Google Terms & Conditions

June 11th 2015

Google supplier purchase order terms and conditions

Introduction. These terms and conditions (“Terms and Conditions”) together with a Purchase Order form an “Agreement” between the Google entity specified on the Purchase Order (“Google”) and the supplying party specified on the Purchase Order (“Supplier”) for the purchase of all Products or Services provided by Supplier, directly or indirectly, to or for Google, under the applicable Purchase Order. No terms other than the Agreement will apply to Supplier’s provision of Products or Services, except if the parties have executed a separate written agreement governing the Products or Services (“Existing Agreement”), in which case the Existing Agreement will govern. If there is a conflict between these Terms and Conditions and any Purchase Order, these Terms and Conditions govern.

  1. Definitions.

    1. “Background IP”

      means all IP owned, created or discovered by a party: (a) before Supplier performs Services, or (b) independent of the Agreement.
    2. “Defect” or “Defective”

      means with respect to a Product a failure to meet the Product warranties in Sections 8.2(A) and 8.2(B).
    3. “Deliverables”

      means custom work product that Supplier creates under a Purchase Order.
    4. “Developed IP”

      means any IP other than Background IP created or discovered by Supplier or Google in connection with the Agreement.
    5. “Intellectual Property Rights”

      means all patent rights, copyrights, trademark rights, rights in trade secrets, database rights, moral rights, and any other intellectual property rights (registered or unregistered) throughout the world.
    6. “IP”

      means anything protectable by an Intellectual Property Right.
    7. “Product”

      means product, including hardware and software, sold by Supplier, including any Deliverables.
    8. “Purchase Order”

      means a purchase order (including any incorporated attachments) for Product or Services submitted to Supplier by Google.
    9. “Services”

      means services provided by Supplier.
    10. “Specifications”

      means those specifications (if any) identified in a Purchase Order or as the parties may otherwise agree to in writing.
    11. “Tax(es)”

      means all applicable taxes and similar obligations, except for taxes based on Supplier’s net income, net worth, employment, personal and real property, and assets.
    12. “Third Party Materials”

      means any information or materials owned by a third party or any open source materials.
    13. “Warranty Period”

      means the 12-month period starting on the date Google accepts a Product.
    14. The words “include” and “including” mean “including but not limited to.”
    15. Written communication includes email.
    16. When examples are provided in these Terms and Conditions, they are for illustrative purposes only, and are not the exclusive examples of a particular concept or provision.
  2. Ordering Product and Services.

    1. Purchase Orders.

      Google may submit Purchase Orders in writing, including electronic transmission. Unless the parties mutually agree otherwise in writing, Purchase Orders will state prices, delivery dates, and delivery locations for Products and Services.
    2. Changes.

      Google may reschedule Products or Services, change the delivery destination for Products in any Purchase Order, change the Services provided under any Purchase Order, or cancel any Purchase Order upon written notice to Supplier at any time before the scheduled delivery or completion date, as applicable, at no cost to Google, except that if requested changes materially increase or decrease the cost to provide Products or Services, the parties will negotiate an appropriate adjustment to their obligations under the Purchase Order. Supplier will not unreasonably withhold or delay agreement to any change requested by Google.
    3. Cancellation.

      Supplier will stop work on the applicable Purchase Order immediately upon receipt of a cancellation notice from Google. If Google cancels a Purchase Order for Services before the scheduled delivery date, Supplier may invoice Google for work completed at a pro-rated price based upon the percentage of work completed prior to the date of cancellation, and Supplier will immediately ship to Google all Deliverables and work-in-progress that are the subject of such invoice.
  3. Product Delivery.

    1. Product Shipping.

      • Delivery Terms; Title Transfer. Unless otherwise specified in the Purchase Order, Supplier will deliver Products DDP (Incoterms 2010) to the delivery destination stated in the Purchase Order, with title and risk of loss transferring from Supplier to Google at the delivery destination.
      • Trade Compliance. When Supplier is responsible for exporting or importing Product, Supplier will obtain all authorizations and permits necessary to fulfill all applicable governments’ requirements for Product shipment.
      • Import/Export Information. Upon Google’s request, Supplier will provide Google with any information Google reasonably requests regarding Product importation, exportation or distribution.
    2. Product Packing.

      Supplier will package Products according to any instructions Google provides in a Purchase Order, and if none are provided, then according to good commercial practice to ensure safe arrival of the Products.
    3. Advance Delivery.

      Google may refuse any delivery made more than 5 days before the delivery date and Supplier will re-deliver the Product on the correct date at Supplier’s expense.
    4. Excess Product.

      Google may return to Supplier, at Supplier’s expense, any quantity of Product exceeding that specified in the Purchase Order.
    5. Late Product Delivery.

      If a Product shipment (or part of a shipment) is late, Supplier will: (i) immediately propose a new delivery date, (ii) use best efforts to expedite delayed Product at Supplier’s expense, and (iii) issue Google a discount or refund on the purchase price for Product delivered late, unless otherwise agreed by the parties. Notwithstanding the foregoing Section 3.5, Google may (a) cancel without liability the applicable Purchase Order or portions of the Purchase Order for late Product not yet delivered, or (b) cover for late Product by sourcing products from another supplier, at Supplier’s reasonable expense.
  4. Inspection, Acceptance, Rejection.

    1. Inspection and Acceptance.

      Google may inspect Product and return Defective Product. Any Product or Service not rejected within 30 days of receipt will be deemed accepted by Google. Google’s payment to Supplier for Product or Services will not be treated as acceptance.
    2. Rejected Product.

      At Google’s option, Google may: (i) return rejected Products, and Supplier will immediately replace returned Products, at Supplier’s expense, including all freight costs; or (ii) use the defective Products and obtain a reduction in price.
    3. Defect Replacement Procedure.

      • For Product that is discovered Defective during the Warranty Period, Supplier will, at its expense and at Google’s option,
        • replace or repair Defective Product and re-deliver such repaired or replaced Product to Google within a commercially reasonable timeframe agreed to by Google,
        • refund Google the Product purchase price within 30 days of receiving Google’s notice that a Product is Defective, or
        • reimburse Google for the reasonable cost to have the Product repaired within 30 days after receiving Google’s invoice.
      • Supplier is responsible for all costs, damages, and liabilities incurred by Google as a result of Defective Product.
      • All Products undergoing repair will at all times remain Google’s property.
      • Supplier will warrant replacement Product for the longer of 90 days following Google’s acceptance of the replacement Product or the remainder of the original Product’s Warranty Period.
  5. Payment.

    1. Invoice Issuance and Payment.

      • Supplier will invoice Google upon Google’s acceptance of the Products and Services.
      • Except as specifically stated in the Purchase Order, Supplier will be responsible for all costs it incurs in connection with providing the Services.
      • Google will pay any undisputed portion of an invoice for accepted Products or Services within 30 business days following the later of: (i) delivery of the Products or completion of Services, or (ii) receipt of a correct invoice by Google’s accounts payable department. Correct invoices must include Purchase Order number, complete bill-to address, Product part numbers and quantities, description of Products or Services, unit prices, applicable tax or other charges, and extended totals.
      • Google is not obligated to pay any invoice submitted 180 days or more after a Product is shipped or Services are completed.
      • In addition to other rights and remedies Google may have, Google may offset any payment obligations to Supplier that Google may incur under the Agreement against any fees owed to Google and not yet paid by Supplier under the Agreement or any other agreement between Supplier and Google.
    2. Invoice Disputes.

      If Google initiates an invoice dispute, Google will include a written description of the disputed portion of the invoice. Upon Google’s request, Supplier will issue separate invoices for undisputed and disputed amounts. Payment of undisputed amounts will not limit Google’s right to object and refuse payment of disputed amounts.
    3. Taxes.

      Prices do not include any applicable Taxes. If Supplier is legally obligated to collect applicable Taxes, Supplier must state each applicable Tax as a separate line item on its invoice to Google. Google will pay Taxes separately stated on correct, undisputed, and timely invoices for applicable Products or Services, unless Google provides Supplier with a valid tax exemption certificate. To be correct, invoices for value-added Tax or goods and services Tax must meet all of the relevant Tax authority’s requirements (to allow Google to obtain relief from such Tax if available). If Google is obligated under applicable law to withhold any Taxes from its payments to Supplier, Google will make the payments net of the withheld amounts. Supplier will provide Google with sufficient documentation to determine the withholding tax rate, if applicable. Google will provide Supplier with evidence of such Tax payments in accordance with applicable law.
  6. Product Usage; Limitations.

    1. Product Usage.

      Google has the unrestricted right to use and otherwise dispose of Product.
    2. Limitations.

      Nothing in this Agreement grants a party any license, right, or interest in the other party’s trademark(s), trade name(s) or service mark(s). Neither party will alter or modify any proprietary rights notices on the other party’s IP.
  7. Custom Services.

    To the extent that Supplier provides Services, this Section 7 will also apply.

    1. Services Provision.

      Supplier will:
      • develop, test, and deliver to Google all Deliverables in accordance with the applicable Purchase Order, and, if requested by Google, provide Google with supporting documentation evidencing Supplier’s testing, and all assistance necessary for Google to fully inspect the Deliverables;
      • provide all materials, equipment, and personnel necessary for performing the Services unless stated otherwise in the Purchase Order;
      • provide Google with status reports regarding Supplier’s progress on Deliverables, at the frequency requested by Google;
      • comply with all applicable Google policies if and when Supplier is at Google’s facilities.
    2. Rejected Services.

      Notwithstanding any acceptance by Google, if any Services do not meet the applicable warranties or other criteria under the Agreement, at Google’s option, Google may:
      • require Supplier to re-perform the non-conforming Services at no charge to Google;
      • re-perform the non-conforming Services itself, or have a third party do this, and charge Supplier the reasonable cost of this re-performance;
      • accept the Services and obtain a reduction in price; or
      • reject the non-conforming Services and obtain a refund from Supplier for all amounts paid in relation to these Services.
    3. Failure Analysis.

      Upon Google’s request, Supplier will perform a failure analysis of any returned Deliverable that is suspected to be Defective. Supplier will use reasonable efforts to provide Google with (a) an initial assessment of the Defect’s cause(s) within 1 week of receiving the returned Deliverable; and (b) a final assessment of the Defect’s root cause within 3 weeks of receiving the returned Deliverable.
    4. Services Intellectual Property Rights; Licenses.

      • Ownership. Subject to Supplier’s Intellectual Property Rights in any of Supplier’s Background IP incorporated in any Deliverables (and any applicable third parties’ Intellectual Property Rights in Third Party Materials approved by Google in accordance with 7.4(D)):
        • Title to the Deliverables will transfer to Google upon delivery.
        • Google owns any Developed IP in the Deliverables.
        • The Developed IP is a work made for hire to the extent permitted by applicable law, and Google retains all Intellectual Property Rights in the Developed IP.
        • To the extent that Supplier or any of its personnel, subcontractors or agents own any rights in the Developed IP, Supplier assigns (or will procure the assignment of) all rights (including Intellectual Property Rights), title, and interest in the Developed IP to Google. If applicable law prevents future assignments, Supplier will assign (or will procure the assignment of) such rights as these are created.
        • If applicable law prevents Supplier from transferring ownership of any Developed IP in the Deliverables to Google, Supplier grants Google a perpetual, irrevocable, exclusive, royalty-free, fully-paid, transferrable, worldwide license (with the right to sublicense) to make, use, import, offer for sale, sell, export any component of, reproduce, prepare derivative works of, distribute, publicly perform, and publicly display the Developed IP.
        • If requested by Google, Supplier will timely perform all acts reasonably necessary to accomplish the assignments and other transactions specified in the Agreement.
        • Supplier will not assert, and to the extent permitted by applicable law, otherwise waives, any moral rights in the Deliverables and Developed IP, and will ensure that all of its personnel, subcontractors, and agents and other third parties who have moral rights in the Deliverables will also not assert, and to the extent permitted by applicable law, will waive, those moral rights.
      • Supplier Background IP License. If Supplier includes any Supplier Background IP in any Deliverables, Supplier must describe such Background IP in writing, and Supplier grants to Google a perpetual, irrevocable, non-exclusive, royalty-free, fully-paid, worldwide license (with the right to sublicense) to:
        • reproduce, prepare derivative works of, distribute, publicly perform, publicly display, and otherwise use the Supplier Background IP, in connection with the Deliverables and Developed IP; and
        • (2) make, use, sell, offer for sale, import, export any component of, and otherwise dispose of the Supplier Background IP, in connection with the Deliverables and Developed IP.
      • Google Resources License.
        • License. If Google provides Supplier with any Google Background IP or Developed IP, software, equipment, tooling, or other materials in connection with this Agreement to provide Services (“Google Resources”), Google grants Supplier a limited, non-exclusive, non-transferable, royalty-free license (with the right to sublicense only to its subcontractors authorized by Google under Section 12.3 (Delegation and Subcontracting)) to use those Google Resources solely for the purpose of, and only to the extent needed, performing Services or making Deliverables for Google.
        • Conditions. Supplier will be responsible for the use and protection of the Google Resources and will, at Google’s option, replace or reimburse Google for the replacement cost of any Google Resources lost or damaged before its return to Google.
        • Return. Supplier will return the Google Resources to Google immediately after provision of all Deliverables and Services or any termination of this Agreement.
      • Third Party Materials. Supplier will not incorporate any Third Party Materials into any Deliverable without Google’s prior written approval of such incorporation and any applicable license terms.
      • Background IP Limitations. Nothing in this Agreement grants a party any license, right, or interest in the other party’s Background IP under the Agreement, except for the licenses granted in this Section 7.
  8. Representations and Warranties, Disclaimers.

    1. Mutual.

      Each party represents and warrants that: (a) it has the full power to enter into this Agreement, carry out its obligations under this Agreement, and grant the rights and licenses it grants the other in this Agreement; (b) its compliance with this Agreement will not violate any agreements it has with any third party; (c) it is an equal opportunity employer and will comply with all applicable employment and nondiscrimination laws, including laws applicable to U.S. federal government contractors.
    2. Supplier.

      Supplier represents and warrants that:
      • Specifications. The Products and Services will comply with their Specifications and will be of satisfactory quality and reasonably fit for any purpose made known to Supplier.
      • Products. Products will be new, unused, and not refurbished at the time of delivery, and will be safe for normal use and free from defects in design, materials, and workmanship during the Warranty Period.
      • Software. For software provided by Supplier, (i) there is no open source software in the Products (or any other items provided by Supplier), unless Supplier has notified Google in writing before delivery and Google has consented in writing to accepting this open source software, and (ii) the software will not damage, interfere with, or permit unauthorized access to any other existing products or systems on which it is installed or any information residing on those products or systems.
      • Quality. Supplier’s performance under this Agreement will be of professional quality and performed consistent with generally accepted industry standards.
      • License Rights; No Claims. Supplier (i) owns or has properly licensed all Products and Services provided by Supplier under this Agreement and Google will acquire good and clear title, and (ii) has no knowledge of any unresolved claims, demands, or pending litigation alleging that the Products or Services infringe or misappropriate any Intellectual Property Rights of any third party.
      • Pass-Through. Supplier will, to the extent it is contractually permitted to do so, provide to Google the benefits of manufacturers’ or suppliers’ warranties and guarantees for material or equipment incorporated into the Products or Services, and will perform its responsibilities so that such warranties or guarantees remain in full effect.
      • Confidentiality. Supplier will (i) keep confidential the terms of this Agreement and all non-public and proprietary Google information, and will only use such information to provide Products and Services under this Agreement, and will not disclose such information except to the extent required by law after giving reasonable notice to Google, if permitted by law; and (ii) not use in providing Products or Services or disclose to Google any materials or documents of another party considered confidential or proprietary unless it has obtained written authorization from that party and Google.
      • Insurance. Supplier will maintain: (i) insurance against general liability and property damage, (ii) workers compensation insurance as required by law where Services will be provided, including employer’s liability coverage; and (iii) additional insurance limits and coverages as Google may require, depending upon Services provided.
      • Compliance with Supplier Code of Conduct. Supplier will comply with the Supplier Code of Conduct (available at www.google.com/about/company/responsible -manufacturing.html or such other URL as Google may provide).
      • Compliance with Laws. In connection with this Agreement, Supplier, its personnel, subcontractors, and agents will comply with all applicable laws, directives, and regulations, including anti-bribery laws, conflict minerals laws, employment laws, import/export laws, materials disposal laws, and data privacy laws, including the following:
        • In performing its obligations under the Agreement, Supplier will comply with all applicable commercial and public anti-bribery laws, including the U.S. Foreign Corrupt Practices Act of 1977 and the UK Bribery Act of 2010, which prohibit both direct and indirect corrupt offers of anything of value to anyone, including government officials, to obtain or keep business or to secure any other improper commercial advantage. Furthermore, Supplier will not make any facilitation payments, which are payments to induce officials to perform routine functions they are otherwise obligated to perform. “Government officials” include any government employee, candidate for public office, and employee of government-owned or government-controlled companies, public international organizations, and political parties.
        • Upon request, Supplier will provide a complete and accurate conflict mineral report detailing the source and chain of custody of conflict minerals (in a format that is at least as comprehensive as the EICC/GeSI reporting template) for each Product.
    3. Personal Information Safeguards.

      • Under this Agreement, Supplier will not receive, or have access to, use or store Personal Information (as defined below). If however, Supplier receives, or has access to, uses or stores Personal Information under this Agreement, then this Section 8.3 will apply (in addition to Section 8.2(G) (Confidentiality)).
      • “Data Protection Law” means: (a) any applicable data privacy legislation or regulation; and (b) Google’s privacy policy (available at www.google.com/privacypolicy.html or such other URL as Google may provide).
      • “Personal Information” means any information relating to an identified natural person or a directly or indirectly identifiable natural person.
      • To the extent Supplier receives, or has access to, uses or stores Personal Information under this Agreement Supplier will:
        • immediately notify Google;
        • implement and maintain administrative, physical, and technical safeguards (“Safeguards”) that meet or exceed relevant industry standards and that protect the security and privacy of Personal Information. Supplier will not permit access to Personal Information except to those who need to know it in order to perform under this Agreement, and will ensure that any third party accessing Personal Information protect it with Safeguards at least as strong as supplier’s Safeguards;
        • upon Google’s instruction, delete such Personal Information immediately or return it to Google in a secure manner and delete all remaining copies of Personal Information after such return and provide documentation of the deletion to Google;
        • not use the Personal Information for any other purpose than compliance with its’ obligations under this Agreement; and
        • if Supplier has reason to believe that Personal Information is reasonably likely to have been accessed for an unauthorized purpose or by unauthorized persons (an “Incident”): (a) promptly notify Google by emailing vendor-incidents@google.com; (b) reasonably assist Google in investigating and remedying any Incident and any related inquiry or claim; and (c) provide Google with reasonable assurance that Supplier has corrected all circumstances under Supplier’s control that led to the Incident.
    4. Disclaimer.

      Except for the express warranties contained in this agreement, no other warranties are expressed or implied, including any implied warranties of merchant ability and fitness for a particular purpose.

  9. Defense and Indemnity.

    1. Obligations.

      Supplier will defend and indemnify Google and its affiliates, directors, officers, and employees against all liabilities, damages, losses, costs, fees (including legal fees), and expenses relating to any allegation or third-party legal proceeding to the extent arising from:
      • Supplier’s breach of this Agreement;
      • Supplier’s negligence, willful misconduct, fraud, misrepresentation, or violation of law;
      • any property damage, personal injury, or death related to Supplier’s performance under this Agreement or use of a Product or Service; or
      • claiming that use, possession, or sale of the Products or Services violates or infringes a third party’s rights, including Intellectual Property Rights.
      • any allegation, claim or determination by a court or agency that any of Supplier’s personnel is an employee of Google; or
      • any allegation by Supplier’s personnel or a third party under applicable labor or employment laws (including claims related to engagement, employment or termination of Supplier’s personnel), except to the extent caused by Google’s unlawful acts or omissions.
    2. Remedies.

      If an injunction preventing continued use of any Products or Services is threatened or granted, Supplier will do the following at its sole expense:
      • procure the right to continue providing the Products or Services in compliance with this Agreement; or
      • modify the Products or Services to make them non-infringing without materially reducing their functionality; or
      • replace the Products or Services with a non-infringing, functionally-equivalent alternative.
  10. Limitations of Liability.

    1. Liability.

      In section 10, “liability” means any liability, whether under contract, tort, or otherwise, including for negligence.

    2. Exclusion.

      Subject to section 10.4, neither party will have any liability arising out of or relating to this agreement for:

      • The other party’s lost revenues;

      • Indirect, special, incidental, or consequential losses (whether or not foreseeable or contemplated by the parties at the effective date); or

      • Exemplary or punitive damages.

    3. Limitations.

      Subject to sections 10.2 and 10.4:

      • Except as set forth in sub-section (b), each party’s aggregate liability arising out of or relating to this agreement is limited to the amount payable by google to supplier under the applicable purchase order; and

      • Each party’s aggregate liability under section 9 (defense and indemnity) is limited to the greater of the amount payable by google to supplier under the applicable purchase order or inr10,000,000.

    4. Exceptions to Limitations.

      Nothing in this agreement excludes or limits either party’s liability for:

      • Death or personal injury resulting from its negligence or the negligence of its employees or agents;

      • Fraud or fraudulent misrepresentation;

      • Breach of section 8.2(g) (confidentiality);

      • Infringement of the other party’s intellectual property rights; or

      • Matters for which liability cannot be excluded or limited under applicable law.

  11. Termination.

    1. Termination.

      • Either party may terminate this Agreement:
        • immediately for breach of confidentiality; and
        • upon written notice if the other party materially breaches any other provisions of this Agreement and fails to remedy that breach within 30 days after written notice.
      • Google may terminate this Agreement for convenience upon 45 days’ written notice.
      • Termination of the Agreement terminates all outstanding Purchase Orders effective as of the termination notice date, subject to Section 2.3 (Cancellation).
    2. Survival.

      Supplier’s obligations to deliver non-cancelled Product and Sections 1, 2.3, 4.2, 4.3, 6, 7.4(A), 7.4(B), 7.4(D), 8, 9, 10, 11.2, and 12 will survive any termination of the Agreement.
  12. General.

    1. Records.

      Supplier will maintain in reasonable detail accurate records relating to this Agreement. For a period of one year after the date of each Purchase Order, Google and its agents may audit Supplier’s relevant records to confirm compliance with this Agreement.
    2. Force Majeure.

      Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.
    3. Delegation and Subcontracting.

      Supplier may not subcontract any of its obligations under this Agreement without Google’s written consent. Supplier will remain liable for all subcontracted obligations and all acts or omissions of its subcontractors.
    4. Assignment.

      Neither party may assign any part of this Agreement, without the written consent of the other, except that Google may assign any rights or obligations under this Agreement to an affiliate.
    5. Change of Control.

      If a party experiences a change of control (for example, through a stock purchase or sale, merger, or other form of corporate transaction) that party will give written notice to the other party within 30 days after the change of control.
    6. Governing Law.

      • All claims arising out of or relating to this agreement will be governed by the laws of india and the parties hereto submit to the exclusive jurisdiction of the courts in delhi.

      • If the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act are otherwise applicable, the parties expressly exclude them from applicability under the Agreement.
    7. No Agency.

      This Agreement does not create any agency, partnership or joint venture between the parties, nor does it create the relationship of employer or employee between Google and Supplier or between Google and any of Supplier’s personnel.
    8. Notices.

      All notices of termination or breach must be in English, in writing, and addressed to the other party’s Legal Department and sent to the respective parties’ addresses stated in the Purchase Order. The address for notices to Google’s Legal Department is

      Attn: Legal Counsel

      No. 3, RMZ Infinity - Tower E

      Old Madras Road

      4th and 5th Floors

      Bangalore, 560 016

      India

      All other notices must be in English, in writing and addressed to the other party’s primary contact. Notice will be treated as given on receipt, as verified by written or automated receipt or by electronic log (as applicable).
    9. Severability.

      If any term (or part of a term) of this Agreement is invalid, illegal or unenforceable, the rest of the Agreement will remain in effect.
    10. No Waiver.

      Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
    11. No Third Party Beneficiaries.

      This Agreement does not confer any benefits on any third party unless it expressly states that it does.
    12. Entire Agreement, Modification.

      This Agreement sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. Any amendment must be in writing, signed by both parties, and expressly state that it is amending this Agreement. In entering into the Agreement neither party has relied on and neither party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in the Agreement.

June 11th 2015

Google supplier purchase order terms and conditions

Google 供应商采购订单条款与条件

Introduction. These terms and conditions (“Terms and Conditions”) together with a Purchase Order form an “Agreement” between the Google entity specified on the Purchase Order (“Google”) and the supplying party specified on the Purchase Order (“Supplier”) for the purchase of all Products or Services provided by Supplier, directly or indirectly, to or for Google, under the applicable Purchase Order. No terms other than the Agreement will apply to Supplier’s provision of Products or Services, except if the parties have executed a separate written agreement governing the Products or Services (“Existing Agreement”), in which case the Existing Agreement will govern. If there is a conflict between these Terms and Conditions and any Purchase Order, these Terms and Conditions govern.

引言。本条款与条件(“条款与条件”)与采购订单,构成订单中指定的Google公司(“Google”)与订单中指定的供应方(“供应商”)就Google购买供应商根据相关采购订单直接或间接提供的所有产品或服务等事项达成的协议(“本协议”)。除本协议以外的任何其他条款均不适用于供应商提供产品或服务的行为,除非双方已另行签署适用于该等产品或服务的其他协议(“现有协议”);如发生该等情况,双方将适用现有协议。若本条款与条件与任何采购订单相冲突,应以本条款和条件为准。

  1. Definitions.

    定义。

    1. “Background IP”

      means all IP owned, created or discovered by a party: (a) before Supplier performs Services, or (b) independent of the Agreement.

      “背景知识产权”

      指任何一方(a)在供应商提供服务之前;或(b)独立于本协议,所拥有的、创造的或发现的知识产权。
    2. “Defect” or “Defective”

      means with respect to a Product a failure to meet the Product warranties in Sections 8.2(A) and 8.2(B).

      “缺陷”或“有缺陷的”

      就产品而言,指未能符合第8.2(A) 条和第8.2(B)条中有关产品质保的规定。
    3. “Deliverables”

      means custom work product that Supplier creates under a Purchase Order.

      “工作成果”

      指供应商根据采购订单创作的定制工作成果。
    4. “Developed IP”

      means any IP other than Background IP created or discovered by Supplier or Google in connection with the Agreement.

      “自行开发的知识产权”

      指供应商或Google在履行本协议过程中创造或发现的除背景知识产权以外的任何其他知识产权。
    5. “Intellectual Property Rights”

      means all patent rights, copyrights, trademark rights, rights in trade secrets, database rights, moral rights, and any other intellectual property rights (registered or unregistered) throughout the world.

      “知识产权”

      指在全球注册或未注册的所有专利权、版权、商标权、商业秘密权、数据库权利、精神权利以及任何其他知识产权。
    6. “IP”

      means anything protectable by an Intellectual Property Right.

      “知识产权”

      指可受知识产权保护的任何事项。
    7. “Product”

      means product, including hardware and software, sold by Supplier, including any Deliverables.

      “产品”

      指供应商出售的产品(包括软件和硬件)以及任何工作成果。
    8. “Purchase Order”

      means a purchase order (including any incorporated attachments) for Product or Services submitted to Supplier by Google.

      “采购订单”

      指Google就产品或服务向供应商提交的采购订单(包括其中的任何附件)。
    9. “Services”

      means services provided by Supplier.

      “服务”

      指供应商提供的服务。
    10. “Specifications”

      means those specifications (if any) identified in a Purchase Order or as the parties may otherwise agree to in writing.

      “规格”

      指采购订单上规定的或双方另行书面约定的规格(如有)。
    11. “Tax(es)”

      means all applicable taxes and similar obligations, except for taxes based on Supplier’s net income, net worth, employment, personal and real property, and assets.

      “税收”

      指所有适用的税收及类似纳税义务,但基于供应商的净收入、净值、劳动关系、员工、不动产以及资产所征收的税款除外。
    12. “Third Party Materials”

      means any information or materials owned by a third party or any open source materials.

      “第三方资料”

      指第三方拥有的任何信息或资料,或指任何公开来源的资料。
    13. “Warranty Period”

      means the 12-month period starting on the date Google accepts a Product.

      “质保期”

      指自Google验收产品之日后12个月的期间。
    14. The words “include” and “including” mean “including but not limited to.”

      “包括” 指 “包括但不限于”。

    15. Written communication includes email.

      书面通讯包括电子邮件。

    16. When examples are provided in these Terms and Conditions, they are for illustrative purposes only, and are not the exclusive examples of a particular concept or provision.

      本条款与条件中所给的例子仅为说明目的,并不是为排斥某个概念或规定所举的例子。

  2. Ordering Product and Services.

    产品与服务的订购。

    1. Purchase Orders.

      Google may submit Purchase Orders in writing, including electronic transmission. Unless the parties mutually agree otherwise in writing, Purchase Orders will state prices, delivery dates, and delivery locations for Products and Services.

      采购订单。

      Google可以书面形式,包括通过电子传输方式提交订单。除非双方另有书面约定,否则,采购订单将规定价格、交付日期和交付地点等事项。
    2. Changes.

      Google may reschedule Products or Services, change the delivery destination for Products in any Purchase Order, change the Services provided under any Purchase Order, or cancel any Purchase Order upon written notice to Supplier at any time before the scheduled delivery or completion date, as applicable, at no cost to Google, except that if requested changes materially increase or decrease the cost to provide Products or Services, the parties will negotiate an appropriate adjustment to their obligations under the Purchase Order. Supplier will not unreasonably withhold or delay agreement to any change requested by Google.

      变更。

      Google可重新安排产品或服务的购买计划,可变更任何采购订单项下所提供的服务,亦可在计划交付或完成日期前经书面通知供应商后随时取消任何采购订单,且无需承担任何费用;但是,若Google要求的变更实质性增加或减少产品或服务的提供费用,双方将通过磋商对采购订单项下的义务进行适当调整。Google要求对采购订单进行变更的,供应商不得无理拒绝或拖延。
    3. Cancellation.

      Supplier will stop work on the applicable Purchase Order immediately upon receipt of a cancellation notice from Google. If Google cancels a Purchase Order for Services before the scheduled delivery date, Supplier may invoice Google for work completed at a pro-rated price based upon the percentage of work completed prior to the date of cancellation, and Supplier will immediately ship to Google all Deliverables and work-in-progress that are the subject of such invoice.

      撤销。

      若Google向供应商发出撤销采购订单的通知,供应商应在收到该等通知后立即停止就采购订单所从事的相关工作。若Google在计划交付日期前撤销服务采购订单,供应商可基于其在撤销日期前所完成的工作占原整个工作的比例,就所完成的工作按比例向Google开具账单,但供应商应立即向Google交付该等账单所涉及的所有工作成果以及已完成的部分工作。
  3. Product Delivery.

    产品交付。

    1. Product Shipping.

      产品运输。

      • Delivery Terms; Title Transfer. Unless otherwise specified in the Purchase Order, Supplier will deliver Products DDP (Incoterms 2010) to the delivery destination stated in the Purchase Order, with title and risk of loss transferring from Supplier to Google at the delivery destination.

        交付条款;所有权转移。除非采购订单另有明示规定,否则,供应商应根据《2010年国际贸易术语解释通则》DDP条款(即完税后交货(指定目的地)),在采购订单中指定的交付地向Google交付产品。产品的损失风险和所有权在供应商于指定目的地向Google交付产品后转移给Google。

      • Trade Compliance. When Supplier is responsible for exporting or importing Product, Supplier will obtain any and all authorizations and permits necessary to fulfill all applicable governments’ requirements for Product shipment.

        贸易合规。若供应商负责产品的进口或出口事宜,供应商将获得为符合相关政府机构就产品运输规定的所有要求而所需的所有批准和许可。

      • Import/Export Information. Upon Google’s request, Supplier will provide Google with any information Google reasonably requests regarding Product importation, exportation or distribution.

        进口/出口信息。供应商将应Google要求,向Google提供其就产品的进口、出口或经销合理要求的任何信息。

    2. Product Packing.

      Supplier will package Products according to any instructions Google provides in a Purchase Order, and if none are provided, then according to good commercial practice to ensure safe arrival of the Products.

      产品要求。

      供应商将根据Google在采购订单中的指示对产品进行包装;若Google没有发出该等指示,供应商应根据能确保产品安全运抵的良好商业惯例对产品进行包装。
    3. Advance Delivery.

      Google may refuse any delivery made more than 5 days before the delivery date and Supplier will re-deliver the Product on the correct date at Supplier’s expense.

      提前交付。

      供应商在交付日期前提前5日以上交付产品的,Google可拒绝接收产品;供应商应在正确的日期向Google重新交付产品,相关费用由供应商承担。
    4. Excess Product.

      Google may return to Supplier, at Supplier’s expense, any quantity of Product exceeding that specified in the Purchase Order.

      超过限额的产品。

      供应商向Google交付的产品超过采购订单中规定的限额的,Google有权向供应商退还超额部分的产品,相关退还费用由供应商承担。
    5. Late Product Delivery.

      If a Product shipment (or part of a shipment) is late, Supplier will: (i) immediately propose a new delivery date, (ii) use best efforts to expedite delayed Product at Supplier’s expense, and (iii) issue Google a discount or refund on the purchase price for Product delivered late, unless otherwise agreed by the parties. Notwithstanding the foregoing Section 3.5, Google may (a) cancel without liability the applicable Purchase Order or portions of the Purchase Order for late Product not yet delivered, or (b) cover for late Product by sourcing products from another supplier, at Supplier’s reasonable expense.

      延迟交付产品。

      若产品(或部分产品)延迟装运,供应商将:(i)立即拟定新的交付日期;(ii)自付费用,尽最大努力尽快装运延期交付的产品;且(iii)就延期交付的产品按该等产品的购买价款向Google提供一定的折扣或退还该等价款,但双方另有约定的除外。即使有上述规定,Google可: (a)撤销相关采购订单或就延迟交付且仍未交付的产品撤销部分采购订单;或 (b)通过向其他供应商采购产品来取代延迟交付的产品,由此产生的合理费用由供应商承担。
  4. Inspection, Acceptance, Rejection.

    检查、验收、拒收。

    1. Inspection and Acceptance.

      Google may inspect Product and return Defective Product. Any Product or Service not rejected within 30 days of receipt will be deemed accepted by Google. Google’s payment to Supplier for Product or Services will not be treated as acceptance.

      检查与验收。

      Google有权检查产品和退还有缺陷的产品。Google在收到任何产品或服务后30日内没有拒绝的,将被视为接受该等产品或服务。Google向供应商支付产品或服务的价款的,并不视为Google接受该等产品或服务。
    2. Rejected Product.

      At Google’s option, Google may: (i) return rejected Products, and Supplier will immediately replace returned Products, at Supplier’s expense, including all freight costs; or (ii) use the defective Products and obtain a reduction in price.

      被拒收的产品。

      就被拒收的产品而言,Google可选择采取以下任何行动:(i)向供应商退还被拒收的产品,供应商将立即自付费用(包括所有运费),向Google交付合格产品,以更换被拒收的产品;或(ii)使用有缺陷的产品,要求供应商降低该等产品的价格。
    3. Defect Replacement Procedure.

      缺陷产品更换程序。

      • For Product that is discovered Defective during the Warranty Period, Supplier will, at its expense and at Google’s option,

        任何产品在质保期被发现存在缺陷的,Google可要求供应商自付费用采取以下任何行动:

        • replace or repair Defective Product and re-deliver such repaired or replaced Product to Google within a commercially reasonable timeframe agreed to by Google,

          更换或维修有缺陷的产品,并在经Google同意的合理商业期限内向Google重新交付经维修的产品或新产品;

        • refund Google the Product purchase price within 30 days of receiving Google’s notice that a Product is Defective, or

          在收到Google就产品有缺陷发出的通知后30日内,向Google退还该等产品的购买价款;或

        • reimburse Google for the reasonable cost to have the Product repaired within 30 days after receiving Google’s invoice.

          若Google维修有缺陷的产品,则供应商应在收到Google的通知后30日内向Google支付合理的维修费用。

      • Supplier is responsible for all costs, damages, and liabilities incurred by Google as a result of Defective Product.

        凡Google因有缺陷的产品发生的任何及所有费用、损害或责任,供应商均将向Google作出赔偿。

      • All Products undergoing repair will at all times remain Google’s property.

        正在维修的产品在任何时候均属于Google的财产。

      • Supplier will warrant replacement Product for the longer of 90 days following Google’s acceptance of the replacement Product or the remainder of the original Product’s Warranty Period.

        供应商将就更换后的产品提供质保期,质保期为Google验收该等产品后的90日,或为原产品质保期的剩余期限(以两者中时间较长的为准)。

  5. Payment.

    付款。

    1. Invoice Issuance and Payment.

      账单开具与付款。

      • Supplier will invoice Google upon Google’s acceptance of the Products and Services.

        供应商将在Google验收产品或服务后向Google开具账单。

      • Except as specifically stated in the Purchase Order, Supplier will be responsible for all costs it incurs in connection with providing the Services.

        除采购订单另有明确说明外,供应商将承担其在提供服务时发生的所有费用。

      • Google will pay any undisputed portion of an invoice for accepted Products or Services within 30 business days following the later of: (i) delivery of the Products or completion of Services, or (ii) receipt of a correct invoice by Google’s accounts payable department. Correct invoices must include Purchase Order number, complete bill-to address, Product part numbers and quantities, description of Products or Services, unit prices, any applicable tax or other charges, and extended totals.

        Google将支付供应商就通过Google验收的产品或服务所开具的无争议部分账单,具体支付时间为以下日期(以两者中较晚的为准)后30个营业日:(i)交付产品或完成服务之日;或(ii)Google的财务部门收到正确的账单之日。正确的账单必须载明采购订单编号、完整的账单支付地址、产品编号和数量、产品或服务描述、单价、 任何适用税项或其他收费和总价等信息。

      • Google is not obligated to pay any invoice submitted 180 days or more after a Product is shipped or Services are completed.

        供应商在产品装运或完成服务之日后180 日或超过180 日提交账单的,Google没有义务支付该等账单。

      • In addition to other rights and remedies Google may have, Google may offset any payment obligations to Supplier that Google may incur under the Agreement against any fees owed to Google and not yet paid by Supplier under the Agreement or any other agreement between Supplier and Google.

        供应商根据本协议或其与Google订立的协议需要向Google支付但仍未支付任何费用的,Google可将其根据本协议应付供应商的任何款项与该等费用进行抵消;此外,Google还对此享有其他权利和救济。

    2. Invoice Disputes.

      If Google initiates an invoice dispute, Google will include a written description of the disputed portion of the invoice. Upon Google’s request, Supplier will issue separate invoices for undisputed and disputed amounts. Payment of undisputed amounts will not limit Google’s right to object and refuse payment of disputed amounts.

      账单争议。

      若Google对账单持有争议,Google将就账单中有争议的部分提供书面说明。供应商将根据Google的要求,分别就账单中有争议的款项和没有争议的款项各自出具账单。Google向供应商支付没有争议部分的款项,并不限制Google拒绝向供应商支付有争议部分款项的权利。
    3. Taxes.

      Prices do not include any applicable Taxes. If Supplier is legally obligated to collect applicable Taxes, Supplier must state each applicable Tax as a separate line item on its invoice to Google. Google will pay Taxes separately stated on correct, undisputed, and timely invoices for applicable Products or Services, unless Google provides Supplier with a valid tax exemption certificate. To be correct, invoices for value-added Tax or goods and services Tax must meet all of the relevant Tax authority’s requirements (to allow Google to obtain relief from such Tax if available). If Google is obligated to withhold any Taxes from its payments to Supplier, Google will make the payments net of the withheld amounts.

      税项。

      价格不包括任何适用的税款。如果供应商根据法律要求须向Google征收相关税款,供应商必须在提交Google的账单中单独列明每一项税款。Google将支付正确的,无争议的,且及时提交的相关产品和服务的账单上单独列明的税款,除非Google 向供应商提供有效的免税证明。为明确起见,增值税或商品和服务的税款发票必须符合相关税务机关的要求(以允许Google获得相应的税款减免,如该等减免适用)。如果Google有义务从支付给供应商的款项中代扣代缴任何税款,Google 将向供应商支付扣除相关税款后的金额。
  6. Product License; Limitations.

    产品许可:限制。

    1. Product License Grant.

      产品许可的授予。

      • For those portions of a Product that are Deliverables, Section 7.4 (Services Intellectual Property Rights; Licenses) will apply.

        就属于部分产品范畴的工作成果而言,将适用第7.4条(服务知识产权;许可)的规定。

      • For those portions of a Product that are not Deliverables, Supplier grants Google, its affiliates, distributors, and end users a perpetual, irrevocable, non-exclusive, worldwide, fully paid-up, royalty-free license to use, modify, sell, offer for sale, import, and otherwise dispose of the Product, including any bug fixes, updates or upgrades developed by Supplier for the respective Product.

        就不属于部分产品范畴的工作成果而言,供应商向Google、Google的关联公司、经销商和终端用户不可撤销地授予在全球范围内永久、非排他性地免费使用、出售、要约出售、进口和以其他方式处置产品的许可,包括供应商就相关产品开发的任何漏洞修复程序、更新版或升级版。供应商已就上述许可缴足相关款项。

    2. Limitations.

      Nothing in this Agreement grants a party any license, right, or interest in the other party’s trademark(s), trade name(s) or service mark(s). Neither party will alter or modify any proprietary rights notices on the other party’s IP.

      限制。

      本协议中的任何规定均不向任何一方授予另一方在:(i)任何商标、商号或服务商标上的任何许可、权利或利益。任何一方将不变更或改变另一方的任何专有权利。
  7. Custom Services.

    定制服务。

    To the extent that Supplier provides Services, this Section 7 will also apply.

    若供应商提供服务,则应适用第7条的规定。

    1. Services Provision. Supplier will:

      服务的提供。供应商将:

      • develop, test, and deliver to Google all Deliverables in accordance with the applicable Purchase Order, and, if requested by Google, provide Google with supporting documentation evidencing Supplier’s testing, and all assistance necessary for Google to fully inspect the Deliverables;

        根据相关采购订单开发、测试并向Google交付所有工作成果,还应在Google要求时,向Google提供证明供应商已进行产品测试的相关文件,以及对Google充分检查工作成果所需的所有协助;

      • provide all materials, equipment, and personnel necessary for performing the Services unless stated otherwise in the purchase order;

        向Google提供对服务的提供所需的所有资料、设备和人员,但采购订单另有说明的除外;

      • provide Google with status reports regarding Supplier’s progress on Deliverables, at the frequency requested by Google;

        按Google要求的次数,向Google提供有关供应商工作成果开发进度的状态报告;

      • comply with all applicable Google policies if and when Supplier is at Google’s facilities.

        若供应商在Google的工作场所提供服务或从事相关工作,遵守Google规定的所有相关政策。

    2. Rejected Services.

      Notwithstanding any acceptance by Google, if any Services do not meet the applicable warranties or other criteria under the Agreement, at Google’s option, Google may:

      服务的拒绝。

      即使Google已对服务进行验收,若任何该等服务不符合本协议项下的相关质保规定或其他标准,Google可选择采取以下任何行动:
      • require Supplier to re-perform the non-conforming Services at no charge to Google;

        要求供应商自付费用,重新向Google提供符合标准的服务;

      • re-perform the non-conforming Services itself, or have a third party do this, and charge Supplier the reasonable cost of this re-performance;

        Google自身提供该等服务,或安排第三方提供该等服务,并就该等服务的提供向供应商收取合理费用;

      • accept the Services and obtain a reduction in price; or

        接受服务,但有权要求供应商降低价格;或

      • reject the non-conforming Services and obtain a refund from Supplier for all amounts paid in relation to these Services.

        拒绝接受不符合标准的服务,并要求供应商退还Google就该等服务支付的所有款项。

    3. Failure Analysis.

      Upon Google’s request, Supplier will perform a failure analysis of any returned Deliverable that is suspected to be Defective. Supplier will use reasonable efforts to provide Google with (a) an initial assessment of the Defect’s cause(s) within 1 week of receiving the returned Deliverable; and (b) a final assessment of the Defect’s root cause within 3 weeks of receiving the returned Deliverable.

      故障分析。

      若Google退回其认为有缺陷的任何工作成果,供应商应在Google要求时,对该等工作成果进行故障分析。供应商将在收到该等工作成果后的1个星期内,尽合理努力对产品缺陷原因进行初始评估,并在收到该等工作成果后的3个星期内最终评估产品缺陷的根本原因。
    4. Services Intellectual Property Rights; Licenses.

      服务知识产权;许可。

      • Ownership. Subject to Supplier’s Intellectual Property Rights in any of Supplier’s Background IP incorporated in any Deliverables (and any applicable third parties’ Intellectual Property Rights in Third Party Materials approved by Google in accordance with 7.4(D)):

        所有权。若任何工作成果含有供应商的任何背景知识产权,且供应商对背景知识产权拥有知识产权权利,则除该等知识产权权利(以及任何第三方在根据第7.4(D)条经Google批准的第三方资料拥有的知识产权权利)外:

        • Title to the Deliverables will transfer to Google upon delivery.

          工作成果的所有权将在交付时转移给Google。

        • Google owns any Developed IP.

          Google拥有任何自行开发的知识产权。

        • The Developed IP is a work made for hire to the extent permitted by applicable law, and Google retains all Intellectual Property Rights in the Developed IP.

          自行开发的知识产权在法律许可的限度内属于雇佣作品。Google拥有自行开发的知识产权上的所有知识产权权利。

        • To the extent that Supplier or any of its personnel, subcontractors or agents own any rights in the Developed IP, Supplier assigns (or will procure the assignment of) all rights (including Intellectual Property Rights), title, and interest in the Developed IP to Google. If applicable law prevents future assignments, Supplier will assign (or will procure the assignment of) such rights as these are created.

          若供应商或其任何员工、分包商或代理人拥有自行开发的知识产权上的任何权利,供应商将向Google转让(或安排他人向Google转让)该等知识产权上的所有权利(包括知识产权权利)、所有权和利益。若根据相关法律规定,供应商不得向Google转让未来创造的权利,则供应商将向Google转让(或安排他人向Google转让)目前已产生的权利。

        • If applicable law prevents Supplier from transferring ownership of any Developed IP to Google, Supplier grants Google a perpetual, irrevocable, exclusive, royalty-free, fully-paid, transferrable, worldwide license (with the right to sublicense) to make, use, import, offer for sale, sell, export any component of, reproduce, prepare derivative works of, distribute, publicly perform, and publicly display the Developed IP.

          若根据相关法律规定,供应商不得向Google转让任何自行开发的知识产权上的所有权,供应商将授予Google永久的,不可撤销的,独家的,免费的,已缴足相关款项的,可转让的,世界范围内的许可(及分许可的权利),以制造、使用、进口、要约出售、出售该等自行开发的知识产权、出口该等知识产权的任何部分、复制、传播、公开表演和展示该等知识产权,以及创作该等知识产权的衍生作品。

        • If requested by Google, Supplier will timely perform all acts reasonably necessary to accomplish the assignments and other transactions specified in the Agreement.

          经Google要求,供应商将及时采取一切必要的合理行动,以完成上述转让和本协议规定的其他交易。

        • Supplier will not assert, and to the extent permitted by applicable law, otherwise waives, any moral rights in the Deliverables and Developed IP, and will ensure that all of its personnel, subcontractors, and agents and other third parties who have moral rights in the Deliverables will also not assert, and to the extent permitted by applicable law, will waive, those moral rights.

          供应商将不主张工作成果和自行开发的知识产权上的任何精神权利,且在相关法律许可的限度内放弃该等精神权利。若供应商的任何员工、分包商、代理人或任何第三方对工作成果拥有任何精神权利,供应商将确保前述人士不主张该等精神权利,并在相关法律许可的限度内,确保前述人士放弃该等精神权利。

      • Supplier Background IP License. If Supplier includes any Supplier Background IP in any Deliverables, Supplier must describe such Background IP in writing, and Supplier grants to Google and its affiliates a perpetual, irrevocable, non-exclusive, royalty-free, fully-paid, worldwide license (with the right to sublicense) to:

        供应商背景知识产权的许可。若供应商在其交付的工作成果中包含任何供应商背景知识产权,供应商必须以书面方式说明该等背景知识产权,还将就该等背景知识产权向Google及其Google的关联公司不可撤销地授予在全球范围内永久免费从事以下行为的许可和分许可权(该等许可及分许可权已缴足相关款项、无排他性,并可转让):

        • reproduce, prepare derivative works of, distribute, publicly perform, publicly display, and otherwise use the Supplier Background IP, in connection with or as part of the Deliverables and Developed IP; and

          若供应商背景知识产权涉及工作成果和自行开发的知识产权,或其任何部分,则可复制、传播、公开表演、公开展示或以其他方式使用供应商背景知识产权,或创作该等背景知识产权的衍生作品;

        • make, use, sell, offer for sale, import, export any component of, and otherwise dispose of the Supplier Background IP, in connection with or as part of the Deliverables and Developed IP.

          若供应商背景知识产权涉及工作成果和自行开发的知识产权,或其任何部分,则可创造、使用、出售、要约出售、进口或以其他方式处置该等背景知识产权或出口其任何部分。

      • Google Resources License.

        Google资源的许可。

        • License. If Google provides Supplier with any Google Background IP or Developed IP, software, equipment, tooling, or other materials in connection with this Agreement to provide Services (“Google Resources”), Google grants Supplier a limited, non-exclusive, non-transferable, royalty-free license (with the right to sublicense only to its subcontractors authorized by Google under Section 12.3 (Delegation and Subcontracting)) to use those Google Resources solely for the purpose of, and only to the extent needed, performing Services or making Deliverables for Google.

          许可。若在供应商提供服务的过程中,Google向供应商提供任何Google背景知识产权、自行开发的知识产权,或与本协议有关的设备、工具或其他资料(“Google资源”),则Google向供应商授予使用Google资源的优先许可(以及供应商向Google根据第12.3条(委托与分包)批准的分包商授予分许可的权利)。该等使用许可无排他性、不可转让、免许可使用费,且仅能用于并在所需的限度内用于为Google提供服务或创造工作成果。

        • Conditions. Supplier will be responsible for the use and protection of the Google Resources and will, at Google’s option, replace or reimburse Google for the replacement cost of any Google Resources lost or damaged before its return to Google.

          条件。供应商将负责使用和保护Google资源,且在Google资源归还给Google前遭到遗失或损坏时,更换该等Google资源或向Google偿付更换费用。

        • Return. Supplier will return the Google Resources to Google immediately after provision of all Deliverables and Services or any termination of this Agreement.

          归还。供应商将在提供所有工作成果或服务后,或在本协议终止时,立即向Google归还Google资源。

      • Third Party Materials. Supplier will not incorporate any Third Party Materials into any Deliverable without Google’s prior written approval of such incorporation and any applicable license terms.

        第三方资料。供应商向Google交付的任何工作成果中将不含有任何第三方资料,除非Google事先书面批准含有该等第三方资料,且批准相关许可条款。

      • Background IP Limitations. Nothing in this Agreement grants a party any license, right, or interest in the other party’s Background IP under the Agreement, except for the licenses granted in this Section 7.

        背景知识产权限制。除第7条授予的许可外,本协议中的任何规定均不向任何一方授予另一方在本协议项下的背景知识产权中的任何许可、权利或利益。

  8. Representations and Warranties, Disclaimers.

    陈述、保证与免责声明。

    1. Mutual.

      Each party represents and warrants that: (a) it has the full power to enter into this Agreement, carry out its obligations under this Agreement, and grant the rights and licenses it grants the other in this Agreement; (b) its compliance with this Agreement will not violate any agreements it has with any third party; (c) it is an equal opportunity employer and will comply with all applicable employment and nondiscrimination laws.

      相互陈述与保证。

      各方陈述与保证:(a)其拥有充分的权力订立本协议、履行其在本协议项下的义务,并向另一方授予其在本协议项下的权利和许可;(b)其对本协议的遵守将不违反其与任何第三方订立的任何其他协议;且(c)其是提供公平就业机会的用工单位,遵守所有相关劳动法律和禁止就业歧视的法律。
    2. Supplier.

      Supplier represents and warrants that:

      供应商。

      供应商陈述与保证:
      • Specifications. The Products and Services will comply with their Specifications and will be of satisfactory quality and reasonably fit for any purpose made known to Supplier.

        规格。本协议项下的产品与服务将符合相关规格,其质量达到Google的要求,并可适用于供应商所知的任何用途。

      • Products. Products will be new, unused, and not refurbished at the time of delivery, and will be safe for normal use and free from defects in design, materials, and workmanship during the Warranty Period.

        产品。产品在交付时应为新产品,未曾使用且不属翻新产品。产品能安全用于一般用途,并在质保期限内,在设计、材料和工艺方面不存在任何缺陷。

      • Software. For software provided by Supplier, (i) there is no open source software in the Products (or any other items provided by Supplier), unless Supplier has notified Google in writing before delivery and Google has consented in writing to accepting this open source software, and (ii) the software will not damage, interfere with, or permit unauthorized access to any other existing products or systems on which it is installed or any information residing on those products or systems.

        软件。就供应商提供的软件而言,(i)产品(或供应商提供的任何其他产品)上使用的软件不含有任何公开源代码,除非供应商在交付产品前已书面通知Google,且Google书面同意接受该等公开源代码;和(ii)该等软件将不损害、影响或允许他人擅自获取安装有该等软件的任何其他现有产品或系统或该等产品或系统上储存的任何其他信息。

      • Quality. Supplier’s performance under this Agreement will be of professional quality and performed consistent with generally accepted industry standards.

        质量。供应商对其在本协议项下义务的履行将达到专业质量水平,并符合公认行业标准。

      • License Rights; No Claims. Supplier (i) owns or has properly licensed all Products and Services provided by Supplier under this Agreement and Google will acquire good and clear title, and (ii) has no knowledge of any unresolved claims, demands, or pending litigation alleging that the Products or Services infringe or misappropriate any Intellectual Property Rights of any third party.

        许可权;无任何权利请求。供应商:(i)对于其根据本协议提供的所有产品和服务,拥有所有权或已就该等产品或服务授予适当的许可,Google将获得该等产品或服务有效的、不存在任何权利负担的所有权;和(ii)目前不知悉有任何第三方声称该等产品或服务侵犯或不当使用该第三方知识产权,从而产生任何未解决的权利请求、要求或未结诉讼。

      • Pass-Through. Supplier will, to the extent it is contractually permitted to do so, provide to Google the benefits of manufacturers’ or suppliers’ warranties and guarantees for material or equipment incorporated into the Products or Services, and will perform its responsibilities so that such warranties or guarantees remain in full effect.

        保证和担保利益的转移。若产品或服务含有其他生产商或供应商提供的材料或设备,且该等其他生产商或供应商就该等材料或设备已作出相关保证和担保,则供应商将在合同许可的限度内,向Google提供该等保证或担保中的利益,并确保该等保证和担保持续有效。

      • Confidentiality. Supplier will (i) keep confidential the terms of this Agreement and all non-public and proprietary Google information, and will only use such information to provide Products and Services under this Agreement, and will not disclose such information except to the extent required by law after giving reasonable notice to Google, if permitted by law; and (ii) not use in providing Products or Services or disclose to Google any materials or documents of another party considered confidential or proprietary unless it has obtained written authorization from that party and Google.

        保密。供应商将:(i)对本协议的条款以及Google的所有非公开和专有信息进行保密,仅能在其根据本协议提供该等产品和服务时使用该等信息,且不向任何第三方披露该等信息,但供应商根据法律规定需要披露该等信息的除外;在该等情况下,供应商应提前向Google发出合理的书面通知;和(ii)除非已获得第三方和Google的书面授权,否则,在提供产品或服务时不使用第三方的视为保密或专有的任何资料或文件,亦不向Google披露该等资料或文件。

      • Insurance. Supplier will maintain: (i) insurance against general liability and property damage, (ii) workers compensation insurance as required by law where Services will be provided, including employer’s liability coverage; and (iii) additional insurance limits and coverages as Google may require, depending upon Services provided.

        保险。供应商将:(i)购买一般责任险和财产损失险;(ii)在提供服务时,按法律规定购买工伤险,包括雇主责任险;和(iii)股买Google要求的其他保险,且保险金额应达到Google要求的数额,具体保险种类和数额取决于供应商所提供的服务。

      • Compliance with Supplier Code of Conduct. Supplier will comply with the Supplier Code of Conduct (available at www.google.com/about/company/responsible -manufacturing.html)

        遵守供应商行为准则。供应商将遵守供应商行为准则(供应商可登陆以下网址或Google提供的其他网址查阅www.google.com/about/company/responsible -manufacturing.html)。

      • Compliance with Laws. In connection with this Agreement, Supplier, its personnel, subcontractors, and agents will comply with all applicable laws, directives, and regulations, including anti-bribery laws, conflict minerals laws, employment laws, import/export laws, materials disposal laws, and data privacy laws, including the following:

        遵守法律。就本协议而言,供应商及其员工、分包商、代理人将遵守所有相关法律,法令和法规,包括反贿赂法、冲突矿产法、劳动法、进出口法、资料处置法和资料隐私法等法律,具体如下:

        • In performing its obligations under the Agreement, Supplier will comply with all applicable commercial and public anti-bribery laws, including the U.S. Foreign Corrupt Practices Act of 1977 and the UK Bribery Act of 2010, which prohibit both direct and indirect corrupt offers of anything of value to anyone, including government officials, to obtain or keep business or to secure any other improper commercial advantage. Furthermore, Supplier will not make any facilitation payments, which are payments to induce officials to perform routine functions they are otherwise obligated to perform. “Government officials” include any government employee, candidate for public office, and employee of government-owned or government-controlled companies, public international organisations, and political parties.

          供应商在履行其在本协议项下的义务时,将遵守所有相关商业方面的反贿赂法律,包括《美国1977年反海外腐败法》和《英国2010年反贿赂法》。该等法律禁止以获得或维持业务关系或获得任何其他不当商业利益为目的,向任何人(包括政府官员)以贿赂方式直接或间接给予任何有价物。此外,供应商不得向任何政府官员支付任何通融性款项,以诱使该等官员履行其有义务履行的任何日常职责。“政府官员”包括任何政府雇员、政府职位候选人、政府拥有的或受政府控制的企业的任何员工、国际组织的雇员,以及政党雇员。

        • Upon request, Supplier will provide a complete and accurate conflict mineral report detailing the source and chain of custody of conflict minerals (in a format that is at least as comprehensive as the EICC/GeSI reporting template) for each Product.

          经Google要求,供应商将就每一产品向Google提供一份完整、准确的冲突矿产报告,详细说明冲突矿产的来源和监管链等情况(该等报告应至少含有电子行业准则(EICC)/全球电子可持续发展倡议组织(GeSI)报告模板所规定的内容)。

    3. Personal Information Safeguards.

      个人信息保护。

      • Under this Agreement, Supplier will not receive, or have access to, use or store Personal Information (as defined below). If however, Supplier receives, or has access to, uses or stores Personal Information under this Agreement, then this Section 8.3 will apply (in addition to Section 8.2(G) (Confidentiality)).

        根据本协议的规定,供应商将不接收、接触、使用或存储个人信息(定义见下文)。但是,若供应商根据本协议接收、获取、使用或存储个人信息,则将适用本协议第8.3条(和第8.2(G)条保密)的规定。

      • “Data Protection Law” means: (a) any applicable data privacy legislation or regulation, and (b) Google’s privacy policy (available at www.google.com/privacypolicy.html or such other URL as Google may provide).

        “数据保护法”指(a)任何相关数据隐私法或法规;和(b)Google的隐私政策(可登陆以下网址或Google提供的其他网址查阅www.google.com/privacypolicy.html)。

      • “Personal Information” means any information relating to an identified natural person or a directly or indirectly identifiable natural person.

        “个人信息”指与所识别的自然人或直接或间接识别的自然人有关的任何信息。

      • To the extent Supplier receives, or has access to, uses or stores Personal Information under this Agreement Supplier will:

        若供应商根据本协议接收、获取、使用或存储个人信息,供应商将采取以下行动:

        • immediately notify Google;

          立即通知Google;

        • implement and maintain administrative, physical, and technical safeguards (“Safeguards”) that meet or exceed relevant industry standards and that protect the security and privacy of Personal Information. Supplier will not permit access to Personal Information except to those who need to know it in order to perform under this Agreement, and will ensure that any third party accessing Personal Information protect it with Safeguards at least as strong as supplier’s Safeguards;

          实施及维持符合或超过相关行业标准的管理,物理或技术上的保护措施(“保护措施”),以保护个人信息的安全和隐私。除需要知道个人信息以履行本协议的人员外,供应商不允许任何人接触个人信息,且将确保任何接触到个人信息的第三方采取保护措施来保护该等个人信息,且其保护措施的程度不低于供应商的保护措施。

        • upon Google’s instruction, delete such Personal Information immediately or return it to Google in a secure manner and delete all remaining copies of Personal Information after such return and provide documentation of the deletion to Google;

          经Google指示,立即删除该等个人信息,或以安全方式向Google归还该等个人信息,并在归还后删除该等个人信息的所有剩余复制件,还将向Google提供删除的证明文件;

        • not use the Personal Information for any other purpose than compliance with its’ obligations under this Agreement; and

          不将个人信息用于任何目的,但为履行其在本协议项下义务而使用该等个人信息的除外;和

        • if Supplier has reason to believe that Personal Information is reasonably likely to have been accessed for an unauthorized purpose or by unauthorized persons (an “Incident”): (a) promptly notify Google by emailing vendor-incidents@google.com; (b) reasonably assist Google in investigating and remedying any Incident and any related inquiry or claim; and (c) provide Google with reasonable assurance that Supplier has corrected all circumstances under Supplier’s control that led to the Incident.

          如果供应商有理由相信个人信息有合理的可能被用于非授权的用途或被非授权人员使用(一件“事故”):(a)供应商应立即发送邮件到vendor-incidents@google.com;通知Google;(b)合理的协助Google调查并纠正任何事故及相关损失或索赔要求;以及(c)向Google 提供合理的保证,保证供应商已经纠正了所有供应商能控制的导致事故发生的情况。

    4. No liability for personnel.

      不承担与员工有关的责任。

      • Because the parties have entered into the Agreement with the intent that under no circumstances will either the Services or the Agreement give rise to any transfer of employment under any applicable employment legislation or regulation, neither Google, its affiliates, nor any Replacement Supplier will have any liability for any of Supplier’s current or former personnel under any applicable employment legislation or regulation.

        由于双方在订立本协议时已表明,在任何情况下,本协议或本协议项下的服务不会产生任何相关劳动法律或法规项下的劳动关系转移的问题。因此,Google或其关联公司以及任何替代供应商不承担与供应商的现有或离任员工有关的相关劳动法律或法规项下的任何责任。

      • “Replacement Supplier” is a third party that Google or its affiliates engages to replace Supplier (in whole or in part) in performing services that are the same as or similar to the Services. To the extent permitted by applicable law, Replacement Suppliers will be third party beneficiaries under this Section 8.4, provided that the parties may amend any part of this Agreement without the Replacement Supplier’s consent, even if that amendment affects or will affect the benefits conferred on the Replacement Supplier.

        “替代供应商”指被Google或其关联公司聘请全部或部分取代供应商提供与本协议项下服务相同或相似之服务的第三方。在法律许可的限度内,替代供应商将是第8.4条项下的第三方受益人;但是,本协议双方可修订本协议的任何部分,无需替代供应商同意,即使该等修订影响或将会影响替代供应商所享有的利益。

    5. Disclaimer.

      Except for the express warranties contained in this agreement, no other warranties are expressed or implied, including any implied warranties of merchant ability and fitness for a particular purpose.

      免责声明。

      除本协议中的明示保证外,任何一方均不作出任何其他明示或默示保证,包括任何有关商品适销性和适用于特定用途的默示保证。
  9. Defense and Indemnity.

    抗辩与赔偿。

    1. Obligations.

      Supplier will defend and indemnify Google and its affiliates, directors, officers, and employees against all liabilities, damages, losses, costs, fees (including legal fees), and expenses relating to any allegation or third-party legal proceeding to the extent arising from:

      义务。

      凡因以下任何原因引发任何指控或第三方诉讼,导致Google或其任何关联公司、董事、高管或员工承担或发生任何责任、损害、损失、费用(包括法律费用)和支出的,供应商均将为Google及前述人士进行抗辩,并使Google和该等人士免受损害:
      • Supplier’s breach of this Agreement;

        供应商违反本协议;

      • Supplier’s negligence, willful misconduct, fraud, misrepresentation, or violation of law;

        供应商从事任何疏忽或故意不端行为、欺诈、虚假陈述,或违反法律;

      • any property damage, personal injury, or death related to Supplier’s performance under this Agreement or use of a Product or Service; or

        供应商在履行本协议或Google使用产品或服务时导致任何财产损坏、人身伤害或死亡;

      • claiming that use, possession, or sale of the Products or Services violates or infringes a third party’s rights, including Intellectual Property Rights.

        任何第三方声称,使用、占有或销售产品或服务的行为侵犯第三方的权利,包括其知识产权权利;

      • any allegation, claim or determination by a court or agency that (A) any of Supplier’s personnel is an employee of Google or (B) the Services or this Agreement have given rise to any transfer of employment under any applicable employment legislation or regulation; or

        任何机构或法院指控、声称或裁决(A)供应商的任何员工为Google的员工;或(B)根据相关劳动法律或法规的规定,本协议或其项下的服务导致劳动关系的转移;或

      • any allegation by Supplier’s personnel or a third party under applicable labor or employment laws (including claims related to engagement, employment or termination of Supplier’s personnel), except to the extent caused by Google’s unlawful acts or omissions.

        供应商的任何员工或第三方根据相关劳动法律或法规提出任何请求(包括与供应商员工的聘用、雇佣关系或终止劳动关系有关的权利请求),但因Google的违法行为或疏忽导致的权利请求除外。

    2. Remedies.

      If an injunction preventing continued use of any Products or Services is threatened or granted, Supplier will do the following at its sole expense:

      救济。

      若任何人拟申请禁制令,以阻碍Google继续使用任何产品或服务,或已获得该等禁制令的,供应商应自付费用采取以下任何行动:
      • procure the right to continue providing the Products or Services in compliance with this Agreement; or

        获得继续根据本协议提供产品或服务的权利;

      • modify the Products or Services to make them non-infringing without materially reducing their functionality; or

        修改产品或服务,在不实质性降低该等产品或服务的功能的情况下,使其不侵犯他人的权利;或

      • replace the Products or Services with a non-infringing, functionally-equivalent alternative.

        以不侵权、功能相同的其他产品或服务取代本协议项下的产品或服务。

  10. Limitations of Liability.

    责任限制。

    1. Liability.

      In section 10, “liability” means any liability, whether under contract, tort, or otherwise, including for negligence.

      责任。

      本条(第10条)中,“责任”指基于合同、侵权或其他原因产生的任何责任,包括因过失产生的责任。
    2. Exclusion.

      Subject to section 10.4, neither party will have any liability arising out of or relating to this agreement for:

      例外规定。

      除第10.4条另有规定外,对于以下事项,任何一方均不承担因本协议产生的或与之有关的任何责任:
      • The other party’s lost revenues;

        任何一方的收入损失;

      • Indirect, special, incidental, or consequential losses (whether or not foreseeable or contemplated by the parties at the effective date); or

        任何一方直接的、特别的、附带的或间接的损失(无论双方在本协议生效日是否可以预见或预期会发生该等损失);或

      • Exemplary or punitive damages.

        惩戒性或惩罚性的损害赔偿。

    3. Limitations.

      Subject to sections 10.2 and 10.4:

      责任限制。

      除第10.2条和第10.4条另有规定外:
      • Except as set forth in sub-section (b), each party’s aggregate liability arising out of or relating to this agreement is limited to the amount payable by google to supplier under the applicable purchase order; and

        除以下(B)项另有规定外,任何一方因本协议产生的或与之有关的责任总额,不超过Google根据相关采购订单向供应商应支付的款项数额;和

      • Each party’s aggregate liability under section 9 (defense and indemnity) is limited to the greater of the amount payable by google to supplier under the applicable purchase order or RMB$6,000,000.

        任何一方在本协议第9条(抗辩与赔偿)项下的责任总额,不超过Google根据相关采购订单向供应商应支付的款项数额,或人民币6,000,000元(一两者中数额较大的为准)。

    4. Exceptions to Limitations.

      Nothing in this agreement excludes or limits either party’s liability for:

      责任限制的例外。

      本协议中的任何规定均不排除亦不限制任何一方就以下事项承担的责任:
      • Death or personal injury resulting from its negligence or the negligence of its employees or agents;

        因其疏忽或其员工或代理人的疏忽导致他人死亡或人身伤害的;

      • Fraud or fraudulent misrepresentation;

        因其欺诈或欺诈性虚假陈述的;

      • Breach of section 8.2(g) (confidentiality);

        因其违反本协议第8.2(G)条(保密)的;

      • Infringement of the other party’s intellectual property rights; or

        因其侵犯另一方的知识产权权利的;或

      • Matters for which liability cannot be excluded or limited under applicable law.

        与根据法律不能排除或限制的责任有关的事项。

  11. Termination.

    终止。

    1. Termination.

      • Either party may terminate this Agreement:

        任何一方在下列情况下可终止本协议:

        • immediately for breach of confidentiality; and

          若另一方违反保密义务可立即终止本协议;以及

        • upon written notice if the other party materially breaches any other provisions of this Agreement and fails to remedy that breach within 30 days after written notice.

          若另一方在本协议其他条款上存在重大违约,且在收到另一方向其发出的书面通知后30日内未能纠正违约行为的,可经书面通知违约方后可终止本协议

      • Google may terminate this Agreement for convenience upon 45 days’ written notice.

        Google可随时经提前45天书面通知而终止本协议。

      • Termination of the Agreement terminates all outstanding Purchase Orders effective as of the termination notice date, subject to Section 2.3 (Cancellation).

        在遵守第2.3条(撤销)的前提下, 本协议终止的,任何未履行的采购订单于终止通知日终止。

    2. Survival.

      Supplier’s obligations to deliver non-cancelled Product and Sections 1, 2.3, 4.2, 4.3, 6, 7.4(A), 7.4(B), 7.4(D), 8, 9, 10, 11.2, and 12 will survive any termination of the Agreement.

      继续有效。

      本协议终止后,供应商应继续交付没有被取消的产品,且第1条、第2.3条、第 4.2条、第 4.3条、第 6条、第7.4(A)条、第7.4(B)条、第7.4(D)条、第8条、第9条、第10条、第11.2条和第12条继续有效。
  12. General.

    一般规定。

    1. Records.

      Supplier will maintain in reasonable detail accurate records relating to this Agreement. For a period of one year after the date of each Purchase Order, Google and its agents may audit Supplier’s relevant records to confirm compliance with this Agreement.

      记录。

      供应商将以合理细节保存与本协议有关的准确记录。Google及其代理人可在每一采购订单之日后一年的期间内审计供应商的相关记录,以确认供应商是否遵守本协议。
    2. Force Majeure.

      Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.

      不可抗力。

      因一方不能合理控制的情形导致其不能履行或延迟履行义务的,该方对此不承担任何责任。
    3. Delegation and Subcontracting.

      Supplier may not subcontract any of its obligations under this Agreement without Google’s written consent. Supplier will remain liable for all subcontracted obligations and all acts or omissions of its subcontractors.

      委托与分包。

      未经Google书面同意,供应商不得将其在本协议项下的任何义务委托给任何其他人履行。供应商将对所分包的所有义务以及分包商的所有作为或不作为承担责任。
    4. Assignment.

      Neither party may assign any part of this Agreement, without the written consent of the other, except that Google may assign any rights or obligations under this Agreement to an affiliate.

      转让。

      未经一方书面同意,任何一方不得转让本协议的任何部分,但Google可向其关联公司转让其在本协议项下的任何权利或义务。
    5. Change of Control.

      If a party experiences a change of control (for example, through a stock purchase or sale, merger, or other form of corporate transaction) that party will give written notice to the other party within 30 days after the change of control.

      控制权变更。

      若一方发生控制权变更(例如,通过股份购买或出售、合并或其他形式的公司交易而发生控制权变更),该方应在发生该等变更后的30日内向另一方发出书面通知。
    6. Governing Law.

      适用法律。

      • All claims arising out of or relating to this Agreement or any related Google products or services (including any dispute regarding the interpretation or performance of the Agreement) (“Dispute”) will be governed by the laws of the People’s Republic of China (“PRC”), excluding the PRC’s conflict of laws rules.

        因本协议或相关Google产品或服务产生的或与之有关的任何权利请求,包括与本协议的履行或解释有关的任何争议(“争议”),均将适用中华人民共和国法律,但不适用该等法律中的冲突法规则。

      • The parties will try in good faith to settle any Dispute within 30 days after the Dispute arises. If the Dispute is not resolved within 30 days, it must be resolved by arbitration by the China International Economic and Trade Arbitration Commission (“CIETAC”) in accordance with the CIETAC Arbitration Rules in force as of the date of this Agreement (“Rules”).

        双方应在争议发生后30日内善意解决任何争议。双方未能在该期间解决争议的,则必须向中国国际经济贸易仲裁委员会提起仲裁,由该委员会根据其在本协议订立之日有效的仲裁规则(“仲裁规则”)解决该等争议。

        • There will be three arbitrators who will be appointed as follows: each party will appoint an arbitrator, and the party-appointed arbitrators will nominate a chairperson within 30 days after the confirmation of the last party-appointed arbitrator. If the party-appointed arbitrators fail to nominate a chairperson within 30 days after the confirmation of the last party-appointed arbitrator, CIETAC will nominate a chairperson. The chairperson may be appointed from outside CIETAC’s panel of arbitrators in accordance with Article 21 of the Rules.

          仲裁庭由根据以下规定指定的三位仲裁员组成:本协议每一方各自指定一位仲裁员;在较晚指定的仲裁员被确认后30日内,双方指定的仲裁员将共同指定第三位仲裁员担任仲裁庭主席。若双方指定的仲裁员未能在该30日期间内指定仲裁庭主席,该主席将由中国国际经济贸易仲裁委员会指定。仲裁主席可根据仲裁规则第21条的规定,从该委员的仲裁员小组以外的人士中指定。

        • The arbitration will be conducted in English in Beijing, PRC.

          仲裁将在中国北京进行。仲裁语言为英语。

        • Pre-hearing information exchange will be limited to the reasonable production of relevant, non-privileged documents and carried out expeditiously.

          仲裁前的信息交换限于合理提交不受特权保护的相关文件,并在较短时间内完成。

        • Except in extraordinary circumstances, the parties intend to conclude the arbitration proceedings within 60 days from the date the final arbitrator is appointed. The arbitral tribunal may extend this time limit in the interests of justice. Failure to adhere to this time limit will not constitute a basis for challenging the award.

          除非发生特别情形,双方希望在最后一位仲裁员被指定之日后60日内结束仲裁。仲裁庭可在符合公正原则的情况下延长仲裁期限。未能遵守本期限规定并不构成任何一方对仲裁裁决提出异议的依据。

        • To the extent permitted by PRC law, and without waiving any other remedy under this Agreement, either party may apply to the arbitral tribunal (and any competent court) for equitable or injunctive relief necessary to protect its rights or property pending resolution of the arbitration. The arbitral tribunal may order equitable or injunctive relief consistent with the remedies and limitations in this Agreement.

          在中国法律许可的限度内,且在任何一方不放弃本协议项下的任何其他救济的情况下,任何一方均可在仲裁终结前向仲裁庭(或有管辖权法院)申请必要的衡平法救济或禁制令救济,以保护其权利或财产。仲裁庭可签发符合本协议项下救济和限制的衡平法救济或禁制令救济等命令。

        • The arbitral tribunal will not act as amiable(s) compositeur(s) or ex aequo et bono.

          仲裁庭将不充当友好的调解人或友好的仲裁庭。

        • The arbitral tribunal’s decisions will be final and binding on the parties and its execution may be presented in any competent court, including any court with jurisdiction over either party or any of its property.

          仲裁庭的裁决具有终局性,对双方均有约束力,并可提交任何有管辖权法院执行,或提交对任何一方或其任何财产有管辖权的法院执行。

        • Any arbitral proceeding conducted in accordance with this Section will be considered Confidential Information under this Agreement’s confidentiality section, including (A) the existence of, (B) any information disclosed during, and (C) any oral communications or documents related to the arbitration proceedings. The parties may also disclose the information described in this Subsection (8) to a competent court as may be necessary to execute any arbitral decision, but the parties must request that those judicial proceedings be conducted in camera (in private).

          根据本条进行的任何仲裁程序,包括(A)仲裁存在的信息;(B)在仲裁期间披露的任何信息;和(C)与仲裁程序有关的任何口头通讯或文件,均将被视为本协议保密条款项下的保密信息。双方可在为执行仲裁裁决所需的限度内,向有管辖权法院披露本项所述的信息,但应要求法院以不公开(秘密)的方式进行审理。

        • The parties will pay the arbitrators’ fees, the arbitrators’ appointed experts’ fees and expenses, and the arbitration center’s administrative expenses in accordance with the Rules. In its final decision, the arbitral tribunal will determine the non-prevailing party’s obligation to reimburse the amount paid in advance by the prevailing party for these fees.

          双方将根据仲裁规则的规定,支付仲裁员的费用、仲裁员指定的专家费用与支出,以及仲裁中心的管理费用。仲裁庭可在终局性仲裁裁决中,要求败诉方向胜诉方支付胜诉方就上述费用预付的任何款项。

        • Each party will bear its own lawyers’ and experts’ fees and expenses, regardless of the arbitral tribunal’s final decision regarding the Dispute.

          本协议各方承担各自的律师费和专家费,无论仲裁庭对争议作出何种最终裁决。

      • If the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act are otherwise applicable, the parties expressly exclude them from applicability under the Agreement.

        若《联合国国际货物销售合同公约》和《美国统一计算机信息交易法》适用于本协议,则双方在此明确排除该等公约和法律对本协议的适用。

    7. No Agency.

      This Agreement does not create any agency, partnership or joint venture between the parties, nor does it create the relationship of employer or employee between Google and Supplier or between Google and any of Supplier’s personnel.

      无代理关系。

      本协议在双方之间并不创设任何代理关系、合伙关系或合营关系,亦不在Google与供应商之间或Google与供应商的任何员工之间创设任何劳动合同关系。
    8. Notices.

      All notices of termination or breach must be in English, in writing, and addressed to the other party’s Legal Department. The address for notices to Google’s Legal Department is legal-notices@google.com. All other notices must be in English, in writing and addressed to the other party’s primary contact. Notice will be treated as given on receipt, as verified by written or automated receipt or by electronic log (as applicable).

      通知。

      所有有关终止或违约的通知必须使用英语。该等通知必须以书面形式发送至收件方的法务部门。Google法务部门接收该等通知的地址为legal-notices@google.com。所有其他通知必须使用英语。该等通知必须以书面形式发送给收件方的主要联系人。通知将在接收时被视为有效送达,还应经书面或自动接收确认,或经电子日志确认(如适用)。
    9. Severability.

      If any term (or part of a term) of this Agreement is invalid, illegal or unenforceable, the rest of the Agreement will remain in effect.

      可分性。

      若本协议的任何条款(或某条款的任何部分)无效、不合法或不可强制执行,本协议的其他条款仍然有效。
    10. No Waiver.

      Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.

      不视为弃权。

      任何一方未能行使(或延迟行使)其在本协议项下的任何权利的,不被视为该方已放弃该等权利。
    11. No Third Party Beneficiaries.

      This Agreement does not confer any benefits on any third party unless it expressly states that it does.

      无第三方受益人。

      除非本协议另有明示规定,否则,本协议不向任何第三方授予任何利益。
    12. Entire Agreement, Modification.

      Subject to Section 10.4(B), This Agreement sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. Any amendment must be in writing, signed by both parties, and expressly state that it is amending this Agreement. In entering into the Agreement neither party has relied on and neither party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in the Agreement.

      完整协议、修订。

      本协议规定了双方之间达成的所有条款,并取代双方就本协议标的达成的所有其他协议。对本协议作出的任何修订,必须采用书面形式,经双方签署,并明确说明其为本协议的修订件。除本协议明确规定的声明、陈述或保证外,双方在签署本协议时,均未依赖任何其他声明、陈述或保证(无论是否在疏忽或无过错的情形下作出),且任何一方均不基于该等其他声明、陈述或保证享有任何权利或救济。
    13. Conflicting Languages.

      If this Agreement is translated into any other language, and there is a discrepancy between the English text and the text of the other language, the English text will govern.

      语言冲突。

      若本协议翻译为任何其他语言的文本,且本协议的英文文本与其他语言的文本有任何不一致的,则将以英文文本为准。

June 11th 2015

Google supplier purchase order terms and conditions

Introduction. These terms and conditions (“Terms and Conditions”) together with a Purchase Order form an “Agreement” between the Google entity specified on the Purchase Order (“Google”) and the supplying party specified on the Purchase Order (“Supplier”) for the purchase of all Products or Services provided by Supplier, directly or indirectly, to or for Google, under the applicable Purchase Order. No terms other than the Agreement will apply to Supplier’s provision of Products or Services, except if the parties have executed a separate written agreement governing the Products or Services (“Existing Agreement”), in which case the Existing Agreement will govern. If there is a conflict between these Terms and Conditions and any Purchase Order, these Terms and Conditions govern.

  1. Definitions.

    1. “Background IP”

      means all IP owned, created or discovered by a party: (a) before Supplier performs Services, or (b) independent of the Agreement.
    2. “Defect” or “Defective”

      means with respect to a Product a failure to meet the Product warranties in Sections 8.2(A) and 8.2(B).
    3. “Deliverables”

      means custom work product that Supplier creates under a Purchase Order.
    4. “Developed IP”

      means any IP other than Background IP created or discovered by Supplier or Google in connection with the Agreement.
    5. “Intellectual Property Rights”

      means all patent rights, copyrights, trademark rights, rights in trade secrets, database rights, moral rights, and any other intellectual property rights (registered or unregistered) throughout the world.
    6. “IP”

      means anything protectable by an Intellectual Property Right.
    7. “Product”

      means product, including hardware and software, sold by Supplier, including any Deliverables.
    8. “Purchase Order”

      means a purchase order (including any incorporated attachments) for Product or Services submitted to Supplier by Google.
    9. “Services”

      means services provided by Supplier.
    10. “Specifications”

      means those specifications (if any) identified in a Purchase Order or as the parties may otherwise agree to in writing.
    11. “Tax(es)”

      means all applicable taxes and similar obligations, except for taxes based on Supplier’s net income, net worth, employment, personal and real property, and assets.
    12. “Third Party Materials”

      means any information or materials owned by a third party or any open source materials.
    13. “Warranty Period”

      means the 12-month period starting on the date Google accepts a Product.
    14. The words “include” and “including” mean “including but not limited to.”
    15. Written communication includes email.
    16. When examples are provided in these Terms and Conditions, they are for illustrative purposes only, and are not the exclusive examples of a particular concept or provision.
  2. Ordering Product and Services.

    1. Purchase Orders.

      Google may submit Purchase Orders in writing, including electronic transmission. Unless the parties mutually agree otherwise in writing, Purchase Orders will state prices, delivery dates, and delivery locations for Products and Services.
    2. Changes.

      Google may reschedule Products or Services, change the delivery destination for Products in any Purchase Order, change the Services provided under any Purchase Order, or cancel any Purchase Order upon written notice to Supplier at any time before the scheduled delivery or completion date, as applicable, at no cost to Google, except that if requested changes materially increase or decrease the cost to provide Products or Services, the parties will negotiate an appropriate adjustment to their obligations under the Purchase Order. Supplier will not unreasonably withhold or delay agreement to any change requested by Google.
    3. Cancellation.

      Supplier will stop work on the applicable Purchase Order immediately upon receipt of a cancellation notice from Google. If Google cancels a Purchase Order for Services before the scheduled delivery date, Supplier may invoice Google for work completed at a pro-rated price based upon the percentage of work completed prior to the date of cancellation, and Supplier will immediately ship to Google all Deliverables and work-in-progress that are the subject of such invoice.
  3. Product Delivery.

    1. Product Shipping.

      • Delivery Terms; Title Transfer. Unless otherwise specified in the Purchase Order, Supplier will deliver Products DDP (Incoterms 2010) to the delivery destination stated in the Purchase Order, with title and risk of loss transferring from Supplier to Google at the delivery destination.
      • Trade Compliance. When Supplier is responsible for exporting or importing Product, Supplier will obtain all authorizations and permits necessary to fulfill all applicable governments’ requirements for Product shipment.
      • Import/Export Information. Upon Google’s request, Supplier will provide Google with any information Google reasonably requests regarding Product importation, exportation or distribution.
    2. Product Packing.

      Supplier will package Products according to any instructions Google provides in a Purchase Order, and if none are provided, then according to good commercial practice to ensure safe arrival of the Products.
    3. Advance Delivery.

      Google may refuse any delivery made more than 5 days before the delivery date and Supplier will re-deliver the Product on the correct date at Supplier’s expense.
    4. Excess Product.

      Google may return to Supplier, at Supplier’s expense, any quantity of Product exceeding that specified in the Purchase Order.
    5. Late Product Delivery.

      If a Product shipment (or part of a shipment) is late, Supplier will: (i) immediately propose a new delivery date, (ii) use best efforts to expedite delayed Product at Supplier’s expense, and (iii) issue Google a discount or refund on the purchase price for Product delivered late, unless otherwise agreed by the parties. Notwithstanding the foregoing Section 3.5, Google may (a) cancel without liability the applicable Purchase Order or portions of the Purchase Order for late Product not yet delivered, or (b) cover for late Product by sourcing products from another supplier, at Supplier’s reasonable expense.
  4. Inspection, Acceptance, Rejection.

    1. Inspection and Acceptance.

      Google may inspect Product and return Defective Product. Any Product or Service not rejected within 30 days of receipt will be deemed accepted by Google. Google’s payment to Supplier for Product or Services will not be treated as acceptance.
    2. Rejected Product.

      At Google’s option, Google may: (i) return rejected Products, and Supplier will immediately replace returned Products, at Supplier’s expense, including all freight costs; or (ii) use the defective Products and obtain a reduction in price.
    3. Defect Replacement Procedure.

      • For Product that is discovered Defective during the Warranty Period, Supplier will, at its expense and at Google’s option,
        • replace or repair Defective Product and re-deliver such repaired or replaced Product to Google within a commercially reasonable timeframe agreed to by Google,
        • refund Google the Product purchase price within 30 days of receiving Google’s notice that a Product is Defective, or
        • reimburse Google for the reasonable cost to have the Product repaired within 30 days after receiving Google’s invoice.
      • Supplier is responsible for all costs, damages, and liabilities incurred by Google as a result of Defective Product.
      • All Products undergoing repair will at all times remain Google’s property.
      • Supplier will warrant replacement Product for the longer of 90 days following Google’s acceptance of the replacement Product or the remainder of the original Product’s Warranty Period.
  5. Payment.

    1. Invoice Issuance and Payment.

      • Supplier will invoice Google upon Google’s acceptance of the Products and Services.
      • Except as specifically stated in the Purchase Order, Supplier will be responsible for all costs it incurs in connection with providing the Services.
      • Google will pay any undisputed portion of an invoice for accepted Products or Services within 30 business days following the later of: (i) delivery of the Products or completion of Services, or (ii) receipt of a correct invoice by Google’s accounts payable department. Correct invoices must include Purchase Order number, complete bill-to address, Product part numbers and quantities, description of Products or Services, unit prices, applicable tax or other charges, and extended totals.
      • Google is not obligated to pay any invoice submitted 180 days or more after a Product is shipped or Services are completed.
      • In addition to other rights and remedies Google may have, Google may offset any payment obligations to Supplier that Google may incur under the Agreement against any fees owed to Google and not yet paid by Supplier under the Agreement or any other agreement between Supplier and Google.
    2. Invoice Disputes.

      If Google initiates an invoice dispute, Google will include a written description of the disputed portion of the invoice. Upon Google’s request, Supplier will issue separate invoices for undisputed and disputed amounts. Payment of undisputed amounts will not limit Google’s right to object and refuse payment of disputed amounts.
    3. Taxes.

      Prices do not include any applicable Taxes. If Supplier is legally obligated to collect applicable Taxes, Supplier must state each applicable Tax as a separate line item on its invoice to Google. Google will pay Taxes separately stated on correct, undisputed, and timely invoices for applicable Products or Services, unless Google provides Supplier with a valid tax exemption certificate. To be correct, invoices for value-added Tax or goods and services Tax must meet all of the relevant Tax authority’s requirements (to allow Google to obtain relief from such Tax if available). If Google is obligated to withhold any Taxes from its payments to Supplier, Google will make the payments net of the withheld amounts.
  6. Product License; Limitations.

    1. Product License Grant.

      • For those portions of a Product that are Deliverables, Section 7.4 (Services Intellectual Property Rights; Licenses) will apply.
      • For those portions of a Product that are not Deliverables, Supplier grants Google, its affiliates, distributors, and end users a perpetual, irrevocable, non-exclusive, worldwide, fully paid-up, royalty-free license to use, modify, sell, offer for sale, import, and otherwise dispose of the Product, including any bug fixes, updates or upgrades developed by Supplier for the respective Product.
    2. Limitations.

      Nothing in this Agreement grants a party any license, right, or interest in the other party’s trademark(s), trade name(s) or service mark(s). Neither party will alter or modify any proprietary rights notices on the other party’s IP.
  7. Custom Services.

    To the extent that Supplier provides Services, this Section 7 will also apply.

    1. Services Provision.

      Supplier will:
      • develop, test, and deliver to Google all Deliverables in accordance with the applicable Purchase Order, and, if requested by Google, provide Google with supporting documentation evidencing Supplier’s testing, and all assistance necessary for Google to fully inspect the Deliverables;
      • provide all materials, equipment, and personnel necessary for performing the Services unless stated otherwise in the Purchase Order;
      • provide Google with status reports regarding Supplier’s progress on Deliverables, at the frequency requested by Google;
      • comply with all applicable Google policies if and when Supplier is at Google’s facilities.
    2. Rejected Services.

      Notwithstanding any acceptance by Google, if any Services do not meet the applicable warranties or other criteria under the Agreement, at Google’s option, Google may:
      • require Supplier to re-perform the non-conforming Services at no charge to Google;
      • re-perform the non-conforming Services itself, or have a third party do this, and charge Supplier the reasonable cost of this re-performance;
      • accept the Services and obtain a reduction in price; or
      • reject the non-conforming Services and obtain a refund from Supplier for all amounts paid in relation to these Services.
    3. Failure Analysis.

      Upon Google’s request, Supplier will perform a failure analysis of any returned Deliverable that is suspected to be Defective. Supplier will use reasonable efforts to provide Google with (a) an initial assessment of the Defect’s cause(s) within 1 week of receiving the returned Deliverable; and (b) a final assessment of the Defect’s root cause within 3 weeks of receiving the returned Deliverable.
    4. Services Intellectual Property Rights; Licenses.

      • Ownership. Subject to Supplier’s Intellectual Property Rights in any of Supplier’s Background IP incorporated in any Deliverables (and any applicable third parties’ Intellectual Property Rights in Third Party Materials approved by Google in accordance with 7.4(D)):
        • Title to the Deliverables will transfer to Google upon delivery.
        • Google owns any Developed IP.
        • The Developed IP is a work made for hire to the extent permitted by applicable law, and Google retains all Intellectual Property Rights in the Developed IP.
        • To the extent that Supplier or any of its personnel, subcontractors or agents own any rights in the Developed IP, Supplier assigns (or will procure the assignment of) all rights (including Intellectual Property Rights), title, and interest in the Developed IP to Google. If applicable law prevents future assignments, Supplier will assign (or will procure the assignment of) such rights as these are created.
        • If applicable law prevents Supplier from transferring ownership of any Developed IP to Google, Supplier grants Google a perpetual, irrevocable, exclusive, royalty-free, fully-paid, transferrable, worldwide license (with the right to sublicense) to make, use, import, offer for sale, sell, export any component of, reproduce, prepare derivative works of, distribute, publicly perform, and publicly display the Developed IP.
        • If requested by Google, Supplier will timely perform all acts reasonably necessary to accomplish the assignments and other transactions specified in the Agreement.
        • Supplier will not assert, and to the extent permitted by applicable law, otherwise waives, any moral rights in the Deliverables and Developed IP, and will ensure that all of its personnel, subcontractors, and agents and other third parties who have moral rights in the Deliverables will also not assert, and to the extent permitted by applicable law, will waive, those moral rights.
      • Supplier Background IP License. If Supplier includes any Supplier Background IP in any Deliverables, Supplier must describe such Background IP in writing, and Supplier grants to Google and its affiliates a perpetual, irrevocable, non-exclusive, royalty-free, fully-paid, worldwide license (with the right to sublicense) to:
        • reproduce, prepare derivative works of, distribute, publicly perform, publicly display, and otherwise use the Supplier Background IP, in connection with the Deliverables and Developed IP; and
        • make, use, sell, offer for sale, import, export any component of, and otherwise dispose of the Supplier Background IP, in connection with the Deliverables and Developed IP.
      • Google Resources License.
        • License. If Google provides Supplier with any Google Background IP or Developed IP, software, equipment, tooling, or other materials in connection with this Agreement to provide Services (“Google Resources”), Google grants Supplier a limited, non-exclusive, non-transferable, royalty-free license (with the right to sublicense only to its subcontractors authorized by Google under Section 12.3 (Delegation and Subcontracting)) to use those Google Resources solely for the purpose of, and only to the extent needed, performing Services or making Deliverables for Google.
        • Conditions. Supplier will be responsible for the use and protection of the Google Resources and will, at Google’s option, replace or reimburse Google for the replacement cost of any Google Resources lost or damaged before its return to Google.
        • Return. Supplier will return the Google Resources to Google immediately after provision of all Deliverables and Services or any termination of this Agreement.
      • Third Party Materials. Supplier will not incorporate any Third Party Materials into any Deliverable without Google’s prior written approval of such incorporation and any applicable license terms.
      • Background IP Limitations. Nothing in this Agreement grants a party any license, right, or interest in the other party’s Background IP under the Agreement, except for the licenses granted in this Section 7.
  8. Representations and Warranties, Disclaimers.

    1. Mutual.

      Each party represents and warrants that: (a) it has the full power to enter into this Agreement, carry out its obligations under this Agreement, and grant the rights and licenses it grants the other in this Agreement; (b) its compliance with this Agreement will not violate any agreements it has with any third party; (c) it is an equal opportunity employer and will comply with all applicable employment and nondiscrimination laws, including laws applicable to U.S. federal government contractors.
    2. Supplier.

      Supplier represents and warrants that:
      • Specifications. The Products and Services will comply with their Specifications and will be of satisfactory quality and reasonably fit for any purpose made known to Supplier.
      • Products. Products will be new, unused, and not refurbished at the time of delivery, and will be safe for normal use and free from defects in design, materials, and workmanship during the Warranty Period.
      • Software. For software provided by Supplier, (i) there is no open source software in the Products (or any other items provided by Supplier), unless Supplier has notified Google in writing before delivery and Google has consented in writing to accepting this open source software, and (ii) the software will not damage, interfere with, or permit unauthorized access to any other existing products or systems on which it is installed or any information residing on those products or systems.
      • Quality. Supplier’s performance under this Agreement will be of professional quality and performed consistent with generally accepted industry standards.
      • License Rights; No Claims. Supplier (i) owns or has properly licensed all Products and Services provided by Supplier under this Agreement and Google will acquire good and clear title, and (ii) has no knowledge of any unresolved claims, demands, or pending litigation alleging that the Products or Services infringe or misappropriate any Intellectual Property Rights of any third party.
      • Pass-Through. Supplier will, to the extent it is contractually permitted to do so, provide to Google the benefits of manufacturers’ or suppliers’ warranties and guarantees for material or equipment incorporated into the Products or Services, and will perform its responsibilities so that such warranties or guarantees remain in full effect.
      • Confidentiality. Supplier will (i) keep confidential the terms of this Agreement and all non-public and proprietary Google information, and will only use such information to provide Products and Services under this Agreement, and will not disclose such information except to the extent required by law after giving reasonable notice to Google, if permitted by law; and (ii) not use in providing Products or Services or disclose to Google any materials or documents of another party considered confidential or proprietary unless it has obtained written authorization from that party Google.
      • Insurance. Supplier will maintain: (i) insurance against general liability and property damage, (ii) workers compensation insurance as required by law where Services will be provided, including employer’s liability coverage; and (iii) additional insurance limits and coverages as Google may require, depending upon Services provided.
      • Compliance with Supplier Code of Conduct. Supplier will comply with the Supplier Code of Conduct (available at www.google.com/about/company/responsible -manufacturing.html or such other URL as Google may provide).
      • Compliance with Laws. In connection with this Agreement, Supplier, its personnel, subcontractors, and agents will comply with all applicable laws, directives, and regulations, including anti-bribery laws, conflict minerals laws, employment laws, import/export laws, materials disposal laws, and data privacy laws, including the following:
        • In performing its obligations under the Agreement, Supplier will comply with all applicable commercial and public anti-bribery laws, including the U.S. Foreign Corrupt Practices Act of 1977 and the UK Bribery Act of 2010, which prohibit both direct and indirect corrupt offers of anything of value to anyone, including government officials, to obtain or keep business or to secure any other improper commercial advantage. Furthermore, Supplier will not make any facilitation payments, which are payments to induce officials to perform routine functions they are otherwise obligated to perform. “Government officials” include any government employee, candidate for public office, and employee of government-owned or government-controlled companies, public international organizations, and political parties.
        • Upon request, Supplier will provide a complete and accurate conflict mineral report detailing the source and chain of custody of conflict minerals (in a format that is at least as comprehensive as the EICC/GeSI reporting template) for each Product.
    3. Personal Information Safeguards.

      • Under this Agreement, Supplier will not receive, or have access to, use or store Personal Information (as defined below). If however, Supplier receives, or has access to, uses or stores Personal Information under this Agreement, then this Section 8.3 will apply (in addition to Section 8.2(G) (Confidentiality)).
      • “Data Protection Law” means: (a) the Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 (as updated); (b) any other applicable data privacy legislation or regulation; and (c) Google’s privacy policy (available at www.google.com/privacypolicy.html or such other URL as Google may provide).
      • “Personal Information” means any information relating to an identified natural person or a directly or indirectly identifiable natural person.
      • To the extent Supplier receives, or has access to, uses or stores Personal Information under this Agreement Supplier will:
        • immediately notify Google;
        • implement and maintain administrative, physical, and technical safeguards (“Safeguards”) that meet or exceed relevant industry standards and that protect the security and privacy of Personal Information. Supplier will not permit access to Personal Information except to those who need to know it in order to perform under this Agreement, and will ensure that any third party accessing Personal Information protect it with Safeguards at least as strong as supplier’s Safeguards;
        • upon Google’s instruction, delete such Personal Information immediately or return it to Google in a secure manner and delete all remaining copies of Personal Information after such return and provide documentation of the deletion to Google;
        • not use the Personal Information for any other purpose than compliance with its’ obligations under this Agreement; and
        • if Supplier has reason to believe that Personal Information is reasonably likely to have been accessed for an unauthorized purpose or by unauthorized persons (an “Incident”): (a) promptly notify Google by emailing vendor-incidents@google.com; (b) reasonably assist Google in investigating and remedying any Incident and any related inquiry or claim; and (c) provide Google with reasonable assurance that Supplier has corrected all circumstances under Supplier’s control that led to the Incident.
    4. Transfer Regulations; No liability for personnel.

      • Because the parties have entered into the Agreement with the intent that under no circumstances will either the Services or the Agreement give rise to any transfer of employment under Transfer Regulations, neither Google, its affiliates, nor any Replacement Supplier will have any liability for any of Supplier’s current or former personnel, whether under Transfer Regulations or otherwise.
      • “Transfer Regulations” means the Transfer of Undertakings (Protection of Employment) Regulations 2006 and any other applicable national regulations implementing the European Council Directive 2001/23/EC.A.
      • “Replacement Supplier” is a third party that Google or its affiliates engages to replace Supplier (in whole or in part) in performing services that are the same as or similar to the Services. To the extent permitted by applicable law, Replacement Suppliers will be third party beneficiaries under this Section 8.4, provided that the parties may amend any part of this Agreement without the Replacement Supplier’s consent, even if that amendment affects or will affect the benefits conferred on the Replacement Supplier.
    5. Disclaimer.

      Except for the express warranties contained in this agreement, no other warranties are expressed or implied, including any implied warranties of merchant ability and fitness for a particular purpose.

  9. Defense and Indemnity.

    1. Obligations.

      Supplier will defend and indemnify Google and its affiliates, directors, officers, and employees against all liabilities, damages, losses, costs, fees (including legal fees), and expenses relating to any allegation or third-party legal proceeding to the extent arising from:
      • Supplier’s breach of this Agreement;
      • Supplier’s negligence, willful misconduct, fraud, misrepresentation, or violation of law;
      • any property damage, personal injury, or death related to Supplier’s performance under this Agreement or use of a Product or Service; or
      • claiming that use, possession, or sale of the Products or Services violates or infringes a third party’s rights, including Intellectual Property Rights.
      • any allegation, claim or determination by a court or agency that (A) any of Supplier’s personnel is an employee of Google or (B) the Services or this Agreement have given rise to any transfer of employment under Transfer Regulations or otherwise; or
      • any allegation by Supplier’s personnel or a third party under applicable labor or employment laws (including claims related to engagement, employment or termination of Supplier’s personnel), except to the extent caused by Google’s unlawful acts or omissions.
    2. Remedies.

      If an injunction preventing continued use of any Products or Services is threatened or granted, Supplier will do the following at its sole expense:
      • procure the right to continue providing the Products or Services in compliance with this Agreement; or
      • modify the Products or Services to make them non-infringing without materially reducing their functionality; or
      • replace the Products or Services with a non-infringing, functionally-equivalent alternative.
  10. Limitations of Liability.

    1. Liability.

      In section 10, “liability” means any liability, whether under contract, tort, or otherwise, including for negligence.

    2. Exclusion.

      Subject to section 10.4, neither party will have any liability arising out of or relating to this agreement for:

      • The other party’s lost revenues;

      • Indirect, special, incidental, or consequential losses (whether or not foreseeable or contemplated by the parties at the effective date); or

      • Exemplary or punitive damages.

    3. Limitations.

      Subject to sections 10.2 and 10.4:

      • Except as set forth in sub-section (b), each party’s aggregate liability arising out of or relating to this agreement is limited to the amount payable by google to supplier under the applicable purchase order; and

      • Each party’s aggregate liability under section 9 (defense and indemnity) is limited to the greater of the amount payable by google to supplier under the applicable purchase order or us$1,000,000.

    4. Exceptions to Limitations.

      Nothing in this agreement excludes or limits either party’s liability for:

      • Death or personal injury resulting from its negligence or the negligence of its employees or agents;

      • Fraud or fraudulent misrepresentation;

      • Breach of section 8.2(g) (confidentiality);

      • Infringement of the other party’s intellectual property rights; or

      • Matters for which liability cannot be excluded or limited under applicable law.

  11. Termination.

    1. Termination.

      • Either party may terminate this Agreement:
        • immediately for breach of confidentiality; and
        • upon written notice if the other party materially breaches any other provisions of this Agreement and fails to remedy that breach within 30 days after written notice.
      • Google may terminate this Agreement for convenience upon 45 days’ written notice.
      • Termination of the Agreement terminates all outstanding Purchase Orders effective as of the termination notice date, subject to Section 2.3 (Cancellation).
    2. Survival.

      Supplier’s obligations to deliver non-cancelled Product and Sections 1, 2.3, 4.2, 4.3, 6, 7.4(A), 7.4(B), 7.4(D), 8, 9, 10, 11.2, and 12 will survive any termination of the Agreement.
  12. General.

    1. Records.

      Supplier will maintain in reasonable detail accurate records relating to this Agreement. For a period of one year after the date of each Purchase Order, Google and its agents may audit Supplier’s relevant records to confirm compliance with this Agreement.
    2. Force Majeure.

      Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.
    3. Delegation and Subcontracting.

      Supplier may not subcontract any of its obligations under this Agreement without Google’s written consent. Supplier will remain liable for all subcontracted obligations and all acts or omissions of its subcontractors.
    4. Assignment.

      Neither party may assign any part of this Agreement, without the written consent of the other, except that Google may assign any rights or obligations under this Agreement to an affiliate.
    5. Change of Control.

      If a party experiences a change of control (for example, through a stock purchase or sale, merger, or other form of corporate transaction) that party will give written notice to the other party within 30 days after the change of control.
    6. Governing Law.

      • All claims arising out of or relating to this agreement will be governed by california law, excluding california’s conflict of laws rules, and will be litigated exclusively in the federal or state courts of santa clara county, california, usa; the parties consent to personal jurisdiction in those courts.

      • If the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act are otherwise applicable, the parties expressly exclude them from applicability under the Agreement.
    7. No Agency.

      This Agreement does not create any agency, partnership or joint venture between the parties, nor does it create the relationship of employer or employee between Google and Supplier or between Google and any of Supplier’s personnel.
    8. Notices.

      All notices of termination or breach must be in English, in writing, and addressed to the other party’s Legal Department. The address for notices to Google’s Legal Department is legal-notices@google.com. All other notices must be in English, in writing and addressed to the other party’s primary contact. Notice will be treated as given on receipt, as verified by written or automated receipt or by electronic log (as applicable).
    9. Severability.

      If any term (or part of a term) of this Agreement is invalid, illegal or unenforceable, the rest of the Agreement will remain in effect.
    10. No Waiver.

      Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
    11. No Third Party Beneficiaries.

      This Agreement does not confer any benefits on any third party unless it expressly states that it does.
    12. Entire Agreement, Modification.

      This Agreement sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. Any amendment must be in writing, signed by both parties, and expressly state that it is amending this Agreement. In entering into the Agreement neither party has relied on and neither party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in the Agreement.