These Terms of Service apply to all Services. In the event of any conflict between these Terms of Service and any Order Form or Statement of Work, the terms contained in the Order Form or Statement of Work will control.
Please see our Privacy Policy and Service Provider Addendum for additional information.
1. Definitions.
“Agreement” means collectively these G5 Terms of Service, including any applicable Order Form and Statement of Work mutually executed by Client and G5.
“Client” means the party named as Client on an Order Form.
“Client Data” means personally identifiable information about Client personnel who access and use the Services.
“Client Materials” means any information, data, data streams, text, photographs, graphics, video, or other materials owned or supplied by Client.
“Confidential Information” has the meaning provided in Section 5.
“Consumer Data” means the personally identifiable information about third party users who submit information through the Services provided for Client.
“Content” means any information, data, data streams, text, photographs, graphics, video, or other materials provided by G5 with the Services (excluding Client Materials).
“G5” means G5 Search Marketing, Inc., a Delaware corporation.
“G5 Platform” means the G5 proprietary technology and services through which the Services, in whole or in part, are or may be provided.
“G5 Technology” means all information and materials of G5 relating to the Services, products, and/or any information relating to G5 processes, designs, software programs, source code, formulas, test procedures and results, improvements, inventions or techniques, client lists, business plans, data, marketing plans and strategies, pricing strategies or other subject matter pertaining to any business of G5
“Intellectual Property” means any and all patents, design rights, copyrights, moral rights, trademarks, trade secrets, rights of publicity, authors’ rights, contract and licensing rights, goodwill and any other form of intellectual property or proprietary rights recognized in any jurisdiction, including applications and registrations for any of the foregoing as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the law of the United Sates or any other state, country or jurisdiction.
“Order Form” means any mutually executed order form for Services that references this Agreement.
“Privacy Policy” means the G5 Privacy Policy available at www.getg5.com/privacy-policy/, as amended or modified from time to time in accordance with the terms thereof, which is incorporated into this Agreement by reference.
“Property” means a physical structure identified by street address as set forth in an applicable Order Form.
“Search Engines” means third party search engines or services and/or one or more internet directories or other third party websites.
“Service Provider” means G5’s role as related to the Services provided to Client, as defined under Section 1798.140(v) of the California Consumer Privacy Act of 2018, as amended (“CCPA”).
“Service Provider Addendum” or “SPA” means the G5 Service Provider Addendum available at www.getg5.com/spa/, as amended or modified from time to time in accordance with the terms thereof, which is incorporated into this Agreement by reference.
“Services” means the services specified in an Order Form to be provided by G5 to Client, through any G5 website, the G5 Platform, or any other proprietary technology under the terms of this Agreement. Services include G5 professional services as set forth in any Statement of Work between the parties.
“Statement of Work” or “SOW” means a document mutually executed by Client and G5 in connection with Services described in an Order Form and which describes the scope of professional services to be performed by G5 for Client and any other terms and conditions applicable to such professional services.
“Term” means the period of time set forth in the Order Form during which Client may use the Services. “Term” includes both the Initial Term and any Renewal Terms as defined in Section 11 below.
“Third Party Services” means any third party web site, product, service or third party Content provided or made available through the Services, and including third party Search Engines.
2. Use Rights and Restrictions.
2.1 Use Rights. Subject to the terms and conditions of the Agreement, including payment of all fees, and only for the Term, Client and its authorized personnel may access and use the Services solely for Client’s own internal business purposes. To the extent Services relate to one or more Properties listed in an Order Form, Client’s use and access herein is limited to the Properties listed in the Order Form only. All rights not expressly granted to Client are reserved by G5. There are no implied rights.
2.2 Restrictions. Client will not (and will not permit any third party to) without the prior written consent of a duly authorized officer of G5: (i) mirror or frame any Content ; (ii) modify, translate, or create derivative works, reverse engineer or reverse assemble the Services and/or G5 Technology; (iii) use the Services for the benefit of a third party; (iv) remove any proprietary notices from the Services or Content; (v) provide any content or information from the Services to any unauthorized third party; or (vi) upload, record, publish, post, link to, or otherwise transmit or distribute Client Materials that: (a) advocate, promote, incite, instruct, assist or otherwise encourage violence or any illegal activities; (b) attempt to mislead others about Client’s identity or the origin of a message or other communication, or impersonate or otherwise misrepresent Client’s affiliation with any other person or entity, or are otherwise materially false, misleading, or inaccurate; (c) promote, solicit or comprise inappropriate, harassing, abusive, profane, defamatory, libelous, threatening, hateful, obscene, indecent, vulgar, pornographic, or otherwise objectionable or unlawful content or activity; (d) are harmful to minors; or (e) contain any viruses, Trojan horses, worms, time bombs, or any other similar software, data, or programs that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, information, or property of another. Client may not use the Services, G5 Intellectual Property or any G5 Confidential Information for any purpose other than as expressly permitted in this Agreement.
3. Prices; Payment Terms.
3.1 Price. All Order Forms will set forth the fees for Services.
3.2 Payment Terms. Invoices will be sent via email to the Client billing contact designated by Client to G5 in the Order Form. One-time fees are invoiced and are due upon execution of an Order Form. Monthly recurring fees are invoiced each month on or about the first of the month, commencing on the activation of the Services, and monthly recurring fees are per Property per month, except as otherwise expressly set forth in the Order Form. All fees shall be due and payable on receipt of invoice. Delinquent or late payments may delay G5’s provision of Services, which may not be activated until one-time fees are paid in full. If Services include Search Engine Marketing (SEM), then spend may be suspended in the event of delinquent or late payments, and Client may be required to pay a reactivation fee. Client agrees to pay G5 all fees when due and will be considered delinquent thirty (30) days after the due date. The prices do not include any taxes and Client shall pay any applicable sales, use, excise, withholding or other taxes applicable to sale or furnishing of the Services. Delinquent payments shall bear interest at the rate of one-and-one-half percent (1.5%) per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. G5 reserves the right to suspend the Services (by advance written notice or email) until Client pays all unpaid or delinquent amounts. Except as otherwise specifically set forth in Section 12, Services are non-cancelable by Client before the end of the then-current Term and fees are non-refundable.
3.3 Collection Expenses. Client will be responsible for all reasonable expenses (including attorneys’ fees and costs) incurred by G5 in collecting unpaid or delinquent amounts.
3.4 Third Party Expenses. Unless otherwise specified in an Order Form, Client may not require G5 to use a third party vendor for billing, screening, or compliance without G5’s prior written consent. If G5 consents to the use of such third-party vendor, Client shall be responsible for all fees and costs associated therewith, including without limitation, any fees incurred by G5. G5 reserves the right to suspend the Services (by advance written notice or email) until Client pays all unpaid or delinquent amounts. Client shall be solely responsible for any costs or expenses related to any third party systems used by Client, including integration costs.
3.5 Network Expenses. Client shall be solely responsible for any costs or expenses required to maintain Client’s network environment.
3.6 Applicable sales / transaction tax. As required by relevant states’ sales tax laws, G5 will invoice, collect, and remit applicable sales / transaction taxes from its customers. Client shall pay G5 the applicable sales / transaction taxes for the monthly Services as invoiced. If taxes invoiced are not paid, G5 will remit the amounts owed as if the taxes have been paid and the outstanding balance will remain a debt of Client to G5. To the extent the balance remains unpaid for more than thirty (30) days, G5 reserves the right to terminate Services as provided herein.
4. G5 Intellectual Property; Client Materials.
4.1 Ownership of G5 Technology. All G5 Technology and the Intellectual Property embodied therein, including any data generated by G5 that is not Client Data or Consumer Data, is owned by G5. Client shall not reproduce or allow any such G5 Technology and related Intellectual Property to be delivered to or used by any third party. In the event of the expiration or termination of this Agreement for any reason, Client shall promptly deliver to G5 or destroy (provided that Client provides G5 with a certification of destruction) all materials and documents of any nature in its possession that are or pertain to any G5 Technology and related Intellectual Property and cease using any website designs or code created by G5 or images licensed by G5 for Client’s website during the Term. As between Client and G5, G5 is the sole and exclusive owner of all G5 Technology and related Intellectual Property, and Client is the sole and exclusive owner of any materials developed by G5 for Client pursuant to a SOW to the extent that (i) those materials are expressly designated as customer materials in the applicable SOW and (ii) such designated materials are selected or accepted by Client in writing. For the avoidance of doubt, G5 will own and have the right to re-use any custom materials or designs created by G5 but not selected or accepted by Client, and G5 owns website designs it creates unless otherwise specifically set forth in a Statement of Work for a custom-designed website.
4.2 Client Materials. Client may upload Client Materials to the Services and/or provide Client Materials to G5 in connection with Client’s use of the Services. G5 does not verify, endorse, or claim ownership of any Client Materials, and Client retains all right, title, and interest in and to the Client Materials. Client grants to G5 during the term of this Agreement a non-exclusive, royalty-free, world-wide right to use, modify, create derivative works of, and publicly display Client Materials as necessary to provide the Services to Client. G5 may use Client’s name, logo, Client Materials, any Content created by G5 for Client, and a summary of Client’s business and results provided by G5 for G5’s general marketing purposes, including without limitation, representative client lists, marketing or promotional materials, and marketing case studies, without obligation or liability to Client and without further consent from or payment to Client.
4.3 No Transfer of Ownership; No Trademark Warranty. Except for the limited licenses expressly provided in this Agreement or any signed attachment hereto, neither party has or will acquire, any right, title or interest in any of the products, services, technology or intellectual property rights of the other party, including G5 Intellectual Property or Client Materials as a result of this Agreement. G5 does not conduct trademark searches and makes no representations or warranties with respect to names or logos suggested for Client.
4.4 Beta Services. From time to time, G5 may make available to Client beta, test, preview, or other pre-release versions of Services on a trial or evaluation basis (collectively, “Beta Services”). Beta Services may be limited in features, functionality or have other limitations as determined by G5, may not operate correctly, may affect performance of digital marketing, and may be substantially modified prior to general availability release. At G5’s option, Beta Services may not be released as generally available. G5 may reduce, modify, or discontinue Beta Services at any time in its sole discretion. If Client agrees to participate in Beta Services at G5’s request: (i) Client agrees to provide prompt feedback regarding its experience with Beta Services in a form reasonably requested by G5, including information necessary to enable G5 to duplicate errors or problems Client experiences, and (ii) Client will provide G5 with comments that G5 may use publicly for press materials and marketing collateral. Any intellectual property inherent in Client’s feedback or arising from Client’s testing of the Beta Services shall be owned exclusively by G5. Notwithstanding any provision herein to the contrary, (i) neither of Client or G5 (nor any of their respective employees, agents, affiliates, or suppliers) is liable to the other, as each relates to Beta Services, for: (a) any indirect, special, incidental or consequential loss or damages of any kind; (b) any loss of profit; (c) any loss of business; (d) any loss of data; (e) any anticipated savings or revenue; or (f) for any loss that could have been avoided by the damaged party’s use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages; (ii) Beta Services are provided “AS IS” with no warranty whatsoever and, to the extent permitted by applicable law, G5 disclaims any and all warranties with respect to Beta Services including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement; and (iii) G5 and its employees, agents, suppliers, or affiliates will have no liability or obligations (including any indemnification obligations) arising out of or related to any Beta Services. Client agrees that all information regarding Beta Services, including its experience with and opinions regarding Beta Services, will be “Confidential Information” of G5, as defined in Section 5 below.
4.5 Feedback. If Client provides G5 with feedback about the Services or the G5 Platform (“Feedback”), Client agrees that G5 may use Client’s Feedback for any purpose, including product development purposes. Any intellectual property inherent in Client’s Feedback shall be owned exclusively by G5.
5. Confidential Information.
5.1 Definition and Obligation. As used herein, “Confidential Information” means all confidential information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), that is designated in writing as confidential or that reasonably should be considered confidential in light of the content of the information and the circumstances of its disclosure, as well as the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), including any non-public G5 Technology or related Intellectual Property. The Receiving Party understands that the Disclosing Party has disclosed or may disclose Confidential Information in connection with the parties’ relationship hereunder. The Receiving Party agrees to take reasonable precautions to protect such Confidential Information of the Disclosing Party and to only use and/or disclose such Confidential Information as necessary to perform its obligations under this Agreement. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document: (a) is or becomes generally available to the public; (b) was in its rightful possession or known by the Receiving Party prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it by a third party without an obligation of confidentiality; and/or (d) was independently developed without use of any Confidential Information of the Disclosing Party. This Section 5 will not be construed to prohibit the disclosure of Confidential Information if such disclosure is required by law or order of a court or other governmental authority. Each party agrees to give the other party prompt notice of the receipt of any subpoena or other similar request for such disclosure.
5.2 Return of Confidential Information. Upon termination of this Agreement, or earlier upon Disclosing Party’s request, the Receiving Party will promptly return or destroy all Confidential Information, together with all copies and summaries of Confidential Information in its possession or under its control.
5.3 No Transfer of Ownership. This Agreement does not transfer any ownership rights to any Confidential Information from the Disclosing Party to the Receiving Party.
5.4 Equitable Relief. The parties acknowledge that the remedies available at law for any breach of this Section 5 may be inadequate. Accordingly, a party may seek injunctive relief or other equitable relief to restrain a breach or threatened breach of this Section 5 or to specifically enforce this Section 5, without proving that any monetary damages have been sustained and without the necessity of posting bond.
6. Client Data and Consumer Data.
6.1 Client Data. As between G5 and Client, Client is the owner of all Client Data. Client is a for-profit entity that determines the purpose(s) and means of processing Client Data. If the Client Data relates to individuals, households or devices, Client is providing to G5 or allowing G5 to collect Client Data solely for a valid business purpose, and for G5 to perform the Services. Client agrees to comply with all applicable privacy laws and regulations, including without limitation, the CCPA with respect to the Client Data. Client shall not upload any Client Materials, or request data from any of its website users, that constitutes sensitive data under applicable data protection laws. Any sample privacy policy provided by G5 is a courtesy only and Client is advised to work with legal counsel to draft and implement its privacy policy. Client agrees to implement and keep up to date a privacy policy on its website that accurately discloses its data collection, use and disclosure practices and complies with all applicable laws and regulations. Client further agrees that: (i) G5 may disclose Client Data to other third party service providers of Client in accordance with the scope of the Services contracted for by Client; (ii) Client is responsible for entering into the contractual terms with such third party service providers; and (iii) G5 has no liability for the acts or omission of such third party service providers. Notwithstanding the foregoing, Client Data does not include non-identifiable aggregate data and usage statistics compiled by G5 in connection with the use of the Services, which aggregate data and statistics G5 may use to improve the G5Platform and to discuss the G5 Platform and the Services.
6.2 Consumer Data. The Services may collect or have access to Consumer Data. Notwithstanding anything to the contrary herein, Consumer Data will be treated by G5 as set forth in the G5 Privacy Policy and Service Provider Addendum.
7. Third Party Services.
7.1 Third Party Services. The Services may contain hyperlinks to web sites that are not owned or controlled by G5. Client acknowledges and agrees that G5 is not responsible for and does not endorse or accept any responsibility over the content and/or use of third party web sites or materials, including, without limitation, the accuracy or reliability of any information, data, opinions, advice or statements made on third party web sites. Client agrees that Client’s use of any third party sites, third party content and/or Third Party Services are governed by separate terms and Client is responsible for compliance therewith. Client dealings with other entities/third parties on or through the Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between Client and such other entity/third party. Client agrees that G5 shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the promotion of such other entities/third parties through the Services.
7.2 Digital Advertising Services. If the Services include Digital Advertising Services, Client acknowledges and agrees that G5 will place Client advertisements on Search Engines on Client’s behalf unless and until Client opts out of such placement by reasonable prior written notice to G5. Unless and until such time, Client hereby authorizes and consents to all such placements on Search Engines, and Client shall be bound by the terms and conditions set by such Search Engines in connection with any such advertisements.
7.3 Google My Business Optimization. If the Services include Google My Business Optimization, Client acknowledges and agrees that: (i) Client may need to provide hours of service, office hours, service amenities, and photos for Google My Business (G5 recommends a minimum of 4 photos, a logo and 1 video); provided that G5 may obtain and provide this information to Google from Client’s existing website; and provided further that in all cases Client is responsible for ensuring the accuracy of any and all such information; (ii) if Client has already claimed a Google My Business page, Client will provide G5 with login information for each Property; (iii) if Client has not claimed a Google My Business page, Client will need to assist in the verification process by phone or postcard as reasonably required by G5; and (iv) Client is responsible for any content creation and sharing on Google My Business, including Client Materials. The parties agree that custom tailored content creation for Google My Business is outside of the scope of Services unless and to the extent otherwise agreed by G5 and Client in writing (e.g., Client may request in writing that G5 periodically create standard content for Clients’ Google My Business page to enhance SEO performance if and as set forth in an applicable SOW or otherwise in writing). Client acknowledges and agrees that: (a) each Property listed on an Order Form is open for business, able to receive phone calls, and able to receive mail from USPS; (b) if Properties have existing owner-verified listings on Google My Business but the Client does not have access to the account, such Properties will not be eligible for Google My Business Optimization from G5; (c) new Google My Business verification can take up to six weeks, depending upon Google; and (d) all Search Engine marketing Client accounts with Google are or will be aggregated under a single Google account with G5 as the named Google client, and adjustments made to the account by Google affect the aggregated G5 account and are for the benefit of G5.
7.4 Call Recording Services. If the Services include call tracking and call recording, G5 will provide a recorded call notice on all call tracking numbers notifying callers that calls are recorded. If Client desires to remove G5’s recorded call notice, Client will make such request in writing to G5 and, further, Client represents and warrants for all telephone lines that G5 records for Client, it will: (i) notify all callers that calls are recorded on all extension options available to callers, (ii) not engage in any activities that violate the personal privacy or publicity rights of others, and (iii) provide G5 five (5) business days’ notice before it removes a notification to callers that the call may be recorded.
8. Warranties and Disclaimers.
8.1 Client Warranty. Client represents and warrants that: (a) Client will not engage in any activities or actions in connection with the Services (and/or provide any Client Materials) that infringe or misappropriate the intellectual property rights of G5 or any third party, including without limitation, copyright, patent, trademark, trade secret and confidential information; (b) Client will not engage in any activities that violate the personal privacy or publicity rights of others under any applicable law or regulation; (c) Client will not breach any applicable terms or conditions, terms of service, acceptable use policies, privacy policies or any similar agreements with any Third Party Services or otherwise in connection with the Services ; (d) Client is the owner, licensor, or has the necessary rights, authorizations and/or permissions with respect to all Client Materials used or provided in connection with the Services; and (e) Client will not violate any applicable law, statute, ordinance, or regulation (including without limitation the laws and regulations governing export control, unfair competition, fair housing, anti-discrimination, or false advertising).
8.2 G5 Warranty. G5 warrants that the Services will, as applicable, operate and/or be provided in material conformity with the applicable documentation provided by G5, and that the functionality of the Services will not be materially decreased during the Term (including the Initial Term and any Renewal Terms) (except as set forth in the last sentence of this Section 8.2 with respect to Third Party Services). For any breach of this warranty, the Client’s sole and exclusive remedy and G5’s sole and exclusive liability shall be for G5 to correct any reported failure in the Services causing a breach of this warranty, provided that G5 shall have no obligation with respect to a warranty claim hereunder unless notified of such claim within thirty (30) days of the first instance of any non-conformance; and provided further, that if G5 is unable to correct any reported failure in the Services causing a breach of this warranty within ten (10) business days after receiving written notice from Client, Client may terminate the Services upon written notice, and G5 will refund to Client any unused pre-paid fees for such terminated Services. Subject to the foregoing warranty, G5 reserves the right, for any reason, in G5’s sole discretion and without notice to Client, to modify or change the Services or G5 Platform, to provide additional features or functions, or to enhance, delete or modify Content or its format or presentation. Notwithstanding the foregoing, G5 may change, modify, suspend or discontinue any and/or all aspects of the Services to reflect changes in Third Party Services (or the terms on which such are made available) and, except for a refund to Client of any unused pre-paid fees for such terminated Third Party Services, G5 will not be liable to Client or to any third party for doing so.
8.3 Disclaimer of Warranties. EXCEPT AS STATED IN THIS SECTION 8, THE SERVICES ARE PROVIDED ON AN AS-IS BASIS, WITHOUT WARRANTY, REPRESENTATION, CONDITION, OR GUARANTEE OF ANY KIND, EXPRESS OR IMPLIED, AND CLIENT’S USE THEREOF IS AT CLIENT’S OWN RISK. EXCEPT AS STATED IN THIS SECTION 8, TO THE FULLEST EXTENT PERMITTED BY LAW, G5 DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS, OR GUARANTEES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OR CONDITIONS OF TITLE, MERCHANTABILITY, MERCHANTABLE QUALITY, SERVICE QUALITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
9. Limitation of Liability.
EXCEPT FOR PAYMENTS TO THIRD PARTIES UNDER THE INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT AND FOR DAMAGES INCURRED BY ONE PARTY THAT ARE DIRECTLY CAUSED BY THE OTHER PARTY’S FRAUD, GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR VIOLATION OF APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE CAUSE OF SUCH DAMAGES. IN ADDITION, EXCEPT WITH RESPECT TO PAYMENTS TO THIRD PARTIES UNDER THE INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT AND FOR DAMAGES INCURRED BY ONE PARTY THAT ARE DIRECTLY CAUSED BY THE OTHER PARTY’S FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR DAMAGES RESULTING FROM A BREACH OF A PARTY’S OBLIGATIONS PURSUANT TO SECTION 2, 4, 5, OR 8, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS PAID TO G5 UNDER THIS AGREEMENT DURING THE PRECEDING TWELVE (12) MONTH PERIOD PRIOR TO THE OCCURRENCE OF SUCH DAMAGES; PROVIDED THAT LIABILITY ARISING UNDER ANY OTHER TERMS AND CONDITIONS MADE A PART OF THIS AGREEMENT MAY BE FURTHER LIMITED AS PROVIDED IN SUCH TERMS AND CONDITIONS.
10. Indemnification.
10.1 By G5. G5, at its expense, shall indemnify, defend and hold harmless Client against any losses, costs and damages arising from a claim by a third party against Client that the Services or the G5 Platform infringe any copyright or any United States patent issued as of the Effective Date or misappropriate any trade secret; provided that Client will provide G5 with (i) prompt written notice of the claim, (ii) sole control over the defense or settlement (provided, however, that any such settlement shall not result in financial liability on Client or require its admission of any fault without its prior written consent which shall not unreasonably be withheld), and (iii) reasonable support and cooperation with regard to the defense. In the event that G5’s right to provide the Services is enjoined or in G5’s reasonable opinion is likely to be enjoined, G5 may, at its expense, obtain the right to continue providing the Services, replace or modify the Services so that they become non-infringing but remain functionally equivalent, or if such remedies are not reasonably available, terminate this Agreement without liability. G5 shall have no indemnification liability under this Section 10 or otherwise to the extent a claim or suit results from (a) use of the Services or the G5 Platform in combination with software or hardware or materials not provided by G5 if infringement would have been avoided in the absence of such combination, (b) modifications to the Services or G5 Platform not made by G5, or made by G5 at the direction of Client, if infringement would have been avoided by the absence of such modifications, (c) use of any version other than a current release of the Services or G5 Platform, if infringement would have been avoided by use of a current release, or (d) any claim against Third Party Services, third party software, content (including Content) and/or services that may be included in, linked to and otherwise used in connection with the Services and/or G5 Platform.
10.2 By Client. Client at its expense, shall indemnify, defend and hold harmless G5 against any losses, costs and damages arising from a claim by a third party for any breach by Client of its warranties or obligations set forth in this Agreement, provided that G5 will provide Client with (i) prompt written notice of the claim, (ii) sole control over the defense or settlement (provided, however, that any such settlement shall not result in financial liability on G5 or require its admission of any fault, the making of any public statement, or the alteration of the Services without its prior written consent), and (iii) reasonable support and cooperation with regard to the defense.
11. Term.
Unless earlier terminated pursuant to Section 12, this Agreement shall continue in full force and effect from the Effective Date stated in an Order Form and will continue for the duration set forth in such Order Form (the “Initial Term”). At the end of the Initial Term, the Agreement shall automatically renew for subsequent successive terms, the duration of which are set forth in the Order Form (each a “Renewal Term”) at G5’s then current rates for the Services unless either party provides written notice to the other party thirty (30) days prior to the expiration of the then current Term.
12. Termination.
12.1 Generally. Either party may immediately terminate this Agreement upon written notice, including any Order Form or Statement of Work, and any order previously accepted by G5: (a) in the event of any proceedings, voluntary or involuntary, in bankruptcy or insolvency by or against the other party; or in the event of the appointment, with or without the other party’s consent, of an assignee for the benefit of creditors, or of a receiver; or if the other party admits in writing its inability to pay its debts when due; or (b) in the event the other party has materially breached this Agreement and, if curable, has not cured such breach within 15 days after receiving written notice thereof by the non-breaching party. If a breach is not curable, the non-breaching party can terminate this Agreement immediately upon written notice.
12.2 By G5 On Certain Conditions. Notwithstanding Section 12.1 above, G5 may at any time and upon written notice to Client immediately terminate this Agreement and Client’s access to the Services, G5 Platform or any deliverables under a Statement of Work, or suspend or restrict Client’s access to the Services, G5 Platform or any deliverables under a Statement of Work in whole or in part, if: (a) Client breaches Section 2 (Use Rights and Restrictions), Section 4.1 (Ownership of G5 Technology) or Section 8.1 (Client Warranty); or (b) G5 determines that such is necessary for safety or security or to protect G5 from liability.
12.3 By Client on Certain Conditions. If Client provides management services to third party Property owners, and if during the term of this Agreement a third party Property owner terminates its agreement with Client in regard to one or more Properties, then upon thirty (30) days prior written notice to G5, and presentation of satisfactory proof of such termination, Client may terminate this Agreement as to the affected Property(ies) only on a moving forward basis. If Client is a property owner and during the term of this Agreement sells one or more Properties, upon presentation to G5 of documents evidencing the completion of sale, Client may terminate this Agreement as to the sold Property(ies) only on a moving forward basis. Monthly recurring fees are not prorated upon termination pursuant to this Section 12.3. For clarity, if the termination with respect to affected Property(ies) pursuant to this Section 12.3 occurs in the middle of a month, Client will be responsible for payment of the monthly recurring fees for the full month in which the termination occurs.
12.4 Effect of Termination. Client’s right to access and use the Services (including website designs) shall terminate immediately upon termination of this Agreement or shall terminate with regard to the relevant Property in the event of a partial termination as permitted under Section 12.3 above.
12.5 Survival of Obligations. Except for termination arising from an uncured material breach by G5 under Section 12.1, or as otherwise set forth in this Agreement, Client shall remain liable for all amounts due under any Order Form, and all such sums will become immediately due and payable upon termination or expiration of this Agreement. Upon any expiration or termination of the Agreement, the provisions herein relating to ownership of proprietary information and confidentiality and any other provisions which by their nature should survive termination or expiration of this Agreement, shall so survive, including without limitation Sections: 4, 5, 10, 12.5, and 13.
13. Miscellaneous.
13.1 Entire Agreement. This Agreement and any executed Order Form or Statement of Work sets forth the entire understanding and supersedes all prior and contemporaneous oral and written agreements between the parties relating to the subject matter contained herein.
13.2 Amendment; Modification. The parties to this Agreement may modify, amend or supplement this Agreement in a signed writing explicitly referencing this Agreement and their intent to modify its terms. In addition, G5 reserves the right, in its sole discretion, to modify this Agreement at any time by sending Client a notice via email and Client consents to receipt of such notice. Such modifications will be effective on the date specified in such notice, which will be no sooner than thirty (30) days following the date of such notice. If Client disputes any modifications, Client will notify G5 in writing within the thirty (30) day period and the parties will negotiate in good faith with respect to the modifications. If Client does not notify G5 within such thirty (30) day period, the modified Agreement will become effective as set forth in this Section 13.2.
13.3 Waiver of Provisions. No waiver by a party of any condition, or breach of any provision term, covenant, representation, or warranty contained in this Agreement, whether by conduct or otherwise, shall be deemed to be or construed as a further or continuing waiver of any such condition or of the breach of any other provision, term, covenant, representation or warranty of this Agreement. To be effective, waivers must be in writing.
13.4 Severability. If any portion of this Agreement is found to be invalid, illegal, or unenforceable for any reason, the remainder of the Agreement shall continue in force and, if needed, the parties or a court of competent jurisdiction shall substitute suitable provisions having like economic effect and intent.
13.5 Governing Law. The rights and obligations of the parties under this Agreement shall be governed by and construed under the substantive and procedural law of the State of California, including its Uniform Commercial Code, without reference to its conflict of law principles.
13.6 Resolution of Disputes. The parties agree that any and all claims and controversies of any kind relating to this Agreement shall be finally settled by arbitration before one arbitrator in Santa Clara County, California, in accordance with the commercial dispute resolution procedures then in effect of the American Arbitration Association. The arbitrator will be an attorney with not less than ten (10) years trial experience in technology and licensing matters. In the event of arbitration, the prevailing party shall be reimbursed by the non-prevailing party for all reasonable attorneys’ fees and expenses. Both parties understand and agree that arbitration shall be instead of any civil litigation. Notwithstanding the foregoing, either party may apply to any court of competent jurisdiction for injunctive relief or other equitable remedy without breach of this arbitration provision.
13.7 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, Client may not assign this Agreement or the rights or obligations of Client hereunder (including by operation of law or otherwise), except with the prior written consent of G5, which will not be unreasonably withheld.
13.8 Excuse of Performance. No liability shall result from delay in performance by either party caused by act of God, fire, flood, war, government action, accident, labor trouble or shortage, inability to obtain material, equipment or transportation, or similar circumstances beyond the party’s reasonable control.
13.9 No Third Party Beneficiaries. Nothing in this Agreement, expressed or implied, is intended to confer upon any person, other than the parties hereto and their successors and permitted assigns, any rights or remedies under or by reason of this Agreement.
13.10 Notices. Any and all notices, demands, or other communications required or desired to be given hereunder by either party shall be in writing and shall be deemed validly given if (i) personally served, (ii) deposited in the United States mail, certified or registered, postage prepaid, or (iii) emailed, in case of the Client to the email address set forth in the Order Form, and in the case of G5 to legal.notices@getg5.com. If such notice is served personally, notice shall be deemed constructively made at the time of such personal service. If such notice is given by mail, such notice shall be conclusively deemed given three days after deposit thereof in the United States mail addressed to the party to whom such notice is to be given. If such notice is emailed, notice shall be deemed given on the same day the email is sent. Either party may change its address for purposes of this paragraph by written notice given in the manner provided above.
Updated November 26, 2019