Google Apps - Security and Compliance Agreement
- 1.1 This Google Apps - Security and Compliance Agreement (this "Agreement") is between Google Inc. ("Google"),
and the Customer ("Customer") set forth in the order form
above or, if applicable, a coverage selection sheet as may be supplied by Google (the
"Order Form"). If Google determines that Customer is eligible to receive the services
specified in the Order Form (the "Services"), then Google will provision the Services
for Customer ("Provisioning"). The Agreement will be effective on the date Customer
clicks the "Accept" button (the "Effective Date"). Following Provisioning, Customer
shall thereafter be able to complete the process for activating Customer's account.
Google reserves the right to modify the Services, at no additional cost to Customer,
with the objective of providing Customer with equal or enhanced Services. BY
COMPLETING THE ENROLLMENT PROCESS AND CLICKING THE "ACCEPT" BUTTON, CUSTOMER AGREES
TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND THE INDIVIDUAL
CLICKING THE "ACCEPT" BUTTON REPRESENTS AND WARRANTS THAT HE OR SHE HAS AUTHORITY TO
BIND THE CUSTOMER AND ENTER INTO THIS AGREEMENT ON BEHALF OF THE CUSTOMER.
- 1.2 Google may provide an online process or interface through which Customer may
make changes to certain aspects of its order (including increasing the number of
units) from time to time (collectively, "Online Interface"). All such changes made to
Customer's order will be subject to acceptance by Google. On acceptance, such changes
will be treated as a change to the Agreement.
Fees and Billing.
- 2.1 The "Billing Start Date" for this Agreement shall
commence on the Effective Date.
- 2.2 On or after the Billing Start Date, Google shall charge Customer as follows,
for each Service:
- (a) Such one-time fees as are set forth in the Order Form or Online Interface
- (b) If available, and selected by Customer as set forth in the Order Form or
Online Interface (as applicable), the applicable fees for technical support
- (c) In advance, a fee equal to the Monthly Charge or Annual Charge (as may be
applicable) set forth in the Order Form or Online Interface (as applicable); and
- (d) One of the following, as Google may determine:
- (i) In arrears, a fee if the number of units enabled and/or for which
Customer actually routed messages through the Google system during the
preceding calendar month exceeds the Mailboxes/Units Formalready paid for by
Customer (such additional units, the "Additional
Units"). Such fee shall be equal to the amount calculated by
multiplying (i) the Additional Units by (ii) the Monthly Unit Price set forth
in the Order Form or the Annual Unit Price divided by 12 (as applicable), as
such prices are set forth in the Order Form divided by 12 (as the case may
be)or Online Interface (as applicable); or
- (ii) If Customer informs Google via the Online Interface that Customer
desires to enable Additional Units, a fee, paid in advance, for such
Additional Units applicable to the remainder of the then-current term.
- 2.3 All fees shall be due and payable on the date that Customer places its order
and on the first day of each renewal term (other than fees for Additional Units which
shall be due, as applicable, when they are added if purchased via the Online
Interface or otherwise at the end of the month that they are incurred).
Delinquent payments shall bear interest at the rate of one-and-one-half percent
(1.5%) per month (or the highest rate permitted by law, if less) from the payment due
date until paid in full. Customer will be responsible for all reasonable expenses
(including attorneys' fees) incurred by Google in collecting unpaid or delinquent
amounts, except where such unpaid or delinquent amounts are due to billing
inaccuracies attributable to Google. Google reserves the right to suspend the
Services (of which it shall provide advance notice, which may be by email) until
Customer pays all past due amounts. Customer shall pay Google the fees in the amount
and on the terms specified in the Order Form and Agreement, free and clear of, and
without any reduction for, any and all taxes. Customer shall pay any duties and
taxes, including sales, use, personal property, value-added, excise, customs fees,
import duties or stamp duties imposed by governmental agencies of whatever kind and
imposed with respect to all transactions under the Agreement, including penalties and
interest ("Transaction Related Taxes"), but specifically
excluding taxes based upon Google's assets or net income. When Google has the legal
obligation to pay or collect Transaction Related Taxes, the appropriate amount shall
be invoiced to and paid by Customer unless Customer provides Google with a valid tax
exemption certificate authorized by the appropriate taxing authority. All fees and
remittances will be in the currency indicated on the Order Form.
Term. The initial term ("Initial Term") of
this Agreement shall commence on the Effective Date and shall continue for the
"Contract Term" (set forth in the Order Form) (or for 12 months
if none is specified) from the Billing Start Date. At the end of the Initial Term, this
Agreement shall be renewed automatically for consecutive renewal terms of twelve (12)
months (such renewal terms together with the Initial Term, the "Term"), unless terminated by either party (effective as of the end of the
current term) by providing the other party written notice at least fifteen (15) days
prior to the end of the applicable term delivered in accordance with Section 18,
"Notices" or, if available in the Online Interface, Customer may elect not to renew by
so indicating in such interface at least one (1) day before the end of the applicable
term .. Google may revise its rates (including, but not limited to, the fee per
Mailbox/Unit) with at least thirty (30) days prior written notice to Customer,
effective for the following term.
Termination. Either party may terminate this Agreement for cause upon
written notice if the other party fails to cure any material breach of this Agreement
within thirty (30) days after receiving written notice of such breach or the other
party ceases its business operations or becomes subject to insolvency proceedings and
the proceedings are not dismissed within ninety days; provided however that the period
to cure a breach with respect to payment shall be ten (10) days. Other than as may be
provided elsewhere in this Agreement, such termination shall be Customer's sole and
exclusive remedy in case of a material breach of this Agreement by Google.
Customer Obligations. During the Term of this Agreement, Customer
shall have the following obligations, in addition to those set forth elsewhere in this
- 5.1 Customer is and will remain solely responsible for complying with all laws,
rules and regulations regarding the management and administration of its electronic
messaging system. Customer acknowledges and agrees that Google's responsibilities and
liability do not extend to the internal management or administration of Customer's
electronic messaging system or messages and that Google is merely a data-processor.
- 5.2 Customer agrees that it shall not resell the Services or create or offer
derivative versions of the Services either directly or through a third party.
- 5.3 The Services are for use with normal business messaging traffic only, and may
not be used for any other purpose, including use of the Message Encryption Services
(if applicable) with machine generated message encryption and delivery. For each user
for which Customer will be routing email and/or archiving email, if any, through the
Google system, Customer shall establish an email account in the Google Administration
- 5.4 Customer agrees to comply with, and cause its end users to comply with, the
terms and conditions of the Google Acceptable Use Policy ("AUP") as published or
posted on Google's website at http://www.google.com/a/help/intl/en/admins/use_policy.html
and as may be periodically amended by Google. The AUP is hereby incorporated into
- 5.5 IF CUSTOMER FAILS TO COMPLY WITH THE OBLIGATIONS SET FORTH IN SECTION 5.2
AND/OR SECTION 5.3, GOOGLE SHALL INFORM CUSTOMER THEREOF AND RESERVES THE RIGHT TO
SUSPEND THE SERVICES UNTIL SUCH FAILURE IS REMEDIED. NOTWITHSTANDING THE FOREGOING,
THE FAILURE OF CUSTOMER TO COMPLY WITH THE OBLIGATIONS SET FORTH IN THIS SECTION 5
MAY BE DEEMED A MATERIAL BREACH OF THIS AGREEMENT.
Disclaimer. GOOGLE MAKES NO WARRANTIES OF ANY KIND, INCLUDING, BUT NOT
LIMITED TO, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, ACCURACY OR NON-INFRINGEMENT. TO THE EXTENT ANY EXCLUSION OF
IMPLIED WARRANTIES DOES NOT APPLY AS A MATTER OF LAW, THEN ANY IMPLIED WARRANTIES ARE
LIMITED IN DURATION TO NINETY (90) DAYS FROM THE EFFECTIVE DATE.
Ownership. The Services and all intellectual property rights relating
to the Services are and shall remain the exclusive property of Google, its licensors
and/or its affiliates.
8.1 Definition. "Confidential Information" is information
disclosed by one party to the other party under this Agreement that is marked as
confidential or would normally under the circumstances be considered confidential
information of the disclosing party. Confidential Information 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
rightfully given to the recipient by another party. For clarity, Customer's
Confidential Information shall also include Customer's electronic messages that are
subject to the Services ("Customer Messages").
- 8.2 Confidentiality Obligations. The recipient will 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. Those people and entities may use
Confidential Information only to exercise rights and fulfill 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
Indemnity. Google, at its expense, shall indemnify, defend and hold
harmless Customer against any losses, costs and damages arising from a claim by a third
party against Customer that the Services, or any part thereof, infringe any
intellectual property or proprietary rights of such third party or misappropriates any
protected trade secret of such third party. Customer, at its expense, shall indemnify,
defend and hold harmless Google against any losses, costs and damages arising from a
claim by a third party against Google based upon or otherwise arising out of the
contents of the Customer Messages. Each party's obligations under this Section 9 are
subject to the party seeking indemnification ("Indemnitee")
providing the other party ("Indemnitor") with (i) prompt
written notice of the claim, (ii) sole control over the defense or settlement
(provided, however, that any such settlement shall not result in financial liability on
Indemnitee or require its admission of any fault without its prior written consent),
and (iii) reasonable support and cooperation with regard to the defense. In the event
that Google's right to provide the Services is enjoined or in Google's reasonable
opinion is likely to be enjoined, Google may, at its expense, obtain the right to
continue providing the Services, replace or modify the Services so that they become
non-infringing but remain functionally equivalent, or if such remedies are not
reasonably available, terminate this Agreement without liability to Customer.
Limitation of Liability. EXCEPT REGARDING THE CONFIDENTIALITY
OBLIGATIONS UNDER SECTION 8, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR
ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT
LIMITATION, LOST PROFITS, LOSS OF USE, LOSS OF DATA OR LOSS OF GOODWILL), ARISING OUT
OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PERFORMANCE OR OPERATION OF THE
SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON BREACH OF AGREEMENT,
BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND
WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT
REGARDING THE INDEMNITY OBLIGATIONS UNDER SECTION 9, "INDEMNITY," IN NO EVENT SHALL
EITHER PARTY'S LIABILITY FOR ANY DAMAGES HEREUNDER EXCEED THE AMOUNTS PAID HEREUNDER BY
CUSTOMER TO GOOGLE DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE CAUSATION OF THE
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.
Governing Law. This Agreement is governed by California law excluding
California's choice of law rules. FOR ANY DISPUTE RELATING TO THIS AGREEMENT, THE
PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN
SANTA CLARA COUNTY, CALIFORNIA.
Severability. If any provision is found unenforceable, it and any
related provisions will be interpreted to best accomplish the unenforceable provision's
Survival. The rights and obligations of Google and Customer contained
in this Section and in Sections 2.3, 7-10, 12-18 18, 23 and 23 24 shall survive any
expiration or termination of this Agreement.
Waiver. Failure to enforce any provision will not constitute a waiver.
Amendments. Any amendments must be agreed upon in writing.
Force Majeure. Neither party will be liable for inadequate performance
to the extent caused by a circumstance beyond its reasonable control, including,
without limitation, Domain Name Server issues outside its direct control, labor strikes
or shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war,
terrorism, governmental action, labor conditions, earthquakes and material shortages.
Notices. All notices must be in writing and addressed to the attention
of the other party's legal department and primary point of contact. Notice will be
deemed given: (a) when verified by written receipt if sent by personal courier,
overnight courier, or when received if sent by mail without verification of receipt; or
(b) when verified by automated receipt or electronic logs if sent by facsimile or
Publicity. Neither party may make any public statement regarding the
relationship contemplated by this Agreement without the other's prior written approval.
No Third-Party Beneficiaries. There are no third-party beneficiaries
to this Agreement.
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).
No Agency. The parties are independent contractors, and this Agreement
does not create an agency, partnership or joint venture.
Archived Messages. If the Services contain archiving functionality,
Customer Messages shall be retained for up to the period set forth in the Order Form
(in the Services name), provided that Customer renews the applicable Services with
Google for each year of such retention period. The retention period shall apply to all
data archived under the Services. Failure to renew the applicable Services during the
retention period shall terminate Google's obligation to retain any of Customer's data
or indexes. Following such an event, Google shall, at Customer's election, (i) delete
Customer's data (at no charge), (ii) provide an offline copy via hard disk media (at
Google's then-current rates for such) or (iii) extend the period for Customer to access
such data (at Google's then-current rates for such).
Entire Agreement. This Agreement, the Order Form and all documents
referenced expressly herein or therein are the parties' entire agreement relating to
its subject and supersede any prior or contemporaneous agreements relating to such
ISP Google Message Filtering. If Customer is an Internet service
provider that purchases the Google Message Filtering edition of the Services, then
notwithstanding Section 5.2, Customer may provision such Services to, and acquire
compensation from, its individual consumer customers and those entities for which it
hosts and manages email services on its systems or those of Google, provided that
Customer remains solely liable for all Customer obligations under the Agreement and any
breach of this Agreement by its users.