2. Company Responsibilities

2.1 Provision of Services. Company will (a) make the Services available to Customer pursuant to this Agreement and the applicable Order Form, (b) provide standard support for the Services to Customer at no additional charge, (c) use commercially reasonable efforts to make the online Services available, except for: (i) downtime, (ii) planned downtime (of which Company shall give at least 8 hours electronic notice and which Company shall schedule to the extent practicable during the weekend hours), and (iii) any unavailability caused by circumstances beyond Company’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Company employees), Internet service provider failure or delay, or denial of service attack, and (d) provide the Services in accordance with applicable laws and government regulations when used according to this Agreement and the Documentation. Company will not materially decrease the overall security of the Services during a subscription term.

2.2 Protection of Customer Data.  Company will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data.  Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data by Company personnel except (a) to provide the Services and prevent or address service or technical problems, (b) as compelled by law in accordance with the “Confidentiality: Compelled Disclosure” section below, or (c) as expressly permitted in writing by Customer. 

2.3 Company Personnel.  Company will be responsible for the performance of its personnel (including its employees and contractors) and their compliance with Company’s obligations under this Agreement, except as otherwise specified herein.  

2.4 Beta Services. From time to time, Company may invite Customer to try Beta Services at no charge. Customer may accept or decline any such trial in its sole discretion.  Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import.  Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms.  Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available.  Company may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Company will have no liability for any harm or damage arising out of or in connection with a Beta Service.      

2.5 Free Services. If Customer is using a free version of the Services, (a) Sections 4, 7.2, 8.1, 8.3, and 10.2-10.5 of this Agreement do not apply; (b) the term of each subscription shall commence on the Effective Date and terminate upon date of termination of this Agreement. Either party may terminate this Agreement upon written notice to the other party; and (c) COMPANY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED $100. THE ABOVE LIMITATION APPLIES WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. IN NO EVENT WILL COMPANY HAVE ANY LIABILITY TO THE CUSTOMER FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, AND IN NO EVENT WILL COMPANY OR COMPANY LICENSORS HAVE ANY LIABILITY UNDER THIS AGREEMENT FOR ANY DAMAGES, HOWEVER CAUSED, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

3. Use of Services

3.1 Subscriptions.  (a) Services are purchased as subscriptions, (b) subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.   

3.2 Usage Limits/Audit.  Services are subject to usage limits, including, for example, the quantities specified in Order Form. If Customer is unable or unwilling to abide by a contractual usage limit, Customer will complete an Order Form for additional quantities of the applicable Services promptly upon Company’s request, and/or pay any invoice for excess usage in accordance with the “Invoicing and Payment” section below.  Company shall have the right to audit Customer’s use of the Services during the term of this Agreement and for two (2) years following termination. If Company determines during such audit that Customer has overused the Services, then Customer agrees to immediately pay Company for such excess usage,  and, if such usage is more than five percent (5%) above the permitted usage, then Customer shall reimburse Company the costs of such audit.

3.3 Customer Responsibilities. Customer will (a) be responsible for Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Customer Data and the means by which Customer acquired Customer Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify Company promptly of any such unauthorized access or use, and (d) use Services only in accordance with the Documentation and applicable laws and government regulations.  

3.4 Usage Restrictions.  Customer will not (a) make any Services available to, or use any Services for the benefit of, anyone other than Customer or Users, (b) sell, resell, license, sublicense, distribute, rent or lease any Services, or include any Services in a service bureau or outsourcing offering, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, (f) attempt to gain unauthorized access to the Services or its related systems or networks, (g) permit direct or indirect access to or use of the Services in a way that circumvents a contractual usage limit, (h) copy the Services or any part, feature, function or user interface thereof, (i) frame or mirror any part of the Services, other than framing on Customer’s own intranets or otherwise for its own internal business purposes or as permitted in the Documentation, (j) access the Services in order to build a competitive product or service, or (k) reverse engineer the Services (except to the extent such restriction is permitted by law). Further use of the Services is subject to the Google Acceptable Use policy and Customer will not use the Services: to violate, or encourage the violation of, the legal rights of others; to engage in, promote or encourage illegal activity; for any unlawful, invasive, infringing, defamatory or fraudulent purpose (for example, this may include phishing, creating a pyramid scheme or mirroring a website); to intentionally distribute viruses, worms, Trojan horses, corrupted files, hoaxes, or other items of a destructive or deceptive nature; to interfere with the use of the Services, or the equipment used to provide the Services, by customers, authorized resellers, or other authorized users; to disable, interfere with or circumvent any aspect of the Services; to generate, distribute, publish or facilitate unsolicited mass email, promotions, advertisings or other solicitations (“spam”); or to use the Services, or any interfaces provided with the Services, to access any other Google product or service in a manner that violates the terms of service of such other Google product or service.

4. Fees and Payment

4.1 Fees. Customer will pay all fees specified in Order Forms. Fees are based on use of the Services as described in the Order Form; payment obligations are non-cancelable and fees paid are non-refundable; and quantities purchased cannot be decreased during the relevant subscription term.

4.2 Invoicing and Payment. Fees will be invoiced in advance. Fees are due upon completion of the Order Form (via automated invoice and charge to Customer’s designated credit card). Customer is responsible for providing complete and accurate billing and contact information to Company and notifying Company of any changes to such information.

4.3 Overdue Charges.  If any invoiced amount is not received by Company by the due date, then without limiting Company’s rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.  

4.4 Suspension of Services.  If any charge owing by Customer is 30 days or more overdue, Company may, without limiting its other rights and remedies, suspend Services until such amounts are paid in full, provided Company has given Customer at least 10 days’ prior notice that its account is overdue in accordance with the “Notices” section below. 

4.5 Payment Disputes.  Company will not exercise its rights under the “Overdue Charges” or “Suspension of Services” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.

4.6 Taxes.  Company’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Company has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Company will invoice Customer and Customer will pay that amount unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Company is solely responsible for taxes assessable against it based on its income, property and employees.

4.7 Future Functionality. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Company regarding future functionality or features.

5. Proprietary Rights and Licenses

5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Company and its licensors reserve all of their right, title and interest in and to the Services, including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.

5.2 License by Customer to Host Customer Data.  Customer grants Company and its hosting providers a worldwide, limited-term license to host, copy, transmit and display Customer Data and program code created by or for Customer using the Services, as necessary for Company to provide the Services in accordance with this Agreement.  Subject to the limited licenses granted herein, Company acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data or program code.

5.3 License by Customer to Use Feedback. Customer grants to Company a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of the Services. 

6. Confidentiality

6.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.  Confidential Information of Customer includes Customer Data; Confidential Information of Company includes the Services, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party.  However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

6.2 Protection of Confidential Information.  The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.  Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section.

6.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

7. Representations, warranties, exclusive remedies and disclaimers

7.1 Representations.  Each party represents that it has validly entered into this Agreement and has the legal power to do so.

7.2 Company Warranties.  Company warrants that the Services will perform materially in accordance with the applicable Documentation.  For any breach of an above warranty, Customer’s exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.   

7.3 Disclaimers.  EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY OR ITS LICENSORS MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.  BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER.  

8. Mutual Indemnification

8.1 Indemnification by Company. Company will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the Services infringe or misappropriate such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement of, a Claim Against Customer, provided Customer (a) promptly gives Company written notice of the Claim Against Customer, (b) gives Company sole control of the defense and settlement of the Claim Against Customer (except that Company may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives Company all reasonable assistance, at Company’s expense.  If Company receives information about an infringement or misappropriation claim related to the Services, Company may in its discretion and at no cost to Customer (i) modify the Services so that they no longer infringe or misappropriate, (ii) obtain a license for Customer’s continued use of the Services in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for the Services upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions.  

8.2 Indemnification by Customer. Customer will defend Company against any claim, demand, suit or proceeding made or brought against Company by a third party alleging that the Customer Data, or Customer’s use of the Services in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Company”), and will indemnify Company from any damages, attorney fees and costs finally awarded against Company as a result of, or for any amounts paid by Company under a settlement of, a Claim Against Company; provided Company (a) promptly gives Customer written notice of the Claim Against Company, (b) gives Customer sole control of the defense and settlement of the Claim Against Company (except that Customer may not settle any Claim Against Company unless it unconditionally releases Company of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense.  

8.3 Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.

9. Limitation of Liability

9.1 Limitation of Liability.  NEITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED IN THE AGGREGATE THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT.  THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.

9.2 Exclusions.  IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, AND IN NO EVENT WILL EITHER PARTY OR COMPANY LICENSORS HAVE ANY LIABILITY UNDER THIS AGREEMENT FOR ANY DAMAGES, HOWEVER CAUSED, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

10. Term and Termination

10.1 Term of Agreement. This Agreement commences on the Effective Date and continues until all subscriptions hereunder have expired or have been terminated. 

10.2 Term of Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Annual subscriptions will automatically renew for additional periods of one year, unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term, and monthly subscriptions will automatically renew for additional periods of one month, unless either party gives the other notice of non-renewal at least 10  days before the end of the relevant subscription term.  For annual subscriptions, the per-unit pricing during any automatic renewal term will be the same as that during the immediately prior term unless Company has given Customer written notice of a pricing increase at least 60 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.  For monthly  subscriptions, the per-unit pricing during any automatic renewal term will be the same as that during the immediately prior term unless Company has given Customer written notice of a pricing increase at least 60 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter. Company reserves the right to increase the rates specified in the Order Form upon any renewal of a subscription term.

10.3 Termination.  A party may terminate this Agreement and any Order Form for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

10.4 Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with the “Termination” section above, Company will refund Customer any prepaid fees covering the remainder of the term after the effective date of termination.  If this Agreement is terminated by Company in accordance with the “Termination” section above, Customer will pay any unpaid fees covering the remainder of the term.  In no event will termination relieve Customer of its obligation to pay any fees payable to Company for the period prior to the effective date of termination.

10.5 Surviving Provisions. The sections titled “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement.

11. General Provisions

11.1 Export Compliance.  The Services, other Company technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions.  Company and Customer each represents that it is not named on any U.S. government denied-party list.  Customer will not permit any User to access or use the Services in a U.S.-embargoed country or in violation of any U.S. export law or regulation.

11.2 Entire Agreement and Order of Precedence.  This Agreement is the entire agreement between Company and Customer regarding Customer’s use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.  The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void.  In the event of any conflict or inconsistency among the following documents, the order of precedence shall be:  (1) the applicable Order Form, (2) any exhibit, schedule or addendum to this Agreement, (3) the body of this Agreement, and (4) the Documentation.   

11.3 Modifications to this Agreement. Company may modify the terms and conditions of this Agreement from time to time with notice to Customer as provided herein. Unless a shorter period is specified by Company (e.g., due to changes in the law or exigent circumstances), the modifications become effective upon renewal of Customer’s current term of the subscription or entry into a new Order Form. If Company specifies that the modifications to the Agreement will take effect prior to Customer’s next renewal or order and Customer notifies Company in writing of its objection to the modifications within thirty (30) days after the date of such notice, Company (at its option and as Customer’s exclusive remedy) will either: (a) permit Customer to continue under the existing version of this Agreement until expiration of the then-current term of the subscription (after which time the modified Agreement will go into effect) or (b) allow Customer to terminate this Agreement and receive a pro-rated refund of any fees Customer has pre-paid for use of the Services for the terminated portion of the applicable term of the subscription. Customer may be required to agree to the modified Agreement in order to continue using the Services, and, in any event, continued use of the Services after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version.

11.4 Relationship of the Parties.  The parties are independent contractors.  This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

11.5 No Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.

11.6 Federal Government End Use Provisions.  Company provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following:  Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement.  This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation).  If a government agency has a need for rights not granted under these terms, it must negotiate with Company to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.

11.7 Notices.  Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), the day of sending by email.  Notices to Company will be addressed to the attention of Legal, with a copy to its at Office AnyWhere, Inc.,  11 Meadowbrook Road, Wellesley, Ma.  02481, and email finance@welo.space.  Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer, and Legal Notices to Customer will be addressed to Customer and be clearly identifiable as Legal Notices.  All other notices to Customer will be addressed to the relevant Services system administrator designated by Customer.

11.8 Waiver.  No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.  

11.9 Severability.  If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.

11.10 Assignment.  Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety, without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.  Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

11.12 Governing Law.  This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the Commonwealth of Massachusetts, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods.