Matrix – CloudZone – Google Agreement (July 2016 – March 2018)

Matrix – CloudZone – Google Agreement (July 2016 – March 2018)

Matrix Cloudzone – Google for Work Cloud Customer Agreement (July 2016-March 2018)

This Matrix Cloudzone – Google for Work Cloud Customer Agreement (this “Agreement“), is an Agreement between Matrix I.T. Integration and Infrastructures Ltd. (“Matrix”, “we,” “us,” or “our”) and you or the entity you represent (“Customer”, “You”). Please see the Google Documents as defined hereinafter, for definitions of certain capitalized terms used in this Agreement. This Agreement governs your access to and license the use of Google for Work Cloud platform and related services (together in this Agreement: the “Services”). If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to the terms and conditions of this Agreement, in which case the terms “you” or “your” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not or cannot agree to the terms and conditions of this Agreement, you must not accept this Agreement and you may not use the License or the Services.

Whereas:
A. Matrix is authorized by Google Inc. (“Google”), to provide access to the Services, all as defined hereinafter;
B. Customer wishes to receive from Matrix and Matrix wishes to provide Customer with
access to the Services, all as defined hereinafter;
C. The Parties wish to delineate their legal relationship in accordance with the terms and conditions set out hereinafter in this Agreement.

It is therefore declared, agreed and stipulated between the Parties as follows:

This Agreement consists of the Google applicable documentation (as may be updated) in the form generally made available by Google to its customers for use with the Services, including Service Specific Terms: https://cloud.google.com/cloud/terms/service-terms, DMCA Policy: http://www.google.com/dmca.html, Deprecation Policy: https://cloud.google.com/cloud/terms/deprecation, Acceptable Use Policy: https://cloud.google.com/cloud/terms/aup, Google App Engine: https://cloud.google.com/appengine/, Google Cloud SQL: https://cloud.google.com/cloud-sql/, Google Cloud Storage: https://cloud.google.com/storage/, Google Prediction API: https://cloud.google.com/prediction/, Google BigQuery Service: https://cloud.google.com/bigquery/, Google Compute Engine: https://cloud.google.com/compute/, Google Translate API v2: https://cloud.google.com/translate/, Google Cloud Datastore: https://cloud.google.com/datastore/, and any other applicable Google documents (together: “Google Documents”).
1. Preamble, Exhibits and Definitions
a. The preamble to this Agreement and its exhibits constitute an integral part of the Agreement itself.
b. The headings used in and subdivision of this Agreement are intended for convenience only and shall have no relevance for the purpose of its interpretation.
c. The exhibits to this Agreement:
“Exhibit A″ – Non Disclosure Agreement.
“Exhibit B″ – Managed Services Agreement (optional)
2. Use of Services
a. Right to use. We grant you the right to access and use the Services and to install and use the Software included with your Subscription, as further described in the Google Documents.
b. Acceptable use. You may use the Product only in accordance with this Agreement and Google Documents.

  1.  Service Fee, Taxes and Payment Terms
    a. In consideration for the Services, Customer shall pay Matrix fees in accordance with Google pricing available at:
    [ ].
    b. All payments in respect of this Section 3 shall be made within 30 days from date of invoice to Customer.
    c. Prices are exclusive of any taxes. You shall pay any applicable value added, goods and services, sales, or like taxes that are owed with respect to any order placed under this agreement and which we are permitted to collect from you under applicable law. You shall be responsible for any applicable stamp taxes and for all other taxes that you are legally obligated to pay including any taxes that arise on the provision of Products to your Affiliates. We shall be responsible for all taxes based on our net income. If any taxes are required to be withheld on payments you make to us, you may deduct such taxes from the amount owed to us and pay them to the appropriate taxing authority, provided however that you promptly secure and deliver an official receipt for those withholdings and other documents we reasonably request to claim a foreign tax credit or refund. You will make certain that any taxes withheld are minimized to the extent possible under applicable law.
    4. Term, termination and suspension shall be limited in accordance with Google Documents.
    5. Limitation of Liability, Warranties and Disclaimer
    a. Warranties and Liability shall be limited in accordance with Google Documents.
    b. Other than as explicitly set forth in the Google Documents, Matrix/Google provide no warranties, whether express, implied, statutory, or otherwise, including warranties of merchantability or fitness for a particular purpose. These disclaimers will apply to the fullest extent permitted under applicable law. Other than as explicitly set forth in the Google Documents, Customer hereby waives and discharges Matrix/Google and their affiliates, directors, officers, employees, shareholders, agents, representatives, successors and assigns, from any and all obligations and/or claims and/or demands, deriving from any law and/or agreement, including this Agreement, relating to any matter, act, omission or circumstances, including but not limited to any claim or obligation derived from or related to this Agreement, whether such claim and/or damage is known upon the date herein or not.
    c. Without derogating from the above, Google disclaims, to the extent permitted by applicable law: (i) Google’s liability for any damages, whether direct, indirect, incidental or consequential, arising from Matrix’ distribution and resale of the Services to Customer; and (ii) all warranties with respect to the Services on behalf of Google, including, warranties of merchantability, fitness for a particular purpose, and non-infringement.
    d. By signing this Agreement:
    1) Customer acknowledges that Matrix and Google are independent contractors and Matrix is not Google’s agent or partner or in a joint venture with Google; and
    2) Customer confirms that Matrix and Google are processors of any personal data processed by them on Customer’s behalf, and that Customer is the controller of any such data, as the terms “controller”, “processed”, “processor” and “personal data” are defined in the EU Directive.
  2. Miscellaneous.
    a. Notices. All notices, consents, waivers and other communications required or permitted by this Agreement must be in English, in writing, and will be deemed given when (a) delivered to the appropriate address by hand or by nationally recognized overnight courier service (costs prepaid); (b) sent by facsimile or email with written confirmation of notice including confirmation of transmission by the transmitting equipment delivered promptly thereafter, but no longer than five (5) business days thereafter; or (c) received by the addressee, if sent by certified mail, return receipt requested, in each case to the following addresses, facsimile numbers or e-mail addresses and marked to the attention of the person (by name or title) designated hereafter (or to such other address, facsimile number, e-mail address or person as a party hereto may designate by notice to the other parties hereto):
    For Customer: the most current address/fax number indicated by Customer to in writing:
    For Matrix: billing@cloudzone.iol.
    b. License Transfers and Assignment. You may not assign this agreement either in whole or in part or transfer licenses without Matrix’ consent.
    c. Severability. If any part of this agreement is held unenforceable, the rest remains in full force and effect.
    d. Waiver. Failure to enforce any provision of this agreement will not constitute a waiver.
    e. No agency. This agreement does not create an agency, partnership, or joint venture.
    f. Applicable law and venue. This Agreement shall be governed by the law of the State of Israel and any dispute arising out of or in connection with this Agreement is hereby submitted to the sole and exclusive jurisdiction of the competent courts in Tel Aviv, Israel.
    g. Entire agreement. This Agreement is the entire agreement concerning its subject matter and supersedes any prior or concurrent communications. In the case of a conflict between the Google Documents and this Agreement that is not expressly resolved in this Agreement, the Google Documents shall prevail.
    h. Survival. Any term or condition which by clearly intended to survive the expiration or termination of this Agreement, shall survive any expiration or termination of this Agreement.
    i. Confidentiality and publicity. Without derogating from Google Documents (and with respect to Matrix, to the extent within Matrix control), neither party shall, without the other Party’s prior written consent, disclose, provide or make available any Confidential Information in any form to any person or entity or make use of such information, except to the extent necessary to enable the Parties to exercise their rights under this Agreement, all as provided in “Exhibit A”. Customer may only use information belonging to Matrix and/or Google which was passed on to it within the framework of this Agreement in order to utilize Google Documents in accordance with this Agreement and its Exhibits. Each Party shall take all reasonable precautions to prevent the disclosure, distribution or unauthorized use of the information of the other, and at least those, which it would have taken in order to protect its own confidential information of a similar nature.
    j. Force Majeure. Neither party will be liable for any failure in performance due to causes beyond that party’s reasonable control (such as fire, explosion, power blackout, earthquake, flood, severe storms, strike, embargo, labor disputes, acts of civil or military authority, war, terrorism (including cyber terrorism), acts of God, acts or omissions of Internet traffic carriers, actions or omissions of regulatory or governmental bodies (including the passage of law or regulations or other acts of government that impact the delivery of Online Services)). This Section will not, however, apply to your payment obligations under this agreement.

This Exhibit A – Non Disclosure Agreement (this “NDA”), (the “Effective Date”) is made by and between Matrix I.T. Integration and Infrastructures Ltd. (“Matrix,” “we,” “us,” or “our”) and you or the entity you represent (“you“, “Customer”). Please see Section 1 for definitions of certain capitalized terms used in this NDA. This NDA governs your access to and license the use of AWS’ Platform, Ancillary Support and Services (all as defined herein). If you are entering into this NDA on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to the terms and conditions of this NDA, in which case the terms “you” or “your” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not or cannot agree to the terms and conditions of this NDA, you must not accept this NDA (by clicking the “cancel” or “no” or “close window” button or otherwise indicate refusal) and you may not use the License or the Services.
Matrix and Customer shall be referred to herein, each separately, as a “Party” and jointly as “Parties”.
This NDA consists an integral part of the “Matrix-CloudZone-AWS Agreement” (the “Main Agreement”), reads together with the Main Agreement. All capitalized terms not otherwise defined herein shall have the meaning ascribed to same in the Agreement To the extent there is a contradiction between this NDA and the Main Agreement, this NDA will prevail. The stipulations of the Main Agreement not modified by the Agreement remain unchanged.

WHEREAS, each of the Parties owns, possesses or has developed certain technical and business information relating to the technology, business, products and product plans of such Party, its affiliates and/or of third parties; and in connection with and for the purpose the Main Agreement, each of the Parties (the “Discloser”) is willing to disclose to, and the other Party (the “Recipient”) may otherwise have access to and acquire, Confidential Information (as defined below).

NOW, THEREFORE, the Parties hereby agree as follows

  1. Definition. “Confidential Information” shall mean any information and data, which by nature obviously is proprietary or confidential or which is designated by means of appropriate text to be of a proprietary or confidential nature, whether in oral, written, graphic, machine-readable form or in any other form, whether or not designated by Discloser as proprietary and/or confidential, disclosed and/or made available by Discloser to Recipient or otherwise acquired by Recipient as a result of or in connection with this NDA and/or the Parties’ discussions (whether prior to the execution hereof or thereafter).
    Confidential Information shall include, without limitation, proprietary, business, financial, technical, clinical, development, experimental, formula, design, specifications, product (actual or planned and any derivatives thereof), marketing, sales, strategy, prices, customers, operating, employees, performance, cost, know-how, research, technique and process information, records and results, trade secrets, patents, patent applications, copyrights, improvements and inventions (whether patentable or not) and other works of authorship, and all record bearing media containing or disclosing such information and techniques. When appropriate, the term “Confidential Information” shall also include samples, models and prototypes, or parts thereof. The Parties’ discussions and the terms thereof shall be further deemed Confidential Information hereunder.
    The confidentiality obligations of this NDA shall not apply to any information that the Recipient can able to prove by documents or other competent evidence: (a) is already or becomes in the public domain through no fault of Recipient or a breach of this NDA; (b) was, as between the Parties, lawfully in Recipient’s possession prior to receipt from Discloser; (c) is received by Recipient independently from a third party free to lawfully disclose such information to Recipient, or (d) is independently developed by Recipient without use of Confidential Information. Confidential Information shall not be deemed to be in the public domain merely because any part of the Confidential Information is embodied in general disclosure or because individual features, components or combinations thereof are now or become known to the public.
    A disclosure by Recipient of Confidential Information in response to a valid order by a court or other governmental body, or as otherwise required by law, and to such extent necessary, shall not be considered to be a breach of this NDA, provided, however, that Recipient shall provide Discloser, subject to applicable law, with prompt prior written notice thereof to enable Discloser to seek a protective order or otherwise prevent or contest such disclosure.
    Disclosure of the contents and the existence of this NDA by a party in connection with a due diligence inquiry and subject to confidentiality undertakings shall not be considered to be a breach of this NDA.
    2. Restrictions. Without derogating from AWS Documents (and to the extent within Matrix control), all Confidential Information delivered, made available or otherwise acquired pursuant to this NDA (a) shall not be copied, duplicated, distributed, disseminated or made available in any way or form by Recipient (or so allowed, aided or enabled by Recipient); (b) shall be maintained in confidence and in a place and manner that ensures such confidentially (which in any event shall be not less than customary industry standards), and may only be disclosed to those employees of Recipient who have a need to know and who have executed an obligation of confidentiality and restriction of use similar to the terms hereof; and (c) shall not be used or exploited by Recipient, directly or indirectly, for any purpose, except for the purpose of e the Main Agreement and any act related thereto.
    3. Duration. Recipient’s obligations hereunder with respect to each item of Confidential Information shall be perpetual, until such time as the Confidential Information shall have become public domain through no fault of Recipient.
    4. Term. This NDA shall be effective as of the date stated above and shall terminate when the Main Agreement is terminated provided, however that the provisions of Section 3 above and Sections 5-8 below shall survive the termination or expiration of this NDA.
    5. Return of Materials. Promptly following the earlier of (i) termination or expiration of this NDA; and (ii) within seven (7) days following a written request by the Discloser at any time, Recipient will deliver to Discloser all Confidential Information and all documents or media containing any such Confidential Information and any and all copies or extracts thereof (or shall have such documentation and/or media destroyed and shall so confirm in writing, at Discloser’s sole discretion).
    6. Mutual Disclaimers; No Proprietary Rights. The Parties shall have no obligation to enter into any further agreement with each other. Nothing herein shall be deemed to create any principal/agent, employee-employer, joint venture or other business relationship between the Parties. It is understood and agreed that Confidential Information is provided “AS IS”. No warranties, express or implied, of any kind are given by Discloser with respect to Confidential Information provided hereunder. The Parties also understand that all Confidential Information shall remain the sole property of Discloser (or its respective owner(s)), and that no patent, copyright, trademark or other proprietary right or license is granted by this NDA. Recipient understands that nothing herein requires the disclosure of any Confidential Information, which shall be disclosed, if at all, solely at the option of the Discloser.
    7. Injunctive and Other Relief; No Derogation of Rights. Since a breach by Recipient of any of the promises or agreements contained herein may result in irreparable and continuing damage to Discloser for which there may be no adequate remedy at law, Discloser may be entitled to seek injunctive relief and/or a decree for specific performance, and such other relief as may be proper (including monetary damages if appropriate) in any competent court. Nothing in this NDA shall be construed as derogating from any right or remedy that the Discloser may be entitled to under applicable law.
    8. General. This NDA shall bind and inure to the benefit of the Parties and their successors and assigns. Neither Party may transfer or assign any rights or obligations under this NDA without the prior written consent of the other Party, except to a successor in interest who is not a competitor of the other Party. This NDA represents the entire understanding and agreement between the Parties with respect to the confidentiality obligations relating to the subject matter hereof and supersedes all prior communications, agreements and understandings relating to the subject matter hereof. In the event that any of the provisions of this NDA shall be held by a court or other tribunal of competent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this NDA shall otherwise remain in full force and effect. No modification or amendment of this NDA will be valid unless executed by both Parties. The observance of any term hereof may be waived (either prospectively or retroactively and either generally or in a particular instance) only with the written consent of the Party against such waiver is sought and to such extent set forth therein; no failure or delay in enforcing any right will be deemed a waiver. Subject to the provisions of Section 7 above, the laws of the State of Israel shall govern this NDA, and the competent courts of the Tel Aviv-Jaffa district shall have exclusive jurisdiction in any matter arising out of or relating to this NDA.