HomeMy WebLinkAboutContract #: 847 - From: 09-10-2015 To: 09-10-2016 - Onix Networking - Town of North AndoverCo,, ta,.t-- & ( 7
INTEROFFICE MEMORANDUM
To: Chris McClure
From: Andrew W. Maylor, Town Manager
Cc: Ray Santilli
Date: July 26, 2017
Re: GSA Onix, Google Apps - Extension
This memorandum should confirm my support for your request to extend the GSA Onix Networking
Customer Agreement for Google Apps from 9/23/2017 to 9/22/2018.
a•
Date:
7/24/2017
Contact:
Christo her McClure
Email:
cmcclure northandoverma. ov
Phone:
978-380-1011
Company Name:
Town of North Andover
Address:
120 Main Street
1 st Floor
North Andover MA 01845
ONIX NETWORKING CORPORATION
Enterprise Group
18519 Detroit Ave. • Lakewood, OH 44107
(800) 664.9638 • Fax (216) 529.3020 • www.onixnet.com
Google G Suite
Solution Proposal
r -co e't,e.t„ie r:e_ztr_cslou
Google Cloud
Par trier
Quote No:
LA07192017 -03
Onix Contact:
Name:
LaVia Allen
Email:
lavia@onixnet.com
Phone:
216 529.3058
Account Manager:
Keith Karaba
Email:
keith@onixnet.com
Phone:
216 529-3040
Google Apps Domain:
nor thandoven'na.ctov
Price Quotation - G Suite
Product Sku
Description
price
Quantity
Extended Price
GAPPS-UNLIM-1USER-12MO
2017 Renewal: G Suite Business -12 month license/support term;
1 seat; Term dates: 9/23/2017 -9/22/2018
$100.00
320
$32,000.00
GC -DNS
2017 Renewal: Google Cloud DNS -12 month support term
Term dates: 9/23/2017 - 9/22/2018
$36.00
1
$36.00
CROSSWDIS12MOSTD
2017 Renewal: Chrome Management Console Annual License -12
months (Open Market) Term dates: 9/16/2017 - 9/15/2018
$50.00
25
$1,250.00
Totali
any other agreement, unless agreed to and signed by both parties.
$33,286.00
This quote expires in 30 days
........... .
Address Purchase Orders to:
Company, Information:
Onix Networking Corp.
Onix Networking Coro,
18519 Detroit Ave. DFAS: WInS (Web Invoicing System)
18519 Detroit Ave.
Lakewood, OH 44107 GSA Finance Electronic Invoicing System
Lakewood, OH 44107
(800) 664-9638
www.onixnet.com
Cage Code: OZZJ6
All prices are in US Dollars.
D&B Number: 80-7896121
Payment terms are Net 30 days from receipt of product and/or beginning of maintenance or support.
Federal ID Number: 34-1729033
The quote does not include sales taxes. If sales taxes are applicable to this order, they will be included on the invoice.
This quotation, and any resulting sale or contract, is subject to and incorporates by reference the License Agreement for G Suite
via Reseller Agreement: https://www.google.com/apps/intUen/terms/reseller_rremier_terms.himi The Terms govern customers
access to and use of these services and products and shall not be superseded by any terms contained in a purchase order or
any other agreement, unless agreed to and signed by both parties.
Status: Small Business
Submissionof an order to Onix Networking Corp. by returning this quote with signature and by submitting an order to Onix
Networkin Corp,by any other means, including a purchase order, constitutes a noncancelable purchase.
Onix Networking - Confidential Information
By signing this quote. I acknowledge that I am authorized to execute this order on behalf of customer and have carefully read, understand and fully agree to the terms and conditions.
Signature:
Print Name:
Title:
Date:
INTEROFFICE MEMORANDUM
To: Chris McClure
From: Andrew W. Maylor, Town Manager
Cc: Ray Santilli
Date: September 8, 2016
Re: GSA Onix, Google Apps - Extension
This memorandum should confirm my support for your request to extend the GSA Onix Networking
Customer Agreement for Google Apps from 9/30/2016 to 9/30/2017.
Modified version: re date of extension
Onix Networking Customer Agreement
Google Apps for Work
This Agreement, including all Exhibits attached hereto or referenced herein, (the "Agreement") is entered into by and between Onix
Networking Corporation, an Ohio corporation, with offices at 18519 Detroit Avenue, Lakewood, Ohio 44107 ("Onix") and Town of North
Andover, MA , an Town Government corporation with offices located at 120 Main Street, North Andover, MA 01845, hereinafter
referred to as ("Customer"). Onix and Town of North Andover are sometimes referred to collectively herein as the "Parties" and
individually as a "Party." This Agreement is effective as of the date signed by both parties (the "Effective Date").
WHEREAS, Onix is an authorized Google Apps for Work Reseller; and
WHEREAS, Customer wishes to license Google Apps, Google Apps Vault, and/or Google Apps Unlimited under this agreement;
NOW, THEREFORE, in consideration of the mutual benefits of the covenants and restrictions herein contained, Onix and Customer
hereby agree as follows:
1. User Licenses. "User Licenses" means the Google hosted services currently known as "Google Apps for Work", "Google Apps
Vault", and/or "Google Apps Unlimited" (as the services may be renamed from time to time) provided by Google and used by
Customer under this agreement.
1.1. "Users" mean employees of Customer authorized by Customer to access the User Licenses. User Licenses are sold by Onix
on a per User, per year basis. "User License Fees" are the fees charged by Onix per User, multiplied by the number of Users
as specified in the Onix Networking Services Schedule (Exhibit A).
1.2. User Licenses will be delivered to Customer in electronic format. The User Licenses shall be deemed accepted by Customer
upon provisioning of the Customer domain with the specified number of User Licenses.
2. Google Apps License. Customer agrees to comply with the.terms and conditions of the "Google Apps for Business via Reseller
Agreement" (Exhibit B).
3. Professional Services. "Professional Services" means the Google Apps and Postini professional services and training provided
by Onix as specified in the Onix Networking Services Schedule (Exhibit A). Onix will provide to Customer each Professional
Service specified in the Onix Networking Services Schedule.
4. Term. The initial term of this Agreement shall be twelve (12) months beginning on the Effective Date (the "Initial Term").
Thereafter, this Agreement may be renewed for consecutive renewal terms of twelve (12) months (such renewal terms together
with the Initial Term, the "Term"), by written notice thirty (30) days prior to the end of the applicable Term.
5. Fees and Billing. Onix will bill Customer for the User License Fees and Professional Services (the "Total Fees") as specified in
the Onix Networking Services Schedule (Exhibit A) on or after the Effective Date.
5.1. All User Licenses Fees are binding and final as of the Effective Date. All User License Fees are non-refundable for any Term.
5.2. Total Fees are due thirty (30) days from the effective date. All payment due are in U.S. dollars. Customer is responsible for
any and all applicable U.S. taxes (other than Onix's income tax) associated with the Total Fees.
5.3. Onix may revise its fees (including, but not limited to the User License Fee) with at least thirty (30) days prior written notice to
Customer, effective for the following term.
6. Force Majeure. Onix shall not be liable for inadequate performance of its obligations under the Agreement to the extent caused
by a circumstance beyond its reasonable control, including, without limitation, Domain Name Server issues outside its direct
control, labor strikes or shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental
action, labor conditions, earthquakes and material shortages.
By signing below the parties acknowledge that they have received, understood and agreed to, in a legally binding manner, all
components of the Agreement.
Customer: Town f orth An�d%ov
Signature= F7
Print Name An dre„; /4 ,4 /or
Title /D,v / 7a Q. e (`
Date Sem J A , a0 /,S:
Onix Ne orking Corp.
Signature
Print Name Timothy S. Needles
Title President/ CEO
Date S E P 14 2015
Onix Confidential Onix Customer Agreement Apps for WorL TOS Page 1 of 8
Exhibit A
Onix Networking Services Schedule
Date
8/26/15 Customer
Town of North Andover
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Name
Ray Santilli
Name
Christopher McClure
Address
20 Main Street, North Andover, MA
01845
Address
20 Main Street, North Andover, MA
01845
Telephone
Telephone
978-380-1011
Email
rsantilli@townofnorthandover.com
Email
cmcclure@townofnorthandover.com
Activation Email
cmcclure@townofnorthandover.com
Contract Term
1 Year
Domain Name
townofnorthandover.com
Onix Rep
Keith Karaba
Please check one
❑ Purchase Order # ❑ Purchase Order Not Required
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Description
(Annual) Unit Price
# Users/Mailboxes
(Annual) Total
Google Apps Unlimited
$100
300
$30,000
Total User License .Fees
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Description
Price
Quantity
Total
Onix QuickStart Plus (80hrs x $186 per)
$14,880
1
$14,880
Total Services Fees.
$14,880
Totai.User License &Services Fees
$44 880
Services Billing Terms:
N/30
Notes:
Ona Confidential Ona Customer Agreement_Apps for Work TOS Page 2 of 8
Exhibit B
Google Apps for Business via Reseller Agreement
This Google Apps for Business via Reseller Agreement (the "Agreement") is entered into by and between Google Inc., a Delaware
corporation, with offices at 1600 Amphitheatre Parkway, Mountain View, California 94043 ("Google') and the entity agreeing to these
terms ("Customer"). This Agreement is effective as of the date Customer clicks the "I Accept" button below or, if applicable, the date the
Agreement is countersigned (the "Effective Date"). If you are accepting on behalf of Customer, you represent and warrant that: (i) you
have full legal authority to bind your employer, or the applicable entity, to these terms and conditions; (ii) you have read and understand
this Agreement; and (iii) you agree, on behalf of the party that you represent, to this Agreement. If you do not have the legal authority
to bind Customer, please do not click the "I Accept" button below (or, if applicable, do not sign this Agreement). This Agreement
governs Customer's access to and use of the Services.
1. Services.
1.1 Facilities and Data Transfer. All facilities used to store and process Customer Data will adhere to reasonable security
standards no less protective than the security standards at facilities where Google stores and processes its own information of
a similar type. Google has implemented at least industry standard systems and procedures to ensure the security and
confidentiality of Customer Data, protect against anticipated threats or hazards to the security or integrity of Customer Data,
and protect against unauthorized access to or use of Customer Data. As part of providing the Services, Google may transfer,
store and process Customer Data in the United States or any other country in which Google or its agents maintain facilities.
By using the Services, Customer consents to this transfer, processing and storage of Customer Data
1.2 Modifications.
a. To the Services. Google may make commercially reasonable changes to the Services, from time to time. if Google
makes a material change to the Services, Google will inform Customer, provided that Customer has subscribed with
Google to be informed about such change.
To URL Terms. Google may make commercially reasonable changes to the URL Terms from time to time. If Google
makes a material change to the URL Terms, Google will inform Customer by either sending an email to the Notification
Email Address or alerting Customer via the Admin Console, or will alert Reseller. If the change has a material adverse
impact on Customer and Customer does not agree to the change, Customer must so notify Google via the Help Center
within thirty days after receiving notice of the change. If Customer notifies Google as required, or Reseller notifies Google
on Customer's behalf, then Customer will remain governed by the terms in effect immediately prior to the change until the
end of the then -current term for the affected Services. If the affected Services are renewed, they will be renewed under
Google's then current URL Terms.
1.3 Customer Domain Name Ownership. Prior to providing the Services, Google or Reseller may verify that Customer owns or
controls the Customer Domain Names. If Customer does not own, or control, the Customer Domain Names, then Google will
have no obligation to provide Customer with the Services.
2. Customer Obligations.
2.1 Compliance. Customer will use the Services in accordance with the Acceptable Use Policy. Google may make new
applications, features or functionality for the Services available from time to time, the use of which may be contingent upon
Customer's agreement to additional terms. In addition, Google will make other Non -Google Apps Products (beyond the
Services) available to Customer and its End Users in accordance with the Non -Google Apps Product Terms and the applicable
product -specific Google terms of service. If Customer does not desire to enable any of the Non -Google Apps Products,
Customer can enable or disable them at any time through the Admin Console. Customer agrees that its use of the Domain
Service is subject to its compliance with the Domain Service Terms.
2.2 Customer Administration of the Services. Customer may specify one or more Administrators through the Admin Console who
will have the rights to access Admin Account(s) and to administer the End User Accounts. Customer and Reseller are
responsible for: (a) maintaining the confidentiality of the password and Admin Account(s); (b) designating those individuals
who are authorized to access the Admin Account(s); and (c) ensuring that all activities that occur in connection with the Admin
Account(s) comply with the Agreement. Customer agrees that Google's responsibilities do not extend to the internal
management or administration of the Services for Customer and that Google is merely a data -processor.
2.3 End User Consent. Customer's Administrators may have the ability to access, monitor, use, or disclose data available to End
Users within the End User Accounts. Customer will obtain and maintain all required consents from End Users to allow: (i)
Customer's access, monitoring, use and disclosure of this data and Google providing Customer with the ability to do so, and
(ii) Google to provide the Services.
2.4 Unauthorized Use. Customer will use commercially reasonable efforts to prevent unauthorized use of the Services, and to
terminate any unauthorized use. Customer or Reseller will promptly notify Google of any unauthorized use of, or access to,
the Services of which it becomes aware.
Onix Confidential Ona Customer Agreement -Apps for Work -TOS Page 3 of 8
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efforts to make sure a third party does not: (a) sell, resell, lease, or the functional equivalent, the Services to a third party
(unless expressly authorized in this Agreement); (b) attempt to reverse engineer the Services or any component; (c) attempt to
create a substitute or similar service through use of, or access to, the Services; (d) use the Services for High Risk Activities; or
(e) use the Services to store or transfer any Customer Data that is controlled for export under Export Control Laws. Customer
is solely responsible for any applicable compliance with HIPAA.
2.6 Third Party Requests. Customer is responsible for responding to Third Party Requests. Google will, to the extent allowed by
law and by the terms of the Third Party Request: (a) promptly notify Customer of its receipt of a Third Party Request; (b)
comply with Customer's reasonable requests regarding its efforts to oppose a Third Party Request; and (c) provide Customer
with the information or tools required for Customer to respond to the Third Party Request. Customer will first seek to obtain
the information required to respond to the Third Party Request on its own, and will contact Google only if it cannot reasonably
obtain such information.
Requesting End User Accounts: Services Term. Requesting End User Accounts, as well as initial and renewal terms for the
Services, are to be decided upon between Customer and Reseller.
4. P_ ayment. Customer will pay Reseller for the Services. As a result, all payment terms are to be decided upon between Customer
and Reseller.
5. Technical Support Services.
5.1 By Customer. Customer or Reseller will, at its own expense, respond to questions and complaints from End Users or third
parties relating to Customer's or End Users' use of the Services. Customer or Reseller will use commercially reasonable
efforts to resolve support issues before escalating them to Google.
5.2 By Google. If Customer or Reseller cannot resolve a support issue consistent with the above, then Customer or Reseller (as
applicable based on the agreement between Google and Reseller) may escalate the issue to Google in accordance with the
TSS Guidelines. Google will provide TSS to Customer or Reseller (as applicable) in accordance with the TSS Guidelines.
6. Suspension.
6.1 Of End User Accounts by Google. If Google becomes aware of an End User's violation of the Agreement, then Google may
specifically request that Customer Suspend the applicable End User Account. If Customer fails to comply with Google's .
request to Suspend an End User Account, then Google may do so. The duration of any Suspension by Google will be until the
applicable End User has cured the breach which caused the Suspension.
6.2 Emergency Security Issues. Notwithstanding the foregoing, if there is an Emergency Security Issue, then Google may
automatically Suspend the offending use. Suspension will be to the minimum extent and of the minimum duration required to
prevent or terminate the Emergency Security Issue. If Google Suspends an End User Account for any reason without prior
notice to Customer, at Customers request, Google will provide Customer the reason for the Suspension as soon as is
reasonably possible.
7. Confidential Information.
7.1 Obligations. Each party will: (a) protect the other party's Confidential Information with the same standard of care it uses to
protect its own Confidential Information; and (b) not disclose the Confidential Information, except to Affiliates, employees and
agents who need to know it and who have agreed in writing to keep it confidential. Each party (and any Affiliates, employees
and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and
fulfill its obligations under this Agreement, while using reasonable care to protect it. Each party is responsible for any actions
of its Affiliates, employees and agents in violation of this Section.
7.2 . Exceptions. Confidential Information does not include information that: (a) the recipient of the Confidential Information already
knew; (b) becomes public through no fault of the recipient; (c) was independently developed by the recipient; or (d) was
rightfully given to the recipient by another party.
7.3 Required Disclosure. Each party may disclose the other party's Confidential Information when required by law but only after it,
if legally permissible: (a) uses commercially reasonable efforts to notify the other party; and (b) gives the other party the
chance to challenge the disclosure.
8. Intellectual PropeU Rights: Brand Features.
8.1 Intellectual Property Rights. Except as expressly set forth herein, this Agreement does not grant either party any rights,
implied or otherwise, to the other's content or any of the others 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.
8.2 Display of Brand Features. Google may display those Customer Brand Features authorized by Customer (such authorization
is provided by Customer uploading its Brand Features into the Services), and within designated areas of the Service Pages.
Customer may specify the nature of this use using the Admin Console. Google may also display Google Brand Features on
the Service Pages to indicate that the Services are provided by Google. Neither party may display or use the other party's
Brand Features beyond what is allowed in this Agreement without the other party's prior written consent.
Onix Confidential Onix CustomerAgreement_Apps for Work TOS Page 4 of 8
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Property Rights in those Brand Features. A party may revoke the other party's right to use its Brand Features pursuant to this
Agreement with written notice to the other and a reasonable period to stop the use.
Publicity. Customer agrees that Google may include Customer's name or Brand Features in a list of Google customers, online or
in promotional materials. Customer also agrees that Google may verbally reference Customer as a customer of the Google
products or services that are the subject of this Agreement. This section is subject to Section 8.3.
10. Representations. Warranties and Disclaimers.
10.1 Representations and Warranties. Each party represents that it has full power and authority to enter into the Agreement. Each
party warrants that it will comply with all laws and regulations applicable to its provision, or use, of the Services, as
applicable (including applicable security breach notification law). Google warrants that it will provide the Google Apps Core
Services in accordance with the applicable SLA.
10.1 Disclaimers. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED FOR
HEREIN, NEITHER PARTY MAKES ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR USE AND NONINFRINGEMENT. GOOGLE MAKES NO REPRESENTATIONS ABOUT ANY
CONTENT OR INFORMATION MADE ACCESSIBLE BY OR THROUGH THE SERVICES. CUSTOMER
ACKNOWLEDGES THAT THE SERVICES ARE NOT A TELEPHONY SERVICE AND THAT THE SERVICES ARE NOT
CAPABLE OF PLACING OR RECEIVING ANY CALLS, INCLUDING EMERGENCY SERVICES CALLS, OVER PUBLICLY
SWITCHED TELEPHONE NETWORKS.
11. Term and Termination.
11.1 Term. The term for the Services will be as decided upon between Reseller and Customer. This Agreement will remain in
effect for the Term.
11.2 Termination for Breach. Either party may suspend performance or terminate this Agreement if: (i) the other party is in
material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; (ii) the other
party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed
within ninety days; or (iii) the other party is in material breach of this Agreement more than two times notwithstanding any
cure of such breaches.
11.3 Effects of Termination. If this Agreement terminates, then: (i) the rights granted by one party to the other will cease
immediately (except as set forth in this Section); (ii) Google will provide Customer or Reseller access to, and the ability to
export, the Customer Data for a commercially reasonable period of time at Google's then -current rates for the applicable
Services; (iii) after a commercially reasonable period of time, Google will delete Customer Data by removing pointers to it on
Google's active servers and overwriting it overtime; and (iv) upon request each party will promptly use commercially
reasonable efforts to return or destroy all other Confidential Information of the other party.
12. Indemnification.
12.1 By Customer. Customer will indemnify, defend, and hold harmless Google from and against all liabilities, damages, and
costs (including settlement costs and reasonable attorneys' fees) arising out of a third party claim: (i) regarding Customer
Data or Customer Domain. Names; (ii) that Customer Brand Features infringe or misappropriate any patent, copyright, trade
secret or trademark of a third party; or (iii) regarding Customer's use of the Services in violation of the Acceptable Use
Policy,
12.2 By Gooqle. Google will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, and costs
(including settlement costs and reasonable attorneys' fees) arising out of a third party claim that Google's technology used
to provide the Services or any Google Brand Feature infringe or misappropriate any patent, copyright, trade secret or
trademark of such third party. Notwithstanding the foregoing, in no event shall Google have any obligations or liability under
this Section arising from: (i) use of any Services or Google Brand Features in a modified form or in combination with
materials not furnished by Google, and (ii) any content, information or data provided by Customer, End Users or other third
parties.
12.3 Possible Infringement.
a. Repair. Replace, or Modify. If Google reasonably believes the Services infringe a third party's Intellectual Property Rights,
then Google will: (a) obtain the right for Customer, at Google's expense, to continue using the Services; (b) provide a
non -infringing functionally equivalent replacement; or (c) modify the Services so that they no longer infringe.
b. Suspension or Termination. If Google does not believe the foregoing options 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 notify Customer or Reseller, or both.
12.4 General. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other
party in defending the claim. The indemnifying party has full control and authority over the defense, except that: (a) any
Onix Confidential Onix Customer Agreement.}lpps for wokTOS Page 5 of 8
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written consent, such consent not to be unreasonably withheld or delayed; and (b) the other party may join in the defense
with its own counsel at its own expense. THE INDEMNITIES ABOVE ARE A PARTY'S ONLY REMEDY UNDER THIS
AGREEMENT FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS.
13. Limitation of Liability.
13.1 Limitation on Indirect Liability. NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES
OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE
PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT
DAMAGES DO NOT SATISFY A REMEDY.
13.2 Limitation on Amount of Liability. NEITHER PARTY MAYBE HELD LIABLE UNDER THIS AGREEMENT FOR MORE
THAN THE AMOUNT PAID BY CUSTOMER TO RESELLER FOR THE SERVICES DURING THE TWELVE MONTHS
PRIOR TO THS EVENT GIVING RISE TO LIABILITY.
13.3 Exceptions to Limitations. These limitations of liability apply to the fullest extent permitted by applicable law but do not apply
to breaches of confidentiality obligations, violations of a party's Intellectual Property Rights by the other party, or
indemnification obligations.
14 Miscellaneous.
14.1 Notices. Unless specified otherwise herein, (a) all notices must be in writing and addressed to the attention of the other
party's legal department and primary point of contact and (b)notice will be deemed given: (i) when verified by written receipt
if sent by personal courier, overnight courier, or when received if sent by mail without verification of receipt; or (ii) when
verified by automated receipt or electronic logs if sent by facsimile or email.
14.2 Assignment. Neither party may assign or transfer any part of this Agreement without the written consent of the other party,
except to an Affiliate, but only if: (a) the assignee agrees in writing to be bound by the terms of this Agreement; and (b) the
assigning party remains liable for obligations incurred under the Agreement prior to the assignment. Any other attempt to
transfer or assign is void.
14.3 Change of Control. Upon a change of control (for example, through a stock purchase or sale, merger, or other form of
corporate transaction): (a) the party experiencing the change of control will provide written notice to the other party within
thirty days after the change of control; and (b) the other party may immediately terminate this Agreement any time between
the change of control and thirty days after it receives the written notice in subsection (a).
14.4 Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example,
natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond
the party's reasonable control.
14.5 No Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver.
14.6 Severability. If any provision of this Agreement is found unenforceable, the balance of the Agreement will remain in full
force and effect.
14.7 No Agency. The parties are independent contractors, and this Agreement does not create an agency, partnership or joint
venture.
14.8 No Third -Party Beneficiaries. There are no third -party beneficiaries to this Agreement.
14.9 Equitable Relief.. Nothing in this Agreement will limit either party's ability to seek equitable relief.
14.10 Governing Law. This Agreement is governed by California law, excluding that state's choice of law rules. FOR ANY
DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PARTIES CONSENT TO PERSONAL
JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN SANTA CLARA COUNTY, CALIFORNIA.
14.11 Amendments. Any amendment must be in writing and expressly state that it is amending this Agreement.
14.12 Survival. The following sections will survive expiration or termination of this Agreement: Section 7, 8.1, 12.3, 13, 14, 15 and
18.
14.13 Entire Agreement. This Agreement, and all documents referenced herein, is the parties' entire agreement relating to its
subject and supersedes any prior or contemporaneous agreements on that subject. If Customer is presented with a similar
agreement on the same subject matter upon its log in to use the Services, this Agreement supersedes and replaces that
agreement. The terms located at a URL and referenced in this Agreement are hereby incorporated by this reference.
14.14 Interpretation of Conflicting Terms. If there is a conflict between the documents that make up this Agreement, the
documents will control in the following order: the Agreement, and the terms located at any URL.
14.15 Counterparts. The parties may enter into this Agreement in counterparts, including facsimile, PDF or other electronic copies,
which taken together will constitute one instrument.
Onix Confidential Ona Customer AgreemenLApps for Work -TOS Page 6 of 8
15. Google Apps Core Services. If Customer purchases the Google Apps Core Services, then the following terms will apply only to
such Services:
15.1 Ads. The default setting for the Services is one that does not allow Google to serve Ads. Customer or Reseller may change
this setting in the Admin Console, which constitutes Customer's authorization for Google to serve Ads. If Customer or
Reseller enables the serving of Ads, it may revert to the default setting at any time and Google will cease serving Ads.
15.2Aliases. 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 for Customer
Domain Names to allow Google to identify Services abuse.
15.3Google Apps Vault. If Customer purchases Google Apps Vault, the following additional terms apply:
a. Retention. Google will have no obligation to retain any archived Customer Data beyond the retention period specified by
Customer (other than for any legal holds). If Customer does not renew Google Apps Vault, Google will have no obligation
to retain any archived Customer Data.
16. Definitions.
"Acceptable Use Policy" means the acceptable use policy for the Services available at
http://www.google.com/a/helpfntl/en/admins/use policy.html or such other URL as Google may provide.
"Admin Account(s)" means the administrative account(s) provided to Customer by Google, or to Reseller by Customer, for the
purpose of administering the Services. The use of the Admin Account(s) requires a password, which Google will provide to
Customer or Reseller.
"Admin Console" means the online tool provided by Google to Customer for use in reporting and certain other administration
functions.
"Administrators" mean the Customer -designated technical personnel who administer the Services to End Users on Customer's
behalf.
"Ads" means online advertisements displayed by Google to End Users.
"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with a party.
"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 disclosed by a party to the other party under this Agreement that is marked as
confidential or would normally be considered confidential under the circumstances. Customer Data is Customer's Confidential
Information.
"Customer Data" means data, including email, provided, generated, transmitted or displayed via the Services by Customer, End
Users, or Reseller on behalf of Customer.
"Customer Domain Names" mean the domain names owned or controlled by Customer, which will be used in connection with the
Services.
"Domain Service" means a service provided by Google to Customer purely for Customers convenience, where Customer may,
through a Google -provided interface, register domain names through, or transfer domain names to, Registrar Partners (as defined
in the Domain Service Terms).
"Domain Service Terms" means the terms at: http://�vww.google.com/a/helpfnti/en/admins/domain service terms.htmi, or other
such URL as may be provided by Google.
"Emergency Security Issue" means either: (a) Customer's use of the Services in violation of the Acceptable Use Policy, which
could disrupt: (i) the Services; (ii) other customers' use of the Services; or (iii) the Google network or servers used to provide the
Services; or (b) unauthorized third party access to the Services.
"End Users" means the individuals Customer permits to use the Services.
"End User Account means a Google -hosted account established by Customer through the Services for an End User.
"Export Control Laws" means all applicable export and reexport control laws and regulations, including the Export Administration
Regulations ("EAR") maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury
Department's Office of Foreign Assets Control, and the International Traffic in Arms Regulations (" ITAR") maintained by the
Department of State.
Onix Confidential Onix Customer Agreement_Apps for Work TOS Page 7 of 8
Google Apps Vault) purchased by Customer from Reseller which are more fully described here: V
http://www.google.com/a/helpfiintl/en/users/user features.html, or other such URL as Google may provide.
"Google Apps — Postini Services" means the applicable Services (e.g. Google Message Filtering, Google Message Security,
Google Message Discovery, Archiving and Discovery, Google Message Encryption and Google Message Continuity) purchased
by Customer from Reseller which are more fully described here:
http://www.google.com/support/api)security/bin/bin/answer.r)v?answer=87514, or such other URL as Google may provide.
"Help Center' means the Google help center accessible at h_ttp://www.google.com/support/ or other such URL as Google may
provide.
"High Risk Activities" means uses such as the operation of nuclear facilities, air traffic control, or life support systems, where the
use or failure of the Services could lead to death, personal injury, or environmental damage.
"HIPAA" means the Health Insurance Portability and Accountability Act of 1996, as may be amended from time to time, and any
regulations issued thereunder.
"Intellectual Property Rights" means current and future worldwide rights under patent law, copyright law, trade secret law,
trademark law, moral rights law, and other similar rights.
"Non -Google Apps Products" means Google products which are not part of the Services, but which may be accessed by End Users
using their End User Account login and password. The Non -Google Apps Products are set forth at the following URL:
http://wvvw.google.com/support/a/bin/answer.py?hl=en&answer=181865, or such other URL as Google may provide.
"Non -Google Apps Product Terms" means the terms found at the following URL:
http://www.google.com/apps/intl/en/terms/additional services.html, or such other URL as Google may provide from time to time.
"Notification Email Address" means the email address designated by Customer to receive email notifications from Google.
Customer may provide a Reseller email address for this purpose if it so chooses. Customer may change this email address
through the Admin Console.
"Reseller" means the Google Apps reseller Customer is paying to provide access to and use of the Services.
"SDN List" is the US Treasury Department's List of Specially Designated Nationals.
"Service Pages" mean the web pages displaying the Services to End Users.
"Services" means, as applicable, the Google Apps Core Services and/or the Google Apps - Postini Services purchased from
Reseller.
"SLA" means the Service Level Agreement located here for applicable Google Apps Core Services:
http://www.google.com/apps/intl/en/terms/reseller sla.html, or such other URL as Google may provide from time to time.
"Suspend" means the immediate disabling of access to the Services, or components of the Services, as applicable, to prevent
further use of the Services.
"Term" means the term of the Agreement, which will begin on the Effective Date and continue for as long as Customer is receiving
Services from Google, unless terminated earlier pursuant to the Agreement, or pursuant to Customer's agreement with Reseller.
"Third Party Request" means a request from a third party for records relating to an End User's use of the Services. Third Party
Requests can be a lawful search warrant, court order, subpoena, other valid legal order, or written consent from the End User
permitting the disclosure.
"TSS" means the technical support services provided by Google to the Administrators during the Term pursuant to the TSS
Guidelines.
"TSS Guidelines" means Google's technical support services guidelines then in effect for the Services. TSS Guidelines are at the
following URL: http://www.google.com/a/helpAntl/en/admins/tssq.htmi or such other URL as Google may provide.
"URL Terms" means the Acceptable Use Policy, the SLA and the TSS Guidelines.
Onix Confidential Onix Customer Agreement_Apps for Work_TOS Page 8 of 8
A
Amendment of Google Apps Reseller Agreement
IN WITNESS WHEREOF, the parties have executed this Amendment.
Accepted and Agreed: Accepted and Agreed:
GOOGLE: Google Inc.
RESELLER: Onix Networking Corp.
By:
By:
Name tYirt^' '7 _
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Name: Timothy S. Needles
President,
Title: sue fleas De11011 lmorr�d
Title: President ! CEO
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Date: Date: VA All;,
Amendment of Goopla Appe ResollerAproamenl (2-1742) Google Confidential v.1