This Google Apps Enterprise Agreement (the “Agreement”) is entered into by and between Google Ireland Limited, a company incorporated under the laws of Ireland with offices at Gordon House, Barrow Street, Dublin 4, Ireland (“Google”) and the entity agreeing to these terms (“Customer”). This Agreement is effective as of the date on which Customer clicks the “I Accept” button below (the “Effective Date”). If you are accepting on behalf of Customer, you represent and warrant that you: (i) have full legal authority to bind Customer to these terms and conditions; (ii) have read and understood this Agreement; and (iii) agree to this Agreement on behalf of Customer. If you do not have the legal authority to bind Customer, please do not click the “I Accept” button below. This Agreement governs Customer’s access to and use of the Services.
- 1.1 General. Google will provide the Services in accordance with this Agreement and the SLA. Google will provide Customer with an Admin Account to use for administering the End User Accounts and other features of the Services. Customer shall: (a) administer End User Accounts using the Admin Console and Admin Tools; and (b) determine the Services to be provided to End Users.
- 1.2 Modifications to the Services. Google may make commercially reasonable changes to the Services from time to time. If Google makes a material change to the Services, Google will inform Customer via such method as Google may elect provided that Customer has subscribed with Google to be informed about such changes.
- 1.3 Modifications to URL Terms. Google may make commercially reasonable changes to the URL Terms from time to time. If Google makes a material change to any of 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 Customer is on the Flexible Plan such changes to the URL Terms shall take effect 30 days after Google notifies Customer. If Customer is on the Annual Plan, and 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 Centre 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 in accordance with this Agreement, they will be renewed under Google's then current URL Terms.
- 1.4 Ads. The default setting for the Services does not allow Google to serve Ads. Customer may change this setting in the Admin Console and such change will constitute Customer’s authorisation 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 on such reversion.
- 1.5 Customer Domain Name Ownership. 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.
- 1.6 Google Apps Vault. If Customer purchases Google Apps
Vault, subject to payment of the applicable Fees, the following terms apply:
- a. Retention. Google will retain the applicable archived Customer Data for the period selected in the Services by the Administrator, but only if Customer renews Google Apps Vault for the entire retention period. If the Google Apps Vault Services expire or are terminated in accordance with the terms of the Agreement, Google’s obligation to retain the archived Customer Data will immediately terminate.
- b. Additional Purchases. With each additional purchase of End User Accounts for the Services, Customer will receive access to, and will be invoiced for, Google Apps Vault for that same number of End User Accounts.
2. Data Processing.
- 2.1 Data Protection Legislation. In this Agreement the terms “personal data”, “processing”, “controller” and “processor” shall have the meanings ascribed to them in the EU Directive. The parties agree and acknowledge that the Data Protection Legislation applies to the processing of Customer Personal Data.
- 2.2 Processor. For the purposes of this Agreement and in respect of Customer Personal Data, the parties agree that Customer shall be the controller and Google shall be a processor. Within the scope of this Agreement, Customer shall comply with its obligations as a controller and Google shall comply with its obligations as a processor under the Data Protection Legislation.
- 2.5 Data Security. Google will take and implement appropriate technical and organisational measures to protect Customer Data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access (“Security Measures”).
- 2.6 Google Staff. Google will take appropriate steps to ensure compliance with the Security Measures by its employees, contractors and Subcontractors.
- 2.7 Security Incident . Following the discovery or notification of a Security Incident Google will notify Customer of such Security Incident as soon as reasonably practicable, having regard to the nature of such Security Incident. Google will send any applicable notifications regarding a Security Incident to Customer.
- 2.8 Security Audit. During the Term, Google will maintain its Statement on Standards for Attestation Engagements (SSAE) No. 16 Type II / International Standards for Assurance Engagements (ISAE) No. 3402 report (or a comparable report) on Google’s systems examining logical security controls, physical security controls, and system availability (“Audit Report”) as related to the Services. At least every 18 months, Google will instruct a third party to produce an updated Audit Report.
- 2.9 Data Transfers. During the Term, Google shall ensure that Google Inc. remains enrolled in the U.S Department of Commerce Safe Harbor Program (“Safe Harbor”) or adopts an alternative compliance solution which achieves compliance with the terms of Articles 25 and 26 of the EU Directive.
- 2.10 Safe Harbor. While Google Inc. remains enrolled in Safe Harbor, Google will ensure: (i) the scope of Google Inc.'s Safe Harbor certification includes Customer Personal Data; and (ii) its and Google Inc’s processing practices in respect of Customer Personal Data will remain consistent with those described in Google Inc.'s Safe Harbor certification and the Safe Harbor Privacy Principles.
3. Customer Obligations.
- 3.1 Compliance. Customer will ensure that Customer and End
Users use the Services in accordance with the Acceptable Use Policy. . Google may make
new applications, features or functionality available from time to time through the
Services, the use of which may be subject to Customer’s agreement to additional terms.
Customer agrees that its use of the Domain Service is subject to its compliance with the
Domain Service Terms. In addition, Google will make available other Non-Google Apps
Products (beyond the Services) available to Customer and its End Users in accordance with
the Non-Google Apps Product Terms and the applicable product-specific Google terms of
service. If Customer does not wish to enable any of the Non-Google Apps Products,
Customer can choose to enable or disable (as the case may be) the Non-Google Apps
Products (or any of them) at any time through the Admin Console. Customer agrees that its
- 3.2 Aliases. Customer is solely responsible for monitoring, responding to, and otherwise processing emails sent to the “abuse” and “postmaster” aliases for Customer Domain Name(s). Customer agrees that Google may monitor emails sent to these aliases for Customers Domain Name(s) to allow Google to identify Services abuse.
- 3.3 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 authorised to access the Admin Account(s); and (c) ensuring that all activities that occur in connection with the Admin Account(s) comply with this Agreement. Customer acknowledges and agrees that Google is not responsible for the internal management or administration of Customer’s electronic messaging system or messages.
- 3.4 End User Consent. Customer’s Administrators have the ability to access, monitor, use, or disclose data available to End Users within the End User Accounts through the Admin Console and / or Admin Tools. Customer will obtain and maintain all required consents from End Users to allow: (a) such Customer access, monitoring, use and/or disclosure; and (b) Google to provide the Services in accordance with this Agreement.
- 3.5 Unauthorised Use. Customer will use its reasonable endeavours to prevent unauthorised use of the Services, and to terminate any unauthorised use. Customer will promptly notify Google of any unauthorised use of, or access to, the Services of which it becomes aware.
- 3.6 Restrictions on Use. Except to the extent expressly permitted in this Agreement or otherwise agreed by Google in writing, Customer will not, and will use its reasonable endeavours to make sure a third party does not: (a) sell, resell, lease, or the functional equivalent, the Services to a third party; (b) attempt to reverse engineer the Services or any component of the Services except as permitted by law; (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 any Customer Data that is controlled for export under Export Control Laws.
- 3.7 Third Party Requests. Customer is responsible for responding to Third Party Requests. Google will, to the extent permitted by law and by the terms of the Third Party Request: (a) promptly notify Customer of its receipt of a Third Party Request; (b) 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 itself.
4. Billing, End User Accounts and Payment.
- 4.1 Billing. Customer must select either the Flexible Plan or Annual Plan when it orders the Services.
- a. If Customer selects Flexible Plan. Google will provide Customer with the monthly rate per End User Account for the Services when Customer orders the Services (“Monthly Rate”). Customer may alter the number of End User Accounts by communicating the appropriate number of accounts to Google via the Admin Console. Google will use the Monthly Rate to calculate, on a pro-rated basis, the total Fees payable by Customer per day based on the number of End User Accounts Customer holds on that day. Any partial day of Services or End User Account validity will be rounded up to a full day for the purposes of calculating Fees. Google will bill Customer the Fees for the Services monthly in arrears where Customer is on the Flexible Plan.
- b. If Customer selects Annual Plan. Google will provide the Customer with the annual rate for the Services when Customer orders the Services based on the number of End User Accounts specified by Customer. The Fees for the Annual Plan shall be payable in monthly instalments (which shall be pro-rated for partial months). Customer may alter the number of End User Accounts by communicating the appropriate number of accounts to Google via the Admin Console. Where Customer increases the number of End User Accounts this shall increase Customer’s annual commitment under the Annual Plan and Google shall increase the Fees payable by Customer under the Annual Plan based on the number of additional End User Accounts at the price per End User Account in the Annual Plan. Where customer decreases the number of End User Accounts via the Admin Console, this will not reduce Customer's annual commitment under the Annual Plan and will not reduce the Fees payable under the Annual Plan.
- 4.2 Payment. All payments due are in the currency indicated on the Order Page or invoice (as applicable). Customer will pay for the Services (whether on the Flexible Plan or the Annual Plan) by one of the methods below, which Customer shall select when it purchases the Services:
- a. Credit Card, Debit Card or Direct Debit. Subject Clauses 4.1 a and 4.1 b Customer shall be required to pay Fees monthly in arrears by either credit card, debit card or direct debit of Customer’s bank account. Customer may select which payment method it wishes to use when it purchases the Services but Customer may choose an alternative payment method via the Admin Console at any time. Fees are due and payable on or around the first day of each month after the month in which the Services are received and Google shall automatically charge Customer’s credit card or debit card, or debit Customer’s bank account as applicable. Fees shall be considered immediately overdue if Google does not receive such payment within 5 days of attempting to charge Customer’s credit card or debit card, or debit Customer’s bank account.
- b. Cheque or Bank Transfer. Google may, in its absolute discretion, allow Customer to pay for the Services by cheque or bank transfer. If Customer chooses to pay by cheque or bank transfer, Customer shall pay the Fees within 30 days of the date of the relevant invoice sent by Google to Customer. Fees shall be considered immediately overdue in the event that Customer fails to pay the Fees within 30 days of the date of the invoice.
- c. Other Forms of Payment. Google may, in its sole discretion, enable Customer to pay the Fees using other forms of payment which Google may make available in the Admin Console from time to time. Customer may change its payment method to those made available within the Admin Console by selected the preferred payment method. These other forms of payment may be subject to additional terms which Customer may have to accept prior using the additional forms of payment.
- 4.3 Late Payments. Google may charge interest at the rate of 2% per annum above the base rate of Barclays Bank PLC from time to time, from due date until the date of actual payment, whether before or after judgment, on any Fee for the Services which is overdue. Customer will be responsible for all reasonable expenses (including legal fees) incurred by Google in collecting overdue and unpaid amounts, except where such overdue and unpaid amounts are due to Google’s billing inaccuracies.
- 4.4 Suspension for Non-Payment.
- a. Automatic Suspension. Customer will have thirty days to pay Google overdue Fees. If Customer does not pay Google overdue Fees within thirty days from the overdue date, Google will automatically suspend Customer’s use of the Services. The duration of this suspension will be until Customer pays Google all outstanding Fees.
- b. During Suspension. If Customer is on the Flexible Plan Google will stop charging Customer monthly Fees during Customer’s suspension for non-payment. If Customer is on the Annual Plan, 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.
- c. Termination After Suspension. If any overdue Fees are not paid within 60 days of the overdue date, Google may immediately terminate this Agreement on written notice to Customer (which may be by email).
- 4.5 Invoice Disputes. Any invoice disputes must be submitted prior to the invoice due date. If the parties determine that certain billing inaccuracies are attributable to Google, Google will not issue a corrected invoice, but will instead issue a credit memo specifying the incorrect amount in the affected invoice. If the disputed invoice has not yet been paid, Google will apply the credit memo amount to the disputed invoice and Customer will be responsible for paying the resulting net balance due on that invoice.
- 4.6 Purchase Orders. 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. The parties agree that none of the terms and conditions of any purchase order issued by Customer will apply to or modify this Agreement and that any terms or conditions in such purchase orders are null and void.
- 4.7 Taxes. Customer is responsible for any Taxes, and Customer will pay Google for the Services without any reduction for such amounts. 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.
5. Technical Support Services.
- 5.1 By Customer. 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 its reasonable endeavours to resolve support issues before escalating them to Google in accordance with Clause 5.2.
- 5.2 By Google. If Customer is unable to resolve a support issue in accordance with Clause 5.1, then Customer may escalate the issue to Google in accordance with the TSS Guidelines. Google will respond in accordance with the TSS Guidelines.
- 6.1 Of End User Accounts by Google. If Google becomes aware of an End User Account being used in non-compliance with this 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 Suspension will remain in effect until the applicable End User has remedied the breach which caused the Suspension.
- 6.2 Emergency Security Issues. Notwithstanding the foregoing, if there is an Emergency Security Issue, then Google may automatically Suspend the impacted End User Accounts. Suspension will be to the minimum extent and of the minimum duration required, in Google’s opinion to prevent or terminate the Emergency Security Issue. If Google Suspends any End User Account(s) 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 practicable.
7. Confidential Information.
- 7.1 The recipient of any Confidential Information will not disclose that Confidential Information, except to Group Companies, Subcontractors, employees and/or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that those people and entities may use such Confidential Information only to exercise rights and fulfil obligations under this Agreement, while using reasonable care to protect it. The recipient may also disclose Confidential Information when required by law after giving reasonable notice to the discloser, such notice to be sufficient to give the discloser the opportunity to seek confidential treatment, a protective order or similar remedies or relief prior to disclosure.
- 7.2 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.
8. Intellectual Property Rights; Brand Features.
- 8.1 Intellectual Property Rights. Except as expressly stated otherwise in this Agreement, neither party shall acquire any right, title, or interest in any Intellectual Property Rights belonging to the other party, or the other party’s licensors. As between the parties, Customer owns all Intellectual Property Rights in Customer Data, and Google owns all Intellectual Property Rights in the Services.
- 8.2 Display of Brand Features. Google may display only those Customer Brand Features authorized by Customer (such authorization is deemed to be provided by Customer uploading it’s Brand Features into the Services), and only 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 except as expressly permitted in this Agreement without the other party’s prior written consent. If Customer wants to display Google Brand Features in connection with the Services, Customer will comply with the Trademark Guidelines.
- 8.3 Brand Features Limitation. All goodwill arising from the use by Customer of Google’s Brand Features shall belong to Google. A party may revoke the other party’s right to use its Brand Features pursuant to this Agreement with written notice at any time on reasonable written notice.
- 8.4 Publicity. Customer agrees that Google may include Customer’s name or Brand Features in a list of Google customers, online or in promotional materials. Customer also agrees that Google may verbally reference Customer as a customer of the Google products or services that are the subject of this Agreement. This Clause is subject to Clause 8.3.
- 9.1 Warranties. Each party warrants to the other that it will use reasonable care and skill in complying with its obligations under this Agreement.
- 9.2 Disclaimers. No conditions, warranties or other terms apply to any Services or to any other goods or services supplied by Google under this Agreement unless expressly set out in this Agreement. Subject to Clause 13.1(b), no implied conditions, warranties or other terms apply (including any implied terms as to satisfactory quality, fitness for purpose or conformance with description).
- 10.1 Term. This Agreement will remain in effect for the Term unless it is terminated earlier in accordance with its terms. If Customer is on the Annual Plan, and unless the parties agree otherwise in writing, End User Accounts purchased during any Services Term after the Effective Date will have a prorated term ending on the last day of that Services Term.
- 10.2 Renewal under Annual Plan.
- a. Subject to Clause 10.2 b, if Customer is on the Annual Plan, the Services and all End User Accounts previously purchased by Customer shall automatically be switched to the Flexible Plan at the end of the Services Term.
- b. Subject to Clause 10.2 c, if Customer is on the Annual Plan and wants to renew the Services and all End User Accounts previously purchased by Customer and remain on the Annual Plan, then Customer must change the renewal settings in the Admin Console to select the Annual Plan before the end of the current Services Term for the Annual Plan has ended and the Services and all previously purchased End User Accounts will renew under the Annual Plan for a Renewal Term.
- c. 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 under the Annual Plan, Google will provide Customer written notice (which may be by email) 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 and the Agreement shall automatically terminate.
- 10.3 Requesting End User Accounts. Customer may request End User Accounts by: (i) notifying its designated Google Account Manager; or (ii) ordering End User Accounts via the Admin Console.
- 10.4 Revising Rates under the Annual Plan. 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.
- 10.5 Revising Rates under the Flexible Plan. Google may revise its rates for the Flexible Plan on at least 30 days written notice to Customer (which may be by email).
- 11.1 Termination in General.
- a. Termination for Breach. Either party may suspend performance and/or terminate this Agreement, (including all Order Pages entered into under it) with immediate effect, if the other party: (a) is in material breach of this Agreement where the breach is incapable of remedy; (b) the other party is in material breach of this Agreement two times or more notwithstanding any remedy of such breach; or (c) is in material breach of this Agreement where the breach is capable of remedy and fails to remedy that breach within thirty days after receiving written notice of such breach.
- b. Termination for Insolvency. Either party may suspend performance and/or terminate this Agreement (including all Order Pages entered into under it) with immediate effect, if: (a) the other party enters into an arrangement or composition with or for the benefit of its creditors, goes into administration, receivership or administrative receivership, is declared bankrupt or insolvent or is dissolved or otherwise ceases to carry on business; or (b) any analogous event happens to the other party in any jurisdiction in which it is incorporated or resident or in which it carries on business or has assets.
- 11.2 Termination under the Annual Plan. If Customer is on the Annual Plan it may terminate this Agreement for convenience via the Admin Console. If prior to the conclusion of the Annual Plan, Customer terminates this Agreement under this Clause 11.2, or Google terminates the Agreement under Clause 4.4 (c) or under Clause 11.1, Customer shall pay Google for the remaining unpaid amount of Customer’s annual commitment under the Annual Plan using the payment method selected in the Order Page.
- 11.3 Termination under the Flexible Plan. If Customer is on the Flexible Plan, Customer may terminate this Agreement at any time via the Admin Console, and Google may terminate this Agreement at any time on written notice to Customer (which may be by email). If either party terminates this Agreement under this Clause 11.3, or Google terminates the Agreement under Clause 4.4(c), Customer shall pay Google any outstanding Fees under the Flexible Plan using the payment method selected in the Order Page.
- 11.4 4. Change of Control. Either party may terminate this Agreement immediately upon written notice if there is a Change of Control of the other party, other than in the context of an internal restructuring or reorganisation of its Group Companies. In this clause the term "Control" shall mean the possession by any person(s) directly or indirectly of the power to direct or cause the direction of another person and "Change of Control" is to be construed accordingly. The party experiencing such Change of Control will notify the other party in writing of this within 30 days after the Change of Control. If the terminating party has not exercised its right of termination under this clause within 30 days following receipt of notice of the other party’s Change of Control, that right of termination will expire.
- 11.5 Effects of Termination. If this Agreement (including all Order Pages) terminates, then: (i) the rights granted by one party to the other will cease immediately; (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 and replication servers and overwriting it over time; and (iv) upon request each party will promptly use reasonable endeavours to return or destroy all other Confidential Information of the other party.
- 12.1 If Customer receives a claim from a third party that either Google’s or any Google Group Company’s technology used to provide the Services or any Google Brand Feature infringe(s) any copyright, trade secret or trade mark of such third party (an “IP Claim”), Customer will: (a) promptly notify Google; (b) provide Google with reasonable information, assistance and cooperation in responding to and, where applicable, defending such IP Claim; and (c) give Google full control and sole authority over the defence and settlement of such IP Claim. Customer may appoint its own supervising counsel of its choice at its own expense.
- 12.2 Provided Customer complies with Clause 12.1 and subject to Clause 12.3, Google will accept full control and sole authority over the defence and settlement of such IP Claim and will indemnify Customer against all damages and costs awarded for such IP Claim, settlement costs approved in writing by Google in relation to such IP Claim, reasonable legal fees necessarily incurred by Customer in relation to such IP Claim and reasonable costs necessarily incurred by Customer in complying with Clause 12.1(b).
- 12.3 Google will not have any obligations or liability under this Clause 12 in relation to any IP Claim arising from: (a) use of the Services or Google Brand Features in breach of this Agreement, in a modified form or in combination with Third Party Products; and/or (b) any content, information or data provided to Google by Customer, End Users or any other third parties.
- 12.4 Google may (at its sole discretion) suspend Customer’s use of any Services which are alleged, or believed by Google, to infringe any third party’s Intellectual Property Rights, or modify such Services to make them non-infringing. If the foregoing option is not commercially reasonable, Google may suspend or terminate Customer’s use of the impacted Services. If any suspension under this clause continues for more than 30 days, Customer may, at any time until use of the applicable Services is reinstated, terminate this Agreement immediately upon written notice. If the Services are terminated in accordance with this Clause 12.4, then Google will provide a pro-rated refund of the fees actually paid by Customer applicable for the period following termination of the Services.
- 12.5 If Google receives a claim from a third party that the Customer Data, Customer Domain Name(s) and/or Customer Brand Features infringe any Intellectual Property Rights of such third party (a “Customer IP Claim”), Google will: (a) promptly notify Customer; (b) provide Customer with reasonable information, assistance and cooperation in responding to and, where applicable, defending such Customer IP Claim; and (c) give Customer full control and sole authority over the defence and settlement of such Customer IP Claim. Google may appoint its own supervising counsel of its choice at its own expense.
- 12.6 Provided Google complies with Clause 12.5, Customer will accept full control and sole authority over the defence and settlement of such Customer IP Claim and will indemnify Google against all damages and costs awarded for such IP Claim, settlement costs approved in writing by Customer in relation to such IP Claim, reasonable legal fees necessarily incurred by Google in relation to such IP Claim and reasonable costs necessarily incurred by Google in complying with Clause 12.5(b).
- 12.7 This Clause 12 states the parties’ entire liability and exclusive remedy with respect to infringement of a third party’s Intellectual Property Rights.
13. Limitation of Liability.
- 13.1 Nothing in this Agreement shall exclude or limit either party’s liability for: (a) death or personal injury resulting from the negligence of either party or their servants, agents or employees; (b fraud or fraudulent misrepresentation; (c) breach of any implied condition as to title or quiet enjoyment; or (d) misuse of confidential information.
- 13.2 Save to the extent that this Agreement expressly states otherwise, nothing in this Agreement shall exclude or limit either party’s liability under Clause 12 (Indemnities).
- 13.3 Subject to Clauses 13.1 and 13.2, neither party shall be liable under this
Agreement (whether in contract, tort or otherwise) for any of the following losses
suffered or incurred by the other party (whether or not such losses were within the
contemplation of the parties at the date of this Agreement):
- a. loss of actual or anticipated profits (including loss of profits on contracts);
- b. loss of anticipated savings;
- c. loss of business opportunity;
- d. loss of reputation or damage to goodwill; and
- e. special, indirect or consequential losses.
- 13.4 Subject to Clauses 13.1, 13.2 and 13.3, each party's liability under this Agreement (whether in contract, tort (including negligence) or otherwise) for any of the above losses whether in relation to liability arising from any given event or series of connected events, shall be limited to: (a) 125% of the total amount paid and payable by Customer under this Agreement in the 12 months immediately preceding the month in which the event (or first in a series of connected events) occurred; or (b) £50,000, whichever is the greater.
- 14.1 Notices. Unless otherwise specified in this Agreement, All notices of termination or breach must be in English, in writing, addressed to the other party’s Legal Department and sent to Customer’s registered office address (or the address set out on the Order Page) or to firstname.lastname@example.org (as applicable) or such other address as either party has notified the other in accordance with this Clause 14.1. All notices shall be deemed to have been given on receipt as verified by written or automated receipt or electronic log (as applicable). All other notices must be in English, in writing, addressed to the other party’s primary contact and sent to their then current postal address or email address.
- 14.2 Assignment. Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other, except for an assignment to any Group Company where: (i) the assignee has agreed in writing to be bound by the terms of this Agreement; (ii) the assignor has notified the other party of such assignment; and (iii) where Customer is the assignor, the assignee has passed any relevant credit checks required by Google.
- 14.3 Sub-contracting. Either party may sub-contract its obligations under this Agreement, in whole or in part, without the prior written consent of the other, provided that the sub-contracting party remains fully liable for all such sub-contracted obligations and accepts full liability as between the parties for the actions and/or inactions of its sub-contractors as if such actions and/or inactions were its own.
- 14.4 Force Majeure. Neither party will be liable for failure to perform or delay in performing any obligation under this Agreement if the failure or delay is caused by any circumstances beyond its reasonable control.
- 14.5 Suspension to Comply with Applicable Law. Google may (at its sole discretion) suspend the provision of any Services or modify any Services at any time to comply with any applicable law. If any suspension under this clause continues for more than 30 days, Customer may, at any time until use of the applicable Services is reinstated, terminate this Agreement immediately upon written notice.
- 14.6 No Waiver. Failure or delay in exercising any right or remedy under this Agreement shall not constitute a waiver of such (or any other) right or remedy.
- 14.7 Severability. The invalidity, illegality or unenforceability of any term (or part of a term) of this Agreement shall not affect the continuation in force of the remainder of the term (if any) and this Agreement.
- 14.8 No Agency. Except as expressly stated otherwise, nothing in this Agreement shall create an agency, partnership or joint venture of any kind between the parties.
- 14.9 No Third-Party Beneficiaries. Except as expressly stated otherwise, nothing in this Agreement shall create or confer any rights or other benefits in favour of any person other than the parties to this Agreement.
- 14.10 Equitable Relief. Nothing in this Agreement will limit either party’s ability to seek equitable relief.
- 14.11 Governing Law.
- (a) This Agreement and any dispute (contractual or non-contractual) concerning this Agreement or its subject matter or formation (a “Dispute”) is/are governed by English law.
- (b) Any Dispute shall be referred to and finally resolved by arbitration under the rules of the LCIA, which rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be three. The seat, or legal place, of arbitration shall be London, England. The language to be used in the arbitration shall be English.
- (c) This Clause 14.11 shall be without prejudice to the right of either party to apply to any court of competent jurisdiction for emergency, interim or injunctive relief (together "Interim Relief"). Except where Customer has its registered office or principal place of business in Russia or Ukraine, such Interim Relief shall be subject to review and subsequent adjudication by the arbitral tribunal such that any dispute in respect of Interim Relief shall be determined by the arbitral tribunal.
- 14.12 Amendments. Any amendments or modifications to this Agreement may only be effected by: (a) written agreement of both parties; (b) Customer’s online acceptance of updated terms, amendments or addenda; or (c) Customer’s continued participation after the terms of this Agreement have been updated by Google and notified to Customer.
- 14.13 Entire Agreement. Subject to Clause 13.1(b), this Agreement sets out all terms agreed between the parties in relation to its subject matter and supersedes all previous agreements between the parties relating to the same. In entering into this Agreement neither party has relied on any statement, representation or warranty not expressly set out in this Agreement.
- 14.14 Interpretation of Conflicting Terms. If there is a conflict between this Google Apps Enterprise Agreement and the terms located at any URL, this Google Apps Enterprise Agreement will take precedence.
- 14.15 Export Laws. Customer will not use the Services to store or transfer any Customer Data that would be controlled for export under the Export Control Laws. Breach of this clause will be considered a material breach of this Agreement and Google may terminate this Agreement (including all Order Pages entered under it) with immediate effect.
- 14.16 Translations. If this Agreement is translated into any other language and there is any conflict or inconsistency between this Agreement and the translation, this Agreement shall, in respect of the conflict or inconsistency, take precedence.
- 15.1 In this Agreement unless expressly stated otherwise:
- "Annual Plan" means a Services plan where Customer commits to purchasing the number of End User Accounts set out in the Order Page for 12 months of Services.
- "Acceptable Use Policy" means the acceptable use policy as may be updated from time to time for the Services located here: http://www.google.com/apps/intl/en-GB/terms/use_policy.html or other such URL as may be provided by Google.
- "Admin Manager" means the Google business person working with Customer regarding Customer’s purchase of the Services.
- "Admin Account" means the administrative account provided to Customer by Google for the purpose of administering the End User Accounts. The use of the Admin Account requires a password, which Google will provide to Customer.
- "Admin Console" means the online tool provided by Google to Customer for use in reporting and certain other administration functions.
- "Admin Tool" means online tools or APIs, or both, provided by Google to Customer to be used by Customer in connection with Customer’s administration of the Services for End Users, which may include, among other things, account maintenance and enforcement of Customer usage policies.
- "Administrators" mean the Customer-designated technical personnel who administer the Services for End Users on Customer’s behalf.
- "Ads" means online advertisements displayed by Google to End Users.
- "Agreement" means this Google Apps Enterprise Agreement [or means each Order Page, this Google Apps Enterprise Agreement and any document referred to in the Order Page and Google Apps Enterprise Agreement (including the URL Terms).]
- "APIs" means the Google APIs from time to time listed here: http://developers.google.com/google-apps/app-apis or other such URL as may be provided by Google.
- "Audit Report" has the meaning given in Clause 2.8.
- "Brand Features" means each party’s trade names, trademarks, logos, domain names and other distinctive brand features.
- "Confidential Information" means information disclosed by one party to the other party under this Agreement that is marked as confidential or, from its nature, content or the circumstances in which it is disclosed, might reasonably be supposed to be confidential. It does not include information that the recipient already knew, that becomes public through no fault of the recipient, that was independently developed by the recipient or that was lawfully given to the recipient by a third party.
- "Customer Data" means data, including email, provided, generated, transmitted or displayed via the Services by Customer or End Users.
- "Customer Personal Data" means the personal data processed by or on behalf of Google pursuant to this Agreement.
- "Customer Domain Name(s)" mean the domain name(s) owned or controlled by Customer, which will be used in connection with the Services and specified on the Order Page.
- "Data Protection Legislation" means the national provisions adopted pursuant to the EU Directive, in the country in which the Customer is established.
- "Domain Service Terms" means the terms at: http://www.google.com/a/help/intl/en-GB/admins/domain_service_terms.html, or such other URL as Google may provide.
- "Emergency Security Issue"means either: (a) an End User’s use of the Services in violation of the Acceptable Use Policy, which could disrupt: (i) the Services; (ii) other End Users’ use of the Services; or (iii) the Google network or servers used to provide the Services; or (b) unauthorized third party access to the Services.
- "End Users" means the individuals Customer permits to use the Services. “End User Account” means Google-hosted accounts provided to End Users through the Services for the purpose of enabling such End Users to use the Service.
- "EU Directive" means Directive 95/46/EC of the European Parliament and of the Council on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data.
- "Export Control Laws" means all applicable export and re-export control laws and regulations, including (i) the Export Administration Regulations ("EAR") maintained by the U.S. Department of Commerce, (ii) trade and economic sanctions maintained by the U.S. Treasury Department's Office of Foreign Assets Control, and (iii) the International Traffic in Arms Regulations ("ITAR") maintained by the U.S. Department of State.
- "Fees" means the amounts charged to Customer by Google for the Services.
- "Flexible Plan" means a Services plan whereby the Customer shall pay for the Services on a month by month basis with no minimum term commitment.
- "Google Apps Core Services" means the services (e.g. Google Apps for Business and Google Apps Vault) specified in the Order Page which are more fully described here: http://www.google.com/a/help/intl/en-GB/users/user_features.html, or other such URL as Google may provide.
- "Google Apps – Postini Services" means the Services (e.g. Google Message Filtering, Google Message Security, Google Message Discovery, Archiving and Discovery and Google Message Encryption) specified in the Order Page which are more fully described here: http://www.google.com/a/help/intl/en-GB/users/user_features.html, or such other URL as Google may provide.
- "Group Company" means in relation to each of the parties: (a) any parent company of that party; and (b) any corporate body of which that party directly or indirectly has control or which is directly or indirectly controlled by the same person or group of persons as that party.
- "Help Centre" means the Google help centre accessible at http://www.google.com/support/?hl=en-GB or other such URL as may be provided by Google.
- "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.
- "Intellectual Property Rights" means all copyright, moral rights, patent rights, trade marks, design right, rights in or relating to databases, rights in or relating to confidential information, rights in relation to domain names, and any other intellectual property rights (registered or unregistered) throughout the world.
- "Initial Services Term" means a period of 12 months beginning on the Service Commencement Date.
- "Material Subcontractor" means third party suppliers engaged by Google (other than a Google Group Company) to provide Technical Support Services to Customer. A list of Material Subcontractors can be found here:https://sites.google.com/a/google.com/google-apps-subcontractors/.
- "Non- Google Apps Products" means Google products which are not part of the Services, but which may be accessed by End Users using their End User Account login and password. The Non-Google Apps Products are those set forth from time to time at the following URL: http://www.google.com/support/a/bin/answer.py?hl=en-GB&answer=181865, or such other URL as Google may provide.
- "Non-Google Apps Product Terms" means the then-current terms found at the following URL: "http://www.google.com/apps/intl/en-GB/terms/additional_services.html", or such other URL as Google may provide from time to time.
- "Notification Email Address" means the email address designated by Customer to receive email notifications from Google. Customer may change this email address through the Admin Console.
- "Order Page" means the online order page Customer completes in signing up for the Services, and which contains: (i) the Services being ordered; (ii) Fees; (iii) the applicable form of payment; (iv) the choice of the Annual Plan or Flexible Plan; (v) if the Annual Plan is selected, the number of End User Accounts; and (vi) Customer Domain Names.
- "Renewal Term" means a renewal term of 12 months.
- "Safe Harbor Privacy Principles" means the U.S. Department of Commerce Safe Harbor framework requirements as set out at following URL: http://export.gov/safeharbor/eu/eg_main_018475.asp, or any replacement framework or URL from time to time.
- "Security Incident" means accidental or unlawful distribution or accidental loss, alteration, or unauthorised disclosure or access to Customer Data.
- "Security Measures" has the meaning given to it in Clause 2.5.
- "Services" means the services (.g. Google Apps Premier Edition, Google Apps for Business and Google Apps Vault) which are more fully described here, "http://www.google.com/a/help/intl/en-GB/users/user_features.html", or other such URL as Google may provide.
- "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 a completed Order Page, unless otherwise agreed by the parties.
- "Service Pages" mean the web pages displaying the Services to End Users.
- "Services Term" means the Initial Services Term or the relevant Renewal Term; as applicable.
- "SLA" means the Service Level Agreement located here http://www.google.com/a/help/intl/en-GB/admins/sla.html, or such other URL as Google may provide.
- "Subcontractor" means Google Group Companies, Material Subcontractors and third parties.
- "Suspend" or "Suspension" means the immediate disabling of access to the Services, or components of the Services, as applicable, to prevent further use of the Services.
- "Taxes" means any taxes, including sales, use, personal property, value-added, excise, customs fees, import duties or stamp duties or other taxes and duties imposed by governmental agencies of whatever kind and imposed with respect to all transactions under the Agreement, including penalties and interest, but specifically excluding taxes based upon Google's net income.
- "Term" means:
(1) for the Annual Plan, the Initial Services Term and all Renewal Terms; and
(2) for the Flexible Plan, the Agreement will remain in effect for as long as Customer is receiving the Services.
- "Third Party Products" means any products, software or services not licensed or provided to Customer by Google pursuant to this Agreement.
- "Third Party Request" means a request from a third party for records relating to an End User’s use of the Services. Third Party Requests can be a lawful search warrant, court order, subpoena, other valid legal order, or written consent from the End User permitting the disclosure.
- "Trademark Guidelines" means Google's Guidelines for Third Party Use of Google Brand Features as maybe updated from time to time located here: http://www.google.co.uk/permissions/guidelines.html, or other such URL as may be provided by Google.
- "TSS Guidelines" means Google's technical support services guidelines then in effect for the applicable Services. TSS Guidelines are located at the following URLs: http://www.google.com/a/help/intl/en-GB/admins/tssg.html or other such URLs as may be provided by Google.
- "URL Terms" means the Acceptable Use Policy, the SLA and the TSS Guidelines.
- 15.2 In this Agreement, the words "include" and "including" will not limit the generality of any words preceding them.