GOOGLE APPS AGREEMENT
This Google Apps Agreement (the “Agreement”) is entered into by and between Google Inc., a Delaware corporation, with offices at 1600 Amphitheatre Parkway, Mountain View, California 94043 (“Google”) and the entity agreeing to the terms herein (“Customer”). This Agreement will be effective as of the date you click the “I Accept” button below (the “Effective Date”). If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to these terms and conditions; (ii) that you have read and understand this Agreement; and (iii) that you agree, on behalf of the party that you represent, to this Agreement. If you don't have the legal authority to bind, please do not click the “I Accept” button below. This Agreement governs Customer's access to and use of the Service (as defined below).
1. Definitions.
3. Start Page Service. Google will use commercially reasonable efforts to provide the Start Page Service to Customer during the term of this Agreement. Subject to the terms and conditions of this Agreement, Customer may use the Start Page Service to (a) provide a Start Page to its End Users, and (b) administer such Start Page through the provided administrative console. Both parties acknowledge that an End User is a customer of both Customer and Google.
3.1 Search Box and Search Results. Customer agrees that Google will display a Google search box (“Search Box”) in the position specified by Google on the Start Page. All search queries must originate from individual human end users inputting data directly into the Search Box. Google will use commercially reasonable efforts to provide search results (“Search Results”) in response to queries processed through the Search Box. Customer agrees that Google may serve advertisements (“Ads”) in connection with the Search Results. Search Results and any accompanying Ads will be displayed on Web pages hosted by Google (each, a “Search Results Page”), the format, look and feel of which may be modified by Google from time to time. Customer agrees that any revenue generated by Google from the Ads or otherwise derived by Google from the Start Page Service will be retained by Google and not be subject to any revenue sharing.
3.2 Start Page Content. Customer may use the administrative console of the Start Page Service to add modules of Customer provided content to the Start Page (“Customer Content”). Customer may develop “gadgets” for inclusion in the Start Page Service using the API and development information available at http://www.google.com/apis/homepage/ or such future URL as Google may designate, and by executing the Google Gadgets API Terms of service, located at http://www.google.com/apis/homepage/terms.html or such future URL as Google may designate. Furthermore, Google may provide access to other content for Customer or End Users to enhance the Start Page (such as current news and weather information) from publicly available sources or which Google licenses from third parties (“Additional Content”). Customer Content shall be hosted by Customer and contained in the modules identified as Customer's content on the Start Page. Customer Content shall conform to Google's reasonable technical requirements, including but not limited to size, dimensions and language, and Google's content policies. Areas on the Start Page not reserved for Customer Content may be modified by Google from time to time at its sole discretion. Notwithstanding the foregoing, the parties further acknowledge that End Users will have the ability to make personal customizations to certain aspects Start Page through an End User Account, and such customization may include moving or removing modules, whether containing Customer Content or Additional Content, and/or including new content from third party content providers (e.g., via RSS feeds or similar). The parties further agree that revenue generated, if any, from each party's content on the Start Page shall be retained by such party and shall not be subject to any revenue sharing or payment commitments hereunder.
3.2.1 Appropriate Customer Content. Customer agrees that all Customer Content is the sole responsibility of Customer. Google reserves the right, but shall have no obligation, to pre-screen, refuse or move any Customer Content available via the Start Page Service. Without limiting the foregoing, Google and its designees shall have the right to remove any Customer Content or other content that violates this Agreement or is otherwise objectionable. Customer understands that by using the Start Page Service, that Customer and End Users may be exposed to content that is offensive, indecent or objectionable, and that Customer and its End Users use the Start Page Service at their own risk.
3.2.2 Disclaimer Regarding Additional Content. Additional Content may be provided by third parties and may be modified or removed by Google at any time, including at the request of those third parties. Third party providers of Additional Content may include financial exchanges and may be delayed as specified by such financial exchanges or Google's data providers. Google does not verify any data and disclaims any obligation to do so. Google, its data or content providers, the financial exchanges and each of their affiliates and business partners (a) expressly disclaim the accuracy, adequacy, or completeness of any data, and (b) shall not be liable for any errors, omissions or other defects in, delays or interruptions in such data, or for any actions taken in reliance thereon. Neither Google nor any of its information providers will be liable for any damages relating to Customer's or End User's use of the information provided herein. As used here, “business partners” does not refer to an agency, partnership, or joint venture relationship between Google and any such parties. Customer agrees not to copy, modify, reformat, download, store, reproduce, reprocess or redistribute any data or information from the Additional Content or use any such data or information in a commercial enterprise without obtaining prior written consent. All data and information is provided “as is” for personal informational purposes only, and is not intended for trading purposes or advice. A broker or financial representative should be consulted to verify pricing before executing any trade. Either Google or its third party data or content providers have exclusive proprietary rights in the data and information provided.
3.3 Fixed Footer Information. Customer acknowledges that the Start Page will contain a fixed footer set by Google that may contain, among other things, a link to a Google end user privacy policy and end user terms of service, as each may be updated by Google from time to time. Customer agrees not to interfere with the display of or links contained in such fixed footer.
3.4 Setting of the Browser Default Page. If a Customer chooses to change an End User's browser default home page to point to the Start Page, Customer shall (i) fully, accurately, clearly and conspicuously disclose the change in a manner that will explain the practical effect of such change and (ii) obtain the End User's affirmative consent to make such change. Customer agrees not to repeatedly ask an End User to set, or try to deceive an End User into setting, such End User's browser default home page to the Start Page.
3.5 Access to the Start Page. Customer understands that the Start Page is hosted on a publicly accessible web server by Google, and third parties other than Customer's End Users may be able to view and access the Start Page and any Customer Content and Additional Content on the Start Page.
4. Domain Service. Customer may, through Google’s interface, register domain name(s) through or transfer domain name(s) to third party domain name registrars who have a contractual relationship with Google (“Registrar Partners”). Google’s role in such registration is principally in suggesting a Registrar Partner to Customer, helping Customer to register Customer Domain Name(s) with such Registrar Partner and aiding in the setup of Google Service(s) through such Registrar Partner. Google’s Registrar Partners currently include eNom, Inc. and GoDaddy.com, Inc. but these Registrar Partners may change from time to time at Google’s sole discretion. Customer must agree to the Registrar Partner’s Terms and Conditions in order to register a domain name with that Registrar Partner. Customer understands that Customer has a separate contractual agreement with the Registrar Partner and that Customer is responsible for all liability, obligations, and fees as specified in that agreement. Any issues regarding availability, purchase, renewal, maintenance or other support relating to Customer’s domain name registration should be addressed to such Registrar Partner and not Google. Google bears no responsibility for such issues. Customer also understands that Google is not responsible for forwarding any correspondence directed to Google on Customer’s behalf.
4.1 Registration. Customer understands that Customer is the Registrant for Customer’s domain name(s) as defined by the Internet Corporation for Assigned Names (“ICANN”). Customer agrees to comply with the relevant ICANN regulations and policies concerning Customer’s Domain Name(s), including ICANN’s Uniform Dispute Resolution Process. Customer agrees to submit and maintain Customer’s registration information, including contact information for the registration and other contacts, as complete and accurate at all times. Customer also agrees and understands that though Customer may elect to keep Customer information out of the WHOIS database, if regulations regarding such election change, Customer’s Registrar Partner or Google may disclose Customer’s information as it reasonably believes necessary. To the extent that Customer names others to act on Customer’s behalf as Registrant, Administrator or in any other capacity, Customer agrees that Customer is liable for any obligations or liability that its agents incur relating to Customer’s domain(s) and Customer must have its agents accept these Terms and the Registrar Partner’s Terms and Conditions.
4.2 Fees. Customer agrees that Customer shall be responsible for all fees concerning the Domain Service payable to Customer’s Registrar Partner(s) and that Google may bill Customer for such fees. Google may collect such fees from Customer for payment to Customer’s Registrar Partner(s), but is under no obligation to do so. During signup or through the Domain Service, Customer may choose to automatically renew Customer’s Domain Name(s). If Customer so chooses, Google will convey Customer’s request to Customer’s Registrar Partner(s) and bill Customer for the then current fee for renewal when such payment is due. The current yearly fee for renewal is ten (10) U.S. dollars, but such fee may change at any time (and will be listed with Customer’s current renewal option as part of the Service).
4.3 Domain Records. Customer authorizes Google to correspond with Customer’s Registrar Partner(s) on Customer’s behalf and to make changes to Customer’s records with such Registrar Partner(s) in order to facilitate the functioning of the Services offered under this Agreement. Customer authorizes Google to, at its option, become the Technical, Billing or other contact for domains registered through the Domain Service.
4.4 Transfer. Customer understands that Google may change its Registrar Partners or begin providing such domain name registration services itself at any time and at its sole discretion. In connection with such a change, Google may change Customer’s Registrar. Customer authorizes Google to act as the agent of the Registrant for the limited purpose of requesting such a change and completing any necessary forms or agreements. Customer also authorizes Google to become and reset the Administrative Contact for the limited purpose of transferring Customer Domain Name(s) and completing any necessary forms or agreements.
5. Customer Obligations.
5.1 End User Terms. Customer acknowledges that its End Users will be bound by terms relating to the each component of the Service which may include but are not limited to (i) the Gmail Terms of Use (which may be modified from time to time) available at http://www.google.com/mail/help/terms_of_use.html or such URL as Google may provide and (ii) the Google Terms of Service (which may be modified from time to time) available at http://www.google.com/terms_of_service.html or such URL as Google may provide; and (iii) additional Program Policies or Guidelines for acceptable usage (which may be modified from time to time) available at http://www.google.com/a/help/intl/en/users/terms.html or such URL as Google may provide. Customer acknowledges that each End User of the Service consents to privacy policies relating to the Service which may include but are not limited to the Google Apps Privacy Policy (which may be modified from time to time) available at http://www.google.com/a/help/intl/en/users/privacy_notice.html or such URL as Google may provide and the Google Privacy Policy (which may be modified from time to time) available at http://www.google.com/privacy.html or such URL as Google may provide. In the event that Customer becomes aware of any End User's violation of any applicable terms of use or policy, Customer agrees to (i) promptly notify Google and (ii) immediately suspend or terminate such End User Account unless Google agrees otherwise in writing (including by email). At Google's request, Customer will promptly suspend or terminate any End User Account or administrator's access to the Service in response to a violation of any applicable terms of use or policy by an End User or administrator. Google reserves the right at its discretion to suspend or terminate the End User Account of any End User.
5.2 Privacy and Program Policies. For information about Google’s data protection practices relating to Google Apps for your Domain, please read Google’s Google Apps for your Domain Privacy Notice at: http://www.google.com/a/help/intl/en/admins/privacy.html and Google’s main privacy policy at http://www.google.com/privacy.html. This policy explains how Google treats your personal information, and protects your privacy, when you use the Google Apps for your Domain. You agree to the use of your data in accordance with Google’s privacy policies. Customer agrees to comply with the policy for the Service available at http://www.google.com/a/help/intl/en/admins/standard_program_policies.html which may be updated from time to time.
5.2.1 Start Page. Google may provide Customer with certain aggregate data (“Analytics Data”) concerning the characteristics and activities of End User usage of the Start Page Service. Customer will not (and will not allow any third party to) use the Start Page Service to track or collect personally identifiable information of End Users or other Internet users, nor will Customer (or will Customer allow any third party to) associate any Analytics Data or other data gathered from the Start Page Service with any personally identifying information from any source.
5.2.2 End User Privacy Policies. Customer agrees to protect the privacy of its End Users of the Service through a policy communicated to its End Users and no less protective of its End Users than the Google Apps Privacy Policy and the Google Privacy Policy referenced above.
5.3 Customer Administration of the Services. Customer will receive a password and account to use in connection with administering the End User Accounts of its End Users and the Start Page. Customer is responsible for maintaining the confidentiality of the password and account, designating those employees who are authorized to access the account, limiting the scope of such authorization to performance of duties under this Agreement, and for all activities that occur under Customer's account. Customer agrees to immediately notify Google of any unauthorized use of, or access to, the Service, Customer's password or account, or of any other breach of security. Google cannot and will not be liable for any loss or damage from Customer's failure to comply with these security obligations. Customer acknowledges and agrees that under no circumstances will Google be liable in any way for any acts or omissions of Customer or any End User including any damages of any kind incurred as a result of such acts or omissions.
5.4 Deployment of Services. Furthermore, Google reserves final approval authority with respect to the means used by Customer to deploy each component of the Service, and in the event Google disapproves of such deployment, Google shall have the right, upon notice to Customer, to suspend any continued use of the Service until such time Customer implements adequate corrective modifications as reasonably required and determined by Google.
5.5 Usage Policies and Limits. Customer shall comply with any usage policies and limits concerning use of the Service as requested by Google from time to time, including without limitation: (i) Google's technical and implementation requirements; (ii) Google's brand treatment guidelines for the Service; (iii) Google website terms of use and privacy policies; and (iv) Google requirements for data security. Google shall have the right to change, suspend or discontinue any aspect of the Service at any time, including hours of operation and availability of any Service feature, without notice and without liability. Google shall have the right to impose limits on certain features or restrict access to parts or all of the Service without notice and without liability.
5.6 Permissible Use. Customer agrees to use the Service only for purposes that are legal, proper and in accordance with this Agreement and any applicable policies or guidelines. Customer agrees that it will not engage in any activity that interferes with or disrupts the Service or servers or networks connected to the Service. In addition to this agreement, Customer's use of some specific Google services is governed by the policies or guidelines that are presented to Customer when Customer signs up for or accesses those services and which are specifically incorporated into this Agreement. Customer agrees to comply with all applicable export and reexport control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department's Office of Foreign Assets Control. A Customer in a country outside of the United States agrees to additionally comply with any local rules regarding online conduct and acceptable content, including laws regulating the export and reexport of data to and from the United States or such other country.
6. Restrictions. Except as expressly permitted by Google, Customer shall not alter, delete or modify any attributions included within the Service. Customer shall fully comply with the restrictions set forth in the policies for the Service available at http://www.google.com/a/help/intl/en/admins/standard_program_policies.html. Except for modifications made to the Start Page Service permitted through use of the Start Page Service administrative console, Customer agrees not to alter the Service or any information transmitted through the Service to End Users. Except as expressly set forth in this Agreement, Customer shall not transmit, display or otherwise make available (or allow End Users or any other third party to transmit or make available) the Service or the content thereof to any third party.
7. Technical Support Services. Customer is responsible for responding to any questions and complaints by End Users or other third parties relating to Customer or its End Users’ use of the Service, with such support services to be provided at Customer's own expense. Subject to the terms and conditions of this Agreement, Google shall provide technical support services to Customer's designated administrator in accordance with Google's support guidelines then in effect for the Service. Prior to making any support request to Google, Customer shall first use reasonable efforts to fix any error, bug, malfunction, or network connectivity defect on its own without any escalation to Google. Thereafter, Customer's designated administrator may submit a written request for technical support through the online help center which is accessible at http://www.google.com/support/a, or such URL as Google may provide. Technical support services for End Users of the Service are provided by Google solely through the Google.com Help Center, which is accessible at http://www.google.com/support/ or such URL as Google may provide.
8. Confidential Information. In connection with performance of its obligations hereunder, a party (the “Discloser”) may disclose to the other party (the “Recipient”) certain information that the Discloser considers confidential and/or proprietary (“Confidential Information”) including, but not limited to, tangible, intangible, visual, electronic, present, or future information such as: (a) trade secrets; (b) financial information, including pricing; (c) technical information, including research, development, procedures, algorithms, data, designs, and know-how; (d) business information, including operations, planning, marketing interests, and products; (e) any bugs, defects, security problems, and other issues relating to the Service; and (f) the terms of this Agreement and the discussions, negotiations and proposals related thereto. The Recipient will only have a duty to protect Confidential Information disclosed to it by the Discloser: (1) if it is clearly and conspicuously marked as “confidential” or with a similar designation; (2) if it is identified by the Discloser as confidential and/or proprietary before, during, or promptly after presentation or communication; or (3) if it is disclosed in a manner in which the Discloser reasonably communicated, or the Recipient should reasonably have understood under the circumstances that the disclosure should be treated as confidential, whether or not the specific designation “confidential” or any similar designation is used. Customer acknowledges that the source and object code of the software underlying the Service (the “Software”) remains a confidential trade secret of Google and/or its licensors and that Customer is not entitled to review either the object code or the source code of the Software for any reason at any time. Recipient shall not disclose or cause to be disclosed any Confidential Information of Discloser, except to those employees, agents, representatives, or contractors of the parties who require access to the Confidential Information to perform under this Agreement (“Authorized Personnel”) and who are bound by written agreement not to disclose third-party confidential or proprietary information disclosed to Recipient, or as such disclosure may be required by law or governmental regulation. Furthermore, Recipient agrees to be responsible for any act and/or omission of any Authorized Personnel in breach of this Section. Recipient shall protect the Confidential Information of Discloser by using the same degree of care, but no less than a reasonable degree of care, that it uses to protect its own confidential information of a like nature to prevent its unauthorized use, dissemination or publication to any unauthorized third parties. A party's Confidential Information shall not include information that: (i) is or becomes publicly available through no act or omission of Recipient; (ii) was in the Recipient's lawful possession prior to the disclosure and was not obtained by Recipient either directly or indirectly from the Discloser; (iii) is lawfully disclosed to the Recipient by a third party without restriction on Recipient's disclosure, and where Recipient was not aware that the information was the confidential information of Discloser; or (iv) is independently developed by the Recipient without violation of this Agreement. Recipient may disclose Confidential Information solely as needed to comply with a court order, subpoena, or other government demand (provided that Recipient first used all commercially reasonable efforts to notify Discloser and to give Discloser the opportunity to challenge such court order, subpoena, or government demand except in situations where Recipient is prevented, per lawful government request, from disclosing the existence of the court order, subpoena, or other government demand). Results, analyses or other information generated in benchmarking and/or performance testing of the Service shall be Confidential Information of Google and shall, at the request of Google, be provided to Google. Each party acknowledges that damages for improper disclosure of Confidential Information may be irreparable; therefore, the injured party is entitled to seek equitable relief, including temporary restraining order(s) or preliminary or permanent injunction, in addition to all other remedies, for any violation or threatened violation of this Section 8. A Recipient shall have a duty to protect Confidential Information during the term of this Agreement and for a period of five (5) years thereafter.
9. Ownership; Restricted Use. Google and its licensors shall own all right, title and interest, including without limitation all Intellectual Property Rights (as defined below) relating to the Service (and any derivative works or enhancements thereof), including but not limited to, all software, technology, information, content, materials, guidelines, and documentation. Customer shall not acquire any right, title, or interest therein, except for the limited use rights expressly set forth in the Agreement. Any rights not expressly granted herein are deemed withheld. “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide. Google does not own third party content used as part of the Service, including the content of communications appearing on the Service. Title, ownership rights, and Intellectual Property Rights in and to the content accessed through the Service are the property of the applicable content owner and may be protected by applicable copyright or other law. Customer agrees not to, or to allow others to: (i) adapt, translate, or modify the Software; (ii) decipher, decompile, disassemble, reverse engineer, or otherwise attempt to discover the source or object code of the Software, except to the extent applicable laws specifically prohibit such restriction; (iii) copy the Software; (iv) use the Service for High Risk Activities as described in Section 13; or (v) sublicense, loan, sell, rent or lease the Service, or any component thereof. Any and all third party binary or source code included in each portion of the Service may be used only in conjunction with such portion of the Service, and such use shall be subject to all the terms and conditions of this Agreement. THE SERVICE OR ANY PORTION THEREOF MAY NOT BE USED, COPIED, TRANSFERRED, OR MODIFIED EXCEPT AS EXPRESSLY PERMITTED BY THIS AGREEMENT.
10. Brand Features. As used in this Agreement, “Brand Features” shall mean the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time. Except as expressly allowed by Google, any Brand Features, copyright, or other proprietary notices, legends, symbols, or labels appearing on or in the Service provided to Customer shall not be removed or altered. Subject to the terms and conditions of this Agreement, Customer grants to Google a limited, nonexclusive and nonsublicensable license during the term of this Agreement to display those Customer Brand Features expressly authorized for use in this Agreement, solely for the purposes expressly set forth herein. Notwithstanding anything to the contrary, Customer may revoke the license granted herein to use Customer's Brand Features upon providing Google with written notice thereof and a reasonable period of time to cease such usage. The pages displaying the Service to End Users (“Service Pages”) including the Start Page may display Customer's Brand Features within the designated area of Service Pages as Customer shall specify from time to time using the automated features included in the Service. Notwithstanding the foregoing, Google may prominently display on all Service Pages Google's Brand Features. Each party shall own all right, title and interest, including without limitation all Intellectual Property Rights, relating to its Brand Features. Some, but not all examples of Google Brand Features are located at: http://www.google.com/permissions/trademarks.html (or such other URLs Google may provide from time to time). Except to the limited extent expressly provided in this Agreement, neither party grants, and the other party shall not acquire, any right, title or interest (including, without limitation, any implied license) in or to any Brand Features of the first party; and all rights not expressly granted herein are deemed withheld. All use by Google of Customer Brand Features (including any goodwill associated therewith) shall inure to the benefit of Customer and all use by Customer of Google Brand Features (including any goodwill associated therewith) shall inure to the benefit of Google. Customer shall not challenge or assist others to challenge the Google Brand Features or the registration thereof, nor shall Customer attempt to register any Google Brand Features or domain names that are confusingly similar to those of Google.
11. PR. Customer agrees not to issue any public announcement regarding the existence or content of this Agreement without Google's prior written approval. Google may (i) include Customer's Brand Features in presentations, marketing materials, and customer lists (which includes, without limitation, customer lists posted on Google's web sites and screen shots of Customer's implementation of the Service) and (ii) issue a public announcement regarding the existence or content of this Agreement. Upon Customer's request, Google will furnish Customer with a sample of such usage or announcement.
12. Representations and Warranties. Each party represents and warrants that it has full power and authority to enter into the Agreement. Customer represents, warrants, and covenants that: (i) Customer owns and controls one hundred percent (100%) of the Customer Domain Name(s); (ii) Customer has and will maintain all rights, authorizations and licenses that are required to permit Customer to use the Service; (iii) the execution and delivery of this Agreement, and the performance by Customer of its obligations hereunder, will not constitute a breach or default of or otherwise violate any agreement to which such party or any of its affiliates are a party or violate any rights of any third parties arising therefrom; and (iv) Customer shall comply with all laws, regulations and ordinances applicable to or otherwise connected with Customer's use of the Service.
13. Warranty Disclaimer. CUSTOMER UNDERSTANDS AND AGREES THAT EACH SERVICE MAY CONTAIN BUGS, DEFECTS, ERRORS AND OTHER PROBLEMS THAT COULD CAUSE SYSTEM FAILURES. CONSEQUENTLY, THE SERVICE INCLUDING ALL CONTENT, SOFTWARE (INCLUDING ANY UPDATES OR MODIFICATIONS TO THE SOFTWARE), FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE SERVICE, AND ANY ACCOMPANYING DOCUMENTATION ARE PROVIDED “AS IS” AND ANY USE THEREOF SHALL BE AT CUSTOMER'S OWN RISK. GOOGLE AND ITS LICENSORS MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NON-INFRINGEMENT. GOOGLE ASSUMES NO RESPONSIBILITY FOR THE PROPER USE OF THE SERVICE. GOOGLE AND ITS LICENSORS MAKE NO REPRESENTATIONS ABOUT ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY THE SERVICE. GOOGLE MAKES NO REPRESENTATION THAT GOOGLE (OR ANY THIRD PARTY) WILL ISSUE UPDATES OR ENHANCEMENTS TO THE SERVICE. Google does not warrant that the functions contained in the Service will be uninterrupted or error free. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO CUSTOMER. IN THAT EVENT, TO THE EXTENT PERMISSIBLE, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE EFFECTIVE DATE. THE SERVICE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USES SUCH AS THE OPERATION OF NUCLEAR FACILITIES, AIR TRAFFIC CONTROL OR LIFE SUPPORT SYSTEMS, WHERE THE FAILURE OF THE SERVICE COULD LEAD TO DEATH, PERSONAL INJURY, OR ENVIRONMENTAL DAMAGE (“HIGH RISK ACTIVITIES”).
14. Indemnification. Customer shall indemnify, defend and hold harmless Google, its subsidiaries and other affiliates, and its and their officers, directors, owners, agents, co-branders or other partners, employees, information providers, licensors and licensees (collectively, the “Indemnified Parties”) from and against any and all liability, costs, losses, damages, claims and demands, including without limitation attorneys fees and costs incurred by the Indemnified Parties, arising out of or related to (i) Customer Domain Name(s) and/or Customer Brand Features; (ii) Customer's use of the Service; (iii) Customer's disclosure of End User information; (iv) any Customer Content; (v) any breach or non-compliance by Customer of this Agreement, any of Google's policies, or Customer's representations or the provision of warranties contained herein; and (vi) any End User's use of the Service.
15. Limitation of Liability. IN NO EVENT WILL GOOGLE OR ITS LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, AND INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA, LOST PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED (INCLUDING BUT NOT LIMITED TO USE, MISUSE, INABILITY TO USE, OR INTERRUPTED USE) AND UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT AND WHETHER OR NOT GOOGLE WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE REGARDLESS OF WHETHER ANY REMEDY SET FORTH IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; OR FOR ANY CLAIM ALLEGING INJURY RESULTING FROM ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SERVICE OR DESTRUCTIVE PROPERTIES OF THE SERVICE. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH, PERSONAL INJURY, OR WILLFUL MISCONDUCT TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FUTHERMORE, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO CUSTOMER. IN NO EVENT SHALL GOOGLE'S LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED FIVE HUNDRED DOLLARS ($500). THE SERVICE IS PROVIDED WITHOUT CHARGE FOR BETA TESTING PURPOSES ONLY AND THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THIS AGREEMENT.
16. Termination. Customer may discontinue use of the Service at any time. Except as provided in Section 18, Google reserves the right at any time and from time to time to modify the Service (or any part thereof) with or without notice. Customer agrees that Google may at any time and for any reason terminate this Agreement and/or terminate the provision of all or any portion of the Service. Notwithstanding the foregoing, Google will provide at least thirty (30) days notice to Customer prior to terminating or suspending the hosted email service (if provided to Customer); provided that such hosted email service may be terminated immediately if (i) Customer has breached this Agreement or (ii) Google reasonably determines that it is commercially impractical to continue providing such hosted email service in light of applicable laws. Customer agrees that Google shall not be liable to Customer, any End User, or any third party for any modification, suspension, or termination of the Service. Sections 8 (Confidentiality), 9 (Ownership; Restricted Use), 12 (Representations and Warranties), 13 (Warranty Disclaimer), 14 (Indemnification), 15 (Limitation of Liability), 16 (Termination), 19 (Information Requests) and 20 (Miscellaneous) shall survive the expiration or termination of this Agreement.
17. Modification. Except as provided in Section 18, Google reserves the right to change or modify any of the terms and conditions contained in this Agreement or any policy governing the Service, at any time, by posting the new agreement at http://www.google.com/a/help/intl/en/admins/terms.html or such URL as Google may provide. Customer is responsible for regularly reviewing any updates to this Agreement. Any changes or modifications to this Agreement will become binding (i) when made in a writing executed by both parties, (ii) by Customer's online acceptance of updated terms, or (iii) after Customer's continued use of the Service after such terms have been updated by Google.
18. Fees. Provided that Google continues to offer the Service to Customer, Google will continue to provide a version of the Service (with substantially the same services as those provided as of the Effective Date) free of charge to Customer; provided that such commitment: (i) does not apply to the Domain Service described in Section 4 above; and (ii) may not apply to new opt-in services added by Google to the Service in the future. For sake of clarity, Google reserves the right to offer a premium version of the Service for a fee.
19. Miscellaneous. Customer agrees that Google may provide Customer with notices, including those regarding changes to this Agreement, by email, regular mail, or postings on Google services. Customer may not assign or otherwise transfer its rights or delegate its obligations under this Agreement, without the prior written consent of Google. Any attempted assignment in derogation hereof shall be null and void. Customer agrees that there shall be no third party beneficiaries to this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the State of California and the federal U.S. laws applicable therein, excluding its choice of law provisions, and Customer and Google agree to submit to the personal and exclusive jurisdiction of the courts located in Santa Clara County, California. The parties specifically exclude from application to this Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. Neither party shall be liable for failing or delaying performance of its obligations (except for the payment of money) resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances. If any provision of this Agreement is found void and unenforceable, it shall be replaced to the extent possible with a provision that comes closest to the meaning of the original provision. The unenforceability of any provision, however, shall not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. THIS AGREEMENT CONSTITUTES A COMPLETE INTEGRATION OF ALL UNDERSTANDINGS BETWEEN THE PARTIES AND IS THE ENTIRE AGREEMENT BETWEEN CUSTOMER AND GOOGLE RELATING TO THE SERVICE AND ALL TERMS HEREIN. THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ANY SPECIFICALLY REFERENCED UNIFORM RESOURCE LOCATOR (AS SUCH URL MAY BE MODIFIED FROM TIME TO TIME, AS PROVIDED HEREIN) SHALL TAKE PRECEDENCE OVER ANY PURCHASE ORDER, WEB SITE RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT OR OTHER DOCUMENT WHETHER FORMALLY REJECTED BY GOOGLE OR NOT, AND ANY CONFLICTING, INCONSISTENT, OR ADDITIONAL TERMS CONTAINED THEREIN SHALL BE NULL AND VOID.
This Google Apps Agreement (the “Agreement”) is entered into by and between Google Inc., a Delaware corporation, with offices at 1600 Amphitheatre Parkway, Mountain View, California 94043 (“Google”) and the entity agreeing to the terms herein (“Customer”). This Agreement will be effective as of the date you click the “I Accept” button below (the “Effective Date”). If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to these terms and conditions; (ii) that you have read and understand this Agreement; and (iii) that you agree, on behalf of the party that you represent, to this Agreement. If you don't have the legal authority to bind, please do not click the “I Accept” button below. This Agreement governs Customer's access to and use of the Service (as defined below).
1. Definitions.
- 1.1 “Customer Domain Name(s)” means the domain name(s) owned by Customer and approved by Google for use with the Service (as defined below).
- 1.2 “End Users” mean Customer's end users who utilize any of the Google Apps.
- 1.3 “End User Account” means Google-hosted accounts provided to Customer's End Users through the Service for the purpose of enabling such End Users to use the Service. Google may limit the number of available End User Accounts it provides to End Users of Customer at its sole discretion.
- 1.4 “Service” means the services referred to by Google as “Google Apps for Your Domain” or “Google Apps” that are hosted by Google and described in this Agreement, which may include without limitation, the Hosted Communication Services and the Start Page Service.
- 1.5 “Hosted Communication Services” means the hosted services provided by Google hereunder that provide Customer with Google-hosted End User Accounts for its End Users for the purpose of (i) enabling End Users to send and receive email and/or instant messages at one or more Customer Domain Names and (ii) any other functionality, products and/or services that Google may provide from time to time as part of the Hosted Communication Services, as applicable.
- 1.6 “Start Page” means a Google-hosted web page provided through the Start Page Service.
- 1.7 “Start Page Service” means the service that provides Customer with a Google-hosted web page for its End Users that enables certain customization by the Customer through the administrative console and enables further customization by each End User with an End User Account.
- 1.8 “Domain Service” means the service provided by Google to help Customer register Customer Domain Names through third party registrars.
3. Start Page Service. Google will use commercially reasonable efforts to provide the Start Page Service to Customer during the term of this Agreement. Subject to the terms and conditions of this Agreement, Customer may use the Start Page Service to (a) provide a Start Page to its End Users, and (b) administer such Start Page through the provided administrative console. Both parties acknowledge that an End User is a customer of both Customer and Google.
3.1 Search Box and Search Results. Customer agrees that Google will display a Google search box (“Search Box”) in the position specified by Google on the Start Page. All search queries must originate from individual human end users inputting data directly into the Search Box. Google will use commercially reasonable efforts to provide search results (“Search Results”) in response to queries processed through the Search Box. Customer agrees that Google may serve advertisements (“Ads”) in connection with the Search Results. Search Results and any accompanying Ads will be displayed on Web pages hosted by Google (each, a “Search Results Page”), the format, look and feel of which may be modified by Google from time to time. Customer agrees that any revenue generated by Google from the Ads or otherwise derived by Google from the Start Page Service will be retained by Google and not be subject to any revenue sharing.
3.2 Start Page Content. Customer may use the administrative console of the Start Page Service to add modules of Customer provided content to the Start Page (“Customer Content”). Customer may develop “gadgets” for inclusion in the Start Page Service using the API and development information available at http://www.google.com/apis/homepage/ or such future URL as Google may designate, and by executing the Google Gadgets API Terms of service, located at http://www.google.com/apis/homepage/terms.html or such future URL as Google may designate. Furthermore, Google may provide access to other content for Customer or End Users to enhance the Start Page (such as current news and weather information) from publicly available sources or which Google licenses from third parties (“Additional Content”). Customer Content shall be hosted by Customer and contained in the modules identified as Customer's content on the Start Page. Customer Content shall conform to Google's reasonable technical requirements, including but not limited to size, dimensions and language, and Google's content policies. Areas on the Start Page not reserved for Customer Content may be modified by Google from time to time at its sole discretion. Notwithstanding the foregoing, the parties further acknowledge that End Users will have the ability to make personal customizations to certain aspects Start Page through an End User Account, and such customization may include moving or removing modules, whether containing Customer Content or Additional Content, and/or including new content from third party content providers (e.g., via RSS feeds or similar). The parties further agree that revenue generated, if any, from each party's content on the Start Page shall be retained by such party and shall not be subject to any revenue sharing or payment commitments hereunder.
3.2.1 Appropriate Customer Content. Customer agrees that all Customer Content is the sole responsibility of Customer. Google reserves the right, but shall have no obligation, to pre-screen, refuse or move any Customer Content available via the Start Page Service. Without limiting the foregoing, Google and its designees shall have the right to remove any Customer Content or other content that violates this Agreement or is otherwise objectionable. Customer understands that by using the Start Page Service, that Customer and End Users may be exposed to content that is offensive, indecent or objectionable, and that Customer and its End Users use the Start Page Service at their own risk.
3.2.2 Disclaimer Regarding Additional Content. Additional Content may be provided by third parties and may be modified or removed by Google at any time, including at the request of those third parties. Third party providers of Additional Content may include financial exchanges and may be delayed as specified by such financial exchanges or Google's data providers. Google does not verify any data and disclaims any obligation to do so. Google, its data or content providers, the financial exchanges and each of their affiliates and business partners (a) expressly disclaim the accuracy, adequacy, or completeness of any data, and (b) shall not be liable for any errors, omissions or other defects in, delays or interruptions in such data, or for any actions taken in reliance thereon. Neither Google nor any of its information providers will be liable for any damages relating to Customer's or End User's use of the information provided herein. As used here, “business partners” does not refer to an agency, partnership, or joint venture relationship between Google and any such parties. Customer agrees not to copy, modify, reformat, download, store, reproduce, reprocess or redistribute any data or information from the Additional Content or use any such data or information in a commercial enterprise without obtaining prior written consent. All data and information is provided “as is” for personal informational purposes only, and is not intended for trading purposes or advice. A broker or financial representative should be consulted to verify pricing before executing any trade. Either Google or its third party data or content providers have exclusive proprietary rights in the data and information provided.
3.3 Fixed Footer Information. Customer acknowledges that the Start Page will contain a fixed footer set by Google that may contain, among other things, a link to a Google end user privacy policy and end user terms of service, as each may be updated by Google from time to time. Customer agrees not to interfere with the display of or links contained in such fixed footer.
3.4 Setting of the Browser Default Page. If a Customer chooses to change an End User's browser default home page to point to the Start Page, Customer shall (i) fully, accurately, clearly and conspicuously disclose the change in a manner that will explain the practical effect of such change and (ii) obtain the End User's affirmative consent to make such change. Customer agrees not to repeatedly ask an End User to set, or try to deceive an End User into setting, such End User's browser default home page to the Start Page.
3.5 Access to the Start Page. Customer understands that the Start Page is hosted on a publicly accessible web server by Google, and third parties other than Customer's End Users may be able to view and access the Start Page and any Customer Content and Additional Content on the Start Page.
4. Domain Service. Customer may, through Google’s interface, register domain name(s) through or transfer domain name(s) to third party domain name registrars who have a contractual relationship with Google (“Registrar Partners”). Google’s role in such registration is principally in suggesting a Registrar Partner to Customer, helping Customer to register Customer Domain Name(s) with such Registrar Partner and aiding in the setup of Google Service(s) through such Registrar Partner. Google’s Registrar Partners currently include eNom, Inc. and GoDaddy.com, Inc. but these Registrar Partners may change from time to time at Google’s sole discretion. Customer must agree to the Registrar Partner’s Terms and Conditions in order to register a domain name with that Registrar Partner. Customer understands that Customer has a separate contractual agreement with the Registrar Partner and that Customer is responsible for all liability, obligations, and fees as specified in that agreement. Any issues regarding availability, purchase, renewal, maintenance or other support relating to Customer’s domain name registration should be addressed to such Registrar Partner and not Google. Google bears no responsibility for such issues. Customer also understands that Google is not responsible for forwarding any correspondence directed to Google on Customer’s behalf.
4.1 Registration. Customer understands that Customer is the Registrant for Customer’s domain name(s) as defined by the Internet Corporation for Assigned Names (“ICANN”). Customer agrees to comply with the relevant ICANN regulations and policies concerning Customer’s Domain Name(s), including ICANN’s Uniform Dispute Resolution Process. Customer agrees to submit and maintain Customer’s registration information, including contact information for the registration and other contacts, as complete and accurate at all times. Customer also agrees and understands that though Customer may elect to keep Customer information out of the WHOIS database, if regulations regarding such election change, Customer’s Registrar Partner or Google may disclose Customer’s information as it reasonably believes necessary. To the extent that Customer names others to act on Customer’s behalf as Registrant, Administrator or in any other capacity, Customer agrees that Customer is liable for any obligations or liability that its agents incur relating to Customer’s domain(s) and Customer must have its agents accept these Terms and the Registrar Partner’s Terms and Conditions.
4.2 Fees. Customer agrees that Customer shall be responsible for all fees concerning the Domain Service payable to Customer’s Registrar Partner(s) and that Google may bill Customer for such fees. Google may collect such fees from Customer for payment to Customer’s Registrar Partner(s), but is under no obligation to do so. During signup or through the Domain Service, Customer may choose to automatically renew Customer’s Domain Name(s). If Customer so chooses, Google will convey Customer’s request to Customer’s Registrar Partner(s) and bill Customer for the then current fee for renewal when such payment is due. The current yearly fee for renewal is ten (10) U.S. dollars, but such fee may change at any time (and will be listed with Customer’s current renewal option as part of the Service).
4.3 Domain Records. Customer authorizes Google to correspond with Customer’s Registrar Partner(s) on Customer’s behalf and to make changes to Customer’s records with such Registrar Partner(s) in order to facilitate the functioning of the Services offered under this Agreement. Customer authorizes Google to, at its option, become the Technical, Billing or other contact for domains registered through the Domain Service.
4.4 Transfer. Customer understands that Google may change its Registrar Partners or begin providing such domain name registration services itself at any time and at its sole discretion. In connection with such a change, Google may change Customer’s Registrar. Customer authorizes Google to act as the agent of the Registrant for the limited purpose of requesting such a change and completing any necessary forms or agreements. Customer also authorizes Google to become and reset the Administrative Contact for the limited purpose of transferring Customer Domain Name(s) and completing any necessary forms or agreements.
5. Customer Obligations.
5.1 End User Terms. Customer acknowledges that its End Users will be bound by terms relating to the each component of the Service which may include but are not limited to (i) the Gmail Terms of Use (which may be modified from time to time) available at http://www.google.com/mail/help/terms_of_use.html or such URL as Google may provide and (ii) the Google Terms of Service (which may be modified from time to time) available at http://www.google.com/terms_of_service.html or such URL as Google may provide; and (iii) additional Program Policies or Guidelines for acceptable usage (which may be modified from time to time) available at http://www.google.com/a/help/intl/en/users/terms.html or such URL as Google may provide. Customer acknowledges that each End User of the Service consents to privacy policies relating to the Service which may include but are not limited to the Google Apps Privacy Policy (which may be modified from time to time) available at http://www.google.com/a/help/intl/en/users/privacy_notice.html or such URL as Google may provide and the Google Privacy Policy (which may be modified from time to time) available at http://www.google.com/privacy.html or such URL as Google may provide. In the event that Customer becomes aware of any End User's violation of any applicable terms of use or policy, Customer agrees to (i) promptly notify Google and (ii) immediately suspend or terminate such End User Account unless Google agrees otherwise in writing (including by email). At Google's request, Customer will promptly suspend or terminate any End User Account or administrator's access to the Service in response to a violation of any applicable terms of use or policy by an End User or administrator. Google reserves the right at its discretion to suspend or terminate the End User Account of any End User.
5.2 Privacy and Program Policies. For information about Google’s data protection practices relating to Google Apps for your Domain, please read Google’s Google Apps for your Domain Privacy Notice at: http://www.google.com/a/help/intl/en/admins/privacy.html and Google’s main privacy policy at http://www.google.com/privacy.html. This policy explains how Google treats your personal information, and protects your privacy, when you use the Google Apps for your Domain. You agree to the use of your data in accordance with Google’s privacy policies. Customer agrees to comply with the policy for the Service available at http://www.google.com/a/help/intl/en/admins/standard_program_policies.html which may be updated from time to time.
5.2.1 Start Page. Google may provide Customer with certain aggregate data (“Analytics Data”) concerning the characteristics and activities of End User usage of the Start Page Service. Customer will not (and will not allow any third party to) use the Start Page Service to track or collect personally identifiable information of End Users or other Internet users, nor will Customer (or will Customer allow any third party to) associate any Analytics Data or other data gathered from the Start Page Service with any personally identifying information from any source.
5.2.2 End User Privacy Policies. Customer agrees to protect the privacy of its End Users of the Service through a policy communicated to its End Users and no less protective of its End Users than the Google Apps Privacy Policy and the Google Privacy Policy referenced above.
5.3 Customer Administration of the Services. Customer will receive a password and account to use in connection with administering the End User Accounts of its End Users and the Start Page. Customer is responsible for maintaining the confidentiality of the password and account, designating those employees who are authorized to access the account, limiting the scope of such authorization to performance of duties under this Agreement, and for all activities that occur under Customer's account. Customer agrees to immediately notify Google of any unauthorized use of, or access to, the Service, Customer's password or account, or of any other breach of security. Google cannot and will not be liable for any loss or damage from Customer's failure to comply with these security obligations. Customer acknowledges and agrees that under no circumstances will Google be liable in any way for any acts or omissions of Customer or any End User including any damages of any kind incurred as a result of such acts or omissions.
5.4 Deployment of Services. Furthermore, Google reserves final approval authority with respect to the means used by Customer to deploy each component of the Service, and in the event Google disapproves of such deployment, Google shall have the right, upon notice to Customer, to suspend any continued use of the Service until such time Customer implements adequate corrective modifications as reasonably required and determined by Google.
5.5 Usage Policies and Limits. Customer shall comply with any usage policies and limits concerning use of the Service as requested by Google from time to time, including without limitation: (i) Google's technical and implementation requirements; (ii) Google's brand treatment guidelines for the Service; (iii) Google website terms of use and privacy policies; and (iv) Google requirements for data security. Google shall have the right to change, suspend or discontinue any aspect of the Service at any time, including hours of operation and availability of any Service feature, without notice and without liability. Google shall have the right to impose limits on certain features or restrict access to parts or all of the Service without notice and without liability.
5.6 Permissible Use. Customer agrees to use the Service only for purposes that are legal, proper and in accordance with this Agreement and any applicable policies or guidelines. Customer agrees that it will not engage in any activity that interferes with or disrupts the Service or servers or networks connected to the Service. In addition to this agreement, Customer's use of some specific Google services is governed by the policies or guidelines that are presented to Customer when Customer signs up for or accesses those services and which are specifically incorporated into this Agreement. Customer agrees to comply with all applicable export and reexport control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department's Office of Foreign Assets Control. A Customer in a country outside of the United States agrees to additionally comply with any local rules regarding online conduct and acceptable content, including laws regulating the export and reexport of data to and from the United States or such other country.
6. Restrictions. Except as expressly permitted by Google, Customer shall not alter, delete or modify any attributions included within the Service. Customer shall fully comply with the restrictions set forth in the policies for the Service available at http://www.google.com/a/help/intl/en/admins/standard_program_policies.html. Except for modifications made to the Start Page Service permitted through use of the Start Page Service administrative console, Customer agrees not to alter the Service or any information transmitted through the Service to End Users. Except as expressly set forth in this Agreement, Customer shall not transmit, display or otherwise make available (or allow End Users or any other third party to transmit or make available) the Service or the content thereof to any third party.
7. Technical Support Services. Customer is responsible for responding to any questions and complaints by End Users or other third parties relating to Customer or its End Users’ use of the Service, with such support services to be provided at Customer's own expense. Subject to the terms and conditions of this Agreement, Google shall provide technical support services to Customer's designated administrator in accordance with Google's support guidelines then in effect for the Service. Prior to making any support request to Google, Customer shall first use reasonable efforts to fix any error, bug, malfunction, or network connectivity defect on its own without any escalation to Google. Thereafter, Customer's designated administrator may submit a written request for technical support through the online help center which is accessible at http://www.google.com/support/a, or such URL as Google may provide. Technical support services for End Users of the Service are provided by Google solely through the Google.com Help Center, which is accessible at http://www.google.com/support/ or such URL as Google may provide.
8. Confidential Information. In connection with performance of its obligations hereunder, a party (the “Discloser”) may disclose to the other party (the “Recipient”) certain information that the Discloser considers confidential and/or proprietary (“Confidential Information”) including, but not limited to, tangible, intangible, visual, electronic, present, or future information such as: (a) trade secrets; (b) financial information, including pricing; (c) technical information, including research, development, procedures, algorithms, data, designs, and know-how; (d) business information, including operations, planning, marketing interests, and products; (e) any bugs, defects, security problems, and other issues relating to the Service; and (f) the terms of this Agreement and the discussions, negotiations and proposals related thereto. The Recipient will only have a duty to protect Confidential Information disclosed to it by the Discloser: (1) if it is clearly and conspicuously marked as “confidential” or with a similar designation; (2) if it is identified by the Discloser as confidential and/or proprietary before, during, or promptly after presentation or communication; or (3) if it is disclosed in a manner in which the Discloser reasonably communicated, or the Recipient should reasonably have understood under the circumstances that the disclosure should be treated as confidential, whether or not the specific designation “confidential” or any similar designation is used. Customer acknowledges that the source and object code of the software underlying the Service (the “Software”) remains a confidential trade secret of Google and/or its licensors and that Customer is not entitled to review either the object code or the source code of the Software for any reason at any time. Recipient shall not disclose or cause to be disclosed any Confidential Information of Discloser, except to those employees, agents, representatives, or contractors of the parties who require access to the Confidential Information to perform under this Agreement (“Authorized Personnel”) and who are bound by written agreement not to disclose third-party confidential or proprietary information disclosed to Recipient, or as such disclosure may be required by law or governmental regulation. Furthermore, Recipient agrees to be responsible for any act and/or omission of any Authorized Personnel in breach of this Section. Recipient shall protect the Confidential Information of Discloser by using the same degree of care, but no less than a reasonable degree of care, that it uses to protect its own confidential information of a like nature to prevent its unauthorized use, dissemination or publication to any unauthorized third parties. A party's Confidential Information shall not include information that: (i) is or becomes publicly available through no act or omission of Recipient; (ii) was in the Recipient's lawful possession prior to the disclosure and was not obtained by Recipient either directly or indirectly from the Discloser; (iii) is lawfully disclosed to the Recipient by a third party without restriction on Recipient's disclosure, and where Recipient was not aware that the information was the confidential information of Discloser; or (iv) is independently developed by the Recipient without violation of this Agreement. Recipient may disclose Confidential Information solely as needed to comply with a court order, subpoena, or other government demand (provided that Recipient first used all commercially reasonable efforts to notify Discloser and to give Discloser the opportunity to challenge such court order, subpoena, or government demand except in situations where Recipient is prevented, per lawful government request, from disclosing the existence of the court order, subpoena, or other government demand). Results, analyses or other information generated in benchmarking and/or performance testing of the Service shall be Confidential Information of Google and shall, at the request of Google, be provided to Google. Each party acknowledges that damages for improper disclosure of Confidential Information may be irreparable; therefore, the injured party is entitled to seek equitable relief, including temporary restraining order(s) or preliminary or permanent injunction, in addition to all other remedies, for any violation or threatened violation of this Section 8. A Recipient shall have a duty to protect Confidential Information during the term of this Agreement and for a period of five (5) years thereafter.
9. Ownership; Restricted Use. Google and its licensors shall own all right, title and interest, including without limitation all Intellectual Property Rights (as defined below) relating to the Service (and any derivative works or enhancements thereof), including but not limited to, all software, technology, information, content, materials, guidelines, and documentation. Customer shall not acquire any right, title, or interest therein, except for the limited use rights expressly set forth in the Agreement. Any rights not expressly granted herein are deemed withheld. “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide. Google does not own third party content used as part of the Service, including the content of communications appearing on the Service. Title, ownership rights, and Intellectual Property Rights in and to the content accessed through the Service are the property of the applicable content owner and may be protected by applicable copyright or other law. Customer agrees not to, or to allow others to: (i) adapt, translate, or modify the Software; (ii) decipher, decompile, disassemble, reverse engineer, or otherwise attempt to discover the source or object code of the Software, except to the extent applicable laws specifically prohibit such restriction; (iii) copy the Software; (iv) use the Service for High Risk Activities as described in Section 13; or (v) sublicense, loan, sell, rent or lease the Service, or any component thereof. Any and all third party binary or source code included in each portion of the Service may be used only in conjunction with such portion of the Service, and such use shall be subject to all the terms and conditions of this Agreement. THE SERVICE OR ANY PORTION THEREOF MAY NOT BE USED, COPIED, TRANSFERRED, OR MODIFIED EXCEPT AS EXPRESSLY PERMITTED BY THIS AGREEMENT.
10. Brand Features. As used in this Agreement, “Brand Features” shall mean the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time. Except as expressly allowed by Google, any Brand Features, copyright, or other proprietary notices, legends, symbols, or labels appearing on or in the Service provided to Customer shall not be removed or altered. Subject to the terms and conditions of this Agreement, Customer grants to Google a limited, nonexclusive and nonsublicensable license during the term of this Agreement to display those Customer Brand Features expressly authorized for use in this Agreement, solely for the purposes expressly set forth herein. Notwithstanding anything to the contrary, Customer may revoke the license granted herein to use Customer's Brand Features upon providing Google with written notice thereof and a reasonable period of time to cease such usage. The pages displaying the Service to End Users (“Service Pages”) including the Start Page may display Customer's Brand Features within the designated area of Service Pages as Customer shall specify from time to time using the automated features included in the Service. Notwithstanding the foregoing, Google may prominently display on all Service Pages Google's Brand Features. Each party shall own all right, title and interest, including without limitation all Intellectual Property Rights, relating to its Brand Features. Some, but not all examples of Google Brand Features are located at: http://www.google.com/permissions/trademarks.html (or such other URLs Google may provide from time to time). Except to the limited extent expressly provided in this Agreement, neither party grants, and the other party shall not acquire, any right, title or interest (including, without limitation, any implied license) in or to any Brand Features of the first party; and all rights not expressly granted herein are deemed withheld. All use by Google of Customer Brand Features (including any goodwill associated therewith) shall inure to the benefit of Customer and all use by Customer of Google Brand Features (including any goodwill associated therewith) shall inure to the benefit of Google. Customer shall not challenge or assist others to challenge the Google Brand Features or the registration thereof, nor shall Customer attempt to register any Google Brand Features or domain names that are confusingly similar to those of Google.
11. PR. Customer agrees not to issue any public announcement regarding the existence or content of this Agreement without Google's prior written approval. Google may (i) include Customer's Brand Features in presentations, marketing materials, and customer lists (which includes, without limitation, customer lists posted on Google's web sites and screen shots of Customer's implementation of the Service) and (ii) issue a public announcement regarding the existence or content of this Agreement. Upon Customer's request, Google will furnish Customer with a sample of such usage or announcement.
12. Representations and Warranties. Each party represents and warrants that it has full power and authority to enter into the Agreement. Customer represents, warrants, and covenants that: (i) Customer owns and controls one hundred percent (100%) of the Customer Domain Name(s); (ii) Customer has and will maintain all rights, authorizations and licenses that are required to permit Customer to use the Service; (iii) the execution and delivery of this Agreement, and the performance by Customer of its obligations hereunder, will not constitute a breach or default of or otherwise violate any agreement to which such party or any of its affiliates are a party or violate any rights of any third parties arising therefrom; and (iv) Customer shall comply with all laws, regulations and ordinances applicable to or otherwise connected with Customer's use of the Service.
13. Warranty Disclaimer. CUSTOMER UNDERSTANDS AND AGREES THAT EACH SERVICE MAY CONTAIN BUGS, DEFECTS, ERRORS AND OTHER PROBLEMS THAT COULD CAUSE SYSTEM FAILURES. CONSEQUENTLY, THE SERVICE INCLUDING ALL CONTENT, SOFTWARE (INCLUDING ANY UPDATES OR MODIFICATIONS TO THE SOFTWARE), FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE SERVICE, AND ANY ACCOMPANYING DOCUMENTATION ARE PROVIDED “AS IS” AND ANY USE THEREOF SHALL BE AT CUSTOMER'S OWN RISK. GOOGLE AND ITS LICENSORS MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NON-INFRINGEMENT. GOOGLE ASSUMES NO RESPONSIBILITY FOR THE PROPER USE OF THE SERVICE. GOOGLE AND ITS LICENSORS MAKE NO REPRESENTATIONS ABOUT ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY THE SERVICE. GOOGLE MAKES NO REPRESENTATION THAT GOOGLE (OR ANY THIRD PARTY) WILL ISSUE UPDATES OR ENHANCEMENTS TO THE SERVICE. Google does not warrant that the functions contained in the Service will be uninterrupted or error free. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO CUSTOMER. IN THAT EVENT, TO THE EXTENT PERMISSIBLE, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE EFFECTIVE DATE. THE SERVICE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USES SUCH AS THE OPERATION OF NUCLEAR FACILITIES, AIR TRAFFIC CONTROL OR LIFE SUPPORT SYSTEMS, WHERE THE FAILURE OF THE SERVICE COULD LEAD TO DEATH, PERSONAL INJURY, OR ENVIRONMENTAL DAMAGE (“HIGH RISK ACTIVITIES”).
14. Indemnification. Customer shall indemnify, defend and hold harmless Google, its subsidiaries and other affiliates, and its and their officers, directors, owners, agents, co-branders or other partners, employees, information providers, licensors and licensees (collectively, the “Indemnified Parties”) from and against any and all liability, costs, losses, damages, claims and demands, including without limitation attorneys fees and costs incurred by the Indemnified Parties, arising out of or related to (i) Customer Domain Name(s) and/or Customer Brand Features; (ii) Customer's use of the Service; (iii) Customer's disclosure of End User information; (iv) any Customer Content; (v) any breach or non-compliance by Customer of this Agreement, any of Google's policies, or Customer's representations or the provision of warranties contained herein; and (vi) any End User's use of the Service.
15. Limitation of Liability. IN NO EVENT WILL GOOGLE OR ITS LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, AND INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA, LOST PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED (INCLUDING BUT NOT LIMITED TO USE, MISUSE, INABILITY TO USE, OR INTERRUPTED USE) AND UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT AND WHETHER OR NOT GOOGLE WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE REGARDLESS OF WHETHER ANY REMEDY SET FORTH IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; OR FOR ANY CLAIM ALLEGING INJURY RESULTING FROM ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SERVICE OR DESTRUCTIVE PROPERTIES OF THE SERVICE. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH, PERSONAL INJURY, OR WILLFUL MISCONDUCT TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FUTHERMORE, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO CUSTOMER. IN NO EVENT SHALL GOOGLE'S LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED FIVE HUNDRED DOLLARS ($500). THE SERVICE IS PROVIDED WITHOUT CHARGE FOR BETA TESTING PURPOSES ONLY AND THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THIS AGREEMENT.
16. Termination. Customer may discontinue use of the Service at any time. Except as provided in Section 18, Google reserves the right at any time and from time to time to modify the Service (or any part thereof) with or without notice. Customer agrees that Google may at any time and for any reason terminate this Agreement and/or terminate the provision of all or any portion of the Service. Notwithstanding the foregoing, Google will provide at least thirty (30) days notice to Customer prior to terminating or suspending the hosted email service (if provided to Customer); provided that such hosted email service may be terminated immediately if (i) Customer has breached this Agreement or (ii) Google reasonably determines that it is commercially impractical to continue providing such hosted email service in light of applicable laws. Customer agrees that Google shall not be liable to Customer, any End User, or any third party for any modification, suspension, or termination of the Service. Sections 8 (Confidentiality), 9 (Ownership; Restricted Use), 12 (Representations and Warranties), 13 (Warranty Disclaimer), 14 (Indemnification), 15 (Limitation of Liability), 16 (Termination), 19 (Information Requests) and 20 (Miscellaneous) shall survive the expiration or termination of this Agreement.
17. Modification. Except as provided in Section 18, Google reserves the right to change or modify any of the terms and conditions contained in this Agreement or any policy governing the Service, at any time, by posting the new agreement at http://www.google.com/a/help/intl/en/admins/terms.html or such URL as Google may provide. Customer is responsible for regularly reviewing any updates to this Agreement. Any changes or modifications to this Agreement will become binding (i) when made in a writing executed by both parties, (ii) by Customer's online acceptance of updated terms, or (iii) after Customer's continued use of the Service after such terms have been updated by Google.
18. Fees. Provided that Google continues to offer the Service to Customer, Google will continue to provide a version of the Service (with substantially the same services as those provided as of the Effective Date) free of charge to Customer; provided that such commitment: (i) does not apply to the Domain Service described in Section 4 above; and (ii) may not apply to new opt-in services added by Google to the Service in the future. For sake of clarity, Google reserves the right to offer a premium version of the Service for a fee.
19. Miscellaneous. Customer agrees that Google may provide Customer with notices, including those regarding changes to this Agreement, by email, regular mail, or postings on Google services. Customer may not assign or otherwise transfer its rights or delegate its obligations under this Agreement, without the prior written consent of Google. Any attempted assignment in derogation hereof shall be null and void. Customer agrees that there shall be no third party beneficiaries to this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the State of California and the federal U.S. laws applicable therein, excluding its choice of law provisions, and Customer and Google agree to submit to the personal and exclusive jurisdiction of the courts located in Santa Clara County, California. The parties specifically exclude from application to this Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. Neither party shall be liable for failing or delaying performance of its obligations (except for the payment of money) resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances. If any provision of this Agreement is found void and unenforceable, it shall be replaced to the extent possible with a provision that comes closest to the meaning of the original provision. The unenforceability of any provision, however, shall not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. THIS AGREEMENT CONSTITUTES A COMPLETE INTEGRATION OF ALL UNDERSTANDINGS BETWEEN THE PARTIES AND IS THE ENTIRE AGREEMENT BETWEEN CUSTOMER AND GOOGLE RELATING TO THE SERVICE AND ALL TERMS HEREIN. THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ANY SPECIFICALLY REFERENCED UNIFORM RESOURCE LOCATOR (AS SUCH URL MAY BE MODIFIED FROM TIME TO TIME, AS PROVIDED HEREIN) SHALL TAKE PRECEDENCE OVER ANY PURCHASE ORDER, WEB SITE RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT OR OTHER DOCUMENT WHETHER FORMALLY REJECTED BY GOOGLE OR NOT, AND ANY CONFLICTING, INCONSISTENT, OR ADDITIONAL TERMS CONTAINED THEREIN SHALL BE NULL AND VOID.
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