CWX Terms & Conditions
These Terms and Conditions (the “Agreement”) govern the relationship between CloudWerx, Inc., a Delaware corporation (“CWX”, “we”, “us”, or “our”) and the customer (“Customer” or “you”) identified on the Order Form (as defined below). By signing an Order Form that references these Terms and Conditions, Customer acknowledges that Customer has read, understood, and agrees to be bound by this Agreement. If Customer is entering into this Agreement on behalf of a company or other legal entity, the individual signing the Order Form represents that such individual has the authority to bind such entity to this Agreement. The order form executed by Customer that references these Terms and Conditions is referred to herein as the “Order Form.” The Order Form is incorporated herein by reference. CWX may update this Agreement from time to time, including as described in the General Provisions section below, so please review it periodically.
Background
- CWX is an authorized reseller of cloud platform services (the “Google Cloud Services”) offered by Google LLC, or its affiliated entities (“Google”).
- Customer desires to engage CWX to provide certain Google Cloud Services and other services to Customer pursuant to the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, Customer agrees as follows:
1. Services
CWX shall provide Customer with access to the Google Cloud Services selected by Customer during the registration process or as subsequently added (“Google Cloud Services”), and may provide such additional products or services as selected by Customer (collectively, the “Services”). An account dedicated to Customer on the Google Cloud Services will be set up by CWX, which will be made available to the Customer. CWX acts solely as a billing intermediary and authorized reseller for Google Cloud Services. All billing from Google Cloud Services will be handled through CWX, with Customer receiving invoices from CWX for all Services provided. Customer acknowledges and agrees that CWX does not provide the underlying Google Cloud Services and has no responsibility for the performance, availability, security, or functionality of such services. CWX will also provide billing ticket coverage and up to six (6) professional support hours (inclusive of up to two (2) GCP technical tickets) each month (“Basic Support Services”).
2. Customer Responsibilities
Customer shall be solely responsible for: (a) the use of the Services and all activities conducted through Customer’s account; (b) compliance with all applicable laws and regulations in connection with Customer’s use of the Services; (c) all Customer Materials uploaded, stored, or processed using the Services; and (d) providing such assistance and resources as CWX may reasonably request in connection with the provision of Services to Customer, including assistance with billing transfers. Customer represents and warrants that Customer is not located in, organized under the laws of, or ordinarily resident in any country or territory subject to comprehensive U.S. trade sanctions, is not identified on any U.S. government restricted party list, and shall not use the Services in violation of any applicable export control or economic sanctions laws. Customer further represents and warrants that: (i) Customer’s principal place of business is located in a country or territory where CWX is authorized to resell the Services; (ii) Customer will not use the Services for High Risk Activities (activities where the use or failure of the Services could reasonably be expected to result in death, serious personal injury, or severe environmental or property damage); (iii) Customer does not and will not engage in illegal or deceptive trade practices in connection with its use of the Services; and (iv) Customer is not a U.S. federal, state, or local government entity, unless CWX has expressly agreed in writing to provide Services to Customer as such an entity.
3. Payments
Customer shall pay CWX for all Services in accordance with the pricing displayed at the time of purchase or as otherwise communicated to Customer by CWX. CWX will invoice Customer directly for all Google Cloud Services utilized by Customer, plus an administration fee equal to two percent (2%) of the Google Cloud Services charges (“Administration Fee”). The Administration Fee compensates CWX for billing, account management, and administrative support. Unless otherwise agreed in writing, all payments due to CWX shall be paid within thirty (30) days from the date of the CWX invoice. Any payments not received when due shall bear interest at the rate of two percent (2%) per month (or partial month), or the highest rate allowable by law, whichever is less. CWX may suspend or terminate Customer’s access to the Services if any amounts remain unpaid for more than fifteen (15) days past the due date.
4. Price Adjustments
CWX reserves the right to adjust its Administration Fee and any other fees for Services annually. Any such adjustment shall be effective upon thirty (30) days’ prior written notice to Customer (which may be provided by email). Annual price adjustments shall be no less than the greater of: (a) the percentage increase in the Consumer Price Index for All Urban Consumers (CPI-U) published by the U.S. Bureau of Labor Statistics for the preceding twelve (12) month period; or (b) three percent (3%). In addition, CWX shall pass through to Customer any price increases imposed by Google or other third-party service providers, which shall take effect immediately upon notice to Customer. Customer’s continued use of the Services following the effective date of any price adjustment constitutes acceptance of the new pricing. If Google retroactively corrects or adjusts the fees charged to CWX for Customer’s account (including due to a corrected price list, location, or classification), Customer agrees to promptly pay CWX any resulting shortfall, and CWX will promptly credit Customer any resulting overage actually received by CWX.
5. Billing Disputes; Independent Payment Obligation
Customer acknowledges that all amounts invoiced by CWX for Google Cloud Services are based on Google’s own usage and billing records for Customer’s account, which may differ from any estimate, quote, budget, or prior invoice for any reason, including changes in usage, pricing, currency fluctuation, or billing corrections made by Google. CUSTOMER AGREES TO PAY CWX THE FULL AMOUNT OF EACH INVOICE, REGARDLESS OF WHETHER SUCH AMOUNT IS HIGHER OR LOWER THAN ANY ESTIMATE OR EXPECTATION, AND REGARDLESS OF ANY DISPUTE CUSTOMER HAS OR BELIEVES IT HAS REGARDING THE ACCURACY OF THE UNDERLYING GOOGLE CHARGES. Any such dispute must be raised by Customer directly with Google in accordance with the Google Terms, and shall not excuse, delay, reduce, or offset Customer’s obligation to pay CWX in full and on time. CWX has no obligation to withhold, credit, or refund any invoiced amount pending resolution of a dispute between Customer and Google. If Google issues any credit, refund, or adjustment relating to Customer’s account, CWX will pass through such credit to Customer only if and to the extent actually received by CWX, and only after deduction of any amounts then owed by Customer to CWX. Customer must notify CWX in writing of any dispute regarding a CWX invoice within fifteen (15) days of the invoice date, after which the invoice shall be deemed final, undisputed, and binding.
6. Security Deposit; Payment Authorization
CWX may, in its discretion, require Customer to (a) provide a security deposit, (b) maintain a valid credit card or bank account on file authorized for automatic payment of invoices as they become due, or (c) prepay for anticipated usage, in each case as a condition of continued access to the Services. CWX may apply any security deposit or prepaid amount against any amount owed by Customer. CWX may increase any required deposit or prepayment amount at any time based on Customer’s actual or anticipated usage.
7. Taxes
All fees payable under this Agreement are exclusive of any sales, use, value-added, goods and services, or similar taxes, duties, or governmental charges (collectively, “Taxes”), other than taxes based on CWX’s net income. Customer shall be responsible for, and shall pay or reimburse CWX for all such Taxes.
8. Collection Costs; Setoff
Customer shall reimburse CWX for all reasonable costs of collection, including reasonable attorneys’ fees, incurred in connection with collecting any past-due amount. CWX may set off any amount owed by Customer under this Agreement against any deposit, credit, or other amount CWX may owe to Customer.
9. Suspension for Anomalous or Unauthorized Usage
In addition to CWX’s other suspension and termination rights under this Agreement, CWX may immediately suspend Customer’s access to the Services, without prior notice, if CWX reasonably believes that Customer’s account is being used in a fraudulent, unauthorized, or anomalous manner, or that usage levels present a material risk of nonpayment. Customer remains liable for all charges incurred on its account prior to any such suspension, regardless of whether such usage was authorized by Customer.
10. Committed Use and Minimum Commitments
If CWX or Customer enrolls Customer’s account in any committed-use discount, reserved capacity, or similar minimum-commitment program offered by Google in order to obtain more favorable pricing for Customer, provided that CWX will only enroll Customer’s account in such a program at Customer’s prior request and will not do so unilaterally, Customer acknowledges that CWX may become obligated to Google for the applicable commitment period regardless of Customer’s actual usage. If Customer terminates this Agreement, reduces usage, or ceases paying prior to the end of any such commitment period, Customer shall remain liable to CWX for all amounts CWX owes to Google on account of such commitment for the remainder of the applicable term. Customer must notify CWX in writing within five (5) business days after entering into any committed-use discount, reserved capacity, or similar minimum-commitment arrangement with Google, whether arranged through CWX or directly with Google. Failure to provide such notice is a material breach of this Agreement, and, in addition to any other remedies available to CWX, CWX may require Customer to immediately provide a security deposit or prepayment, in an amount reasonably determined by CWX, equal to CWX’s estimated exposure under the undisclosed commitment.
11. Force Majeure
Neither party shall be liable for any failure or delay in performance under this Agreement (other than Customer’s payment obligations) to the extent caused by circumstances beyond its reasonable control, including acts of God, natural disaster, war, terrorism, labor disputes, internet or utility failures, or acts or omissions of Google or other third-party providers.
12. Service Changes; Discontinuation
Google may modify, discontinue, or deprecate any Google Cloud Service or functionality at any time. CWX will pass through to Customer any notice CWX receives from Google regarding such changes, but CWX has no liability for, and no obligation to provide, continued access to any discontinued or modified functionality.
13. Data Protection
In connection with any personal data or personally identifiable information that Customer provides to CWX, or that CWX processes on Customer’s behalf in connection with the Services (“Personal Data”), CWX will: (a) act only on Customer’s instructions regarding the processing of Personal Data; (b) not process Personal Data for any purpose other than to perform its obligations under this Agreement; (c) implement appropriate technical and organizational measures to protect Personal Data against unauthorized or unlawful processing, loss, or damage; (d) ensure that its employees, agents, and contractors with access to Personal Data are bound by confidentiality obligations; (e) notify Customer promptly of any suspected or confirmed data protection breach involving Personal Data; and (f) ensure that any subcontractor engaged to process Personal Data on Customer’s behalf is bound by written terms providing at least the same level of protection required under this Section. If European Data Protection Laws (including the EU or UK General Data Protection Regulation) apply to CWX’s processing of Customer Personal Data as a processor, CWX will process such Personal Data solely on Customer’s documented instructions and will provide the assistance reasonably required for Customer to comply with its obligations as a controller under Article 28 of the GDPR.
14. Transition Assistance
If CWX’s authorization to resell any Google Cloud Service is suspended, terminated, or not renewed, or if this Agreement expires or terminates, Customer agrees to reasonably cooperate with CWX, and with Google if requested, to migrate Customer’s account to Google directly or to another authorized reseller, including by providing information reasonably requested to facilitate that transition.
15. Confidentiality
Each party agrees to hold in confidence all non-public information disclosed by the other party that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information (“Confidential Information”). Neither party shall use the other party’s Confidential Information except as necessary to perform its obligations or exercise its rights under this Agreement. Neither party shall disclose the other party’s Confidential Information to any third party except to employees, contractors, and agents who have a need to know and who are bound by confidentiality obligations at least as protective as those in this Agreement. The foregoing obligations shall not apply to information that: (a) is or becomes publicly available through no fault of the receiving party; (b) was rightfully in the receiving party’s possession prior to disclosure; (c) is rightfully obtained by the receiving party from a third party without restriction; or (d) is independently developed by the receiving party without use of the disclosing party’s Confidential Information
16. Ownership
Customer shall be the owner of all information, data or other materials provided to CWX or uploaded by or on behalf of Customer into the Google Cloud Services (“Customer Materials”). Other than Customer Materials, CWX shall be the owner of any and all other creations, inventions, data, works or other items owned by CWX prior to the date of this Agreement or developed in connection with the performance of Services, and any and all modifications thereto.
17. Third Party Terms; Google Cloud Terms of Service
CUSTOMER ACKNOWLEDGES AND AGREES THAT THE GOOGLE CLOUD SERVICES ARE PROVIDED DIRECTLY BY GOOGLE AND ARE GOVERNED EXCLUSIVELY BY GOOGLE’S TERMS OF SERVICE, ACCEPTABLE USE POLICY, AND OTHER APPLICABLE GOOGLE POLICIES (COLLECTIVELY, THE “GOOGLE TERMS”), WHICH ARE AVAILABLE AT https://cloud.google.com/terms/ OR SUCH OTHER URL AS GOOGLE MAY DESIGNATE. BY USING THE GOOGLE CLOUD SERVICES, CUSTOMER AGREES TO BE BOUND BY THE GOOGLE TERMS AS A DIRECT AGREEMENT BETWEEN CUSTOMER AND GOOGLE. CWX IS NOT A PARTY TO THE GOOGLE TERMS AND HAS NO LIABILITY WHATSOEVER FOR GOOGLE’S PERFORMANCE OR NON-PERFORMANCE OF THE GOOGLE CLOUD SERVICES. Customer shall comply with all Google Terms at all times. Any claims, disputes, or issues relating to the Google Cloud Services, including but not limited to availability, performance, functionality, data handling, security, or support, shall be made directly against Google in accordance with the Google Terms. CWX expressly disclaims any and all responsibility for the Google Cloud Services. Customer agrees to comply with all other third-party licenses, terms, and conditions applicable to any Services or products provided through CWX.
18. Representations and Warranties; Disclaimers
CWX represents that it is an authorized reseller of Google Cloud Services. EXCEPT AS EXPRESSLY SET FORTH IN THE PRECEDING SENTENCE, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” CWX MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION: (A) ANY WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE OF HARMFUL COMPONENTS; (B) ANY WARRANTY REGARDING THE PERFORMANCE, AVAILABILITY, RELIABILITY, OR SECURITY OF THE GOOGLE CLOUD SERVICES OR ANY OTHER THIRD-PARTY SERVICES; (D) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT; AND (E) ANY WARRANTY THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR PRODUCE ANY SPECIFIC RESULTS. CUSTOMER ACKNOWLEDGES THAT CWX ACTS SOLELY AS A BILLING INTERMEDIARY AND RESELLER AND DOES NOT CONTROL, OPERATE, OR HAVE ANY RESPONSIBILITY FOR THE UNDERLYING GOOGLE CLOUD SERVICES. ALL WARRANTIES, REPRESENTATIONS, AND SUPPORT OBLIGATIONS RELATING TO THE GOOGLE CLOUD SERVICES ARE PROVIDED SOLELY BY GOOGLE PURSUANT TO THE GOOGLE TERMS.
19. Term and Termination
This Agreement is effective upon Customer’s acceptance and shall continue until terminated. Either party may terminate this Agreement at any time upon thirty (30) days’ prior written notice to the other party (email shall constitute written notice for purposes of this Section). CWX may suspend or terminate this Agreement or Customer’s access to the Services immediately without notice if: (a) Customer breaches any provision of this Agreement; (b) Customer fails to pay any amounts when due; (c) CWX is required to do so by law or by Google; or (d) CWX ceases to offer the Services. Upon termination, Customer shall pay all amounts due through the effective date of termination, and CWX shall have no further obligation to provide Services. Termination of this Agreement shall not affect Customer’s obligations under the Google Terms, which shall survive termination.
20. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) CWX’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO CWX (EXCLUDING AMOUNTS PASSED THROUGH TO GOOGLE OR OTHER THIRD PARTIES) DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY, OR ONE HUNDRED DOLLARS ($100.00), WHICHEVER IS GREATER; (B) IN NO EVENT SHALL CWX HAVE ANY LIABILITY FOR ANY LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF PROFITS OR REVENUE, OR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER CAUSED, EVEN IF CWX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (C) CWX SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY ACTS, OMISSIONS, OUTAGES, FAILURES, DATA LOSS, SECURITY BREACHES, OR OTHER ISSUES RELATING TO THE GOOGLE CLOUD SERVICES, OR ANY OTHER THIRD-PARTY SERVICES, ALL OF WHICH ARE THE SOLE RESPONSIBILITY OF THE APPLICABLE THIRD-PARTY PROVIDER. CUSTOMER’S SOLE REMEDY FOR ANY ISSUES WITH THE GOOGLE CLOUD SERVICES IS AGAINST GOOGLE PURSUANT TO THE GOOGLE TERMS. THE LIMITATIONS IN THIS SECTION SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
21. Indemnification
Customer shall indemnify, defend, and hold harmless CWX and its officers, directors, employees, agents, and affiliates from and against any and all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to: (a) Customer’s use of the Services; (b) Customer’s breach of this Agreement; (c) Customer’s violation of any applicable law or regulation; (d) Customer Materials; or (e) any dispute between Customer and Google or any other third party; or (f) any costs, penalties, fees, or liabilities CWX incurs to Google as a result of Customer’s acts, omissions, or breach of this Agreement. CWX reserves the right to assume the exclusive defense and control of any matter subject to indemnification by Customer, at Customer’s expense.
22. Notices
CWX may provide notices to Customer by email to the address associated with Customer’s account or by posting notices on CWX’s website. Such notices shall be effective upon sending (for email), or upon publication (for website notices). Customer shall provide notices to CWX by email to legal@cloudwerx.tech or to such other address as CWX may designate. Customer is responsible for keeping its contact information current.
23. General Provisions
This Agreement shall be construed and interpreted in accordance with the laws of the State of Delaware, without regard to its conflicts of law principles. Any dispute arising out of or relating to this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located in the State of Delaware, and Customer hereby consents to personal jurisdiction in such courts. This Agreement, together with the Order Form, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous communications, whether electronic, oral, or written. CWX reserves the right, in its sole discretion, to modify, amend, or update this Agreement at any time. CWX will provide Customer at least thirty (30) days’ advance notice of any material change to this Agreement (for example, by email or by posting a notice on CWX’s website), except that changes required to comply with applicable law, or changes that do not materially reduce Customer’s rights or increase Customer’s obligations, may take effect immediately upon posting. If Customer does not agree to a material change, Customer’s sole remedy is to terminate this Agreement, effective before the change takes effect, by providing CWX written notice in accordance with Section 21 (Notices). Customer’s continued use of the Services after the effective date of any change constitutes Customer’s acceptance of that change. It is Customer’s responsibility to review this Agreement periodically and to keep its contact information current so that CWX can provide notice of changes. CWX may assign this Agreement or any of its rights or obligations hereunder without Customer’s consent. Customer may not assign this Agreement without CWX’s prior written consent. If any provision of this Agreement is held invalid or unenforceable, the remaining provisions shall remain in full force and effect. CWX’s failure to enforce any right or provision shall not constitute a waiver of such right or provision. The provisions of the Confidentiality, Ownership, Third Party Terms; Google Cloud Terms of Service, Representations and Warranties; Disclaimers, Limitation of Liability, Indemnification, and General Provisions sections shall survive any termination or expiration of this Agreement.
End of Terms & Conditions