network or account. This includes, but is not limited to, accessing data not intended for you, logging into or making use of a server or account you are not expressly authorised to access, or probing the security of other networks. Use or distribution of tools designed for compromising security is prohibited. Examples of these tools include, but are not limited to, password guessing programs, cracking tools or network probing tools.
12.7 You may not attempt to interfere with service to any user, host or network or carry out DOS attacks. This includes, but is not limited to, “flooding” of networks, deliberate attempts to overload a service, and attempts to “crash” a host.
12.8 You agree and understand that users who violate systems or network security may incur criminal or civil liability. Webdev will cooperate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities in the investigation of suspected criminal violations.
12.9 You agree to complete your own tests for computer viruses in accordance with best computing practice prior to each and every operational use of the Services
13. Cancellations & Refunds
13.1 Webdev reserves the right to suspend OR terminate services on receipt of abuse complaints.
13.2 An unconditional 30 day money back guarantee is provided on shared hosting. Domain registration fees do not come under the purview of this guarantee. Refund requests after 30 days will be refunded on a prorated basis of any unused time.
13.3 Only first-time accounts are eligible for a refund. If you’ve had an account with us before, cancelled and signed up again, you will not be eligible for a refund or if you have opened a second account with us.
13.4 Any service interruptions or downtime due to scheduled maintenance by Webdev or our network providers will not count towards the uptime guarantee. Webdev is not liable in any way for failure of third party services.
14. Money Back Guarantee
14.1 Domain registrations are not included under the 30 day money back guarantee policy. Webdev reserves the right to decide whether or not to issue pro-rated refunds under such circumstances.
14.2 All subscribers of shared hosting plans carry a 30 day unconditional money back guarantee. If you find the services to be deficient or unsatisfactory, you are entitled to a full refund of the contract amount within the first 30 days of the date of account set-up.
15. Modification of Terms of Service
Webdev reserves the right to modify or change these terms of service at all times. All customers are bound by the latest terms of service published on this website.
16. Termination
16.1 We reserve the right to refuse, terminate, or suspend your access to the Services for any reason at our sole discretion upon giving 14 days written notice to you.
16.2 We may suspend your Account immediately upon breach by you of any of the terms and conditions herein, including, without limitation, late or non-payment of monies due.
16.3 We reserve the right to terminate any account where the account holder advises that they have or are about to initiate legal proceedings against Webdev Ltd. Notice will be given advising the scheduled termination date, allowing clients to move to a new provider and take any backups. The previous months refund will also be refunded upon termination.
17.Effect of Termination
On termination or expiry of your Account for whatever reason you shall pay immediately all sums outstanding pending on your Account to Webdev within 14 working days.
18.Limitation of liability
18.1 Webdev disclaims all liabilities in connection with the following :
(a)loss of material uploaded;
(b)incompatibility of the Services with any of the Customer’s equipment, software or telecommunications links;
(c)technical problems including errors or interruptions of the Services;
(d)unsuitability, unreliability or inaccuracy of the Services;
(e)computer viruses of any kind obtained by the Customer in the course of using the Services;
(f)any security breaches whatsoever affecting the Customer’s Account.
18.2 In no event shall Webdev be liable either in contract, tort (including negligence) or otherwise for indirect, incidental or consequential damages, including without limitation, loss of income, data, use or information.
18.3 Nothing in this Clause 18 excludes each party’s liability with respect to death and personal injury resulting from the negligence of that party, its employees, agents or subcontractors or for fraudulent misrepresentation or under the tort of deceit.
18.4 Subject to Clause 18.3, our liability to you in contract, tort, negligence or otherwise arising out of or in connection with the Services shall for any one incident or series of related incidents be limited to the annual fees paid by you to us in the year in which the liability first arose. No liability whatsoever will be accepted by us unless and until you have provided documentary evidence to our satisfaction proving that loss has occurred.
18.5 We exclude all liability of any kind in respect of any material on the internet posted by the Customer by means of the Services and we are not responsible in any way for any goods (including software) or services provided by third parties advertised, sold or otherwise made available by means of the Services or on the internet, the accuracy, completeness or suitability for any purpose of any website content and the acts or omissions of other providers of telecommunications or internet services (including domain name registration authorities) or for faults in or failures of their equipment.
18.6 Webdev will not be liable for failure or delay in performing its obligations if such failure or delay is due to circumstances beyond its reasonable control, including but not limited to acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labour disturbance, interruption of or delay in transportation, unavailability of, interruption or delay in telecommunications or third party services (including DNS propagation), failure of third party software or hardware or inability to obtain raw materials, supplies or power used in or equipment needed for provision of the Services.
19. Indemnity
The Customer agrees that it shall defend, indemnify, save and hold Webdev harmless from any and all demands, liabilities, losses, costs and claims, including reasonable legal fees asserted against Webdev, its agents, its customers, officers and employees, that may arise or result from any acts or omissions of the Customer, its agents, employees or assigns in connection with their use of the Services.
20. Law
20.1 This Agreement will be governed by and construed and interpreted in accordance with the law of Zimbabwe and the parties submit to the exclusive jurisdiction of licensed arbitrators in Zimbabwe.
20.2 The Customer and Webdev both agree that a court may strike out or override any part of these terms and conditions if it considers them to be illegal, unenforceable or unfair and in such cases enforce only the terms and conditions as if the offending clause or clauses had never been contained in them.
1. Provision of the Services.
1.1 Services Use. During the Term, Google will provide the Services in accordance with the Agreement, including the SLA. Customer may use the Services ordered in the applicable Order Form or Reseller Order in accordance with this Agreement.
1.2 Admin Console. Customer will have access to the Admin Console, through which Customer may manage its use of the Services.
1.3 Accounts; Verification to Use Services.
(a) Accounts. Customer must have an Account to use the Services and is responsible for the information it provides to create the Account, the security of its passwords for the Account, and any use of its Account. Google has no obligation to provide multiple accounts to Customer.
(b) Verification to Use Services. Customer must verify a Domain Email Address or a Domain Name to use the Services. If Customer does not have valid permission to use the Domain Email Address or does not own or control the Domain Name, then Google will have no obligation to provide Customer with the Services and may delete the Account without notice.
1.4 Modifications.
(a) To the Services. Google may make commercially reasonable changes to the Services from time to time. Google will inform Customer if Google makes a material change to the Services that has a material impact on Customer's use of the Services and if Customer has subscribed with Google to be informed about such change.
(b) To the Agreement. Google may change the terms of this Agreement from time to time and will post any such changes at https://workspace.google.com/terms/premier_terms.html . These changes will only take effect at the beginning of Customer’s next Order Term, at which time Customer’s continued use of the Services will constitute its acceptance of the changes. This Section 1.4(b) (Modifications to the Agreement) does not apply to changes to URL Terms.
(c) To the URL Terms. Google may change the URL Terms from time to time and will notify Customer if any such change is material. Google may notify Customer of material SLA changes via the applicable SLA webpage. Material changes to the URL Terms will become effective 30 days after notice is given, except that (i) materially adverse SLA changes will become effective 90 days after notice is given and (ii) changes applicable to new Services or functionality or the Data Processing Amendment, or that are required by applicable law, will be effective immediately.
(d) To the Data Processing Amendment. Google may only change the Data Processing Amendment where such change is required to comply with applicable law, is expressly permitted by the Data Processing Amendment, or:
(i) is commercially reasonable;
(ii) does not result in a material reduction of the security of the Services;
(iii) does not expand the scope of or remove any restrictions on Google's processing of "Customer Personal Data," as described in the "Scope of Processing" Section of the Data Processing Amendment; and
(iv) does not otherwise have a material adverse impact on Customer's rights under the Data Processing Amendment.
If Google makes a material change to the Data Processing Amendment in accordance with this Section 1.4(d) (Modifications to the Data Processing Amendment), Google will post the change at the webpage containing the Data Processing Amendment.
(e) Discontinuation of Core Services. Google will notify Customer at least 12 months before discontinuing any Core Service (or associated material functionality) unless Google replaces such discontinued Core Service or functionality with a materially similar Core Service or functionality. Nothing in this Section 1.4(e) (Discontinuation of Core Services) limits Google's ability to make changes required to comply with applicable law, address a material security risk, or avoid a substantial economic or material technical burden. This Section 1.4(e) (Discontinuation of Core Services) does not apply to Other Services or to pre-general availability Services, offerings, or functionality.
2. Payment Terms.
2.1 Usage Measurement and Billing Options. Google’s measurement tools will be used to determine Customer’s usage of the Services and any such determination by Google for the purpose of calculating Fees is final. Customer may elect one of the billing options below or any other option offered by Google when Customer places its order for the Services.
(a) Flexible Plan. If Customer selects this option, Customer will not be committed to purchase the Services for a pre-defined term, but will pay Fees based on its daily usage of the Services, billed monthly in arrears. Any partial day of Services usage will be rounded up to a full day of Services usage for the purposes of calculating Fees.
(b) Annual/Fixed-Term Plan. If Customer selects this option, Customer will be committed to purchasing the Services for one or more annual terms (as selected by Customer). Google will bill Customer according to the terms associated with Customer’s elections on the Order Form.
Google may change its offering of billing options (including by limiting or ceasing to offer any billing option) upon 30 days’ notice to Customer and any such change will take effect at the beginning of Customer’s next Order Term. Billing options may not be available to all customers. Customer may pay for the Services using the payment options listed in Section 2.2 (Payment) below.
2.2 Payment. All payments are due in the currency stated on the Order Form or invoice.
(a) Credit Card or Debit Card. If Customer is paying with a credit card, debit card, or other non-invoice form of payment payments are due at the end of the month during which Customer received the Services. For credit cards or debit cards, as applicable: (i) Google will issue an electronic bill for all applicable Fees when due, and (ii) these Fees are considered overdue 30 days after the end of the month during which Customer received the Services.
(b) Invoices. Payments for invoices are due 30 days after the invoice date (unless otherwise specified on the Order Form) and are considered overdue after such date.
(c) Other Forms of Payment. Customer may change its payment method to any other method that Google may enable in the Admin Console, subject to acceptance by Customer of any additional terms applicable to that payment method.
(d) Payment Information. Payments made via wire transfer must include the bank information provided by Google.
2.3 Taxes.
(a) Customer is responsible for any Taxes, and will pay Google for the Services without any reduction for Taxes. If Google is obligated to collect or pay any Taxes, the Taxes will be invoiced to Customer and Customer will pay such Taxes to Google, unless Customer provides Google with a timely and valid tax exemption certificate in respect of those Taxes.
(b) Customer will provide Google with any applicable tax identification information that Google may require under applicable law to ensure its compliance with applicable tax regulations and authorities in applicable jurisdictions. Customer will be liable to pay (or reimburse Google for) any taxes, interest, penalties, or fines arising out of any mis-declaration by Customer.
2.4 Payment Disputes. Any payment disputes must be submitted before the payment due date. If the parties determine that certain billing inaccuracies are attributable to Google, Google will not issue a corrected invoice, but will instead issue a credit memo specifying the incorrect amount in the affected invoice. If a disputed invoice has not yet been paid, Google will apply the credit memo amount to the disputed invoice and Customer will be responsible for paying the resulting net balance due on that invoice. Nothing in this Agreement obligates Google to extend credit to any party.
2.5 Delinquent Payments; Suspension. Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys' fees) incurred by Google in collecting such delinquent amounts. Further, if Customer’s payment for the Services is overdue, Google may Suspend the Services.
2.6 No Purchase Order Number Required. Customer is obligated to pay all applicable Fees without any requirement for Google to provide a purchase order number on Google's invoice (or otherwise).
2.7 Price Revisions. Google may change the Prices at any time unless otherwise expressly agreed in an addendum or Order Form. Google will notify Customer at least 30 days in advance of any changes. Customer's pricing will change at the beginning of Customer’s next Order Term after the 30-day period.
3. Customer Obligations.
3.1 Compliance. Customer will (a) ensure that Customer and its End Users' use of the Services complies with the Agreement, (b) use commercially reasonable efforts to prevent and terminate any unauthorized use of, or access to, the Services, and (c) promptly notify Google if Customer becomes aware of any unauthorized use of, or access to, the Services, Account, or Customer's password. Google reserves the right to investigate any potential violation of the AUP by Customer, which may include reviewing Customer Data.
3.2 Privacy. Customer is responsible for any consents and notices required to permit (a) Customer's use and receipt of the Services, and (b) Google's accessing, storing, and processing of data provided by Customer (including Customer Data) under the Agreement.
3.3 Restrictions. Customer will not, and will not allow End Users to, (a) copy, modify, or create a derivative work of the Services; (b) reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any or all of the source code of, the Services (except to the extent such restriction is expressly prohibited by applicable law); (c) sell, resell, sublicense, transfer, or distribute any or all of the Services; or (d) access or use the Services (i) for High Risk Activities; (ii) in violation of the AUP; (iii) in a manner intended to avoid incurring Fees (including creating multiple Customer Accounts to simulate or act as a single Customer Account or to circumvent Service-specific usage limits or quotas); (iv) to engage in cryptocurrency mining without Google's prior written approval; (v) to place or receive emergency service calls, unless stated otherwise in the Service Specific Terms; (vi) for materials or activities that are subject to the International Traffic in Arms Regulations (ITAR) maintained by the United States Department of State; (vii) in a manner that breaches, or causes the breach of, Export Control Laws; or (viii) to transmit, store, or process health information subject to United States HIPAA regulations, except as permitted by an executed HIPAA BAA.
3.4 Additional Products. Google makes optional Additional Products available to Customer and its End Users. Use of Additional Products is subject to the Additional Product Terms. Customer can enable or disable Additional Products at any time through the Admin Console.
3.5 Administration of Services. Customer may specify through the Admin Console one or more Administrators who will have the right to access Admin Accounts. Customer is responsible for (a) maintaining the confidentiality and security of the End User Accounts and associated passwords and (b) any use of the End User Accounts. Customer agrees that Google’s responsibilities do not extend to the internal management or administration of the Services for Customer or any End Users.
3.6 Abuse Monitoring. Customer is solely responsible for monitoring, responding to, and otherwise processing emails sent to the "abuse" and "postmaster" aliases for Customer Domain Names, but Google may monitor emails sent to these aliases to allow Google to identify Services abuse.
3.7 Requesting Additional End User Accounts During Order Term. Customer may purchase additional End User Accounts during an Order Term by means of an additional Order Form or Reseller Order or by ordering via the Admin Console. Such additional End User Accounts will have a pro-rated term ending on the last day of the applicable Order Term.
4. Suspension.
4.1 AUP Violations. If Google becomes aware that Customer's or any End User's use of the Services violates the AUP, Google will notify Customer and request that Customer correct the violation. If Customer fails to correct the violation within 24 hours of Google's request, then Google may Suspend all or part of Customer's use of the Services until the violation is corrected. Suspension of the Services may include removal or unsharing of content that violates the AUP.
4.2 Other Suspension. Notwithstanding Section 4.1 (AUP Violations), Google may immediately Suspend all or part of Customer's use of the Services (including use of the underlying Account) if (a) Google reasonably believes Customer's or any End User's use of the Services could adversely impact the Services, other customers' or their end users' use of the Services, or the Google network or servers used to provide the Services; (b) there is suspected unauthorized third-party access to the Services; (c) Google reasonably believes that immediate Suspension is required to comply with any applicable law; or (d) Customer is in breach of Section 3.3 (Restrictions) or the Service Specific Terms. Google will lift any such Suspension when the circumstances giving rise to the Suspension have been resolved. At Customer's request, Google will, unless prohibited by applicable law, notify Customer of the basis for the Suspension as soon as is reasonably possible.
5. Intellectual Property Rights; Protection of Customer Data; Feedback; Using Brand Features Within the Services.
5.1 Intellectual Property Rights. Except as expressly stated in this Agreement, this Agreement does not grant either party any rights, implied or otherwise, to the other's content or any of the other's intellectual property. As between the parties, Customer owns all Intellectual Property Rights in Customer Data, and Google owns all Intellectual Property Rights in the Services.
5.2 Protection of Customer Data. Google will only access or use Customer Data to provide the Services and TSS to Customer or as otherwise instructed by Customer. Without limiting the generality of the preceding sentence, Google will not process Customer Data for Advertising purposes or serve Advertising in the Services. Google has implemented and will maintain administrative, physical, and technical safeguards to protect Customer Data, as further described in the Data Processing Amendment.
5.3 Customer Feedback. At its option, Customer may provide feedback or suggestions about the Services to Google ("Feedback"). If Customer provides Feedback, then Google and its Affiliates may use that Feedback without restriction and without obligation to Customer.
5.4 Using Brand Features Within the Services. Google will display within the Services only those Customer Brand Features that Customer authorizes by uploading them into the Services. Google will display those Customer Brand Features within designated areas of the web pages displaying the Services to Customer or its End Users. Customer may specify details of this use in the Admin Console. Google may also display Google Brand Features on such web pages to indicate that the Services are provided by Google.
6. Technical Support Services. Subject to payment of applicable Fees, Google will provide TSS to Customer during the Term in accordance with the TSS Guidelines. Certain TSS levels include a minimum recurring Fee as described at https://workspace.google.com/terms/tssg.html . If Customer downgrades its TSS level during any calendar month, Google may continue to provide TSS at the same level and for the same TSS Fees as applied before the downgrade for the remainder of that month.
7. Confidential Information.
7.1 Obligations. The recipient will only use the disclosing party's Confidential Information to exercise the recipient’s rights and fulfill its obligations under the Agreement, and will use reasonable care to protect against the disclosure of the disclosing party's Confidential Information. The recipient may disclose Confidential Information only to its Affiliates, employees, agents, or professional advisors ("Delegates") who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that its Delegates use the received Confidential Information only to exercise rights and fulfill obligations under this Agreement.
7.2 Required Disclosure. Notwithstanding any provision to the contrary in this Agreement, the recipient or its Affiliate may also disclose Confidential Information to the extent required by applicable Legal Process; provided that the recipient or its Affiliate uses commercially reasonable efforts to (a) promptly notify the other party before any such disclosure of its Confidential Information, and (b) comply with the other party's reasonable requests regarding its efforts to oppose the disclosure. Notwithstanding the foregoing, subsections (a) and (b) above will not apply if the recipient determines that complying with (a) and (b) could (i) result in a violation of Legal Process; (ii) obstruct a governmental investigation; or (iii) lead to death or serious physical harm to an individual.
8. Term and Termination.
8.1 Agreement Term. The term of this Agreement (the "Term") will begin on the Effective Date and continue until the Agreement is terminated or not renewed as stated in this Section 8 (Term and Termination).
8.2 Renewal.
(a) With a Flexible Plan. Order Terms for the Flexible Plan are monthly. At the end of each month, the Order Term will automatically renew for another month, unless cancelled by Customer via the Admin Console.
(b) With an Annual/Fixed-Term Plan. At the end of each Order Term for an Annual/Fixed-Term Plan, the Services will renew consistent with Customer’s elections in the Order Form or Admin Console.
(c) Generally. Customer may use the Admin Console to adjust the number of End User Accounts to be renewed. Customer will continue to pay Google the then-current Fees for each renewed End User Account unless Customer and Google mutually agree otherwise. If either party does not want the Services to renew, then it must notify the other party to this effect at least 15 days before the end of the then-current Order Term, and this notice of non-renewal will take effect at the end of the then-current Order Term.
8.3 Termination for Breach. To the extent permitted by applicable law, either party may terminate this Agreement immediately on written notice if (a) the other party is in material breach of the Agreement and fails to cure that breach within 30 days after receipt of written notice of the breach, or (b) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days.
8.4 Termination for Convenience. Customer may stop using the Services at any time. Subject to Customer fulfilling all its financial commitments under an Order Form or otherwise under this Agreement (including payment of all Fees for the Order Term), Customer may also terminate this Agreement for its convenience at any time on prior written notice.
8.5 Termination Due to Applicable Law; Violation of Laws. Google may terminate this Agreement and/or any applicable Order Form immediately on written notice if Google reasonably believes that (a) continued provision of any Service used by Customer would violate applicable law(s) or (b) Customer has violated or caused Google to violate any Anti-Bribery Laws or Export Control Laws.
8.6 Effect of Termination or Non-Renewal. If the Agreement is terminated or not renewed, then (a) all rights and access to the Services will cease (including access to Customer Data), unless otherwise described in this Agreement, and (b) all Fees owed by Customer to Google are immediately due upon Customer’s receipt of the final electronic bill or as stated in the final invoice.
8.7 No Refunds. Unless expressly stated otherwise in this Agreement, termination or non renewal under any section of this Agreement (including the Data Processing Amendment) will not oblige Google to refund any Fees.
9. Publicity. Customer may state publicly that it is a Google customer and display Google Brand Features in accordance with the Trademark Guidelines. Google may use Customer's name and Brand Features in online or offline promotional materials of the Services. Each party may use the other party’s Brand Features only as permitted in the Agreement. Any use of a party's Brand Features will inure to the benefit of the party holding Intellectual Property Rights to those Brand Features.
10. Representations and Warranties. Each party represents and warrants that (a) it has full power and authority to enter into the Agreement, and (b) it will comply with all laws applicable to its provision, receipt, or use of the Services, as applicable.
11. Disclaimer. Except as expressly provided for in the Agreement, Google does not make and expressly disclaims to the fullest extent permitted by applicable law (a) any warranties of any kind, whether express, implied, statutory, or otherwise, including warranties of merchantability, fitness for a particular use, title, non-infringement, or error-free or uninterrupted use of the Services and (b) any representations about content or information accessible through the Services.
12. Limitation of Liability.
12.1 Limitation on Indirect Liability. To the extent permitted by applicable law and subject to Section 12.3 (Unlimited Liabilities), neither party will have any Liability arising out of or relating to the Agreement for any (a) indirect, consequential, special, incidental, or punitive damages or (b) lost revenues, profits, savings, or goodwill.
12.2 Limitation on Amount of Liability. Each party's total aggregate Liability for damages arising out of or relating to the Agreement is limited to the Fees Customer paid during the 12 month period before the event giving rise to Liability.
12.3 Unlimited Liabilities. Nothing in the Agreement excludes or limits either party's Liability for:
(a) its fraud or fraudulent misrepresentation;
(b) its obligations under Section 13 (Indemnification);
(c) its infringement of the other party's Intellectual Property Rights;
(d) its payment obligations under the Agreement; or
(e) matters for which liability cannot be excluded or limited under applicable law.
13. Indemnification.
13.1 Google Indemnification Obligations. Google will defend Customer and its Affiliates using the Services under Customer’s Account and indemnify them against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from an allegation that any Service or any Google Brand Feature, in each case used in accordance with the Agreement, infringes the third party's Intellectual Property Rights.
13.2 Customer Indemnification Obligations. Customer will defend Google and its Affiliates providing the Services and indemnify them against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from (a) any Customer Data or Customer Brand Features or (b) Customer's or an End User's use of the Services in breach of the AUP or Section 3.3 (Restrictions).
13.3 Exclusions. Sections 13.1 (Google Indemnification Obligations) and 13.2 (Customer Indemnification Obligations) will not apply to the extent the underlying allegation arises from (a) the indemnified party's breach of the Agreement or (b) a combination of the indemnifying party's technology or Brand Features with materials not provided by the indemnifying party under the Agreement, unless the combination is required by the Agreement.
13.4 Conditions. Sections 13.1 (Google Indemnification Obligations) and 13.2 (Customer Indemnification Obligations) are conditioned on the following:
(a) Any indemnified party must promptly notify the indemnifying party in writing of any allegation(s) that preceded the Third-Party Legal Proceeding and cooperate reasonably with the indemnifying party to resolve the allegation(s) and Third-Party Legal Proceeding. If breach of this Section 13.4(a) prejudices the defense of the Third-Party Legal Proceeding, the indemnifying party's obligations under Section 13.1 (Google Indemnification Obligations) or 13.2 (Customer Indemnification Obligations) (as applicable) will be reduced in proportion to the prejudice.
(b) Any indemnified party must tender sole control of the indemnified portion of the Third-Party Legal Proceeding to the indemnifying party, subject to the following: (i) the indemnified party may appoint its own non-controlling counsel, at its own expense and (ii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party's prior written consent, not to be unreasonably withheld, conditioned, or delayed.
13.5 Remedies.
(a) If Google reasonably believes the Services might infringe a third party's Intellectual Property Rights, then Google may, at its sole option and expense (i) procure the right for Customer to continue using the Services; (ii) modify the Services to make them non-infringing without materially reducing their functionality; or (iii) replace the Services with a non-infringing, functionally equivalent alternative.
(b) If Google does not believe the remedies in Section 13.5(a) are commercially reasonable, then Google may Suspend or terminate Customer's use of the impacted Services. If Google terminates the impacted Services, then Google will provide a pro-rata refund of any unearned Fees actually paid by Customer applicable to the period following termination of such Services.
13.6 Sole Rights and Obligations. Without affecting any other termination rights of either party, this Section 13 (Indemnification) states the parties' sole and exclusive remedy under this Agreement for any third-party allegations of Intellectual Property Rights infringement covered by this Section 13 (Indemnification).
14. Resold Customers. This Section 14 (Resold Customers) applies only if Customer orders the Services from a Reseller under a Reseller Agreement (such Services, "Resold Services").
14.1 Applicable Terms. For the purposes of Resold Services:
(a) Section 2 (Payment Terms) of this Agreement will not apply;
(b) Reseller Fees will apply and be payable directly to the Reseller, and all prices for Resold Services will be solely determined between Reseller and Customer;
(c) Customer will receive any applicable SLA credits from Reseller;
(d) Section 12.2 (Limitation on Amount of Liability) is replaced with "Each party’s total aggregate Liability for damages arising out of or relating to the Agreement is limited to the Reseller Fees Customer paid for the Resold Services during the 12 month period before the event giving rise to Liability."
(e) Any renewal(s) of the Services and/or any Reseller Order will be as agreed between Customer and Reseller.
(f) "Order Term," as it is used in the Agreement, means the period of time starting on the Services Start Date or the renewal date (as applicable) for the Resold Services and continuing for the period indicated on the then-current Reseller Order unless terminated in accordance with the Agreement; and
(g) "Services Start Date," as it is used in the Agreement, means either the start date described in the Reseller Order or, if none is specified in the Reseller Order, the date Google makes the Resold Services available to Customer.
14.2 Sharing Confidential Information. Google may share Customer Confidential Information with Reseller as a Delegate subject to Section 7.1 (Obligations).
14.3 Reseller as Administrator. At Customer’s discretion, Reseller may access Customer’s Account or End User Accounts. As between Google and Customer, Customer is solely responsible for (a) any access by Reseller to Customer’s Account or End User Accounts and (b) defining in the Reseller Agreement any rights or obligations as between Reseller and Customer with respect to the Resold Services.
14.4 Reseller Technical Support. Customer acknowledges and agrees that Reseller may disclose End User personal data to Google as reasonably required in order for Reseller to handle any support issues that Customer escalates to or via Reseller.
15. Miscellaneous.
15.1 Notices. Under the Agreement, notices to Customer must be sent to the Notification Email Address and notices to Google must be sent to [email protected]. Notice will be treated as received when the email is sent. Customer is responsible for keeping its Notification Email Address current throughout the Term.
15.2 Emails. The parties may use emails to satisfy written approval and consent requirements under the Agreement.
15.3 Assignment. Neither party may assign any part of this Agreement without the written consent of the other, except to an Affiliate where (a) the assignee has agreed in writing to be bound by the terms of this Agreement, and (b) the assigning party has notified the other party of the assignment. Any other attempt to assign is void. If Customer assigns this Agreement to an Affiliate in another jurisdiction such that there is a change in the Google contracting entity as defined at https://cloud.google.com/terms/google-entity : (i) this Agreement is automatically assigned to the new Google contracting entity; and (ii) if the Affiliate’s billing account is in India or Brazil, the applicable terms of service linked above, and not this Agreement, will apply from the moment of the assignment.
15.4 Change of Control. If a party experiences a change of Control other than as part of an internal restructuring or reorganization (for example, through a stock purchase or sale, merger, or other form of corporate transaction), that party will give written notice to the other party within 30 days after the change of Control.
15.5 Force Majeure. Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control, including acts of God, natural disasters, terrorism, riots, or war.
15.6 Subcontracting. Google may subcontract obligations under the Agreement but will remain liable to Customer for any subcontracted obligations.
15.7 No Agency. This Agreement does not create any agency, partnership, or joint venture between the parties.
15.8 No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
15.9 Severability. If any part of this Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.
15.10 No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.
15.11 Equitable Relief. Nothing in this Agreement will limit either party's ability to seek equitable relief.
15.12 U.S. Governing Law.
(a) For U.S. City, County, and State Government Entities. If Customer is a U.S. city, county, or state government entity, then the Agreement will be silent regarding governing law and venue.
(b) For U.S. Federal Government Entities. If Customer is a U.S. federal government entity, then the following applies: ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES WILL BE GOVERNED BY THE LAWS OF THE UNITED STATES OF AMERICA, EXCLUDING ITS CONFLICT OF LAWS RULES. SOLELY TO THE EXTENT PERMITTED BY FEDERAL LAW, (I) THE LAWS OF THE STATE OF CALIFORNIA (EXCLUDING CALIFORNIA'S CONFLICT OF LAWS RULES) WILL APPLY IN THE ABSENCE OF APPLICABLE FEDERAL LAW AND (II) FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN SANTA CLARA COUNTY, CALIFORNIA.
(c) For All Other Entities. If Customer is any entity not identified in Section 15.12(a) (U.S. Governing Law for U.S. City, County, and State Government Entities) or (b) (U.S. Governing Law for Federal Government Entities), then the following applies: ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES WILL BE GOVERNED BY CALIFORNIA LAW, EXCLUDING THAT STATE'S CONFLICT OF LAWS RULES, AND WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF SANTA CLARA COUNTY, CALIFORNIA, USA; THE PARTIES CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS.
15.13 Amendments. Except as stated in Section 1.4(b) (Modifications: To the Agreement), (c) (Modifications: To the URL Terms), or (d) (Modifications: To the Data Processing Amendment), any amendment to this Agreement after the Effective Date must be in writing, signed by both parties, and expressly state that it is amending this Agreement. For clarity, Google’s provision of an updated URL in place of any URL stated in this Agreement will not constitute an amendment to or modification of the terms of the Agreement.
15.14 Survival. The following Sections will survive expiration or termination of this Agreement: Section 2 (Payment Terms), Section 5 (Intellectual Property Rights; Protection of Customer Data; Feedback; Using Brand Features within the Services), Section 7 (Confidential Information), Section 8.6 (Effect of Termination or Non-Renewal), Section 11 (Disclaimer), Section 12 (Limitation of Liability), Section 13 (Indemnification), Section 14.1 (Applicable Terms), Section 14.2 (Sharing Confidential Information) and Section 15 (Miscellaneous).
15.15 Entire Agreement. This Agreement sets out all terms agreed between the parties and terminates and supersedes any and all other agreements between the parties relating to its subject matter, including any prior versions of this Agreement. 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 stated in this Agreement. The URL Terms are incorporated by reference into the Agreement. After the Effective Date, Google may provide an updated URL in place of any URL in this Agreement.
15.16 Conflicting Terms. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order (of decreasing precedence): the Order Form, the Data Processing Amendment, the remainder of the Agreement (excluding the URL Terms), and the URL Terms (other than the Data Processing Amendment).
15.17 Headers. Headings and captions used in the Agreement are for reference purposes only and will not have any effect on the interpretation of the Agreement.
15.18 Conflicting Languages. If this Agreement is translated into any language other than English, and there is a discrepancy between the English text and the translated text, the English text will govern unless expressly stated otherwise in the translation.
15.19 Definitions.
"Account" means Customer's Google account credentials and correlating access to the Services under this Agreement.
"Additional Products" means products, services and applications that are not part of the Services but that may be accessible for use in conjunction with the Services.
"Additional Product Terms" means the then-current terms stated at https://workspace.google.com/intl/en/terms/additional_services.html .
"Admin Account" means a type of End User Account that Customer (or Reseller, if applicable) may use to administer the Services.
"Admin Console" means the online console(s) or dashboard provided by Google to Customer for administering the Services.
"Administrators" mean the Customer-designated personnel who administer the Services to End Users on Customer’s behalf, and have the ability to access Customer Data and End User Accounts. Such access includes the ability to access, monitor, use, modify, withhold, or disclose any data available to End Users associated with their End User Accounts.
"Advertising" means online advertisements displayed by Google to End Users, excluding any advertisements Customer expressly chooses to have Google or any of its Affiliates display in connection with the Services under a separate agreement (for example, Google AdSense advertisements implemented by Customer on a website created by Customer using the "Google Sites" functionality within the Services).
"Affiliate" means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a party.
"Anti-Bribery Laws" means all applicable commercial and public anti-bribery laws, including the U.S. Foreign Corrupt Practices Act of 1977 and the UK Bribery Act 2010, that prohibit corrupt offers of anything of value, either directly or indirectly, to anyone, including government officials, to obtain or keep business or to secure any other improper commercial advantage. Government officials include: any government employees, candidates for public office, members of royal families, and employees of government-owned or government-controlled companies, public international organizations, and political parties.
"AUP" means the then-current acceptable use policy for the Services stated at https://workspace.google.com/intl/en/terms/use_policy.html .
"BAA" or "Business Associate Agreement" is an amendment to the Agreement covering the handling of Protected Health Information (as defined in HIPAA).
"Brand Features" means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.
"Confidential Information" means information that one party (or an Affiliate) discloses to the other party under this Agreement, and that is marked as confidential or would normally under the circumstances be considered confidential information. It does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient. Subject to the preceding sentence, Customer Data is considered Customer's Confidential Information.
"Control" means control of greater than 50 percent of the voting rights or equity interests of a party.
"Core Services" means the then-current "Core Services" as described in the Services Summary, excluding any Third-Party Offerings.
"Customer Data" means data submitted, stored, sent or received via the Services by Customer or its End Users.
"Data Processing Amendment" means the then-current terms describing data protection and processing obligations with respect to Customer Data, as stated at https://workspace.google.com/terms/dpa_terms.html .
"Domain Email Address" means the email address on the Domain Name for use in connection with the Services.
"Domain Name" means the domain name specified in the Order Form or Reseller Order to be used in connection with the Services.
"End Users" means the individuals who are permitted by Customer to use the Services and managed by an Administrator. For clarity, End Users may include employees of Customer Affiliates and other third parties.
"End User Account" means a Google-hosted account established by Customer through the Services in order for an End User to use the Services.
"Export Control Laws" means all applicable export and re-export control laws and regulations, including (a) the Export Administration Regulations ("EAR") maintained by the U.S. Department of Commerce, (b) trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control, and (c) the International Traffic in Arms Regulations ("ITAR") maintained by the U.S. Department of State.
"Fees" means (a) the product of the amount of the Services used or ordered by Customer multiplied by the Prices or (b) the applicable fees for TSS, plus any applicable Taxes.
"High Risk Activities" means activities where the use or failure of the Services would reasonably be expected to lead to death, personal injury, or environmental or property damage (such as the creation or operation of nuclear facilities, air traffic control, life support systems, or weaponry).
"HIPAA" means the Health Insurance Portability and Accountability Act of 1996 as it may be amended from time to time, and any regulations issued under it.
"including" means including but not limited to.
"Indemnified Liabilities" means any (i) settlement amounts approved by the indemnifying party and (ii) damages and costs finally awarded against the indemnified party by a court of competent jurisdiction.
"Intellectual Property Rights" means all patent rights, copyrights, trademark rights, rights in trade secrets (if any), design rights, database rights, domain name rights, moral rights, and any other intellectual property rights (registered or unregistered) throughout the world.
"Legal Process" means an information disclosure request made under law, governmental regulation, court order, subpoena, warrant, or other valid legal authority, legal procedure, or similar process.
"Liability" means any liability, whether under contract, tort (including negligence), or otherwise, regardless of whether foreseeable or contemplated by the parties.
"Notification Email Address" means the email address(es) designated by Customer in the Admin Console.
"Order Form" means an order form executed by Customer, or an order placed by Customer via a Google website, in either case specifying the Services Google will provide to Customer under the Agreement.
"Order Term" means the period of time starting on the Services Start Date or the renewal date (as applicable) and continuing for the period indicated on the Order Form unless terminated in accordance with this Agreement.
"Other Services" means the then-current "Other Services" as described in the Services Summary, excluding any Third-Party Offerings.
"Prices" means the then-current applicable prices for the Services described at https://workspace.google.com/intl/en/pricing.html (incorporated into the Agreement by this reference), unless otherwise agreed in an addendum or Order Form. Prices do not include Taxes.
"Reseller" means, if applicable, the authorized unaffiliated third party reseller that sells the Services to Customer.
"Reseller Agreement" means, if applicable, the separate agreement between Customer and Reseller regarding the Services. The Reseller Agreement is independent of and outside the scope of this Agreement.
"Reseller Fees" means the fees (if any) for Services used or ordered by Customer as agreed in a Reseller Agreement, plus any applicable Taxes.
"Reseller Order" means, if applicable, an order form (including a renewal order form) issued by a Reseller and executed by Customer and the Reseller specifying the Services Customer is ordering from the Reseller.
"Service Specific Terms" means the then-current terms specific to one or more Services stated at https://workspace.google.com/intl/en/terms/service-terms/ .
"Services" means the then-current Core Services and Other Services.
"Services Start Date" means either the start date stated in the Order Form or, if none is specified in the Order Form, the date Google makes the Services available to Customer.
"Services Summary" means the then-current description set out at https://workspace.google.com/intl/en/terms/user_features.html .
"SLA" means the then-current service level agreement(s) at https://workspace.google.com/intl/en/terms/sla.html .
"Suspend" or "Suspension" means disabling access to or use of the Services or components of the Services.
"Taxes" means all government-imposed taxes, except for taxes based on Google's net income, net worth, asset value, property value, or employment.
"Term" has the meaning stated in Section 8.1 (Agreement Term) of this Agreement.
"Third-Party Legal Proceeding" means any formal legal proceeding filed by an unaffiliated third party before a court or government tribunal (including any appellate proceeding).
"Third-Party Offerings" means third-party services, software, products, and other offerings that are not incorporated into the Services.
"Trademark Guidelines" means Google's then-current Guidelines for Third Party Use of Google Brand Features at http://www.google.com/permissions/guidelines.html .
"TSS" means the then-current Google technical support service.
"TSS Guidelines" means Google's then-current guidelines for technical support services, as stated at https://workspace.google.com/intl/en/terms/tssg.html .
"URL Terms" means, collectively, the AUP, Data Processing Amendment, Service Specific Terms, SLA, and TSS Guidelines.
16. Region-Specific Terms. Customer agrees to the following modifications to the Agreement if Customer’s billing address is in the applicable region as described below:
Asia Pacific - All regions
Section 2.3 (Taxes) is replaced as follows:
2.3 Taxes. Google will itemize any invoiced Taxes. If Taxes must be withheld from any payment to Google, then Customer will increase the payment to Google so that the net amount received by Google is equal to the amount invoiced, without reduction for Taxes.
The definition of "Taxes" under Section 15.19 (Definitions) is replaced as follows:
15.19 Definitions.
"Taxes" means all government-imposed taxes, as per the applicable law associated with the rendering and performance of the Services, including but not limited to any duties, customs duties, and any direct or indirect taxes, including any related penalties or interest, except for taxes based on Google's profit.
Asia Pacific (all regions excluding Australia, Japan, India, New Zealand, Singapore) and Latin America (all regions excluding Brazil)
Section 15.12 (U.S. Governing Law) is replaced as follows:
15.12 Governing Law; Arbitration.
(a) ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY RELATED GOOGLE PRODUCTS OR SERVICES (INCLUDING ANY DISPUTE REGARDING THE INTERPRETATION OR PERFORMANCE OF THE AGREEMENT) ("Dispute") WILL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, USA, EXCLUDING CALIFORNIA'S CONFLICTS OF LAWS RULES.
(b) The parties will try in good faith to settle any Dispute within 30 days after the Dispute arises. If the Dispute is not resolved within 30 days, it must be resolved by arbitration by the American Arbitration Association’s International Centre for Dispute Resolution in accordance with its Expedited Commercial Rules in force as of the date of this Agreement ("Rules").
(c) The parties will mutually select one arbitrator. The arbitration will be conducted in English in Santa Clara County, California, USA.
(d) Either party may apply to any competent court for injunctive relief necessary to protect its rights pending resolution of the arbitration. The arbitrator may order equitable or injunctive relief consistent with the remedies and limitations in the Agreement.
(e) Subject to the confidentiality requirements in Subsection (g), either party may petition any competent court to issue any order necessary to protect that party's rights or property; this petition will not be considered a violation or waiver of this governing law and arbitration section and will not affect the arbitrator’s powers, including the power to review the judicial decision. The parties stipulate that the courts of Santa Clara County, California, USA, are competent to grant any order under this Subsection 15.12 (e).
(f) The arbitral award will be final and binding on the parties and its execution may be presented in any competent court, including any court with jurisdiction over either party or any of its property.
(g) Any arbitration proceeding conducted in accordance with this Section 15.12 (Governing Law; Arbitration) will be considered Confidential Information under Section 7 (Confidential Information), including: (i) the existence of, (ii) any information disclosed during, and (iii) any oral communications or documents related to, the arbitration proceedings. In addition to the disclosure rights under Section 7 (Confidential Information), the parties may disclose the information described in this Subsection 15.12 (g) to a competent court as may be necessary to file any order under Subsection 15.12 (e) or execute any arbitral decision, but the parties must request that those judicial proceedings be conducted in camera (in private).
(h) The parties will pay the arbitrator’s fees, the arbitrator's appointed experts' fees and expenses, and the arbitration center's administrative expenses in accordance with the Rules. In its final decision, the arbitrator will determine the non-prevailing party's obligation to reimburse the amount paid in advance by the prevailing party for these fees.
(i) Each party will bear its own lawyers’ and experts’ fees and expenses, regardless of the arbitrator’s final decision regarding the Dispute.
Asia Pacific - Indonesia
A new Section 8.8 is added:
8.8 Termination Waiver. The parties agree to waive any provisions under any applicable laws to the extent that a court decision or order is required for the cancellation of this Agreement.
The Indonesian version of this Agreement is accessible here and Section 15.18 (Conflicting Languages) is replaced as follows:
15.18 Conflicting Languages. This Agreement is made in the Indonesian and the English language. Both versions are equally authentic. In the event of any inconsistency or different interpretation between the Indonesian version and the English version, the parties agree to amend the Indonesian version to make the relevant part of the Indonesian version consistent with the relevant part of the English version.
Europe, Middle East, and Africa - All regions
Section 2.2(d) (Payment Information) is replaced as follows:
2.2(d) Payment Information. Payments made via wire transfer must include the bank information provided by Google. If Customer has entered into the Agreement with Google Commerce Limited, Google may collect payments via Google Payment Limited, a company incorporated in England and Wales with offices at Belgrave House, 76 Buckingham Palace Road, London, SW1W 9TQ, United Kingdom.
Europe, Middle East, and Africa - European Economic Area, the United Kingdom, and Switzerland
Section 15.19 (Definitions) is changed to Section 15.20 (Definitions).
A new Section 15.19 is added:
15.19 EECC Waiver.
(a) For the purposes of this Section 15.19 (EECC Waiver), the terms "microenterprise", "small enterprise" and "not-for-profit" will have the meanings in the EECC. "EECC" means the European Electronic Communications Code (as established by Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018).
(b) The parties acknowledge that under the EECC: (i) certain rights extend to microenterprises, small enterprises and not for profits and (ii) customers falling within the categories referred to in (i) can explicitly agree to waive certain rights.
(c) If Customer is a microenterprise, small enterprise or not for profit, Customer agrees to waive any rights it may have under:
(i) Article 102(1) EECC, which allows Customer to receive certain pre-contractual information;
(ii) Article 102(3) EECC, which allows Customer to receive a contract summary;
(iii) Article 105(1) EECC, which limits the maximum contract duration to 24 months for certain services; and
(iv) Article 107(1) EECC, which extends other rights in the EECC (including Articles 102(3) and 105(1) as described above) to all services provided under the same Google Workspace agreement.
North America - United States
Section 15.19 (Definitions) is changed to Section 15.20 (Definitions).
A new Section 15.19 is added:
15.19 U.S. Federal Agency Users. The Services were developed solely at private expense and are commercial computer software and related documentation within the meaning of the applicable Federal Acquisition Regulations and their agency supplements.
Defined Terms. Some words used in the Agreement have particular meanings:
“Acceptable Use Policy” or “AUP” means the Cloud Acceptable Use Policy in section 39.
“API” means application programming interface.
“Affiliate” means any and all legal entities which now or hereafter the ultimate parent of Webdev controls. For the purpose of this definition, “control” shall mean an entity, directly or indirectly, holding more than fifty per cent (50%) of the issued share capital, or more than fifty per cent (50%) of the voting power at general meetings, or which has the power to appoint and to dismiss a majority of the directors or otherwise to direct the activities of such legal entity.
“Business Day” means 8:00 a.m. – 5:00 p.m. Monday through Friday, CAT Central African Time, excluding public holidays in Zimbabwe.
“Confidential Information” means all information disclosed by one of us to the other, whether before or after the effective date of the Agreement, that the recipient should reasonably understand to be confidential, including: (i) unpublished prices and other terms of service, audit and security reports, product development plans, nonpublic information of the parties relating to its business activities or financial affairs, data center designs (including non-graphic information you may observe on a tour of a data center), server configuration designs, and other proprietary information or technology, and (ii) information that is marked or otherwise conspicuously designated as confidential. Information that is developed by one of us on our own, without reference to the other’s Confidential Information, or that becomes available to one of us other than through violation of the Agreement or applicable law, shall not be “Confidential Information” of the other party. Confidential Information shall not include Customer Data.
“Customer Data” means all data, records, files, input materials, reports, forms and other such items that are received, stored, or transmitted using the Services.
“Order” means: (i) the online order that you submit or accept for the Services, (ii) any other written order (either in electronic or paper form) provided to you by Webdev for signature that describes the type or types of services you are purchasing, and that is signed by you, either manually or electronically, and (iii) your use or provisioning of the Services through the Webdev Cloud control panel or through an API.
“Personally Identifiable Information” or “PII” means: (i) a combination of any information that identifies an individual with that individual’s sensitive and non-public financial, health or other data or attribute, such as a combination of the individual’s name, address, or phone number with the individual’s social security number or other government issued number, financial account number, date of birth, address, biometric data, mother’s maiden name, or other personally identifiable information; (ii) any “non-public personal information”, and (iii) “protected health information”.
“Services” means the software and services described in the Order and includes any services which you self-provision through the Webdev Cloud control panel or which you utilize via an API.
“Support” means (i) Webdev employees with training and experience relative to the Services will be available ‘live’ by telephone, chat, email during business hours (ii) any additional level of support offered by Webdev applicable to the specific Services ordered by you
Webdev’s Obligations. Contingent on Webdev’s acceptance of your Order, and subject to these Cloud Terms of Service, Webdev agrees to provide the Services and Support described in your Order. Webdev agrees to follow security procedures at least as stringent as follows.2.1 Physical AccessThe Webdev servers used to provide the Services will be located in a controlled access data center operated by Webdev or a Webdev affiliated company. Access to the datacentre will be restricted to Webdev employees or its agents who need access for the purpose of providing the services.
2.2 Webdev Personnel
Screening. Webdev will perform pre-employment background screening of its employees who have access to customers’ accounts.
2.3 Reports of and Response to Security Breach.
Webdev will immediately report to you any unauthorized access or release of your information of which we become aware. Upon request, we will promptly provide to you all information and documentation that we have available to us in connection with any such event.
3. Your Obligations. You agree to do each of the following: (i) comply with applicable law and the Acceptable Use Policy (ii) use software in compliance with Section 19 (ii) pay when due the fees for the Services, (iv) use reasonable security precautions in light of your use of the Services, including encrypting any PII transmitted to and from, and while stored on, the Services (including the underlying servers and devices) (v) cooperate with Webdev’s reasonable investigation of outages, security problems, and any suspected breach of the Agreement, (vi) keep your billing contact and other account information up to date; and (vii) immediately notify Webdev of any unauthorized use of your account or any other breach of security.
Customer Data Security: In addition to the foregoing obligations, you acknowledge that you are solely responsible for taking steps to maintain appropriate security, protection and backup of Customer Data. Webdev’s security obligations with respect to Customer Data are limited to those obligations described in Section 2 above. Webdev makes no other representation regarding the security of Customer Data. Customer is solely responsible for determining the suitability of the Services in light of the type of Customer Data used with the Services.
4. Service Level Agreements. Cloud Service Level Agreements are detailed in the Order. The terms there are incorporated herein by reference as to the applicable Services.
5. Term. The initial term for each Order begins on the date we make the Services available for your use and continues for the period stated in the Order. If no period is stated in the Order, then the initial term shall be one month. Upon expiration of the initial term, the Order will automatically renew for successive renewal terms of one month each, unless and until one of us gives the other a written notice of non-renewal prior to the expiration of the initial term, or then-current renewal term, as applicable. You must follow Webdev’s non-renewal process accessible from the Webdev Cloud control panel to give an effective notice of non-renewal.
6. Fees. Webdev will charge you fees in accordance with your Order. Unless you have made other arrangements, Webdev will charge you as follows: (i) for recurring fees, in advance, on or around the first day of each billing cycle, and (ii) for non-recurring fees (such as fees for initial set-up, overages, compute cycle fees, and domain name registration) on or around the date incurred, or on or around the first day of the billing cycle that follows the date incurred, at Webdev’s option. Unless otherwise agreed in the Order, your billing cycle will be monthly, beginning on the date that Webdev first makes the Services available to you. Webdev may suspend all Services (including Services provided pursuant to any unrelated Order or other agreement we may have with you) if our charges are unpaid or rejected for any reason. Webdev may charge interest on overdue amounts at 2% per month (or the maximum legal rate if it is less than 2%). If any amount is overdue by more than thirty (30) days, and Webdev brings a legal action to collect, or engages a collection agency, you must also pay Webdev’s reasonable costs of collection, including attorney fees and court costs. All fees are stated and will be charged in US Dollars. Any “credit” that we may owe you, such as a credit for failure to meet a Service Level Agreement, will be applied to fees due from you for Services, and will not be paid to you as a refund. Charges that are not disputed within sixty (60) days of the date charged are conclusively deemed accurate. You must provide Webdev with accurate factual information to help Webdev determine if any tax is due with respect to the provision of the Services, and if Webdev is required by law to collect taxes on the provision of the Services, you must pay Webdev the amount of the tax that is due or provide satisfactory evidence of your exemption from the tax. You authorize Webdev to obtain a credit report at any time during the term of the Agreement.
7. Fee Increases. For those Services provided on a month-to-month term, we may increase fees at any time on thirty (30) days advance written notice. If your Order contains Services with a specified term longer than one month, then we may increase your fees effective as of the first day of the renewal term that first begins thirty (30) days from the day of our written notice of a fee increase. In addition, if during the initial term or any renewal term there is an increase in the Producer Price Index over the Producer Price Index reported for the month in which you signed your Order, we may increase your fees by the same percentage as the increase in the Producer Price Index; provided that we may not increase your fees pursuant to this sentence more often than once per twelve months, and we must give you at least thirty (30) days advance written notice of the increase.
8. Suspension. We may suspend the Services without liability if: (i) we reasonably believe that the Services are being used (or have been or will be used) in violation of the Agreement, (ii) we discover that you are, or are affiliated in any manner with, a person who has used similar services abusively in the past; (iii) you don’t cooperate with our reasonable investigation of any suspected violation of the Agreement; (iv) we reasonably believe that the Services have been accessed or manipulated by a third party without your consent, (v) we reasonably believe that suspension of the Services is necessary to protect our network or our other customers, (vi) a payment for the Services is overdue, or (vii) suspension is required by law. We will give you reasonable advance notice of a suspension under this paragraph and a chance to cure the grounds on which the suspension are based, unless we determine, in our reasonable commercial judgment, that a suspension on shorter or contemporaneous notice is necessary to protect Webdev or our other customers from imminent and significant operational or security risk. If the suspension was based on your breach of your obligations under the Agreement, then we may continue to charge you the fees for the Services during the suspension, and may charge you a reasonable reinstatement fee (not to exceed $150) upon reinstatement of the Services.
9. Termination for Convenience. You may terminate the Agreement for convenience at any time on thirty (30) days advance written notice.
10. Termination for Breach. We may terminate the Agreement for breach on written notice if: (i) we discover that the information you provided to us about yourself or your proposed use of the Services was materially inaccurate or incomplete, (ii) if you are an individual, you were not at least 18 years old or otherwise did not have the legal capacity to enter into the Agreement at the time you submitted the Order , or if you are an entity or fiduciary, the individual submitting the Order did not have the legal right or authority to enter into the Agreement on behalf of the person represented to be the customer, (iii) your payment of any invoiced amount is overdue, and you do not pay the overdue amount within three (3) days of our written notice, (iv) a credit report indicates you no longer meet our reasonable credit criteria, provided that if we terminate on these grounds, we must give you a reasonable opportunity to migrate your environment out of Webdev in an orderly fashion, (v) you use the Services in violation of the AUP and fail to remedy the violation within ten (10) days of our written notice, (vi) you violate the AUP more than once, even if you cure each violation, or (vii) you fail to comply with any other provision of the Agreement and do not remedy the failure within thirty (30) days of our notice to you describing the failure.
You may terminate the Agreement for breach on written notice if: (i) we materially fail to provide the Services as agreed and do not remedy that failure within five (5) days of your written notice describing the failure, or (ii) we materially fail to meet any other obligation stated in the Agreement and do not remedy that failure within thirty (30) days of your written notice describing the failure.
11. Access to Data.
11.1 You will not have access to your data stored on the Services during a suspension or following termination.
11.2 You have the option to create a snapshot or backup of your Cloud Servers or Databases, respectively, however, it is your responsibility to initiate the snapshot or backup and test your backup to determine the quality and success of your backups. You will be charged for your use of backup services as listed in your Order.
11.3 Although the Webdev Cloud services may be used as a backup service, you agree that you will maintain at least one additional current copy of your programs and data stored on the Cloud system somewhere other than on the Cloud system . If you utilize Webdev Cloud backup services, you are responsible for performing and testing restores as well as testing your systems and monitoring the integrity of your data.
12. Access to your customer data or use of the services. Webdev is not responsible to you for unauthorized access to your data or the unauthorized use of the Services unless the unauthorized access or use results from Webdev’s failure to meet its security obligations stated in the Agreement. You are responsible for the use of the Services by any employee of yours, any person to whom you have given access to the Services, and any person who gains access to your data or the Services as a result of your failure to use reasonable security precautions, even if such use was not authorized by you.
Webdev agrees that it will not use or disclose Customer Data. Customer Data is and at all times shall remain the exclusive property of Customer and will remain in the exclusive care, custody, and control of Customer.
13. Disclaimers.
13.1 We do not promise that the Services will be uninterrupted, error-free, or completely secure. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, Customer Data, Confidential Information, and property. Webdev has no obligation to provide security other than as stated in this Agreement. We disclaim any and all warranties not expressly stated in the Agreement, including the implied warranties of merchantability, fitness for a particular purpose, and noninfringement. You are solely responsible for the suitability of the service chosen, including the suitability as it relates to your Customer Data. The Services are provided AS IS, subject to any applicable Service Level Agreement (as described in Section 4 above). Any voluntary services we may perform for you at your request and without any additional charge are provided AS IS, including any services that are deemed Unsupported.
13.2 Some of the services are designed to help you comply with various regulatory requirements that may be applicable to you. However, you are responsible for understanding the regulatory requirements applicable to your business and for selecting and using those services in a manner that complies with the applicable requirements.
13.3 You are solely responsible for determining the suitability of the Services for your use in light of any applicable regulations and data privacy laws.
14. Export Matters. If your service is hosted on our United States servers, you represent and warrant that you are not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons and are not otherwise a person to whom Webdev is legally prohibited to provide the Services. You may not use the Services for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups D: 4 and D: 3, as set forth in Supplement No. 1 to the Part 740 of the United States Export Administration Regulations, nor may you provide administrative access to the Service to any person (including any natural person or government or private entity ) that is located in or is a national of Cuba, Iran, Libya, Sudan, North Korea or Syria or any country that is embargoed or highly restricted under United States export regulations.
15. Confidential Information. Each of us agrees not to use the other’s Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under the Agreement, or as may be required by law. Each of us agrees not to disclose the other’s Confidential Information to any third person except as follows:
(i) to our respective service providers, agents, and representatives, provided that such service providers, agents, or representatives agree to confidentiality measures that are at least as stringent as those stated in this Agreement.
(ii) to law enforcement or government agency if required by a subpoena or other compulsory legal process, or if either of us believes, in good faith, that the other’s conduct may violate applicable criminal law as required by law; or
(iii) in response to a subpoena or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven (7) days prior to disclosing Confidential Information under this subsection (or prompt notice in advance of disclosure, if seven (7) days advance notice is not reasonably feasible), unless the law forbids such notice.
16. Limitation on Damages. Our obligations to you are defined by this Agreement. We are not liable to you for failing to provide the Services unless the failure results from a breach of an applicable Service Level Agreement, or results from our gross negligence or willful misconduct. The credits stated in any applicable Service Level Agreement are your sole and exclusive remedy for our failure to meet those guarantees for which credits are provided unless such failure is due to Webdev’s willful misconduct.
Neither of us (nor any of our employees, agents, affiliates or suppliers) is liable to the other for any lost profits or any other indirect, special, incidental or consequential loss or damages of any kind, or for any loss that could have been avoided by the damaged party’s use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either of us be liable to the other for any punitive damages.
Notwithstanding anything in the Agreement to the contrary, except for liability based on willful misconduct or fraudulent misrepresentation, and liability for death or personal injury resulting from Webdev’s negligence, the maximum aggregate monetary liability of Webdev and any of its employees, agents, suppliers, or affiliates in connection with the Services, the Agreement, and any act or omission related to the Services or Agreement, under any theory of law (including breach of contract, tort, strict liability, violation of law, and infringement) shall not exceed the greater of (i) the amount of fees you paid for the Services for the six months prior to the occurrence of the event giving rise to the claim, or (ii) Five Hundred Dollars ($500.00).
17. Indemnification. If we, our affiliates, or any of our or their respective employees, agents, or suppliers (the “Webdev Indemnitees”) are faced with a legal claim by a third party arising out of your actual or alleged gross negligence, willful misconduct, violation of law, failure to meet the security obligations required by the Agreement, violation of the AUP, or violation of Section 14 (Export Matters) of these Cloud Terms of Service, then you will pay the cost of defending the claim (including reasonable attorney fees) and any damages award, fine, or other amount that is imposed on the Webdev Indemnitees as a result of the claim. Your obligations under this Section include claims arising out of the acts or omissions of your employees, any other person to whom you have given access to the Services, and any person who gains access to the Services as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by you. If you resell the Services, the grounds for indemnification stated above also include any claim brought by your customers or end users arising out of your resale of the Services. We will choose legal counsel to defend the claim, provided that these decisions must be reasonable and must be promptly communicated to you. You must comply with our reasonable requests for assistance and cooperation in the defense of the claim. We may not settle the claim without your consent, although such consent may not be unreasonably withheld. You must pay expenses due under this Section as we incur them. You must also pay reasonable attorney fees and other expenses we incur in connection with any dispute between persons having a conflicting claim to control your account with us.
18. Software
18.1 All software that we provide for your use is subject to the terms of this Agreement, including software that we may authorize you to install on devices located outside of our data centre. You may not use any software we provide after the expiration or termination of this Agreement, or the particular service for which it was provided, and you may not copy the software unless expressly permitted by the Agreement. You may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any software we provide. Unless permitted by the terms of an open source software license, you may not reverse engineer, decompile or disassemble any software we provide except and to the extent that you are expressly permitted by applicable law to do this, and then following at least ten (10) days advance written notice to us. Any additional restrictions which may apply to software we utilize in the performance of the Services will be specified in the applicable Order.
18.2 In the event we distribute any open source software to you as part of the Services (including for example Linux based software, OpenStack software, and software licensed under the Apache, GPL, MIT or other open source licenses) then such Open Source Software is subject to the terms of the applicable open source license. There are no warranties provided with respect to any Open Source Software and all implied warranties are disclaimed. In the event of any conflict between the terms herein and the applicable open source license with respect to any Open Source Software, the terms of the applicable open source license shall control.
19. Who may use the services. You may resell the Services, except as provided below or otherwise restricted by Webdev. If you resell Services, you are responsible for use of the Services by any third party to the same extent as if you were using the Services yourself. Unless otherwise agreed, Webdev will provide support only to you, not to any other person you authorize to use the Services. There are no third party beneficiaries to the Agreement, meaning that third parties do not have any rights against either of us under the Agreement.
20. Changes to the acceptable use policy. We may change our Acceptable Use Policy, provided that any changes are reasonable and consistent with applicable law and industry norms. Any such changes made during the term of your Agreement will become effective to your account upon the first to occur of: (i) renewal, (ii) your execution of a new/additional Order for your account that incorporates the revised AUP, or (iii) thirty (30) days following our notice to you describing the change. If the change materially and adversely affects you, you may terminate the Agreement by giving us written notice of termination on such grounds no later than thirty (30) days following the date the change became effective for your account, and we will not enforce the change with respect to that account for thirty (30) days following the date of your notice. If you terminate the Services because the change adversely affects you, we may decide not to enforce that change with respect to your account and keep your Agreement in place for the remainder of the term.
21. Notices. Your routine communications regarding the Services should be sent to your Webdev Cloud account team using your email registered with us. If you want to give us a notice regarding termination of the Agreement for breach, indemnification, or other non-routine legal matter, you should send it by electronic mail and postal mail to:
Managing Director
Webdev Pvt. Ltd.
207. J. Tongogara Ave.
Harare, Zimbabwe
Webdev’s routine communications regarding the Services and legal notices will be sent to the individual(s) you designate as your contact(s) on your account by electronic mail, and, or the Webdev Cloud control panel. Notices are deemed received as of the time delivered, or if that time does not fall within a Business Day, as defined below, as of the beginning of the first Business Day following the time delivered. For purposes of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. Notices must be given in the English language.
22. No High Risk Use. You may not use the Services in any situation where failure or fault of the Services could lead to death or serious bodily injury of any person, or to physical or environmental damage. For example, you may not use, or permit any other person to use, the Services in connection with aircraft or other modes of human mass transportation, nuclear or chemical facilities, or Class III medical devices under the Food, Drug and Cosmetic Act.
23. Ownership of Intellectual Property. Each of us retains all right, title and interest in and to our respective trade secrets, inventions, copyrights, and other intellectual property. Any intellectual property developed by Webdev during the performance of the Services shall belong to Webdev unless we have agreed with you in advance in writing that you shall have an interest in the intellectual property.
24. IP Addresses. Upon expiration or termination of the Agreement, you must discontinue use of the Services and relinquish use of the IP addresses and server names assigned to you by Webdev in connection with Services, including pointing the DNS for your domain name(s) away from Webdev Services. You agree that Webdev may, as it determines necessary, make modifications to DNS records and zones on Webdev managed or operated DNS servers and services.
25. Services Management Agent. You agree that you will not interfere with any services management software agent(s) that Webdev installs on your Services. Webdev agrees that its agents will use only a minimal amount of computing resources, and will not interfere with your use of your Services. Webdev will use the agents to track system information so that it can more efficiently manage various service issues. Your Services will become “Unsupported” as described in Section 33 below if you disable or interfere with our services management software agent(s). You agree that Webdev may access your Services to reinstall services management software agents if you disable them or interfere with their performance.
26. Assignment/Subcontractors. You may not assign the Agreement without Webdev’s prior written consent. We may assign the Agreement in whole or in part to an Affiliate with sufficient financial standing in order to meet its obligations under this Agreement or as part of a corporate reorganization or a sale of our business, and we may transfer your Confidential Information as part of any such transaction. Webdev may use third party service providers to perform all or any part of the Services, but Webdev remains responsible to you under this Agreement for work performed by its third party service providers to the same extent as if Webdev performed the Services itself.
27. Server Hardware and Software Breakdown.
27.1 If you cause user error(s) or purposeful interruption(s) of the service (e.g. if you shuts your server down, Webdev is not responsible for the downtime;
27.2 Failure due to software that is not explicitly supported by Webdev.
27.3 If a hardware crash provoked by your actions takes place, Webdev is beyond the control and responsibility for the resulting downtime
27.4 Services provided by third parties. Webdev personnel may from time to time recommend third party software or other products and services for your consideration and may also make available to you third party products or services, including availability of third party applications through deployment or implementation tools. WEBDEV MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING PRODUCTS AND SERVICES THAT ARE NOT PURCHASED FROM WEBDEV. Your use of any such third-party products and services is governed by the terms of your agreement with the provider of those products and services.
28. Force Majeure. Neither of us will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond our control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.
29. Governing Law, Lawsuits. The Agreement is governed by the laws of Zimbabwe. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Each of us agrees that any dispute or claim, including without limitation, statutory, contract or tort claims, relating to or arising out of this Agreement or the alleged breach of this Agreement, shall, upon timely written request of either of us, be submitted to binding arbitration. The party asserting the claim may elect to have the arbitration be in-person, telephonic or decided based on written submissions. The arbitration shall be conducted in the city in which you reside. The arbitration shall proceed in accordance with the commercial arbitration rules of the Zimbabwe Arbitration Association (ZAA) in effect at the time the claim or dispute arose. The arbitration shall be conducted by one arbitrator from ZAA or a comparable arbitration service who is selected pursuant to the applicable rules of the ZAA. The arbitrator shall issue a reasoned award with findings of fact and conclusions of law and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Either you or we may bring an action in any court of competent jurisdiction to compel arbitration under this Agreement, or to enforce or vacate an arbitration award. We will pay the fee for the arbitrator and your filing fee, to the extent that it is more than a court filing fee. We agree that we will not seek reimbursement of our fees and expenses if the arbitrator rules in our favour. You and we waive any right to a trial by jury, so that disputes will be resolved through arbitration. No claim subject to this provision may be brought as a class or collective action, nor may you assert such a claim as a member of a class or collective action that is brought by another claimant. Each of us agrees that we will not bring a claim under the Agreement more than two years after the time that the claim accrued. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
30. Some agreement mechanics. These Cloud Terms of Service may have been incorporated in your Order by reference to a proforma invoice, invoice and, or a page on the Webdev website. Although we may from time to time revise the Cloud Terms of Service posted on that page, those revisions will not be effective as to an Order that we accepted prior to the date we posted the revision, and your Order will continue to be governed by the Cloud Terms of Service posted on the effective date of the Order. However, any amended Cloud Terms of Service will become effective the earlier of either your acceptance of the amended Cloud Terms of Service, your continued use of the Services after notice of the amended Terms of Service, or thirty days after the date Webdev posts such amended Terms of Service on the Webdev website. In addition, if over time you sign multiple Orders for a single account, then the Cloud Terms of Service incorporated in the latest Order posted on the effective date of the latest Order will govern the entire account. Webdev may accept or reject any Order you submit in its sole discretion. Webdev’s provisioning of the Services described in an Order shall be Webdev’s acceptance of the Order.
An Order may be amended by a formal written agreement signed by both parties, or by an exchange of correspondence, including electronic mail, that includes the express consent of an authorized individual for each of us. Any such correspondence that adds or modifies Services in connection with an account established by an Order shall be deemed to be an amendment to that Order, notwithstanding the fact that the correspondence does not expressly refer to the Order.
Other than as stated herein, the Agreement may be modified only by a formal document signed by both parties.
If there is a conflict between the terms of any of the documents that comprise the Agreement, the documents will govern in the following order: Order, Cloud Terms of Service, and the Acceptable Use Policy. If any part of the Agreement is found unenforceable by a court or other tribunal, the rest of the Agreement will nonetheless continue in effect, and we agree that the tribunal may reform the unenforceable part if it is possible to do so consistent with the material economic incentives of the parties resulting in this Agreement. Each of us may enforce each of our respective rights under the Agreement even if we have waived the right or failed to enforce the same or other rights in the past. Our relationship is that of independent contractors and not business partners. Neither of us is the agent for the other, and neither of us has the right to bind the other on any agreement with a third party. The captions in the Agreement are for convenience only and are not part of the Agreement.
If you have made any change to the Agreement documents that you did not bring to our attention in a way that is reasonably calculated to put us on notice of the change, the change shall not become part of the Agreement.
The Agreement may be signed in multiple counterparts, which, taken together, will be considered one original. Facsimile signatures, signatures on an electronic image (such as .pdf or .jpg format), and electronic signatures shall be deemed to be original signatures.
This Agreement is the complete and exclusive agreement between you and Webdev regarding its subject matter and supersedes and replaces any prior agreement, understanding, or communication, written or oral.
ADDITIONAL TERMS FOR CERTAIN SERVICES
31. Managed Service Level. If you purchase a Managed Service Level for your account (or as part of an Order for the Services), then additional Support fees may apply (such as a monthly account fee and an additional incremental fee for Cloud Databases). Certain enhanced Support services are available for various Webdev Cloud Services if you have purchased a Managed Service Level, for details see the applicable Service Level Agreement. Webdev must have full root/administrator access to your Services in order to provide Managed Service Level Support. If you use Managed Service Level Services, you are responsible for updating Webdev about password changes that limit Webdev’s ability to manage or monitor the Services. No credits or refunds will be issued for failures caused by restrictions on Webdev’s root/administrator access to your Services.
32. Domain Name Registration Services. If you register, renew, or transfer a domain name through Webdev, Webdev will submit the request to its domain name services provider (the “Registrar”) on your behalf. Webdev’s sole responsibility is to submit the request to the Registrar. Webdev is not responsible for any errors, omissions, or failures of the Registrar. Your use of domain name services is subject to the Registrar’s applicable legal terms and conditions. You are responsible for closing any account with any prior reseller of or registrar for the requested domain name, and you are responsible for responding to any inquiries sent to you by the Registrar.
33. Unsupported configuration elements or services. If you ask us to implement a configuration element (hardware or software) or other service in a manner that is not customary at Webdev, or that is in “end of life” or “end of support” status, we may designate the element or service as “unsupported,” “non-standard,” “best efforts,” “reasonable endeavor,” “one-off,” “EOL,” “end of support,” or with like term in the Order (referred to in this Section as an “Unsupported Service”). Webdev makes no representation or warranty whatsoever regarding any Unsupported Service, and you agree that Webdev will not be liable to you for any loss or damage arising from the provision of the Unsupported Service. The Service Level Agreement will not apply to the Unsupported Service, or any other aspect of the Services that is adversely affected by the Unsupported Service. You acknowledge that Unsupported Services may not interoperate with Webdev’s other services.
34. Cloud Server Images. If you provision a Webdev Cloud Server or other Service using a non-standard or non-Webdev image or installation (even if such image is made available to you by Webdev during configuration, provided that it is identified as such), then Webdev shall have no obligation to provide Support for that Service, and any Support provided shall be on an AS IS basis.
35. Mail Services
35.1 Access. You may access you Mail Services over the web via the Webdev Cloud control panel, or via a Webdev-provided API. Webdev may modify its control panel or APIs at any time, or may transition to new APIs.
35.2 Management of the Service. Webdev will provision your initial mail environment, but you are otherwise responsible for managing your mail service, including adding mailboxes, adding wireless or other service components, adding storage capacity, managing settings, and configuring spam filters.
35.3 Filtering. Webdev will provide email filtering services designed to filter spam, phishing scams, and email infected with viruses. Webdev recommends that you employ additional security measures, such as a desktop virus scanner and firewall, on computers that are connected to the Internet. Email that is quarantined by the filtering system is excluded from the Service Level Agreements. Webdev will use commercially reasonable efforts to deliver your email messages. Third party filtering services may from time to time prevent successful delivery of your messages. You acknowledge that the technological limitations of the filtering service will likely result in the capture of some legitimate email and the failure to capture some unwanted email, including email infected with viruses. You hereby release Webdev and its employees, agents, affiliates, and third party suppliers from any liability for damages arising from the failure of Webdev’s filtering services to capture unwanted email or from the capture of legitimate email, or from a failure of your email to reach its intended recipient as a result of a filtering service used by the recipient or the recipient’s email service provider.
35.4 Memory Limitations. Mail that exceeds the storage limit when received may be permanently lost. You may adjust the storage capacity of your individual mailboxes via the control panel, and it is your obligation to monitor and adjust the storage capacity of individual mailboxes as needed. An individual email message that exceeds the per-message size limit of 50 MB (including attachments) may also be permanently lost.
35.5 Content Privacy. Your email messages and other items sent or received via the mail service will include: (i) the content of the communication (“content”), and (ii) certain information that is created by the systems and networks that are used to create and transmit the message (the “message routing data”). The content includes things like the text of email messages and attached media files, and is generally the information that could be communicated using some media other than email (like a letter, telephone call, CD, DVD, etc.) The message routing data includes information such as server hostnames, IP addresses, timestamps, mail queue file identifiers, and spam filtering information, and is generally information that would not exist but for the fact that the communication was made via email. The content of your items is your Confidential Information and is subject to the restrictions on use and disclosure described in these Cloud Terms of Service. However, you agree that we may view and use the message routing data for our general business purposes, including maintaining and improving security, improving our services, and developing products. In addition, you agree that we may disclose message routing data to third parties in aggregate statistical form, provided that we do not include any information that could be used to identify you.
35.6 Usage Data. We collect and store information related to your use of the Services, such as use of SMTP, POP3, IMAP, and filtering choices and usage. You agree that we may use this information for our general business purposes and may disclose the information to third parties in aggregate statistical form, provided that we do not include any information that could be used to identify you.
35.7 Cloud Sites Mail Relays. You agree that if you utilize the Cloud Sites product offering, you will not send bulk or commercial e-mail to more than five-thousand (5,000) users per day, at a rate of two-hundred and fifty (250) messages every twenty minutes.
36. Content Delivery Services. Content that you distribute using our content delivery services may not be as secure as content stored on the Cloud. You should use our content deliver services only for content that you intend to distribute to the public via your website.
37. Service Optimisation and crowded host processes. By using the Services, you agree that we may establish new procedures for your use of the Services as we deem necessary for the optimal performance of the Services. By using Cloud Servers, you also agree that we may migrate your data within the same data centre if we determine in our reasonable judgment that server migration is required to remediate service degradation or shared resource constraints. In each case we will give you reasonable advance notice and use all reasonable endeavours to minimize the effect that such change will have on your use of the Services.
38. Bandwidth. For clarity, the bandwidth charges of your Managed Hosting Services and the Cloud Services shall be combined to form your cumulative monthly bandwidth usage (“Total Bandwidth Usage”). Any overages of bandwidth usage will be charged at the overage rate as set forth in the original price of bandwidth for that Order.
Billing for the Total Bandwidth Usage and any overages will be reflected on your Managed Hosting Services invoice.
39. Acceptable Use Policy (AUP).
This Acceptable Use Policy (“AUP”) is incorporated by reference in your services agreement with Webdev.
Your services may be suspended or terminated for violation of this AUP in accordance with your services agreement with Webdev.
Capitalized terms used in this AUP shall have the meaning given in your services agreement.
Inquiries regarding this policy should be directed to [email protected].
39.1 Abuse
You may not use Webdev’s network or services to engage in, foster, or promote illegal, abusive, or irresponsible behavior, including:
Use of an internet account or computer without the owner’s authorization;
Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network;
Collecting or using email addresses, screen names or other identifiers without the consent of the person identified (including, without limitation, phishing, Internet scamming, password robbery, spidering, and harvesting);
Collecting or using information without the consent of the owner of the information;
Use of any false, misleading, or deceptive TCP-IP packet header information in an email or a newsgroup posting;
Use of the service to distribute software that covertly gathers information about a user or covertly transmits information about the user;
Use of the service for distribution of advertisement delivery software unless: (i) the user affirmatively consents to the download and installation of such software based on a clear and conspicuous notice of the nature of the software, and (ii) the software is easily removable by use of standard tools for such purpose included on major operating systems; (such as Microsoft’s “ad/remove” tool); or
Any conduct that is likely to result in retaliation against the Webdev network or website, or Webdev’s employees, officers or other agents, including engaging in behavior that results in any server being the target of a denial of service attack (DoS).
Monitoring data or traffic on any network or system without the express authorization of the owner of the system or network;
Interference with service to any user of the Webdev or other network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks;
39.2 Excessive Use of System Resources
You may not use any shared system provided by Webdev in a way that unnecessarily interferes with the normal operation of the shared system, or that consumes a disproportionate share of the resources of the system. For example, we may prohibit the automated or scripted use of Webdev Mail Services if it has a negative impact on the mail system, or we may require you to repair coding abnormalities in your Cloud-hosted code if it unnecessarily conflicts with other Cloud customers’ use of the Cloud. You agree that we may quarantine or delete any data stored on a shared system if the data is infected with a virus, or is otherwise corrupted, and has the potential to infect or corrupt the system or other customers’ data that is stored on the same system.
39.3 Mail Requirements
You must comply with the CAN-SPAM Act of 2003 and other laws and regulations applicable to bulk or commercial email. In addition, your bulk and commercial email must meet the following requirements:
Your intended recipients have given their consent to receive e-mail via some affirmative means, such as an opt-in procedure;
Your procedures for soliciting consent include reasonable means to ensure that the person giving consent is the owner of the e-mail address for which the consent is given;
You retain evidence of the recipient’s consent in a form that may be promptly produced on request, and you honor the recipient’s and the Webdev Cloud’s requests to produce consent evidence within 72 hours of receipt of the request;
You have procedures in place that allow a recipient to revoke their consent — such as a link in the body of the email, or instructions to reply with the word “Remove” in the subject line; you honour revocations of consent within 48 hours, and you notify recipients that the revocation of their consent will be implemented in 48 hours;
You must post an email address for complaints (such as [email protected]) in a conspicuous place on any website associated with the email, you must register that address at abuse.net, and you must promptly respond to messages sent to that address;
You must have a Privacy Policy posted for each domain associated with the mailing;
You have the means to track anonymous complaints;
You must not obscure the source of your e-mail in any manner. Your e-mail must include the recipient’s e-mail address in the body of the message or in the “TO” line of the e-mail;
You must not attempt to send any message to an email address if 3 consecutive delivery rejections have occurred and the time between the third rejection and the first rejection is longer than fifteen days;
These policies apply to messages sent using the services, or to messages sent from any network by you or any person on your behalf that directly or indirectly refer the recipient to a site hosted via the services. In addition, you may not use a third party e-mail service that does not practice similar procedures for all its customers. These requirements apply to distribution lists created by third parties to the same extent as if you created the list.
Webdev may test and otherwise monitor your compliance with its requirements, including requesting opt-in information from a random sample of your list at any time. In addition, Webdev may block the transmission of email that violates these provisions. Webdev may, at its discretion, require certain customers to seek advance approval for bulk and commercial email, which approval will not be granted unless the customer can demonstrate that all of the requirements stated above will be met.
39.4 Vulnerability Testing
You may not attempt to probe, scan, penetrate or test the vulnerability of a Webdev system or network, or to breach the Webdev security or authentication measures, whether by passive or intrusive techniques, without the Webdev’s express written consent.
39.5 Newsgroup, Chat Forums, Other Networks
You must comply with the rules and conventions for postings to any bulletin board, chat group or other forum in which you participate, such as IRC and USENET groups including their rules for content and commercial postings. These groups usually prohibit the posting of off-topic commercial messages, or mass postings to multiple forums.
You must comply with the rules of any other network you access or participate in using your Webdev services.
39.6 Offensive Content
You may not publish, transmit or store on or via the Webdev network or equipment any content or links to any content that the Webdev reasonably believes:
Constitutes, depicts, fosters, promotes or relates in any manner to child pornography, bestiality, or non-consensual sex acts;
is excessively violent, incites violence, threatens violence or contains harassing content or hate speech;
is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes;
is defamatory or violates a person’s privacy;
creates a risk to a person’s safety or health, creates a risk to public safety or health, compromises national security or interferes with a investigation by law enforcement;
improperly exposes trade secrets or other confidential or proprietary information of another person;
is intended to assist others in defeating technical copyright protections;
infringes on another person’s copyright, trade or service mark, patent or other property right;
promotes illegal drugs, violates export control laws, relates to illegal gambling or illegal arms trafficking;
is otherwise illegal or solicits conduct that is illegal under laws applicable to you or to Webdev; or
is otherwise malicious, fraudulent or may result in retaliation against Webdev by offended viewers.
39.7 Live Events
You may not use your Webdev services to stream live sex acts of any kind, even if the content would otherwise comply with the AUP. Webdev may prohibit you from streaming other live events where there is a special risk, in Webdev’s reasonable discretion, that the event may violate the Offensive Content section above.
39.8 Copyrighted Material
You may not use Webdev’s network or services to download, publish, distribute, or otherwise copy or use in any manner any text, music, software, art, image or other work protected by copyright law unless:
you have been expressly authorized by the owner of the copyright for the work to copy the work in that manner; or
you are otherwise permitted by established copyright law to copy the work in that manner.
It is Webdev’s policy to terminate in appropriate circumstances the services of customers who are repeat infringers.
39.9 Other
You must have valid and current information on file with your domain name registrar for any domain hosted on the Webdev network.
You may only use IP addresses assigned to you by Webdev in connection with your Webdev services.
You agree that if Webdev IP numbers assigned to your account are listed on an abuse database like Spamhaus, you will be in violation of this AUP, and Webdev may take reasonable action to protect its IP addresses, including suspension and/or termination of your service, regardless of whether the IP addresses were listed as a result of your actions;
You agree that if you register a DNS record or zone on Webdev managed or operated DNS servers or services for a domain of which you are not the registrant or administrative contact according to the registrars WHOIS system, that, upon request from the registrant or administrative contact according to the registrars WHOIS system, Webdev may modify, transfer, or delete such records or zones.
You may not register to use any Services under a false name, or use an invalid or unauthorized credit card in connection with any Services.
SLA
No credit will be available under the Webdev Service Level Agreement(s) for interruptions of service resulting from any AUP violation.
This Agreement is effective when Customer clicks to accept it (the "Effective Date"). If you are accepting on behalf of Customer, you represent and warrant that (i) you have full legal authority to bind Customer to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of Customer, to this Agreement.