Agosto Services and License Agreement

Google Cloud Platform

This Agreement (“Agreement”) between Agosto, Inc., a Minnesota Corporation (“Agosto”), and

_______________________ (“Customer”) is effective as of the last date the Agreement is signed by both parties.
 

Whereas, Agosto is an authorized reseller of Google, Inc. (“Google”) and in that capacity is able to sell licenses for Customer to access and use certain applications, systems, storage or Google Cloud Platform provided by Google to Customer (the “Google Cloud Platform”), and

Whereas, Agosto has special expertise in the implementation of Google Cloud Platform, cloud services, managing information technology infrastructure, migrating from legacy systems to next generation technology, development of applications and interfaces, and the provision of related technical services for businesses, and

Whereas, Customer desires to purchase licenses for the Google Cloud Platform that are listed in Schedule A from Agosto and to engage Agosto as necessary to provide additional services as provided in this Agreement.

Now Therefore in consideration of the foregoing premises and the mutual covenants and agreements set forth below, the parties agree as follows:

Section 1 - Services Provided

1.1 Services Provided:

Agosto shall provide to Customer the services listed in the Statement of Work attached hereto as Schedule B and each subsequent Statement of Work created under this Agreement (the “SOW(s)”). Each SOW shall be effective, incorporated into and form a part of this Agreement when executed by both parties. If there is a conflict between this Agreement and the SOW, the terms of the SOW will govern the provision of the Services involved and this Agreement shall govern any other conflict not related to the Services. “Services” means the services to be provided by Agosto as more specifically set forth in the SOW.
 

1.2 Google License:

Customer acknowledges that Agosto is an authorized reseller of Google Cloud Platform Services (“GCP Services”) and that Customer is required to obtain licenses from Google as necessary to access and use GCP Services. A summary of GCP Services can be found at https://cloud.google.com/terms/services. The terms under which Customer shall be entitled to use Google Cloud Platform are as set forth in the Google Cloud Platform Terms of Service (“Google ToS”) available at https://cloud.google.com/terms/service-terms and as may be amended by Google. Customer agrees to accept and comply with the then current Google ToS. The Services provided by Agosto hereunder do not include any warranties of performance related to the Google Cloud Platform and Agosto shall not be liable for the operation, performance, or content of the Google Cloud Platform. Agosto is authorized by Google to provide “standard support” for the Google Cloud Platform so long as Customer complies with the terms of this Agreement.
 

1.3

Agosto’s sole and exclusive obligation regarding the performance of the Google Cloud Platform and GCP Services shall be the “standard support“ authorized by Google and extension to Customer as provided in the Google Cloud Platform Service Level Agreements available below and hereby incorporated by reference (the “SLAs”):

(i) Google App Engine https://cloud.google.com/appengine/sla

(ii) Google Cloud Storage https://cloud.google.com/storage/sla

(iii) Google BigQuery https://cloud.google.com/bigquery/sla

(iv) Google Compute Engine https://cloud.google.com/compute/sla

(v) Google Prediction API https://cloud.google.com/prediction/sla

The remedies available through the SLAs are the sole and exclusive remedies available to Customer from Agosto related to the Google Cloud Platform and GCP Services.
 

1.4 Services Not Provided:

Agosto shall not be obligated to provide any services other than the Services as set forth in the SOW. Customer shall be solely responsible for the management, administration, and security of Customer’s information or technology systems.
 

1.5 Additional Work: 

Any additional services beyond the Services set forth in the SOW (“Additional Services”) may be provided by Agosto subject to mutual written agreement of both parties. Customer acknowledges that any Additional Services requested by Customer may affect the cost and time-frames set forth in the SOW.
 

1.6 Effective Date:

This Agreement is effective on the last date it is signed by both parties. The Services will be provided by Agosto in accordance with the schedule and any timeframes or key dates set forth in the SOW. Customer acknowledges that no Services will commence unless and until Customer has paid for the requisite license fees for the Google Cloud Platform and provides Agosto with an executed copy of the Google Cloud Platform license agreement.

 

Section 2 - Customer Obligations

2.1 Fees:

Customer shall pay to Agosto all fees associated with the Services as specified in the SOW and all fees associated with any Additional Services requested by Customer as mutually agreed upon by both parties. The license fees for the Google Cloud Platform are due and payable to Agosto as provided in Schedule B and no Services will be provided unless and until such fees are paid. Customer shall pay all taxes, fees, surcharges, tariffs, and governmental charges imposed on the Services, Google Cloud Platform and any Additional Services.
 

2.2 Customer Duties:

Customer shall be solely responsible for complying with all laws, rules and regulations regarding use of the Google Cloud Platform, the management and administration of its data and information, and assuring proper security of any Customer systems and related technology used with the Google Cloud Platform, Customer data and information.
 

2.3 Restrictions:

Agosto provides the Services and Google Cloud Platform for Customer’s sole use and Customer shall not resell or sublicense the Services or Google Cloud Platform or make either available to any third party. Customer shall not create or offer derivative versions of the Services or Google Cloud Platform either directly, indirectly or through a third party.

 

2.4 Solicitation:

During the term of this Agreement and for a period of one (1) year after its termination, neither party shall, directly or indirectly, solicit employment of the other party’s employees, consultants, or independent contractors in any capacity, including but not limited to employment as an employee, consultant or independent contractor. Each party further acknowledges that the other party’s employees may have contractual obligations, including but not limited to non-competition agreements, and neither party shall induce or assist the other party’s employees in breaching those obligations.

 

2.5 Security:

Customer shall be solely responsible for maintaining security of Customer Data (as defined in Section 2.6 below), information and Customer systems and technology used to implement any Services as well as the Google Cloud Platform.

 

2.6 Backups:

In no event shall Google or Agosto be responsible for performing any backup or providing any disaster recovery services for Customer. Customer shall maintain a backup copy of the data and information contained on Customer’s information technology systems or otherwise provided by Customer to Agosto (“Customer Data”) and Customer shall at all times be responsible for maintaining appropriate backup and disaster recovery processes for Customer Data.

Section 3 - Limitations of Liability

3.1 Limited Liability:

EACH PARTY’S TOTAL LIABILITY TO THE OTHER UNDER THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, WILL BE LIMITED TO THE PAYMENTS ACTUALLY RECEIVED BY AGOSTO FROM CUSTOMER UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO ANY LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST REVENUES, LOSS OF USE, LOSS OF DATA OR LOSS OF GOODWILL OR REPUTATION, OR THE COSTS OF PROCURING SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR OPERATION OF THE GOOGLE CLOUD PLATFORM OR SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND EVEN IF SUCH DAMAGES WERE OR ARE FORESEEABLE.

Section 4 - Warranties

4.1 Agosto Warranties:

Agosto warrants that it is authorized to sell licenses for Google Cloud Platform to Customer, enter into this Agreement and any SOW, and that all Services performed by Agosto will be performed by qualified personnel. Except for the foregoing warranties, the Services, Google Cloud Platform and Additional Services are provided “as is, where is.” AGOSTO EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY AND NON-INFRINGEMENT. Customer purchases the Services, Google Cloud Platform, and Additional Services with full assumption of the risks associated with this disclaimer, and the fees have been negotiated to reflect this assumption of risk.

 

Section 5 - Intellectual Property

5.1 Ownership:

The Google Cloud Platform, the Services, the Additional Services and all intellectual property rights of any nature associated with or relating to the Google Cloud Platform, Services or Additional Services including any patent, copyright, trademark, service mark, trade secrets or any other intellectual property right are and shall at all times remain the sole and exclusive intellectual property of Google or Agosto respectively. Except as provided for in Sections 1.2 and 5.2 of this Agreement, nothing contained herein creates any Customer ownership interest in the intellectual property of Google or Agosto or grants Customer license to use any intellectual property or proprietary technology of Google or Agosto for any purpose.

 

5.2 Agosto Intellectual Property:

In the event Agosto provides Customer with any Agosto intellectual property including any Agosto proprietary computer software or technology as part of any SOW (“Agosto Technology”), the Agosto Technology and any related intellectual property shall remain the sole and exclusive intellectual property of Agosto. Customer shall be permitted a limited right and license to use the Agosto Technology and intellectual property only as necessary for its internal business purposes in connection with use of the Services, Additional Services or Google Cloud Platform and related deliverables as provided in any SOW. Otherwise, Customer agrees to not use the Agosto Technology for any other purpose. Agosto warrants that it shall at all times maintain all rights necessary to license Agosto Technology to Customer.

 

Section 6 - Arbitration

6.1 Arbitration:

The parties agree to exclusively use final, binding arbitration to resolve any claims arising under or related to this Agreement regardless of any legal theories upon which such claims are based. The parties irrevocably waive the right to resolve any claims arising under or related to this Agreement in any other forum or to demand trial by jury.

 

6.2 Applicable Law:

This Agreement shall be governed and interpreted by Minnesota law, regardless of choice of law principles of Minnesota or any other state.

 

6.3 Rules:

Any arbitration shall follow the American Arbitration Association Commercial Arbitration Rules.

 

6.4 Place:

Any arbitration shall occur in Minneapolis, Minnesota.

 

6.5 Enforcement:

Judgment of award rendered in any arbitration may be entered in any court having jurisdiction.

 

Section 7 - Term and Termination

 

7.1 Term:

The initial term of this Agreement is twelve (12) months from the Effective Date (the “Initial Term”) with the Services to commence and continue in accordance with the terms and conditions as provided in any SOW.

 

7.2 Renewal:

At the end of the Initial Term and each Subsequent Term(s) as defined below, this Agreement shall automatically renew for a subsequent term of twelve (12) months (a “Subsequent Term”) unless properly terminated by either party. The Initial Term and all Subsequent Term(s) shall together be defined as the “Term.” In order to properly terminate this Agreement, a party must give written notice to the other party in accordance with Section 10.13 at least thirty (30) days prior to the end of the then current Initial or Subsequent Term.

 

7.3 Billing Changes:

All billing and payment terms are as set forth in Schedule A and B. Fees for Google Cloud Platform will be billed at the then current rate as set by Google and available at https://cloud.google.com/pricing/. Agosto reserves the right to revise its billing rates, policies, and frequency by written notice to Customer.

 

7.4 Right to Terminate:

Either party may suspend performance or terminate this Agreement or any SOW if: (i) the other party is in material breach of the Agreement (including any failure to pay) or SOW and fails to cure that breach within thirty (30) days after receipt of written notice of such breach from the other party; or (ii) the other party ceases its business operations or becomes subject to insolvency proceedings not dismissed within ninety (90) days. In the event of such termination Customer shall pay Agosto all fees which are due and payable prior to the date of termination. Customer may at any time with or without cause terminate this Agreement or any SOW by giving Agosto sixty (60) days written notice of termination. In the event of Customer’s early termination, Customer shall pay Agosto for all Services performed as well as any costs and fees Agosto incurs as a result of such early termination. In no event shall Customer receive a refund of any Service fees or license fees for Google Cloud Platform and Customer must immediately pay Agosto for any and all unpaid Service and license fees in full including any fees due for the remainder of the license term.

 

7.5 Transition Services and Agosto’s Right to Terminate:

In the event that Google terminates its agreement with Agosto or suspends Agosto’s right to provide the Services or sell Google Cloud Platform licenses, Agosto may, upon written notice to Customer, terminate this Agreement or any SOW without any further liability or obligation to Customer. Notwithstanding the foregoing, upon any such termination by Agosto, Agosto will endeavor to work with Google and Customer as reasonably necessary to transition Customer to Google or to a third party designee that may provide similar services as provided by Agosto under this Agreement. During such transition period, which shall not extend beyond six (6) months following Agosto’s notice to Customer of such termination, Agosto may continue to provide the Services to Customer under the same terms of this Agreement.

 

7.6 Failure to Follow Google’s Terms and Conditions:

Failure of Customer to follow all of Google’s terms and conditions for the Google Cloud Platform, including but not limited to the Acceptable Use Policy available at https://cloud.google.com/terms/aup and hereby incorporated by reference (the “AUP”), constitutes a material breach of this Agreement. Customer is solely liable for all damages to any claimant caused by such breach. In the event of such breach, Agosto may immediately suspend its performance of the Services and GCP Services and such suspension shall not constitute a breach of this Agreement.

 

7.7 Effect of Termination.

Upon expiration or termination of this Agreement for any reason or at any time upon Customer’s written request, Agosto shall promptly provide Customer with a copy of any Customer Data in the custody or control of Agosto. Such Customer Data shall be in its then current form, in an electronic format and media to be reasonably agreed upon by the parties provided Customer reimburses Agosto for any reasonable costs Agosto incurs to comply with Customer’s data copy request. Except as otherwise provided herein, any licenses between Customer and Google shall remain in effect according to the terms of such license agreement.

 

Section 8 - Confidentiality

8.1 Confidential Information.

Each party may have access to information of the other party that is proprietary or not generally known in the relevant industry or which affords possessors of the information a commercial or business advantage, including any confidential, financial or business information or trade secrets of a party of which the other party’s personnel learns during the course of performance of this Agreement (collectively, “Confidential Information”).

Confidential Information shall include any information clearly identified in writing at the time of disclosure as confidential as well as any information that a reasonable person would believe to be confidential based on the circumstances under which it was disclosed. Agosto’s Confidential Information shall include Agosto Technology. The terms of this Agreement shall be considered the Confidential Information of both parties and shall not be disclosed to a third party without the prior written consent of the other party. However, a party may disclose the existence of the Agreement and the name of the other party.

 

8.2 Exceptions.

A party’s Confidential Information shall not include information that (i) is or becomes a part of the public domain through no act or omission of the other party; (ii) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (iv) is independently developed by the other party without use of or reference to the other party’s Confidential Information. This Section 8 will not be construed to prohibit disclosure of Confidential Information to the extent that such disclosure is required to by law or valid order of a court or other governmental authority; provided, however, that the responding party shall first have given notice to the other party (unless prohibited by law) to enable the disclosing party to seek a protective order or take other appropriate action.

 

8.3 Restrictions.

Each party (a “Recipient”) having access to the other party’s (the “Discloser”) Confidential Information agrees to treat the Confidential Information as confidential and proprietary to the Discloser. Except as expressly permitted in this Agreement, a Recipient agrees not to make the Discloser’s Confidential Information available in any form to any third party or to use the Discloser’s Confidential Information for any purpose other than those contemplated in this Agreement. Each Recipient agrees to limit access to the Confidential Information to its employees and subcontractors with a legitimate need to know such information (“Representatives”). Each Recipient agrees that its Representatives shall be informed of the confidentiality obligations and use restrictions in this Agreement and shall agree to protect the Confidential Information (in the case of Representatives that are not employees of the Recipient, such agreement shall be in writing on terms substantially similar to those contained in this Agreement). Each party shall be responsible for any disclosure of Confidential Information or any other breach of this Agreement by any of its Representatives. A Recipient agrees to notify the Discloser immediately if it has reason to believe that any Confidential Information may be or may have been disclosed to any person other than Representatives and shall cooperate with Discloser in limiting and addressing such disclosure.

 

8.4 Relief.

Each party acknowledges and agrees that due to the unique nature of Confidential Information, there can be no adequate remedy at law for breach of this Section 8 and that such breach would cause irreparable harm to the non-breaching party; therefore, the non-breaching party shall be entitled to seek immediate injunctive relief from any court of competent jurisdiction, in addition to whatever remedies it might have under this Agreement.

 

Section 9 - Indemnification

9.1 Indemnification:

Customer shall defend, indemnify hold Agosto, its affiliates and each of their respective officers, directors and employees harmless from any and all liability, losses, damages, costs and expenses (including, but not limited to, attorneys’ fees and costs) directly or indirectly attributable to any claim or administrative or criminal proceeding arising out of or relating to the negligence, misconduct of or misrepresentations made by Customer or its agents or representatives, regardless of the form of action including, without limitation, claims arising from or relating to: (i) the unauthorized use, sublicensing or disposition of any Google intellectual property or proprietary information or Agosto Technology; (ii) a breach of Customer Data, or (iii) any breach by Customer of any representation, warranty, covenant, or other term of this Agreement. This section shall not be construed to limit or exclude any other claims or remedies which Agosto may assert under this Agreement or by law.

 

Section 10 - Additional Provisions

10.1 Stored Data:

Except as otherwise provided in this Agreement or any SOW, Agosto shall not have any obligation to maintain or store Customer Data during the Term of this Agreement or after this Agreement terminates or if Customer fails to cure any material breach; provided that upon request Agosto will return to Customer any Customer Data Agosto has in its possession or control in accordance with Section 7.7.

 

10.2 Force Majeure:

Neither party is liable for inadequate performance to the extent caused by a circumstance beyond its reasonable control, including but not limited to Domain Name Server issues, labor strikes or shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages.

 

10.3 Waiver:

Failure to enforce any provision of this Agreement shall not constitute a waiver of any other provision or the Agreement as a whole.
 

10.4 Entire Agreement:

This Agreement and its attachments Schedules A and B and any additional SOWs contain the entire understanding and agreement between the parties. This Agreement supersedes all previous oral and written agreements, proposals, negotiations, representations, commitments, and other communications among the parties with respect to the Agreement’s subject matter. Neither party shall be bound by any pre-printed terms additional to or different from those in this Agreement that may appear subsequently in the other party’s form documents, purchase orders, quotations, acknowledgments, invoices or other communications, and all such additional or different terms are hereby expressly rejected.

 

10.5 Amendments:

The parties can only amend this Agreement by a written document signed by both parties.

 

10.6 Severability:

In the event that any provision of this Agreement is found invalid or unenforceable, it will be enforced to the extent permissible and the remainder of this Agreement will remain in full force and effect.

 

10.7 Survival:

Sections 2.4, 5, 6, 7, 8, 9 and 10 shall survive any breach or termination of this Agreement.

 

10.8 Counterparts:

The parties may execute this Agreement in counterparts, including facsimile, PDF or other electronic copies which taken together shall constitute one instrument.

 

10.9 Assignment:

A party cannot assign this Agreement or any rights or obligations under this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign both the rights and obligations of this Agreement to the surviving corporation in any merger or consolidation to which it is a party or to any party that acquires all or substantially all of its capital stock or assets upon written notice to the other party.

 

10.10 Successors and Assigns:

Subject to Section 10.9, this Agreement binds and inures to the benefit of the parties to this Agreement and to their successors and assigns.

 

10.11 No Agency:

The parties hereto are independent contractors. This Agreement does not create any agency, partnership or joint venture.

 

10.12 Third Party Rights:

Google is a third party beneficiary to this Agreement. Other than Google, no person or entity is a third party beneficiary to this Agreement. This Agreement confers no rights or remedies on anyone other than the parties to this Agreement and their successors and assigns, if such assignments are made pursuant to Section 10.9.