Last updated: 6.20.25

This Promevo Master Services Agreement (the “MSA”) is entered into by and between Promevo, LLC, a Kentucky Limited Liability Company, with its principal office located at 1032 Madison Avenue, Covington KY 41011 (“Promevo”) and the entity agreeing to these terms (“Customer”). By executing an Order Form and/or SOW, you hereby accept the terms of this MSA and any corresponding additional terms referenced herein.

This MSA constitutes a legally binding agreement between Customer and Promevo. If you are executing this MSA on behalf of Customer, you represent and warrant that you: (i) have full legal authority to bind Customer to these terms and conditions; (ii) are eighteen (18) years of age or older and of legal age to enter into a binding agreement; (iii) have read and understood the terms and conditions within this MSA; and (iii) agree to this MSA on behalf of Customer and agree that Customer is legally bound by these terms. This MSA governs Customer’s access to and use of the Services.

1. TERMS OF SERVICE

2.1 Provision of Services. Subject to the terms set forth in this MSA and the applicable Order Form (defined below) and/or Statement of Work (defined below), Promevo will provide Customer the Services (defined below) for the fees listed on the applicable Order Form and/or SOW ("Fees").  “Promevo Services” means the product(s) specified in the applicable Order Form subject to the Product-Specific Terms (defined below), but for clarity excludes non-Google or non-Promevo products or Web-based, mobile, offline or other software applications or services that Customer chooses to integrate with or use in connection with the Services (“Third-Party Products”). “Order Form” means an order form or other similar document specifying the Services to be provided hereunder and the Fees to be paid by Customer. “gPanel Services” means any gPanel edition and services as described in the Order Form. ”Services” mean, collectively, the Promevo Services and Professional Services (defined below).

1.2 Professional Services. Promevo and Customer may enter into a Statement of Work (“SOW”) that describes consulting and/or special services to be performed by Promevo (the “Professional Services”). Each SOW is subject to the terms of this MSA. Promevo will perform the Professional Services specified in the SOW in a professional manner in accordance with the SOW and this MSA. No changes to a SOW will be effective without the written agreement of each party. 

1.3 Reseller Relationship. To the extent Promevo provides Google Services to Customer, Promevo will resell to Customer the Google Services (as defined below) for the number of users and duration specified in the Order Form, for the Fees specified in the Order Form. Customer acknowledges that Promevo is an authorized Google reseller, and the Google Services it is purchasing from Promevo are delivered by Google. “Google Services” means the applicable core services and other services provided by Google and used by Customer under this MSA, including but not limited to Google Workspace, Google Glass, Google Cloud, and Google Vault. Customer agrees to accept Google’s terms of service (“Google TOS”), which are accessible on Google’s website and incorporated by reference herein, for all Google Services Customer uses. Customer agrees that (i) Promevo’s resale or supply of Services does not entitle the Customer to use or access Google Maps Services; (ii) the Maps Additional Terms govern any use of or access to the Maps Services; and (iii) any use of or access to the Maps Services will be deemed to be acceptance of the Maps Additional Terms by the Customer.

1.4 Product-Specific Terms. Portions of the Services may be subject to additional terms specific to that product as set forth in the “Product-Specific Terms.” By accessing or using a product covered by the Product-Specific Terms, you also agree to these corresponding terms. The Product Specific Terms (https://promevo.com/product-specific-terms) are hereby incorporated by reference.

1.5 Support

a. Self-Service. Customer 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 Service. Customer will use commercially reasonable efforts to resolve support issues brought to its attention on its own, without escalation to Google or Promevo. If Customer cannot resolve a support issue, then Customer may consult the customer support terms that apply to your subscription within the Product Specific Terms.

b. Customer Account, Password, and Security. Customer shall protect Customer’s passwords and take full responsibility for Customer’s own, and third party, use of Customer accounts. Customer is solely responsible for any and all activities that occur under Customer Accounts. Customer agrees to notify Promevo immediately upon learning of any unauthorized use of Customer Account or any other breach of security. From time to time, Promevo's support staff may log in to the gPanel Services or Google Services under Customer’s password(s) or the Google reseller portal in order to maintain or improve service, including to provide Customer assistance with technical or billing issues. Customer hereby acknowledges and consents to such access. Promevo may have access to, change, or reset Customer passwords as required for a legitimate business purpose or upon Customer request.

1.6 Service Levels. Promevo does not guarantee the Services will be operable at all times or during any down time (1) caused by outages to any public Internet backbones, networks or servers, (2) caused by any failures of Your equipment, systems or local access services, (3) for previously scheduled maintenance or (4) relating to events beyond Promevo’s (or its wholly owned subsidiaries’) control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where Promevo, Google (or its wholly owned subsidiaries) or Your servers are located or co-located. Complete accuracy in all aspects of Google services, including but not limited to Google Apps data and Google APIs, at all times also is not guaranteed. Promevo will not have any liability with regards to Google service levels, updates or changes that affect functionality of the Services.

a. The Promevo Data Processing Addendum (“DPA”) (https://promevo.com/data-processing-addendum) and Privacy Policy (https://promevo.com/privacy-policy) are incorporated by reference into this MSA and will apply to the extent the Services include the processing of personal data.  The parties agree that the provisions contained in the DPA govern the processing of Customer Data in connection with this MSA. The parties further acknowledge and agree that the DPA does not extend to data processing by third party service providers.  “Customer Data” means data and other content submitted by or for Customer to the Services, including personal data. As set forth in the DPA, Promevo will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data, including measures designed to prevent unauthorized access to or use or disclosure of Customer Data. For the avoidance of doubt, Customer Data does not include System Data (defined below) or any dashboards, report templates or any other technology or components of the Services created, developed, used or provided by Promevo. Google is a processor and Customer is the controller of any Customer personal data contained in partner data, with “partner data” meaning (a) data provided to Google by or on behalf of Promevo, Customers, Customers’ end users, or Promevo’s end users through the Services under the Account and (b) data that Promevo, Customers, Customers’ end users, or Promevo end users derive from that data through their use of the Services, but in each case excluding any Customer Data.

2. CUSTOMER OBLIGATIONS

2.1 Accounts. Customer is responsible for maintaining the security of the administrator credentials and the usernames and passwords for all of its standard Users (each with their own separate usernames and passwords). “User” means an individual Customer invites to use the Services pursuant to the MSA, including employees, contractors, agents and consultants of Customer. Customer shall protect Customer’s and User passwords and take full responsibility for Customer’s own, and third party, use of Customer accounts. Customer may permit its Users to use the Services, provided their use is for Customer’s benefit only and they remain in compliance with the MSA.  Customer shall be responsible for all acts or omissions taken under the administrator credentials and those taken under the usernames and passwords of all Users.  Customer agrees to notify Promevo immediately upon learning of any unauthorized use of Customer account or any other breach of security. From time to time, Promevo's support staff may log in to the Services under Customer’s password(s) or the Google reseller portal in order to maintain or improve service, including to provide Customer assistance with technical or billing issues. Customer hereby acknowledges and consents to such access. 

2.2 Restrictions. Customer will not (and will not allow any User or third party to) directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services (or any underlying software, documentation or data related to the Services); (b) modify, translate, or create derivative works based on the Services or any underlying software; (c) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any underlying software; (d) use the Services or any underlying software for the benefit of a third party, in violation of any applicable laws or regulations or outside the scope expressly permitted hereunder (including in violation of the usage restrictions set forth in the applicable Order Form); (e) collect, process, store or transmit any Customer Data in violation of any applicable laws, regulations, privacy policies, agreements, or other obligations Customer may maintain or enter into with its end users; (f) collect, transmit or provide to the Services hereunder financial information (excluding relevant payment information); medical information of any nature, including without limitation biometric or genetic data; social security numbers; driver’s license numbers; birth dates; passwords; personal bank account numbers; passport, government-issued ID or visa numbers; and credit card numbers or any other sensitive personal data; (g) attempt to probe, scan or test the vulnerability of the Services, breach the security or authentication measures of the Services without proper authorization or willfully render any part of the Services unusable; (h) use or access the Services to develop a product or service that is competitive with the Services or engage in competitive analysis or benchmarking; (i) incorporate the Services into a product or service Customer provides to a third party or publicly disseminate information regarding the performance of the Services; (j) remove any proprietary notices or labels; or (k) store or transmit malicious code through the Services (all of the foregoing, collectively, the “Usage Restrictions”).

2.3 Customer Responsibilities. Customer shall be responsible for: (a) its Users’ compliance with the MSA; (b) compliance with any and all applicable Google or third-party terms of service, privacy policies and similar documents for platforms, networks and/or websites that Customer uses in connection with the Services; (c) the legality, accuracy and quality of Customer Data, including ensuring that Customer’s use of the Services to collect, process, store and transmit Customer Data is compliant with all applicable laws and regulations as well as any and all privacy policies, agreements or other obligations Customer may maintain or enter into with its end users such as all legally required consents and permissions; and (d) use commercially reasonable efforts to prevent the unauthorized access to or use of the Services. 

a. Modifications. In addition, in the event Promevo is legally or contractually required to change or modify the Services in order to ensure the Services comply with the terms of service or privacy policies of various platforms, networks and/or websites, then Customer shall be responsible for making all necessary changes to Customer’s applications and websites in order to continue using the Services. Customer also maintains all responsibility for determining whether the Services or the information generated thereby is accurate or sufficient for Customer’s purposes.

b. HIPAA Disclaimer. Customer further represents and warrants that it shall at all times comply with all applicable laws, including all laws restricting the use, distribution, and disclosure of personal information, and the Privacy and Security Rules regarding the use and disclosure of protected health information (“PHI”) and electronic PHI (“ePHI”), both as defined as defined by 45 C.F.R. 160.103, including the “minimum necessary” standard, when and as required by HIPAA and its implementing regulations. If at any time you believe that any individual is or may be in violation of any law, ordinance, code, or regulation as a result of his or her use of the Service, you shall immediately notify Company of the violation or potential violation.

3. PAYMENT

3.1 Fees. Customer’s use of Services is subject to payment of the fee(s) set forth in the Order Form and/or SOW. Unless otherwise provided in the Order Form and/or SOW, Customer will pay for the Services on a full prepaid basis for the Initial Term and each Renewal Term (both as defined below), to the extent applicable. Fees are due thirty (30) days from the invoice date and are non-refundable, except as otherwise provided in the Product Specific Terms, an Order Form, an SOW, or an invoice. Unless otherwise stated in an Order Form and/or SOW, fees for orders where Promevo issues an invoice are due upon Customer’s receipt of the invoice, and are considered delinquent thirty (30) days after the date of the applicable invoice.

3.2 Payment Method. All payments due under this MSA to Promevo shall be made by the method provided in an Order Form, SOW, or invoice, or as approved by Promevo, as Customer’s chosen payment provider (“Payment Method”). Promevo may charge additional fees to process certain payment methods. All payments due must be made in U.S. dollars unless otherwise stated in an Order Form, SOW, and/or invoice.

3.3 Delinquent Payments. Delinquent payments may 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. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Promevo in collecting delinquent amounts, except where such delinquent amounts are due to Promevo’s billing inaccuracies.

3.4 Taxes. Unless otherwise specific in an Order Form, Customer is responsible for applicable taxes associated with Customer’s purchase and receipt of the Services (except for any taxes assessable against Promevo based on its income, property or employees) and Customer will pay Promevo without any reduction for such amounts. If Promevo is obligated to collect or pay taxes, the taxes will be invoiced to Customer (in the case of invoiced fees) or added to Customer’s credit card charges (in the case of credit card payments where permitted), unless Customer provides Promevo with a valid tax exemption certificate authorized by the appropriate taxing authority. If Customer is required by law to withhold any taxes from its payments to Promevo, Customer will increase the payment to Promevo so that the amount received by Promevo is the same as it would have been if no taxes were withheld.

3.5 Flexible Plan. is the option without a fixed-term commitment. Under this plan, the Customer is Not bound to a predefined service term and is billed monthly based on actual usage.Promevo will bill Customer: (i) Fees based upon Customer’s daily usage of the Services during the preceding month; and (ii) monthly in arrears for its use of the Services. Promevo will provide Customer with the monthly rate for the Services when Customer orders the Services, and will use this rate to calculate the Fees, on a prorated basis, for Customer’s daily usage during that month. Any partial day of Services usages will be rounded up to a full day of Services usage for the purposes of calculating Fees.

3.6 Price Adjustments. Promevo reserves the right in its sole discretion to increase prices listed in any Order Form and/or SOW at the end of the order term for any service or product listed in the Order Form and/or SOW. Promevo shall give Customer thirty (30) days’ notice of any anticipated price adjustment. Accordingly, each price listed on any Order Form and/or SOW will increase and be billed at the new rate during the subsequent Renewal Term, whether or not a new or amended Order Form is signed reflecting this price increase.

3.7 Other Fees. Additional fees may apply for shipping and handling.

3.8 Payment Processing. Promevo utilizes a third-party payment processor (“Payment Processor”) to process any payments made through the Services. The processing of payments will be subject to the terms, conditions, and privacy policies of the Payment Processor in addition to this MSA. Promevo is not responsible for these financial transactions, the security of your financial information with respect to these transactions, and any errors by the Payment Processor. Customer acknowledges and agrees that Promevo is not responsible for any unauthorized charges or other breach of your financial information and/or security. By making payments through the Services, Customer agrees to pay Promevo—through the Payment Processor—all charges at the prices then in effect for any use of such payment processing in accordance with the applicable payment terms and Customer authorizes Promevo, through the Payment Processor, to charge Customer’s Payment Method. Customer agrees to make payment using that selected Payment Method. Promevo reserves the right to correct any errors or mistakes that the Payment Processor makes even if it has already requested or received payment. The terms of Customer’s payment will be based on its Payment Method and may be determined by agreements between it and the financial institution, credit card issuer, or other provider of your chosen Payment Method. If Promevo, through the Payment Processor, does not receive payment from Customer, Customer agrees to pay all amounts due upon demand.

4. TERM AND TERMINATION

4.1 Term. The term of the MSA will begin on the effective date denoted on your Order Form and/or SOW and will continue for an initial period as set forth in the applicable Order Form and/or SOW (such period, the “Initial Term”). At the end of the Initial Term, the Order Form and/or SOW, and the MSA shall automatically be renewed for successive one (1) year periods (each, a “Renewal Term”), unless (i) terminated by either party by providing the other party written notice, in accordance with this MSA, of non-renewal at least sixty (60) days prior to the end of the then-current term; or (ii) an Order Form and/or SOW provides otherwise. All terms and conditions of an Order Form and/or SOW, and the MSA shall apply during each Renewal Term, except for the fees. Promevo may revise its prices for the following Renewal Term as set forth in the MSA. Promevo will invoice Customer, and Customer agrees to pay, for the renewal of the Services as set forth in the Order Form, SOW, or the MSA.

4.2 Termination. Either party may suspend performance or terminate this MSA if: (i) the other party is in material breach of the MSA and fails to cure that breach within thirty (30) days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings, subject to applicable law, and the proceedings are not dismissed within ninety (90) days; or (iii) the other party is in material breach of this MSA on more than two (2) occasions notwithstanding any cure of such breaches. If this MSA terminates, then the rights granted by one party to the other will cease immediately (except as set forth in the separate Google TOS and Promevo gPanel TOS incorporated within the Product Specific Terms).

4.3 SUSPENSION

a. Suspension for Non-Payment. Customer will have thirty (30) days to pay Promevo delinquent Fees.  If Customer does not pay Promevo delinquent Fees within thirty (30) days, Promevo will automatically suspend Customer’s use of the Services until Customer pays Promevo all outstanding Fees. If Customer is on a monthly billing plan, and Customer is suspended for non-payment, Promevo will stop charging Customer monthly Fees during Customer’s suspension for non-payment.  If Customer has an annual commitment to Promevo for the Services, Promevo will continue to charge Customer monthly Fees during Customer’s suspension for non-payment and Customer must pay all outstanding Fees in order to resume its use of the Services. If Customer remains suspended for non-payment for more than sixty (60) days, Promevo may terminate this MSA immediately.

b. Suspension of User Accounts.  If Promevo becomes aware of an end user's violation of the MSA, then Promevo may specifically request that Customer Suspend the applicable end user account. If Customer fails to comply with Promevo's request to suspend a User account, then Promevo may do so. The duration of any suspension by Promevo will be until the applicable User has cured the breach which caused the suspension.

c. Suspension or Discontinuation of Underlying Rights. Customer acknowledges and agrees that Promevo may modify, suspend, or discontinue the Services at any time without penalty, except a pro rate refund of fees paid for services that are never performed, in the event any of the necessary underlying rights of the Services are modified, suspended, or discontinued.

d. Emergency Security Issues.  Notwithstanding the foregoing, if there is an emergency security issue, then Promevo 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 Promevo suspends a User account for any reason without prior notice to Customer, at Customer's request, Promevo will provide Customer the reason for the suspension as soon as is reasonably possible.

5. CONFIDENTIAL INFORMATION

5.1 Definition of Confidential Information. “Confidential Information” means any information or data in any form or medium (whether oral, written, electronic, or otherwise) disclosed by either party that is marked or otherwise designated as confidential or proprietary at the time of disclosure or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding its disclosure.  Confidential Information does not include any information which (a) is in the public domain through no fault of the receiving party; (b) was properly known to the receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to the receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.

5.2 Obligations. Each party agrees that it will use the Confidential Information of the other party solely in accordance with this MSA and it will not disclose, or permit to be disclosed, the same, directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder.  Each party agrees to safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care. However, either party may disclose Confidential Information (a) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with this MSA; and (b) as required by law (in which case the receiving party will, to the extent legally permitted, notify the disclosing party within a reasonable time prior to such access or disclosure so as to  provide the disclosing party with the opportunity to contest such disclosure or otherwise seek appropriate protective measures, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law).  A disclosure by one party of Confidential Information of the other party to the extent required by law shall not be considered a breach of this MSA, provided the party so compelled: (a) promptly provides the other party with prior notice of such compelled disclosure (to the extent legally permitted) (b) where possible, provide disclosing party with the opportunity to challenge the disclosure at the disclosing party’s cost; (c) limit the disclosure to that information legally required to be disclosed; and (d) use commercially reasonable efforts to obtain confidential treatment of all disclosed information. If a party discloses or uses (or threatens to disclose or use) any Confidential Information of the other party in breach of confidentiality protections hereunder, the other party shall have the right, in addition to any other remedies available, to injunctive relief to enjoin such acts, it being acknowledged by the parties that any other available remedies are inadequate. In the event of actual or threatened breach of the provisions of this Section or provisions under Usage Restrictions, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.  Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this MSA. Notwithstanding any other provision in this Agreement, Customer consents to Promevo providing Customer information to Google as required by Google to allow Promevo to provide the Services and/or resale Google products and services to Customer.

6. INTELLECTUAL PROPERTY

6.1 Access. Subject to the terms of the MSA, Promevo hereby grants to Customer, for the term set forth in the applicable Order Form and/or SOW, a non-exclusive, non-sublicensable, non-transferable, non-assignable right to access and use the Services for Customer’s internal business purposes only.

6.2 Reservation of Rights. Promevo retains all right, title, and interest (including, but not limited, to intellectual property rights) in and to the Services, and all improvements, enhancements or modifications to the foregoing, and anything developed and delivered under the MSA, including System Data.  “System Data” means data and information collected, derived, or otherwise generated by the Services that has been anonymized, de-identified, and/or aggregated so as not to identify or permit identification of an individual.  For the avoidance of doubt, Promevo may use, modify, and display System Data, provided, however, Promevo will not publicly disclose or distribute System Data unless it is aggregated in a manner that does not permit the identification of Customer.  No rights are granted to Customer hereunder except as expressly set forth in the MSA.

a. License for Customer Data. Customer shall own all right, title and interest in and to the Customer Data.  Customer hereby grants Promevo a non-exclusive, non-transferable, non-sublicensable, worldwide, royalty-free license to host, copy, use, transfer and process the Customer Data as necessary in order for Promevo to provide the Services and to support Customer under the terms of the MSA.

b. License to Use Feedback. Customer may from time to time provide Promevo with suggestions or comments for enhancements or improvements, new features or functionality or other feedback (collectively, “Feedback”) with respect to the Services.  Promevo will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Customer hereby grants Promevo an unlimited, irrevocable, perpetual, sublicensable, royalty-free license, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback without restriction.

7. PUBLICITY; USE OF TRADEMARKS

7.1 Publicity. At any time during the commercial relationship between the Parties, Promevo shall have the right, but not the obligation, to: (i) publicly announce in any Commercial Materials the existence or content of this MSA as well as non-Confidential Information relating to Authorized Users, such as number of  transactions and similar information; and (ii) use Marks (defined below) in Commercial Materials, in accordance with any guidelines provided by the other Party, with the size, prominence, and location of such credit to be mutually agreed by the Parties. “Commercial Materials” means any advertising, marketing, or promotional content in any media now known or hereafter devised that is related to the products, including without limitation any television, radio, audio-visual, digital, or print advertisements, and social media posts.

7.2 Use of Trademarks. Subject to the provisions of this MSA, Customer (“Trademark Licensor”) hereby grants a limited, non-exclusive, non-transferable, non-sublicensable right and license to the other Party (“Trademark Licensee”) to use the Trademark Licensor’s names, trademarks, trade dress, or trade names (whether registered or not) (“Marks”) during the term of the MSA to the extent reasonably necessary to create Commercial Materials (a) to advertise, market, and sell the Services, and (b) to promote the collaboration between the Parties.   Trademark Licensee may not use any of Trademark Licensor’s Marks in an unfavorable or negative fashion, and Trademark Licensee agrees to strictly comply with any and all brand guidelines that may be provided by Trademark Licensor from time to time. Any and all goodwill arising from Trademark Licensee’s use of the Marks shall inure solely to the benefit of the Trademark Licensor.

8. ARBITRATION

Other than monetary claims under ten thousand dollars ($10,000.00), the parties agree that all other controversies and/or claims arising out of or relating to this MSA shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The parties agree that the arbitrator(s) and not a court or agency shall have exclusive authority to resolve any dispute regarding the formation, interpretation, applicability, enforceability, or implementation of this MSA, including any claim that all or part of this MSA is void or voidable. The arbitrator(s) shall have the power to award all types of relief for the particular type of claim that would be available in an otherwise applicable state or federal court. Claims shall be heard by a single arbitrator, unless the claim amount exceeds two hundred and fifty thousand dollars ($250,000.00), in which case the dispute shall be heard by a panel of three arbitrators. The place of arbitration shall be in the Commonwealth of Kentucky in Boone County, Kentucky, unless otherwise agreed to by the parties. The arbitration shall be governed by the laws of the Commonwealth of Kentucky. Hearings will take place pursuant to the standard procedures of the Commercial Arbitration Rules that contemplate in person hearings. The arbitrator(s) shall award to the prevailing party, if any, as determined by the arbitrator(s), all of the prevailing party’s costs and fees. “Costs and fees” means all reasonable pre-award expenses of the arbitration, including the arbitrators' fees, administrative fees, travel expenses, out-of-pocket expenses such as copying and telephone, court costs, witness fees, and attorneys' fees. The Optional Rules for Emergency Measures of Protection are incorporated by the parties. The standard provisions of the Commercial Arbitration Rules shall apply. The award shall be accompanied by a reasoned opinion. Except as may be required by law, or as may be required in an action to enforce, modify, or vacate the award, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of all parties.

9. INDEMNIFICATION

9.1 By Customer. Customer will indemnify, defend, and hold harmless Promevo and its employees, subsidiaries, affiliates, agents, representatives, distributors, and licensors, from and against any claim, judgment, demand, damages, cost, expenses, and liabilities: (including settlement costs and reasonable attorneys’ fees), including reasonable attorneys’ fees, which may arise from or be related to a claim (“Claim(s)”): (i) regarding Customer Data or Customer domain names; (ii) that Customer Data infringes or misappropriates any patent, copyright, trade secret or trademark of a third party; (iii) regarding Customer‘s, or its Users‘, use of the Services in violation of this MSA; (iv) Customer’s negligence, misconduct, or breach of this MSA; (v) any actions by Customer that result in alleged or actual liability of Promevo and/or (vi) violations of applicable law.

9.2 By Promevo. Promevo will defend and hold Customer harmless against any Claim, demand, suit, or proceeding made or brought against Customer by a third party alleging that the use of the Services, as permitted hereunder, infringes any patent, trademark or copyright and will indemnify Customer for any damages finally awarded against Customer (or any settlement approved in writing by Promevo) in connection with any such Claim. The foregoing obligations do not apply to the extent that the alleged Claim arises from (a) Customer Data, Third-Party Products, or any other portions or components of the Services not supplied by Promevo; (b) any modification, combination, or development of the Services or portions or components thereof that is (i) made in whole or in part in accordance with Customer specifications; or (ii) not performed by Promevo; or (c) Customer’s negligence, misconduct, or breach of this MSA.

9.3 Repair, Replace, or Modify. If Promevo reasonably believes the Services infringes upon a third party's Intellectual Property Rights, then Promevo will: (a) obtain the right for Customer, at Promevo'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.

9.4 Suspension or Termination. If Promevo does not believe the foregoing options are commercially reasonable, then Promevo may suspend or terminate Customer's use of the impacted Services. If Promevo terminates the impacted Services, then Promevo will provide a pro-rata refund of the unearned Fees actually paid by Customer applicable to the period following termination of the Services.

9.5 Indemnification Procedure. Each party’s indemnification obligations are conditioned upon the indemnified party (a) promptly notifying the indemnifying party of any Claim in writing; and (b) cooperating with the indemnifying party in the defense of any Claim.  The indemnified party shall have the right to participate in the defense of any Claim with counsel selected by it subject to the indemnifying party’s right to control the defense thereof. The fees and disbursements of such counsel shall be at the expense of the indemnified party. Notwithstanding any other provision of the MSA, the indemnifying party shall not enter into settlement of any Claim that requires the indemnified party to admit fault or pay amounts that the indemnifying party must pay under this Section, without the prior written consent of the indemnified party, which shall not be unreasonably withheld or delayed. THE INDEMNITIES ABOVE ARE THE SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT FOR VIOLATION OF A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS.

10. DISCLAIMER OF WARRANTIES

PROMEVO DOES NOT WARRANT THAT THE SOFTWARE OR THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE, VIRUS FREE, OR MEET CUSTOMER’S REQUIREMENTS; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SOFTWARE OR THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” AND PROMEVO EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, WORKMANLIKE EFFORT, SUITABILITY, AVAILABILITY, RELIABILITY, COMPLETENESS OR TIMELINESS OF CONTENT, AND OF NON-INFRINGEMENT, AS WELL AS WARRANTIES ARISING THROUGH COURSE OF DEALING, USAGE, OR TRADE. PROMEVO IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO PRICING, TEXT OR ANY OTHER CONTENTS ASSOCIATED WITH THE SERVICES.  NEITHER THE SOFTWARE NOR THE SERVICES ARE DESIGNED OR INTENDED FOR HIGH RISK ACTIVITIES. 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. PROMEVO DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES OR THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES IS ACCURATE OR COMPLETE OR WILL ALWAYS BE AVAILABLE. THE GPANEL SERVICES DURING THE TRIAL PERIOD ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY AND PROMEVO SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR ANY LIABILITY OF ANY WITH RESPECT TO THE SERVICES DURING THE TRIAL PERIOD. YOU SHOULD BE AWARE THAT YOUR USE OF AND RELIANCE ON THE SERVICES DURING THE FREE TRIAL PERIOD IS AT YOUR OWN RISK.

IN ADDITION, CUSTOMER ACKNOWLEDGES THAT PROMEVO DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SOFTWARE OR THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. PROMEVO IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. PROMEVO MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SERVICES, TO THE INFORMATION, CONTENT, MATERIALS OR PRODUCTS ASSOCIATED WITH THE SERVICES, OR TO THE FUNCTIONALITY OF ANY SERVICES ASSOCIATED THEREWITH. PROMEVO FURTHER MAKES NO REPRESENTATIONS OR WARRANTIES THAT COMMUNICATIONS BETWEEN YOU AND PROMEVO, OR ANOTHER USER OF THE SERVICES, WILL BE SECURE FROM INTERFERENCE, VIRUS-FREE, OR FREE OF OTHER HARMFUL COMPONENTS.

THE SERVICES ARE CONTROLLED, OPERATED, AND ADMINISTERED BY PROMEVO FROM ITS OFFICES WITHIN THE UNITED STATES. PROMEVO MAKES NO WARRANTY OR REPRESENTATION THAT MATERIAL AVAILABLE THROUGH THE SERVICES IS LEGAL, APPROPRIATE, OR AVAILABLE FOR USE OUTSIDE THE UNITED STATES. IF YOU ACCESS THE SERVICES FROM A LOCATION OUTSIDE THE UNITED STATES, YOU ARE RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS AND PROMEVO ACCEPTS NO RESPONSIBILITY FOR SUCH ACCESS. ANY OFFER FOR ANY SERVICES OR PRODUCTS MADE IS VOID WHERE PROHIBITED.

11. LIMITATION OF LIABILITY

NEITHER PROMEVO NOR ANY OF PROMEVO’S EMPLOYEES, SUBSIDIARIES, AFFILIATES, AGENTS, REPRESENTATIVES, DISTRIBUTORS, OR LICENSORS WILL BE LIABLE FOR ANY DAMAGES OF ANY KIND, UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTORY OR OTHERWISE), ARISING FROM OR OTHERWISE RELATED TO YOUR USE OF, OR INABILITY TO USE, THE SERVICES OR THE ASSOCIATED SERVICES, INCLUDING BUT NOT LIMITED TO: (1) DEATH, PERSONAL INJURY , PROPERTY DAMAGE, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, LOST DATA ,OR LOST PROFIT; (2) ATTORNEYS’ FEES; OR (3) ANY OTHER INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, EVEN IF PROMEVO HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.  

WITHOUT LIMITING THE FOREGOING, PROMEVO WILL NOT BE LIABLE FOR ANY DAMAGE TO YOUR COMPUTER, TELECOMMUNICATION EQUIPMENT, OR OTHER PROPERTY CAUSED BY OR ARISING FROM YOUR ACCESSING OR USE OF, OR INABILITY TO USE, THE SERVICES, OR FROM YOUR DOWNLOADING OF ANY CONTENT OR MATERIALS FROM THE SERVICES, OR FOR ANY DAMAGES ARISING OUT OF A THIRD PARTY’S UNAUTHORIZED ACCESS TO AND USE OF YOUR PERSONAL INFORMATION STORED ON PROMEVO’S COMPUTERS AND/OR SERVERS. PROMEVO WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND THAT YOU ALLEGE ARISE OUT OF OR ARE RELATED TO YOUR USE OF PROMEVO’S SITE AND ASSOCIATED SERVICES.

IN NO EVENT SHALL THE AGGREGATE LIABILITY OF PROMEVO, OR ITS PARENT, EMPLOYEES, SUBSIDIARIES, AFFILIATES, AGENTS, REPRESENTATIVES, DISTRIBUTORS, OR LICENSORS—WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY, OR OTHER THEORY—ARISING OUT OF OR RELATING TO THE USE OF THE SERVICES EXCEED THE TOTAL AMOUNT YOU PAID TO PROMEVO TO ACCESS THE SERVICES WITHIN THE PRECEDING TWELVE (12) MONTHS. UNLESS UNENFORCEABLE UNDER APPLICABLE LAW, PROMEVO’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE SERVICES DURING THE FREE TRIAL PERIOD IS $100.

CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATION MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THIS IS THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT FOR THE FREE TRIAL PERIOD.

CUSTOMER AGREES AND UNDERSTANDS, TO THE FULLEST EXTENT PERMITTED BY LAW AND THIS AGREEMENT, (A) GOOGLE IS NOT LIABLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR OTHERWISE, ARISING FROM PROMEVO’S RESALE AND/OR SUPPLY OF THE SERVICES TO THE CUSTOMER: (B) GOOGLE DISCLAIMS LIABILITY FOR ALL WARRANTIES WITH RESPECT TO THE SERVICES, INCLUDING WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, REASONABLE SKILL AND CARE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; and (C) ANY SERVICE LEVEL AGREEMENT IN EFFECT SETS OUT THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE BY GOOGLE TO MEET THE SERVICE LEVEL AGREEMENT AND CUSTOMER AGREES TO REQUEST ANY SUCH REMEDIES DIRECTLY FROM PROMEVO.  

12. GENERAL PROVISIONS

12.1 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 list on an Order Form and/or SOW 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.

12.2 Independent Contractors. The parties to the MSA are independent contractors and the MSA does not create an agency, partnership, joint venture, employment, franchise, or agency relationship. Neither party has the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

12.3 Assignment. Neither party may assign or transfer (directly or indirectly by any means, including by operation of law or otherwise) this MSA or their rights or obligations hereunder to any other entity without first obtaining the prior written consent of the other party, not to be unreasonably withheld, conditioned, or delayed; provided that either party may assign obligations under this MSA, without consent, to an acquirer of all or substantially all of its business or assets (“Change of Control”). Upon a Change Of Control (for example, through a stock purchase or sale, merger, or other form of corporate transaction): (a) Customer will provide written notice to Promevo within thirty (30) days after the change of control; and (b) the parties agree and acknowledge that the change of control shall not be an independent basis for terminating this agreement. Any assignment or transfer in violation of this Section shall be null and void.

12.4 Force Majeure. Except for Customer’s payment obligations, neither party will be liable to the other for any delay or failure to perform any obligation under this MSA  if the delay or failure is due to: (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the Effective Date; (f) action by any governmental authority; (g) governmental health restrictions or advisories; (h) disease, epidemics or pandemics; (i) national or regional emergency; (j) strikes, labor stoppages or slowdowns or other industrial disturbances; (k) shortage of adequate power or transportation facilities; and (l) any other similar events or circumstances.

12.5 No Waiver. Failure to enforce any provision of this MSA will not constitute a waiver.

12.6 Severability. If any provision of this MSA is found unenforceable, the balance of the MSA will remain in full force and effect.

12.7 No Agency. Promevo, Customer and Google are independent contractors, and this MSA does not create an agency, partnership or joint venture for any purpose.

12.8 No Third-Party Beneficiaries. There are no third-party beneficiaries to this MSA.

12.9 Equitable Relief. Nothing in this MSA will limit either party’s ability to seek equitable relief.

Google Cloud Platform.  To the extent applicable, Promevo is technically able to Suspend the Customer’s Google Cloud Platform account and may have the ability to access the Customer’s Google Cloud Platform account, but Promevo will Suspend the Customer’s Services and access such account(s) only in accordance with the Party’s agreements and (B) Google will have no liability arising out of Promevo’s Suspension of the Customer’s Services or access to such account(s).

Billing Account Metadata.  Promevo has the ability to view the Customer’s billing account metadata, but Promevo will access such metadata only in accordance with the Party’s agreements.

Google TOS.  If the Customer or Google brings a claim under the Google TOS: (A) neither the Customer nor Promevo will object to the Customer or Promevo disclosing to Google the amount of any fees paid and payable by the Customer under the Customer Agreement for the Services provided by Google; and (B) the Customer and Promevo agree to waive any claims that the disclosure of such fees is a breach of Promevo’s or the  Customer’s confidentiality obligations.

12.10 Governing Law.

a. For U.S. City, County, and State Government Entities. If Customer is a U.S. city, county, or state government entity, then the MSA will be silent regarding governing law and venue.

b. For U.S. Federal Government Entities. If Customer is a U.S. federal government entity, then the following applies: ALL CLAIMS ARISING OUT OF OR RELATING TO THE MSA OR THE SERVICES WILL BE GOVERNED BY THE LAWS OF THE UNITED STATES OF AMERICA, EXCLUDING ITS CONFLICT OF LAWS RULES. SOLELY TO THE EXTENT PERMITTED BY FEDERAL LAW, (I) THE LAWS OF THE COMMONWEALTH OF KENTUCKY (EXCLUDING KENTUCKY'S CONFLICT OF LAWS RULES) WILL APPLY IN THE ABSENCE OF APPLICABLE FEDERAL LAW; AND (II) FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE MSA OR THE SERVICES, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN JEFFERSON COUNTY, KENTUCKY.

c. For All Other Entities. If Customer is any entity not stated in Section 12.10(b)(i) or 12.10(b)(ii) then the following applies: ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING TO THE MSA OR THE SERVICES NOT SUBJECT TO ARBITRATION WILL BE GOVERNED BY KENTUCKY LAW, EXCLUDING THAT STATE'S CONFLICT OF LAWS RULES, AND WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF JEFFERSON COUNTY, KENTUCKY, USA; THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THOSE COURTS.

12.11 Attorneys’ Fees and Costs. The prevailing party in any arbitration and/or litigation arising from this MSA shall be entitled to recover its reasonable attorneys’ fees and costs.

12.12 Survival. The provisions of the MSA that by their sense and context are intended to survive the performance of the MSA by either Party shall survive the termination of the MSA, including provisions relating to disclaimer of warranties, arbitration, licensing, ownership, confidentiality, damage limitations, venue, jurisdiction, and indemnification.

12.13 Amendments. Any amendment must be in writing, signed by both parties, and expressly state that it is amending this MSA.

12.14 Entire Agreement. The MSA and all documents referenced herein, is the parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject. The terms located at a URL and referenced in this MSA are hereby incorporated by this reference.

12.15 Interpretation of Conflicting Terms. If there is a conflict between the MSA, the Order Form, SOW, and any other terms and documents referenced in this MSA, the documents will control in the following order: (1) Order Form; (2) SOW, (3) the MSA, and (4) any other terms and documents referenced in this MSA.

12.16 Counterparts. The parties may enter into this MSA in counterparts, including facsimile, PDF or other electronic copies, which taken together will constitute one instrument.

12.17 Change of Terms. Notwithstanding Section 12.13 (Amendments), Promevo may modify the terms and conditions of this MSA and the Product Specific Terms from time to time, including service descriptions, pricing, and availability, with notice to you in accordance with this MSA or by posting the modified terms on the Promevo website. Unless otherwise specified by Promevo, changes become effective for Customer upon renewal of the then-current Order Form and/or SOW or entry into a new Order Form and/or SOW after the updated version of this MSA goes into effect.  Customer’s continued use of the Services after the updated version of this MSA goes into effect will constitute Customer’s acceptance of such updated version of this MSA.