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Google Apps (es) - Acuerdo for Business 15-nov-2018 | 99,72%
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0 G Suite (Online) Agreement G Suite (Online) Agreement
1 Go to the Additional Terms for services made available with the new accounts infrastructure*The terms below are for monthly postpay billing. Please click here to see the terms for annual prepay customers. Go to the Additional Terms for services made available with the new accounts infrastructure
2 This G Suite (Online) Agreement (the “Agreement”) is entered into by and between Google Inc., a Delaware corporation, with offices at 1600 Amphitheatre Parkway, Mountain View, California 94043 (“Google”) and the entity agreeing to these terms (“Customer”). This Agreement is effective as of the date you click the “I Accept” button below or, if applicable, the date the Agreement is countersigned (the “Effective Date”). If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to these terms and conditions; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of the party that you represent, to this Agreement. If you don’'t have the legal authority to bind your employer or the applicable entity, please do not click the “I Accept” button below (or, if applicable, do not sign this Agreement). This Agreement governs Customer’'s access to and use of the Services.
3 1. Services
4 1.1 Facilities and Data Transfer.
5 All facilities used to store and process Customer Data will adhere to reasonable security standards no less protective than the security standards at facilities where Google stores and processes its own information of a similar type. Google has implemented at least industry standard systems and procedures to ensure the security and confidentiality of Customer Data, protect against anticipated threats or hazards to the security or integrity of Customer Data and protect against unauthorized access to or use of Customer Data. As part of providing the Services Google may transfer store and process Customer Data in the United States or any other country in which Google or its agents maintain facilities. By using the Services Customer consents to this transfer, processing and storage of Customer Data.
6 1.2 Modifications
7 a.
8 To the Services.
9 Google may make commercially reasonable changes to the Services from time to time. If Google makes a material change to the Services Google will inform Customer, provided that Customer has subscribed with Google to be informed about such change.
10 b. To URL Terms. Google may make commercially reasonable changes to the URL Terms from time to time. If Google makes a material change to the URL Terms, Google will inform Customer by either sending an email to the Notification Email Address or alerting Customer via the Admin Console. If the change has a material adverse impact on Customer, and Customer does not agree to the change, Customer must so notify Google via the Help Center within thirty days after receiving notice of the change. If Customer notifies Google as required, then Customer will remain governed by the terms in effect immediately prior to the change until the end of the then-current Services Term for the affected Services. If the affected Services are renewed, they will be renewed under Google's then current URL Terms.
11 1.3 Customer Domain Name Ownership.
12 Prior to providing the Services Google may verify that Customer owns or controls the Customer Domain Names. If Customer does not own or control the Customer Domain Names, then Google will have no obligation to provide Customer with the Services.
13 1.4 Ads.
14 The default setting for the Services is one that does not allow Google to serve Ads. Customer may change this setting in the Admin Console which constitutes Customer's authorization for Google to serve Ads. If Customer enables the serving of Ads it may revert to the default setting at any time and Google will cease serving Ads.
15 1.5 Google Vault.
16 If Customer purchases Google Vault, the following additional terms apply:
17 a.
18 Retention.
19 Google will have no obligation to retain any archived Customer Data beyond the retention period specified by Customer (other than for any legal holds). If Customer does not renew Google Vault, Google will have no obligation to retain any archived Customer Data.
20 b. Additional Purchases. Unless Google allows otherwise, with each additional purchase of End User Accounts for the Services after Customer has purchased Google Vault, Customer will receive access to, and will be invoiced for, Google Vault for that same number of End User Accounts.
21 2. Customer Obligations.
22 2.1 Compliance.
23 Customer will use the Services in accordance with the Acceptable Use Policy. Google may make new applications features or functionality for the Services available from time to time the use of which may be contingent upon Customer's agreement to additional terms. In addition, Google will make other Non-G Suite Products (beyond the Services) available to Customer and its End Users in accordance with the Non-G Suite Product Terms and the applicable product-specific Google terms of service. If Customer does not desire to enable any of the Non-G Suite Products, Customer can enable or disable them at any time through the Admin Console.
24 2.2 Aliases.
25 Customer is solely responsible for monitoring responding to and otherwise processing emails sent to the “abuse” and “postmaster” aliases for Customer Domain Names but Google may monitor emails sent to these aliases for Customer Domain Names to allow Google to identify Services abuse.
26 2.3 Customer Administration of the Services.
27 Customer may specify one or more Administrators through the Admin Console who will have the rights to access Admin Account(s) and to administer the End User Accounts. Customer is responsible for: (a) maintaining the confidentiality of the password and Admin Account(s); (b) designating those individuals who are authorized to access the Admin Account(s); and (c) ensuring that all activities that occur in connection with the Admin Account(s) comply with the Agreement. Customer agrees that Google's responsibilities do not extend to the internal management or administration of the Services for Customer and that Google is merely a data-processor.
28 2.4 End User Consent.
29 Customer's Administrators may have the ability to access, monitor, use, or disclose data available to End Users within the End User Accounts. Customer will obtain and maintain all required consents from End Users to allow: (i) Customer's access, monitoring, use and disclosure of this data and Google providing Customer with the ability to do so and (ii) Google to provide the Services.
30 2.5 Unauthorized Use.
31 Customer will use commercially reasonable efforts to prevent unauthorized use of the Services' and to terminate any unauthorized use. Customer will promptly notify Google of any unauthorized use of, or access to, the Services of which it becomes aware.
32 2.6 Restrictions on Use.
33 Unless Google specifically agrees in writing' Customer will not, and will use commercially reasonable efforts to make sure a third party does not: (a) sell, resell, lease or the functional equivalent, the Services to a third party (unless expressly authorized in this Agreement); (b) attempt to reverse engineer the Services or any component; (c) attempt to create a substitute or similar service through use of, or access to, the Services; (d) use the Services for High Risk Activities; or (e) use the Services to store or transfer any Customer Data that is controlled for export under Export Control Laws. Customer is solely responsible for any applicable compliance with HIPAA.
34 2.7 Third Party Requests.
35 Customer is responsible for responding to Third Party Requests. Google will, to the extent allowed by law and by the terms of the Third Party Request: (a) promptly notify Customer of its receipt of a Third Party Request; (b) comply with Customer's reasonable requests regarding its efforts to oppose a Third Party Request; and (c) provide Customer with the information or tools required for Customer to respond to the Third Party Request. Customer will first seek to obtain the information required to respond to the Third Party Request on its own, and will contact Google only if it cannot reasonably obtain such information.
36 3. Billing and Payment.
37 3.1 BillingCustomer may elect one of the following billing options when placing its order for the Services.
38 a.
39 Flexible Plan.
40 If Customer selects this option, Customer will not be committed to purchase the Services for a pre-defined term, but will pay for the Services on a monthly basis. Google 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. Google 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. Customer may pay for the Services using the payment options listed below.
41 b.
42 Annual Plan
43 If Customer selects this option, Customer will be committed to purchasing the Services from Google for an annual term, and in exchange will receive a discount on the Services which will be reflected in Customer’s monthly payment. Google will still bill Customer monthly in arrears for its use of the Services when Customer has an annual commitment for the Services with Google. Customer may pay for the Services using the payment options listed below.
44 3.2 Payment. All payments due are in U.S. dollars unless otherwise indicated on the Order Page or invoice.
45 a.
46 Credit Card or Debit Card.
47 Fees for orders where Customer is paying with a credit card, debit card or other non-invoice form of payment, are due at the end of the month during which Customer received the Services. For credit cards, or debit cards, as applicable: (i) Google will charge Customer for all applicable Fees when due and (ii) these Fees are considered delinquent thirty days after the end of the month during which Customer received the Services.
48 b.
49 Invoices.
50 Payments for invoices are due thirty days after the invoice date, unless otherwise specified on the Order Page, and are considered delinquent after such date.
51 c.
52 Other Forms of Payment.
53 Customer may change its payment method to those available within the Admin Console. Google may enable other forms of payment by making them available in the Admin Console. These other forms of payment may be subject to additional terms which Customer may have to accept prior using the additional forms of payment.
54 3.3 Delinquent Payments
55 Delinquent payments may bear interest at the rate of one-and-one-half percent 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 Google in collecting such delinquent amounts, except where such delinquent amounts are due to Google's billing inaccuracies.
56 3.4 Suspension for Non-Payment.
57 a.
58 Automatic Suspension.
59 Customer will have thirty days to pay Google delinquent Fees. If Customer does not pay Google delinquent Fees within thirty days, Google will automatically suspend Customer’s use of the Services. The duration of this suspension will be until Customer pays Google all outstanding Fees.
60 b.
61 During Suspension.
62 If Customer is on a monthly billing plan, and Customer is suspended for non-payment, Google will stop charging Customer monthly Fees during Customer’s suspension for non-payment. If Customer has an annual commitment to Google for the Services, Google 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.
63 c.
64 Termination After Suspension.
65 If Customer remains suspended for non-payment for more than sixty days, Google may terminate Customer for breach pursuant to Section 11.
66 3.5 Taxes.
67 Customer is responsible for any Taxes, and Customer will pay Google for the Services without any reduction for Taxes. If Google is obligated to collect or pay Taxes, the Taxes will be invoiced to Customer, unless Customer provides Google 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 Google, Customer must provide Google with an official tax receipt or other appropriate documentation to support such payments.
68 3.6 Purchase Orders.
69 If Customer requires a purchase order number on its invoice, Customer will inform Google and Google will include such purchase order number on invoices following receipt. If Customer does not provide a purchase order number, Customer waives any purchase order requirement and (a) Google will invoice Customer without a purchase order number; and (b) Customer agrees to pay invoices without a purchase order number referenced. Any terms and conditions on a purchase order do not apply to this Agreement and are null and void.
70 4. Technical Support Services.
71 4.1 By Customer.
72 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 Services. Customer will use commercially reasonable efforts to resolve support issues before escalating them to Google.
73 4.2 By Google.
74 If Customer cannot resolve a support issue consistent with the above, then Customer may escalate the issue to Google in accordance with the TSS Guidelines. Google will provide TSS to Customer in accordance with the TSS Guidelines.
75 5. Suspension
76 5.1 Of End User Accounts by Google.
77 If Google becomes aware of an End User's violation of the Agreement, then Google may specifically request that Customer Suspend the applicable End User Account. If Customer fails to comply with Google's request to Suspend an End User Account, then Google may do so. The duration of any Suspension by Google will be until the applicable End User has cured the breach which caused the Suspension.
78 5.2 Emergency Security Issues.
79 Notwithstanding the foregoing, if there is an Emergency Security Issue, then Google may automatically Suspend the offending use. Suspension will be to the minimum extent and of the minimum duration required to prevent or terminate the Emergency Security Issue. If Google Suspends an End User Account for any reason without prior notice to Customer, at Customer's request, Google will provide Customer the reason for the Suspension as soon as is reasonably possible.
80 6. Confidential Information.
81 6.1 Obligations.
82 Each party will: (a) protect the other party's Confidential Information with the same standard of care it uses to protect its own Confidential Information; and (b) not disclose the Confidential Information, except to Affiliates, employees and agents who need to know it and who have agreed in writing to keep it confidential. Each party (and any Affiliates' employees and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfill its obligations under this Agreement, while using reasonable care to protect it. Each party is responsible for any actions of its Affiliates' employees and agents in violation of this Section.
83 6.2 Exceptions.
84 Confidential Information does not include information that: (a) the recipient of the Confidential Information already knew; (b) becomes public through no fault of the recipient; (c) was independently developed by the recipient; or (d) was rightfully given to the recipient by another party.
85 6.3 Required Disclosure.
86 Each party may disclose the other party's Confidential Information when required by law but only after it, if legally permissible: (a) uses commercially reasonable efforts to notify the other party; and (b) gives the other party the chance to challenge the disclosure.
87 7. Intellectual Property Rights; Brand Features.
88 7.1 Intellectual Property Rights.
89 Except as expressly set forth herein, this Agreement does not grant either party any rights, implied or otherwise, to the other's content or any of the other's intellectual property. As between the parties, Customer owns all Intellectual Property Rights in Customer Data, and Google owns all Intellectual Property Rights in the Services.
90 7.2 Display of Brand Features.
91 Google may display those Customer Brand Features authorized by Customer (such authorization is provided by Customer uploading its Brand Features into the Services) within designated areas of the Service Pages. Customer may specify the nature of this use using the Admin Console. Google may also display Google Brand Features on the Service Pages to indicate that the Services are provided by Google. Neither party may display or use the other party’s Brand Features beyond what is allowed in this Agreement without the other party’s prior written consent.
92 7.3 Brand Features Limitation.
93 Any use of a party's Brand Features will inure to the benefit of the party holding Intellectual Property Rights in those Brand Features. A party may revoke the other party's right to use its Brand Features pursuant to this Agreement with written notice to the other and a reasonable period to stop the use.
94 8. Publicity.
95 Customer agrees that Google may include Customer's name or Brand Features in a list of Google customers, online or in promotional materials. Customer also agrees that Google may verbally reference Customer as a customer of the Google products or services that are the subject of this Agreement. This section is subject to Section 7.3 (Brand Features Limitation).
96 9. Representations, Warranties and Disclaimers.
97 9.1 Representations and Warranties.
98 Each party represents that it has full power and authority to enter into the Agreement. Each party warrants that it will comply with all laws and regulations applicable to its provision, or use, of the Services, as applicable (including applicable security breach notification law). Google warrants that it will provide the Services in accordance with the applicable SLA.
99 9.2 Disclaimers.
100 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, NEITHER PARTY MAKES ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT. GOOGLE MAKES NO REPRESENTATIONS ABOUT ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY OR THROUGH THE SERVICES. CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE NOT A TELEPHONY SERVICE AND THAT THE SERVICES ARE NOT CAPABLE OF PLACING OR RECEIVING ANY CALLS, INCLUDING EMERGENCY SERVICES CALLS, OVER PUBLICLY SWITCHED TELEPHONE NETWORKS.
101 10. Term
102 10.1 Agreement Term.
103 This Agreement will remain in effect for the Term.
104 10.2 Services Term and Purchases During Services Term.
105 Google will provide the Services to Customer during the Services Term. Unless the parties agree otherwise in writing, End User Accounts purchased during any Services Term will have a prorated term ending on the last day of that Services Term.
106 10.3 Renewal.
107 a.
108 With a Flexible Plan.
109 With a flexible plan Customer is not committed to purchase the Services for a pre-defined term, but pays for the Services on a monthly basis. As a result, there is no renewal event for the flexible plan. Rather, Google will simply continuing billing Customer Fees based upon Customer’s daily usage of the Services during the preceding month, and Customer can cancel their service at any time.
110 b.
111 With an Annual Plan.
112 At the end of each Services Term, the Services (and all End User Accounts previously purchased) will automatically renew for an additional monthly Services Term. In addition, after Customer’s initial annual commitment has concluded, Customer’s annual commitment will switch to the Flexible Plan. If Customer wants to renew the Annual Plan, then Customer must change the renewal settings in the Admin Console to reflect this change before their annual commitment has ended.
113 c.
114 Generally.
115 Customer may alter the number of End User Accounts to be renewed by communicating the appropriate number of accounts to be renewed to Google via the Admin Console. Customer will continue to pay Google the then-current Fees for each renewed End User Account unless Customer and Google mutually agree otherwise. If Google does not want the Services to renew, then it will provide Customer written notice to this effect at least fifteen days prior to the end of the then current Services Term. This notice of non renewal will be effective upon the conclusion of the then current Services Term.
116 10.4 Requesting End User Accounts.
117 Customer may request End User Accounts by: (i) notifying its designated Google Account Manager; or (ii) ordering End User Accounts via the Admin Console.
118 10.5 Revising Rates.
119 Google may revise its rates for the following Services Term by providing Customer written notice (which may be by email) at least thirty days prior to the start of the following Services Term.
120 11. Termination.
121 11.1 Termination for Breach.
122 Either party may suspend performance or terminate this Agreement if: (i) the other party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; or (iii) the other party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches.
123 11.2 Effects of Termination.
124 If this Agreement terminates, then: (i) the rights granted by one party to the other will cease immediately (except as set forth in this Section); (ii) Google will provide Customer access to, and the ability to export, the Customer Data for a commercially reasonable period of time at Google’s then-current rates for the applicable Services; (iii) after a commercially reasonable period of time, Google will delete Customer Data by removing pointers to it on Google’s active servers and overwriting it over time; and (iv) upon request each party will promptly use commercially reasonable efforts to return or destroy all other Confidential Information of the other party. If a Customer on an annual plan terminates the Agreement prior to the conclusion of its annual plan, Google will bill Customer, and Customer is responsible for paying Google, for the remaining unpaid amount of Customer’s annual commitment.
125 12. Indemnification.
126 12.1 By Customer.
127 Customer will indemnify, defend, and hold harmless Google from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys' fees) arising out of a third party claim: (i) regarding Customer Data or Customer Domain Names; (ii) that Customer Brand Features infringe or misappropriate any patent, copyright, trade secret or trademark of a third party; or (iii) regarding Customer's use of the Services in violation of the Acceptable Use Policy.
128 12.2 By Google.
129 Google will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys' fees) arising out of a third party claim that Google's technology used to provide the Services or any Google Brand Feature infringe or misappropriate any patent, copyright, trade secret or trademark of such third party. Notwithstanding the foregoing, in no event shall Google have any obligations or liability under this Section arising from: (i) use of any Services or Google Brand Features in a modified form or in combination with materials not furnished by Google, and (ii) any content, information or data provided by Customer, End Users or other third parties.
130 12.3 Possible Infringement.
131 a.
132 Repair, Replace, or Modify.
133 If Google reasonably believes the Services infringe a third party's Intellectual Property Rights, then Google will: (a) obtain the right for Customer, at Google's expense, to continue using the Services; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the Services so that they no longer infringe.
134 b.
135 Suspension or Termination.
136 If Google does not believe the foregoing options are commercially reasonable, then Google may suspend or terminate Customer's use of the impacted Services. If Google terminates the impacted Services, then Google will provide a pro-rata refund of the unearned Fees actually paid by Customer applicable to the period following termination of such Services.
137 12.4 General.
138 The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party has full control and authority over the defense, except that: (a) any settlement requiring the party seeking indemnification to admit liability or to pay any money will require that party's prior written consent, such consent not to be unreasonably withheld or delayed; and (b) the other party may join in the defense with its own counsel at its own expense. THE INDEMNITIES ABOVE ARE A PARTY'S ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS.
139 13. Limitation of Liability.
140 13.1 Limitation on Indirect Liability.
141 NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
142 13.2 Limitation on Amount of Liability.
143 NEITHER PARTY MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID BY CUSTOMER TO GOOGLE HEREUNDER DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
144 13.3 Exceptions to Limitations.
145 These limitations of liability apply to the fullest extent permitted by applicable law but do not apply to violations of a party's Intellectual Property Rights by the other party or indemnification obligations.
146 14. Miscellaneous.
147 14.1 Notices.
148 Unless specified otherwise herein, (a) all notices must be in writing and addressed to the attention of the other party's legal department and primary point of contact and (b) notice will be deemed given: (i) when verified by written receipt if sent by personal courier, overnight courier, or when received if sent by mail without verification of receipt; or (ii) when verified by automated receipt or electronic logs if sent by facsimile or email.
149 14.2 Assignment.
150 Neither party may assign or transfer any part of this Agreement without the written consent of the other party, except to an Affiliate, but only if: (a) the assignee agrees in writing to be bound by the terms of this Agreement; and (b) the assigning party remains liable for obligations incurred under the Agreement prior to the assignment. Any other attempt to transfer or assign is void.
151 14.3 Change of Control.
152 Upon a change of control (for example, through a stock purchase or sale, merger, or other form of corporate transaction): (a) the party experiencing the change of control will provide written notice to the other party within thirty days after the change of control; and (b) the other party may immediately terminate this Agreement any time between the change of control and thirty days after it receives the written notice in subsection (a).
153 14.4 Force Majeure.
154 Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party's reasonable control.
155 14.5 No Waiver.
156 Failure to enforce any provision of this Agreement will not constitute a waiver.
157 14.6 Severability.
158 If any provision of this Agreement is found unenforceable, the balance of the Agreement will remain in full force and effect.
159 14.7 No Agency.
160 The parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture.
161 14.8 No Third-Party Beneficiaries.
162 There are no third-party beneficiaries to this Agreement.
163 14.9 Equitable Relief.
164 Nothing in this Agreement will limit either party's ability to seek equitable relief.
165 14.10 Governing Law.
166 This Agreement is governed by California law, excluding that state's choice of law rules. FOR ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN SANTA CLARA COUNTY, CALIFORNIA.
167 14.11 Amendments.
168 Any amendment must be in writing and expressly state that it is amending this Agreement.
169 14.12 Survival.
170 The following sections will survive expiration or termination of this Agreement: Section 3, 6, 7.1, 11.2, 12, 13, 14, and 15.
171 14.13 Entire Agreement.
172 This Agreement, and all documents referenced herein, is the parties' entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject. The terms located at a URL and referenced in this Agreement are hereby incorporated by this reference.
173 14.14 Interpretation of Conflicting Terms.
174 If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Order Page, the Agreement, and the terms located at any URL. If Customer signs a physical agreement with Google to receive the Services, the physical agreement will override this online Agreement.
175 14.15 Counterparts.
176 The parties may enter into this Agreement in counterparts, including facsimile, PDF or other electronic copies, which taken together will constitute one instrument.
177 15. Definitions.
178 "Acceptable Use Policy"
179 means the acceptable use policy for the Services available at https://www.google.com/a/help/intl/en/admins/use_policy.html or such other URL as Google may provide.
180 "Account Manager"
181 means the Google business person working with Customer regarding Customer's purchase of the Services.
182 "Admin Account(s)"
183 means the administrative account(s) provided to Customer by Google for the purpose of administering the Services. The use of the Admin Account(s) requires a password, which Google will provide to Customer.
184 "Admin Console"
185 means the online tool provided by Google to Customer for use in reporting and certain other administration functions.
186 "Administrators"
187 mean the Customer-designated technical personnel who administer the Services to End Users on Customer's behalf.
188 "Ads"
189 means online advertisements displayed by Google to End Users.
190 "Affiliate"
191 means any entity that directly or indirectly controls, is controlled by, or is under common control with a party.
192 "Brand Features"
193 means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.
194 "Confidential Information"
195 means information disclosed by a party to the other party under this Agreement that is marked as confidential or would normally be considered confidential under the circumstances. Customer Data is Customer's Confidential Information.
196 "Customer Data"
197 means data, including email, provided, generated, transmitted or displayed via the Services by Customer or End Users.
198 "Customer Domain Names"
199 mean the domain names owned or controlled by Customer, which will be used in connection with the Services and specified in the Order Page.
200 "Emergency Security Issue"
201 means either: (a) Customer's use of the Services in violation of the Acceptable Use Policy, which could disrupt: (i) the Services; (ii) other customer's use of the Services; or (iii) the Google network or servers used to provide the Services; or (b) unauthorized third party access to the Services.
202 "End Users"
203 means the individuals Customer permits to use the Services.
204 "End User Account"
205 means a Google-hosted account established by Customer through the Services for an End User.
206 "Export Control Laws"
207 means all applicable export and reexport control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department's Office of Foreign Assets Control, and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State.
208 "Fees"
209 means the amounts invoiced to Customer by Google for the Services as described in an Order Page.
210 "Help Center"
211 means the Google help center accessible at https://www.google.com/support/ , or other such URL as Google may provide.
212 "High Risk Activities"
213 means uses such as the operation of nuclear facilities, air traffic control, or life support systems, where the use or failure of the Services could lead to death, personal injury, or environmental damage.
214 "HIPAA"
215 means the Health Insurance Portability and Accountability Act of 1996, as may be amended from time to time, and any regulations issued thereunder.
216 "Initial Services Term"
217 means the term for the applicable Services beginning on the Service Commencement Date and continuing for the duration set forth on the Order Page.
218 "Intellectual Property Rights"
219 means current and future worldwide rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and other similar rights.
220 "Non-G Suite Products"
221 means Google products which are not part of the Services, but which may be accessed by End Users using their End User Account login and password. The Non-G Suite Products are set forth at the following URL: https://www.google.com/support/a/bin/answer.py?hl=en&answer=181865 , or such other URL as Google may provide.
222 "Non-G Suite Product Terms"
223 means the terms found at the following URL: https://www.google.com/apps/intl/en/terms/additional_services.html , or such other URL as Google may provide.
224 "Notification Email Address"
225 means the email address designated by Customer to receive email notifications from Google. Customer may change this email address through the Admin Console.
226 "Order Page"
227 means the online order page Customer completes in signing up for the Services or attached to this Agreement, and which contains: (i) the Services being ordered; (ii) Fees; (iii) number of, and Initial Services Term for, End User Accounts; (iv) the applicable form of payment; and (v) Customer Domain Names.
228 "Service Commencement Date"
229 is the date upon which Google makes the Services available to Customer, and will be within one week of Google's receipt of the completed Order Page, unless otherwise agreed by the parties.
230 "Service Pages"
231 mean the web pages displaying the Services to End Users.
232 "Services"
233 means the applicable G Suite Core Services (e.g. G Suite Premier Edition or G Suite and Google Vault) provided by Google and used by Customer under this Agreement. The Services are as described here: https://www.google.com/apps/intl/en/terms/user_features.html , or such other URL as Google may provide.
234 "Services Term"
235 means the Initial Services Term and all renewal terms for the applicable Services.
236 "SLA"
237 means the Service Level Agreement located here: https://www.google.com/a/help/intl/en/admins/sla.html , or such other URL as Google may provide.
238 "Suspend"
239 means the immediate disabling of access to the Services, or components of the Services, as applicable, to prevent further use of the Services.
240 "Taxes"
241 means any duties, customs fees, or taxes (other than Google's income tax) associated with the sale of the Services, including any related penalties or interest.
242 "Term"
243 means the term of the Agreement, which will begin on the Effective Date and continue until the earlier of (i) the end of the last Services Term or (ii) the Agreement is terminated as set forth herein.
244 "Third Party Request"
245 means a request from a third party for records relating to an End User's use of the Services. Third Party Requests can be a lawful search warrant, court order, subpoena, other valid legal order, or written consent from the End User permitting the disclosure.
246 "TSS"
247 means the technical support services provided by Google to the Administrators during the Term pursuant to the TSS Guidelines.
248 "TSS Guidelines"
249 means Google's technical support services guidelines then in effect for the Services. TSS Guidelines are at the following URL: https://www.google.com/a/help/intl/en/admins/tssg.html or such other URL as Google may provide.
250 "URL Terms"
251 means the "Acceptable Use Policy," the "SLA," and the "TSS Guidelines."
252 Version: March 28, 2012 This G Suite (Online) Agreement (the “Agreement”) is entered into by and between Google LLC, with offices at 1600 Amphitheatre Parkway Mountain View, California 94043 (“Google”) and the entity agreeing to these terms (“Customer”). This Agreement is effective as of the date you click the “I Accept” button below or, if applicable, the date the Agreement is countersigned (the “Effective Date”). If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or the applicable entity to these terms and conditions; (ii) you have read and understand this Agreement; and (iii) you agree on behalf of the party that you represent to this Agreement. If you don't have the legal authority to bind your employer or the applicable entity please do not click the “I Accept” button below (or, if applicable, do not sign this Agreement). This Agreement governs Customer's access to and use of the Services as ordered in the applicable Order Form.
253 1. Services.
254 1.1 Facilities and Data Transfer. All facilities used to store and process Customer Data will adhere to reasonable security standards no less protective than the security standards at facilities where Google stores and processes its own information of a similar type. As part of providing the Services, Google may transfer, store and process Customer Data in the United States or any other country in which Google or its agents maintain facilities. By using the Services, Customer consents to this transfer, processing and storage of Customer Data.
255 1.2 No Ads. Notwithstanding any other term of the Agreement, Google will not process Customer Data for Advertising purposes or serve Advertising in the Services.
256 1.3 New Features or Services. Google may make new applications, features or functionality for the Services available from time to time, the use of which may be contingent upon Customer’s agreement to additional terms.
257 1.4 Modifications.
258 (a) Changes to Services. Google may make commercially reasonable changes to the Services from time to time. If Google makes a material change to the Core Services, Google will inform Customer, by either sending an email to the Notification Email Address or alerting Customer through the Admin Console.
259 (b) Changes to URL Terms. Google may make commercially reasonable changes to the URL Terms from time to time. If Google makes a material change to the URL Terms, Google will inform Customer by either sending an email to the Notification Email Address or alerting Customer through the Admin Console. Material changes to the URL Terms will become effective 30 days after the notice is given, except if the changes apply to new functionality in which case the changes will be effective immediately. If the change has a material adverse impact on Customer, and the change, is not a result of Google complying with a court order or applicable law, Customer may notify Google within thirty days after being informed of the change that Customer does not agree with the change. If Customer notifies Google as required, then Customer will remain governed by the terms in effect immediately prior to the change until the earlier of: (i) the end of the then-current Term or (ii) 12 months after Google informs Customer of the change, unless the modification to the URL Terms is in response to a court order or to comply with applicable law. If the Agreement renews, it will do so under the updated URL Terms.
260 (c) Discontinuance of Services. Subject to Section 1.4(d), Google can discontinue any Services or any portion or feature for any reason at any time without liability to Customer.
261 (d) Deprecation Policy. Google will notify Customer if it intends to make a Significant Deprecation. Google will use commercially reasonable efforts to continue to provide the Core Services without a Significant Deprecation for at least one year after that notification, unless (as Google determines in its reasonable good faith judgment): (i) otherwise required by law or by contract (including if there is a change in applicable law or contract), or (ii) doing so could create a security risk or a substantial economic or technical burden. This policy is the “Deprecation Policy.”
262 1.5 Customer Domain Name. Customer is responsible for obtaining and maintaining any rights necessary for Customer’s and Google’s use of the Customer Domain Names under the Agreement. Google or Reseller may verify that Customer owns or controls the Customer Domain Names. If Customer does not own, or control, the Customer Domain Names, then Google will have no obligation to provide Customer with the Services.
263 1.6 Service Specific Terms. The Service Specific Terms are incorporated by this reference into the Agreement.
264 2. Customer Obligations.
265 2.1 Compliance. Customer must ensure that all use of the Services by Customer and its End Users complies with this Agreement including the Acceptable Use Policy.
266 2.2 Additional Products. Google may make Additional Products available to Customer and its End Users in accordance with the applicable product-specific Additional Product Terms. Except to the extent described in the Additional Product Terms, Additional Products are not subject to or governed by this Agreement. Customer can enable or disable Additional Products and is not required to use Additional Products in order to use the Services.
267 2.3 Customer Administration of the Services. Customer may specify one or more Administrators through the Admin Console who will have the rights to access Admin Account(s) and to administer the End User Accounts. Customer is responsible for: (a) maintaining the confidentiality of the password and Admin Account(s); (b) designating those individuals who are authorized to access the Admin Account(s); and (c) ensuring that all activities that occur in connection with the Admin Account(s) comply with the Agreement. Customer agrees that Google’s responsibilities do not extend to the internal management or administration of the Services for Customer and that Google is merely a data-processor.
268 2.4 Administrator Access; End User Consent.
269 (a) Administrator Access. Administrators will have the ability to access all Customer’s End User Accounts, including the ability to access, monitor, use, modify, withhold, or disclose any data available to End Users associated with their End User Accounts.
270 (b) Reseller as Administrator. If Customer orders Services via Reseller, Reseller may have Administrator access to Customer’s Account and Customer’s End User Accounts. As between Google and Customer, Customer is solely responsible for: (i) any access by Reseller to Customer’s Account or Customer’s End User Accounts; and (ii) defining in the Reseller Agreement any rights or obligations as between Reseller and Customer with respect to the Services.
271 (c) End User Consent. Customer will obtain and maintain all required consents from End Users to allow: (i) Administrators to have the access described in this Agreement; and (ii) Google’s provision of the Services to Administrators and End Users.
272 2.5 Unauthorized Use. Customer will use commercially reasonable efforts to prevent unauthorized use of the Services and to terminate any unauthorized use. Customer will promptly notify Google of any unauthorized use of, or access to, the Services of which it becomes aware.
273 2.6 Restrictions on Use. Unless Google specifically agrees in writing, Customer will not, and will use commercially reasonable efforts to make sure a third party does not: (a) sell, resell, lease, or the functional equivalent, the Services to a third party (unless expressly authorized in this Agreement); (b) attempt to reverse engineer the Services or any component; (c) attempt to create a substitute or similar service through use of, or access to, the Services; (d) use the Services for High Risk Activities; (e) use the Services to store or transfer any Customer Data that is controlled for export under Export Control Laws; (f) use or access the Services in a manner intended to avoid incurring Fees; or (g) use the Services on behalf of or for the benefit of any entity or person who is prohibited from using the Services by United States laws or regulations. Customer is solely responsible for any applicable compliance with HIPAA.
274 2.7 Support. 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 Services. Customer will use commercially reasonable efforts to resolve support issues before escalating them to Google.
275 2.8 Aliases. Customer is solely responsible for monitoring, responding to and otherwise processing emails sent to the “abuse” and “postmaster” aliases for Customer Domain Names but Google may monitor emails sent to these aliases for Customer Domain Names to allow Google to identify Services abuse.
276 3. Billing and Payment.
277 3.1 Orders via Reseller. If Customer orders the Services from Reseller: (a) any payments will be made directly to Reseller pursuant to the Reseller Agreement; (b) the remaining provisions in this Section 3 (Payment) will not apply; (c) Google will provide to Reseller any refunds or credits that may be due in respect of Customer; and (d) any obligation on the part of Reseller to provide any such refunds or credits to Customer will depend on the terms of the Reseller Agreement.
278 3.2 Billing. Customer will pay all Fees for the Services. Google’s measurement tools will be used to determine Customer’s usage of the Services. Customer may elect one of the following billing options, or from among other options offered by Google, when placing its order for the Services. Google may change its offering of billing options, including by limiting or ceasing to offer any billing option, upon thirty days written notice to Customer (which may be by email). Billing options may not be available to all customers. Customer may pay for the Services using the payment options listed in Section 3.3 below.
279 (a) Monthly Plan. If Customer selects this option, Customer will not be committed to purchase the Services for a pre-defined term, but will pay for the Services on a monthly basis. Google 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. Google 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.
280 (b) Annual Plan. If Customer selects this option, Customer will be committed to purchasing the Services from Google for an annual term. Google will bill Customer according to the terms associated with Customer’s elections on the Order Form.
281 3.3 Payment. All payments due are in U.S. dollars unless otherwise indicated on the Order Form or invoice.
282 (a) Credit Card or Debit Card. Fees for orders where Customer is paying with a credit card, debit card or other non-invoice form of payment, are due at the end of the month during which Customer received the Services. For credit cards, or debit cards, as applicable: (i) Google will charge Customer for all applicable Fees when due and (ii) these Fees are considered delinquent thirty days after the end of the month during which Customer received the Services.
283 (b) Invoices. Payments for invoices are due thirty days after the invoice date, unless otherwise specified on the Order Form, and are considered delinquent after such date.
284 (c) Other Forms of Payment. Customer may change its payment method to those available within the Admin Console. Google may enable other forms of payment by making them available in the Admin Console. These other forms of payment may be subject to additional terms which Customer may have to accept prior using the additional forms of payment.
285 3.4 Delinquent Payments. Delinquent payments may bear interest at the rate of one-and-one-half percent 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 Google in collecting such delinquent amounts, except where such delinquent amounts are due to Google's billing inaccuracies.
286 3.5 Purchase Orders.
287 (a) Required. If Customer wants a Purchase Order number on its invoice, Customer will inform Google and issue a Purchase Order to Google. If Customer requires a Purchase Order, and fails to provide the Purchase Order to Google, then Google will not be obligated to provide the Services until the Purchase Order has been received by Google. Any terms and conditions on a Purchase Order do not apply to this Agreement and are null and void.
288 (b)Not Required. If Customer does not require a Purchase Order number to be included on the invoice, Customer will provide Google a waiver of the Purchase Order requirement, which may be an email to this effect. If Customer waives the Purchase Order requirement, then: (a) Google will invoice Customer without a Purchase Order; and (b) Customer agrees to pay invoices without a Purchase Order.
289 3.6 Taxes. Customer is responsible for any Taxes, and Customer will pay Google for the Services without any reduction for taxes. If Google is obligated to collect or remit Taxes imposed on Customer, the Taxes will be invoiced to Customer, unless Customer provides Google with a timely and valid tax exemption certificate (or other documentation as required for the exemption) authorized by the appropriate taxing authority. In some jurisdictions the sales tax is due on the total purchase price at the time of sale and must be invoiced and collected at the time of the sale.
290 4. Technical Support Services. Google will provide TSS to Customer during the Term in accordance with the TSS Guidelines subject to payment of support Fees, if applicable. Customer acknowledges and agrees that Reseller may disclose End User personal data to Google as reasonably required in order for Reseller to handle any support issues that Customer may choose to escalate to or via Reseller.
291 5. Suspension.
292 5.1 Of End User Accounts by Google. If Google becomes aware of an End User's violation of the Agreement, then Google may specifically request that Customer Suspend the applicable End User Account. If Customer fails to comply with Google's request to Suspend an End User Account, then Google may do so. The duration of any Suspension by Google will be until the applicable End User has cured the breach which caused the Suspension.
293 5.2 Emergency Security Issues. Notwithstanding the foregoing, if there is an Emergency Security Issue, then Google may automatically Suspend the offending use. Suspension will be to the minimum extent and of the minimum duration required to prevent or terminate the Emergency Security Issue. If Google Suspends an End User Account for any reason without prior notice to Customer, at Customer's request, Google will provide Customer the reason for the Suspension as soon as is reasonably possible.
294 5.3 Suspension for Non-Payment.
295 (a) Automatic Suspension. Customer will have thirty days to pay Google delinquent Fees. If Customer does not pay Google delinquent Fees within thirty days, Google will automatically suspend Customer’s use of the Services. The duration of this suspension will be until Customer pays Google all outstanding Fees.
296 (b) During Suspension. If Customer is on a monthly billing plan, and Customer is suspended for non-payment, Google will stop charging Customer monthly Fees during Customer’s suspension for non-payment. If Customer has an annual commitment to Google for the Services, Google 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.
297 (c) Termination After Suspension. If Customer remains suspended for non-payment for more than sixty days, Google may terminate Customer for cause pursuant to Section 11.
298 5.4 Suspension to Comply with Laws. Google may at its sole discretion Suspend the provision of any Services at any time if required to comply with any applicable law.
299 6. Confidential Information.
300 6.1 Obligations. Subject to Section 6.2 (Disclosure of Confidential Information the recipient will not disclose the discloser’s Confidential Information, except to employees, Affiliates, agents, or professional advisors (“Delegates”) who need to know it and who have a legal obligation to keep it confidential. The recipient will use the Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care The recipient will ensure that its Delegates are also subject to the same non-disclosure and use obligations.
301 6.2 Disclosure of Confidential Information.
302 (a) General. Subject to Section 6.2(b), the recipient may disclose the discloser’s Confidential Information (i) in accordance with a Legal Process or (ii) with the discloser’s written consent.
303 (b) Notification. Before the recipient discloses the discloser’s Confidential Information in accordance with a Legal Process, the recipient will use commercially reasonable efforts to promptly notify the discloser Google will give notice via the Notification Email Address. The recipient does not need to provide notice before disclosure if the recipient is informed that (i) it is legally prohibited from giving notice or (ii) the Legal Process relates to exceptional circumstances involving danger of death or serious physical injury to any person.
304 (c) Opposition. Recipient will comply with the other party’s reasonable requests opposing disclosure of its Confidential Information.
305 7. Intellectual Property Rights; Brand Features.
306 7.1 Intellectual Property Rights. Except as expressly set forth herein, this Agreement does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property. As between the parties, Customer owns all Intellectual Property Rights in Customer Data, and the Application or Project (if applicable), and Google owns all Intellectual Property Rights in the Services and Software.
307 7.2 Display of Brand Features. Google may display only those Customer Brand Features authorized by Customer (such authorization is provided by Customer uploading its Brand Features into the Services) within designated areas of the Service Pages. Customer may specify the nature of this use using the Admin Console. Google may also display Google Brand Features on the Service Pages to indicate that the Services are provided by Google. Neither party may display or use the other party’s Brand Features beyond what is allowed in this Agreement without the other party’s prior written consent.
308 7.3 Brand Features Limitation. Any use of a party’s Brand Features will inure to the benefit of the party holding Intellectual Property Rights in those Brand Features. A party may revoke the other party’s right to use its Brand Features pursuant to this Agreement with written notice to the other and a reasonable period to stop the use.
309 8. Publicity. In connection with Customer’s use of the Services, (a) Customer may state publicly that it is a Google customer and display Google Brand Features consistent with the Trademark Guidelines and (b) Google may (i) orally state that Customer is a Google customer and (ii) include Customer’s name or Customer Brand Features in a list of Google customers in Google’s online or offline promotional materials. Neither party needs approval if it is using the other party’s name or Brand Features in a manner that is substantially similar to a previously approved manner. Any use of a party’s Brand Features will inure to the benefit of the party holding Intellectual Property Rights to those Brand Features. A party may revoke the other party’s right to use its Brand Features under this Section with written notice to the other party and a reasonable period to stop the use.
310 9. Representations, Warranties and Disclaimers.
311 9.1 Representations and Warranties. Each party represents that (a) it has full power and authority to enter into the Agreement; and (b) it will comply with all laws and regulations applicable to its provision, or use, of the Services, as applicable. Google warrants that it will provide the Services in accordance with the applicable SLA.
312 9.2 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, (A) NEITHER PARTY NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT; AND (B) NEITHER GOOGLE NOR ITS SUPPLIERS WARRANTS THAT OPERATION OF THE SOFTWARE OR THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED. NEITHER THE SOFTWARE NOR THE SERVICES ARE DESIGNED, MANUFACTURED, OR INTENDED FOR HIGH RISK ACTIVITIES. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, GOOGLE MAKES NO REPRESENTATIONS ABOUT ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY OR THROUGH THE SERVICES. CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE NOT A TELEPHONY SERVICE AND THAT THE SERVICES ARE NOT CAPABLE OF PLACING OR RECEIVING ANY CALLS, INCLUDING EMERGENCY SERVICES CALLS, OVER PUBLICLY SWITCHED TELEPHONE NETWORKS.
313 10. Term
314 10.1 Agreement Term. This Agreement will remain in effect for the Term.
315 10.2 Term and Purchases During Term. Google will provide the Services to Customer during the Term. Unless the parties agree otherwise in writing, End User Accounts purchased during any Term will have a prorated term ending on the last day of that Term.
316 10.3 Renewal.
317 (a) With a Monthly Plan. With a Monthly Plan Customer is not committed to purchase the Services for a pre-defined term. As a result, there is no renewal event for the Monthly Plan. Rather, Google will continue billing Customer fees consistent with Section 3.1(a) above.
318 (b) With an Annual Plan. At the end of each Term, the Services will renew consistent with Customer’s elections on the Order Form or Admin Console.
319 (c) Generally. Customer may alter the number of End User Accounts to be renewed by communicating the appropriate number of accounts to be renewed to Google via the Admin Console. Customer will continue to pay Google the then-current Fees for each renewed End User Account unless Customer and Google mutually agree otherwise. If one party does not want the Services to renew, then it will provide the other party written notice to this effect at least fifteen days prior to the end of the then current Term. This notice of non renewal will be effective upon the conclusion of the then current Term.
320 10.4 Requesting End User Accounts. Customer may request additional End User Accounts during a Term by: (i) contacting its designated Google Account Manager or Reseller, as applicable; or (ii) ordering End User Accounts via the Admin Console.
321 10.5 Revising Rates. Google may revise its rates for the following Term by providing Customer written notice (which may be by email) at least thirty days prior to the start of the following Term.
322 11. Termination.
323 11.1 Termination for Cause. Either party may suspend performance or terminate this Agreement if: (i) the other party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; or (iii) the other party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches.
324 11.2 Effects of Termination. If this Agreement terminates or expires, then: (i) the rights granted by one party to the other will cease immediately (except as set forth in Section 11.2 and Section 14.12 (Survival)); (ii) Customer will not have access to, or the ability to export, the Customer Data after the effective date of termination or expiry of the Agreement; (iii) all Fees owed by Customer to Google are immediately due; (iv) Customer will not have access to, or the ability to export, Customer Data after the effective date of termination or expiry of the Agreement and will be responsible for determining whether (and the extent to which) to use the functionality of the Services to delete Customer Data prior to such date; (v) Google will delete Customer Data in accordance with the terms of the Agreement; and (vi) upon request each party will promptly use reasonable efforts to return or destroy any remaining Confidential Information of the other party. If a Customer on an annual plan terminates the Agreement prior to the conclusion of its annual plan, Google will bill Customer, and Customer is responsible for paying Google, for the remaining unpaid amount of Customer’s annual commitment.
325 12. Defense and Indemnity.
326 12.1 Google Indemnification Obligations. Subject to Section 12.4 (Conditions), Google will defend Customer and any of its Affiliates participating under this Agreement (“Customer Indemnified Parties”), and indemnify them against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from an allegation that Customer Indemnified Parties' use in accordance with this Agreement of Google's technology used to provide the Services (excluding any open source software) or of Google's Brand Features infringes the third party's Intellectual Property Rights.
327 12.2 Customer Indemnification Obligations. Subject to Section 12.4 (Conditions), Customer will defend Google and its Affiliates (“Google Indemnified Parties”), and indemnify them against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from: (a) Customer Data, Customer Brand Features, and Application, Project and Instance (if applicable); (b) Customer’s or an End User’s use of the Services in violation of the Acceptable Use Policy.
328 12.3 Exclusions. This Section 12 will not apply to the extent the underlying allegation arises from: modifications to the indemnifying party’s technology or Brand Features by anyone other than the indemnifying party; or combination of the indemnifying party’s technology or Brand Features with materials not provided by the indemnifying party.
329 12.4 Conditions. Obligations under Sections 12.1 (Google Indemnification Obligations) and 12.2 (Customer’s Indemnification Obligations) are conditioned on the following:
330 (a) The indemnified party has promptly notified the indemnifying party in writing of any allegation(s) that preceded the Third-Party Legal Proceeding and cooperates reasonably with the indemnifying party to resolve the allegation(s) and Third-Party Legal Proceeding. If breach of this Section 12.4(a) prejudices the defense of the Third-Party Legal Proceeding, the indemnifying party’s obligations under Section 12.1 or 12.2 (as applicable) will be reduced in proportion to the prejudice.
331 (b) The indemnified party tenders sole control of the indemnified portion of the Third-Party Legal Proceeding to the indemnifying party, subject to the following: (i) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed.
332 12.5 Remedies.
333 (a) If Google reasonably believes the Services might infringe a third party’s Intellectual Property Rights, then Google may, at its sole option and expense: (i) procure the right for Customer to continue using the Services; (ii) modify the Services to make them non-infringing without materially reducing their functionality; or (iii) replace the Services with a non-infringing, functionally equivalent alternative.
334 (b) If Google does not believe the remedies in Section 12.5(a) are commercially reasonable, then Google may suspend or terminate Customer’s use of the impacted Services.
335 12.6 Sole Rights and Obligations. Without affecting either party’s termination rights, this Section 12 states the parties’ only rights and obligations under this Agreement for any third party's Intellectual Property Rights allegations and Third-Party Legal Proceedings.
336 13. Limitation of Liability.
337 13.1 Limitations. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO SECTION 13.2 (EXCEPTIONS TO LIMITATIONS),
338 (a) NEITHER PARTY WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT FOR: (i) THE OTHER PARTY’S LOST REVENUES (ii) INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES (WHETHER OR NOT FORESEEABLE OR CONTEMPLATED BY THE PARTIES AT THE EFFECTIVE DATE); OR (iii) EXEMPLARY OR PUNITIVE DAMAGES; AND
339 (b) EACH PARTY'S TOTAL AGGREGATE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT IS LIMITED TO THE AMOUNT PAID BY CUSTOMER DURING THE TWELVE MONTHS BEFORE THE EVENT GIVING RISE TO LIABILITY.
340 13.2 Exceptions to Limitations. NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS EITHER PARTY’S LIABILITY FOR: (A) DEATH OR PERSONAL INJURY RESULTING FROM ITS NEGLIGENCE OR THE NEGLIGENCE OF ITS EMPLOYEES OR AGENTS; (B) FRAUD OR FRAUDULENT MISREPRESENTATION; (C) OBLIGATIONS UNDER SECTION 12 (DEFENSE AND INDEMNITY); (D) INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; (E) PAYMENT OBLIGATIONS; OR (F) MATTERS FOR WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
341 14. Miscellaneous.
342 14.1 Notices. Google may provide any notice to Customer under this Agreement by: (a) sending an email to Notification Email Address or by (b) posting a notice in the Admin Console. Customer may provide notice to Google under this Agreement by sending an email to Google’s legal department at legal-notices@google.com. Notice will be treated as received when (x) the email is sent, whether or not the other party has received the email or (y) notice is posted in the Admin Console.
343 14.2 Assignment. Neither party may assign or transfer any part of this Agreement without the written consent of the other party, except to an Affiliate, but only if: (a) the assignee agrees in writing to be bound by the terms of this Agreement; and (b) the assigning party remains liable for obligations incurred under the Agreement prior to the assignment. Any other attempt to transfer or assign is void.
344 14.3 Change of Control. Upon a change of control (for example, through a stock purchase or sale, merger, or other form of corporate transaction): (a) the party experiencing the change of control will provide written notice to the other party within thirty days after the change of control; and (b) the other party may immediately terminate this Agreement any time between the change of control and thirty days after it receives the written notice in subsection (a).
345 14.4 Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party’s reasonable control.
346 14.5 No Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver.
347 14.6 Severability. If any provision of this Agreement is found unenforceable, the balance of the Agreement will remain in full force and effect.
348 14.7 No Agency. The parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture.
349 14.8 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
350 14.9 Equitable Relief. Nothing in this Agreement will limit either party’s ability to seek equitable relief.
351 14.10 Governing Law. This Agreement is governed by California law, excluding that state's choice of law rules. FOR ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN SANTA CLARA COUNTY, CALIFORNIA.
352 14.11 Amendments. Any amendment must be in writing and expressly state that it is amending this Agreement.
353 14.12 Survival. The following sections will survive expiration or termination of this Agreement: Section 3, 6, 7.1, 11.2, 12, 13, 14 and 15.
354 14.13 Entire Agreement. This Agreement, and all documents referenced herein, is the parties' entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject. The terms located at a URL and referenced in this Agreement are hereby incorporated by this reference.
355 14.14 Interpretation of Conflicting Terms. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Order Form, the Agreement, and the terms located at any URL.
356 14.15 Counterparts. The parties may enter into this Agreement by executing the applicable Order Form, which may be executed in counterparts, including facsimile, PDF or other electronic copies, which taken together will constitute one instrument.
357 15. Definitions.
358 “Acceptable Use Policy” means the acceptable use policy for the Services available at https://www.google.com/a/help/intl/en/admins/use_policy.html or such other URL as may be provided by Google.
359 “Account” means Customer’s Google account credentials and correlating access to the Services under this Agreement.
360 “Account Manager” means the Google business person working with Customer regarding Customer’s purchase of the Services.
361 “Additional Products” means products, services and applications that are not part of the Services but that may be accessible, via the Admin Console or otherwise, for use with the Services.
362 “Additional Product Terms” means the then-current terms at https://gsuite.google.com/intl/en/terms/additional_services.html or other such URL as Google may provide.
363 “Admin Account(s)” means the administrative account(s) provided to Customer by Google for the purpose of administering the Services. The use of the Admin Account(s) requires a password, which Google will provide to Customer.
364 “Admin Console” means the online tool provided by Google to Customer for use in reporting and certain other administration functions.
365 “Administrators” mean the Customer-designated technical personnel who administer the Services to End Users on Customer’s behalf.
366 “Advertising” means online advertisements displayed by Google to End Users, excluding any advertisements Customer expressly chooses to have Google or any Google Affiliate display in connection with the Services under a separate agreement (for example, Google AdSense advertisements implemented by Customer on a website created by Customer using the "Google Sites" functionality within the Services).
367 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party.
368 “Brand Features” means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.
369 “Confidential Information” means information that one party (or Affiliate) discloses to the other party under this Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. It does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient. Subject to the preceding sentence, Customer Data is Customer’s Confidential Information.
370 “Core Services” means the Core Services for G Suite as described in the Services Summary.
371 “Customer Data” means data, including email, provided, generated, transmitted or displayed via the Services by Customer or End Users.
372 “Customer Domain Names” mean the domain names owned or controlled by Customer, which will be used in connection with the Services and specified in the Order Form.
373 “Emergency Security Issue” means either: (a) Customer’s or End Users’ use of the Services in violation of the Acceptable Use Policy, in a way that disrupts: (i) the Services; (ii) other customers’ use of the Services; or (iii) the Google network or servers used to provide the Services; or (b) to prevent unauthorized third party access to the Services or data within the Services.
374 “End Users” means the individuals Customer permits to use the Services.
375 “End User Account” means a Google-hosted account established by Customer through the Services for an End User.
376 “Export Control Laws” means all applicable export and reexport control laws and regulations, including trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State, but excluding the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce.
377 “Fees” means the amounts invoiced to Customer by Google, or Reseller, if applicable, for the Services as described in an Order Form.
378 “Help Center” means the Google help center accessible at https://www.google.com/support/ , or other such URL as Google may provide.
379 “High Risk Activities” means uses such as the operation of nuclear facilities, air traffic control, or life support systems, where the use or failure of the Services could lead to death, personal injury, or environmental damage.
380 “HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as may be amended from time to time, and any regulations issued thereunder.
381 "Indemnified Liabilities" means any (i) settlement amounts approved by the indemnifying party; and (ii) damages and costs finally awarded against the indemnified party and its Affiliates by a court of competent jurisdiction.
382 “Initial Term” means the term for the applicable Services beginning on the Service Commencement Date and continuing for the duration set forth on the Order Form.
383 “Intellectual Property Rights” means current and future worldwide rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and other similar rights.
384 “Legal Process” means a data disclosure request made under law, governmental regulation, court order, subpoena, warrant, governmental regulatory or agency request, or other valid legal authority, legal procedure, or similar process.
385 “Liability” means any liability, whether under contract, tort, or otherwise, including for negligence.
386 “Notification Email Address” means the email address(es) designated by Customer in the Admin Console to receive certain notifications from Google. It is Customer’s responsibility to keep the Notification Email Address(es) valid and current.
387 "Order Form" means the online order page or pages, or other ordering document acceptable to Google under this Agreement, that Customer completes when signing up and specifies the Services Google will provide to Customer under the Agreement, and which may include: (i) applicable billing and renewal terms; (ii) Fees; (iii) number of, and Initial Services Term for, End User Accounts; (iv) the applicable form of payment; and (v) Customer Domain Names.
388 “Other Services” means the “Other Services for G Suite” as described in the Services Summary.
389 “Purchase Order” means a Customer issued purchase order.
390 “Reseller” means, if applicable, the authorized third party reseller that sells or supplies the Services to Customer.
391 “Reseller Agreement” means the separate agreement between Customer and Reseller regarding the Services. The Reseller Agreement is independent of and outside the scope of this Agreement.
392 “Service Commencement Date” is the date upon which Google makes the Services available to Customer, and will be within one week of Google’s receipt of the applicable Order Form signed by Customer, unless otherwise agreed by the parties.
393 “Service Pages” mean the web pages displaying the Services to End Users.
394 “Service Specific Terms”means the terms specific to one or more Services at: https://gsuite.google.com/terms/service-terms/ .
395 "Services" means the applicable Core Services and Other Services provided by Google and used by Customer under this Agreement.
396 "Services Summary" means the description of the Services, and related editions, as described here: https://gsuite.google.com/intl/en/terms/user_features.html , or such other URL as Google may provide.
397 “Significant Deprecation” means to discontinue or to make backwards incompatible changes to the Core Services that results in Google no longer providing to its enterprise-customer base the ability to: (1) to send and receive e-mail messages; (2) schedule and manage events; (3) create, share, store and sync files; (4) communicate with other end users in real time; or (5) search, archive, and export email messages.
398 “SLA” means the Service Level Agreement located here: https://www.google.com/a/help/intl/en/admins/sla.html , or such other URL as Google may provide.
399 “Suspend” means the immediate disabling of access to the Services, or components of the Services, as applicable, to prevent further use of the Services.
400 “Taxes” means any duties, customs fees, or taxes (other than Google’s income tax), including indirect taxes such as “goods and services tax” and “value-added tax,” associated with the sale of the Services, including any related penalties or interest.
401 “Term” means the Initial Term and all renewal terms for the applicable Services.
402 "Third-Party Legal Proceeding" means any formal legal proceeding filed by an unaffiliated third party before a court or government tribunal (including any appellate proceeding).
403 “TSS” means the technical support services provided by Google to the Administrators under the TSS Guidelines.
404 “TSS Guidelines” means Google’s technical support services guidelines then in effect for the Services. TSS Guidelines are at the following URL: https://www.google.com/a/help/intl/en/admins/tssg.html or such other URL as Google may provide.
405 “URL Terms” means the Acceptable Use Policy, Service Specific Terms, the SLA, and the TSS Guidelines.
406 Version: November 15, 2018
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