September 18, 2019
This Hire Agreement is made and entered into between Google and the entity or person agreeing to these terms ("Customer"). "Google" means either: (i) Google Commerce Limited, a company incorporated under the laws of Ireland, with offices at Gordon House, Barrow Street, Dublin 4, Ireland, if Customer has a billing address in the EU and has chosen "non-business" as the tax status/setting for its Google account, (ii) Google Ireland Limited, with offices at Gordon House, Barrow Street, Dublin 4, Ireland, if Customer's billing address is in any country within Europe, the Middle East, or Africa ("EMEA"); (iii) Google Asia Pacific Pte. Ltd., with offices at 70 Pasir Panjang Road, #03-71, Mapletree Business City II Singapore 117371, if Customer's billing address is in any country within the Asia Pacific region ("APAC") except as provided below for Customers with the billing address in Australia or New Zealand, (iv) Google Australia Pty Ltd., with offices at Tower One - International Towers Sydney Level 46, 100 Barangaroo Avenue, Sydney, NSW 2000, Australia, if Customer's billing address is in Australia, or (v) Google LLC, with offices at 1600 Amphitheatre Parkway, Mountain View, California 94043, if Customer's billing address is in any country in the world other than those in EMEA and APAC. For Customers with a billing address in New Zealand, this Agreement is made and entered into between Customer and Google New Zealand Limited, with offices at PWC Tower, Level 27, 188 Quay Street, Auckland, New Zealand 1010, as an authorized reseller in New Zealand of the Services, and “Google” means Google Asia Pacific Pte. Ltd. and/or its affiliates (including Google New Zealand Limited) as the context requires.
This Agreement is effective as of the date you click the "I Accept" button below, you access or use the Services, or, if applicable, the date the Agreement is countersigned (the "Effective Date"). If you are accepting on behalf of your employer or another entity, or accessing or using the Services you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to these terms; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of the party that you represent, to this Agreement. If you don't have the legal authority to bind your employer or the applicable entity, please do not click the "I Accept" button below or access or use the Services (or, if applicable, do not sign this Agreement).
This Agreement governs Customer's access to and use of the Services whether purchased directly through Google or via Reseller.
1.1Services Use. During the Term, Google will provide the Services ordered by Customer, and grants Customer the right to access and use the applicable Services, subject to the terms of this Agreement, including the SLA and applicable Order Forms.
(a)Changes to Services. Subject to Section 1.2c (Discontinuance of Services), Google may make commercially reasonable changes to the Services from time to time or discontinue any Services or portion or feature(s) of the Services at any time and if such change is material, Google will inform Customer, by either sending an email to the Notification Email Address or alerting Customer through the Admin Console. If any change to the Services involves the addition of new applications, features or functionality for the Services (collectively, "New Applications"), use of the New Applications may be subject to additional terms but Customer will not be required to use the New Applications in order to use the Services.
(b)Changes to Terms. Google may make commercially reasonable changes to this Agreement and the URL Terms from time to time. If Google makes a material change to this Agreement and/or the URL Terms, Google will inform Customer by either sending an email to the Notification Email Address or alerting Customer through the Admin Console. If the change has a material adverse impact on Customer and the change is not a result of Google complying with a court order or applicable law, Customer may notify Google within thirty days after being informed of the change that Customer does not agree with the change. If Customer notifies Google as required, then Customer will remain governed by the terms in effect immediately before the change until the earlier of: (i) the end of the then-current Term or (ii) 12 months after Google informs Customer of the change, unless the modification to the URL Terms is in response to a court order or to comply with applicable law. If the Agreement renews, it will do so under the updated Agreement and the URL Terms.
(c)Discontinuance of Services. Subject to 1.2(d), Google can discontinue any Services or any portion or feature for any reason at any time without liability to Customer.
(d)Deprecation Policy. Google will notify Customer if it intends to make a Significant Deprecation. Google will use commercially reasonable efforts to continue to provide the Services without a Significant Deprecation for at least one year after that notification or until the end of the then-current Term, whichever is shorter, unless (as Google determines in its reasonable good faith judgment): (i) otherwise required by law or by contract (including if there is a change in applicable law or contract), or (ii) doing so could create a security risk or a substantial economic or technical burden. This policy is the "Deprecation Policy."
1.3Additional Products. Google may make Additional Products available to Customer and its End Users in accordance with the Additional Product Terms. Additional Products are not subject to, or governed by, this Agreement. Customer can enable or disable Additional Products. Unless otherwise specifically stated, Customer is not required to use Additional Products in order to use the Services.
2.1Data Processing Amendment.
- (a) If Customer has accepted, or the parties have otherwise agreed to, the Data Processing Amendment under a G Suite Agreement or a separate Complementary Product Agreement, then the Data Processing Amendment will be automatically incorporated into this Agreement.
(b)If the Data Processing Amendment is not automatically incorporated into this Agreement under Section 2.1(a), then the following terms will apply:
- (i)If the GDPR applies to the processing of Customer Data and Customer is based in the EEA, the Data Processing Amendment will be automatically incorporated into this Agreement. Customer may, in addition, be required to accept the Data Processing Amendment via the Admin Console solely for technical or operational reasons, but any such acceptance will not affect the rights or obligations of the parties as described in this Section 2 or the Data Processing Amendment.
- (ii)If the GDPR applies to the processing of Customer Data and Customer is based outside of the EEA, Customer must accept the Data Processing Amendment that Google will make available via the Admin Console and, following such acceptance, the Data Processing Amendment will be incorporated into this Agreement.
- (iii)If the GDPR does not apply to the processing of Customer Data, Customer may opt to accept the Data Processing Amendment that Google will make available via the Admin Console, and, following such acceptance, the Data Processing Amendment will be incorporated into this Agreement.
- If the Data Processing Amendment has been accepted in accordance with this Section 2.1(b), it will also be automatically incorporated into the G Suite Agreement and/or any separate Complementary Product Agreement, as described in the Admin Console.
2.2Updates to the Data Processing Amendment. Subject to Sections 1.3a (Changes to Services) and 1.3c (Discontinuance of Services) and notwithstanding Customer may have clicked-to-accept the Data Processing Amendment pursuant to Section 2.1 (Data Processing Amendment), Google may only update or modify the Data Processing Amendment:
(a) where the relevant change is required to comply with applicable law, applicable regulation, court order or guidance issued by a governmental regulator or agency;
(b) where the relevant change is expressly permitted by the terms of the Data Processing Amendment; or
(c) where the relevant change:
- (i) is commercially reasonable;
- (ii) does not result in degradation of the overall security of the Services;
- (iii) does not expand the scope of or remove any restrictions on Google's processing of Customer Data, as described in Section 5 (Processing of Customer Data) of the Data Processing Amendment; and
- (iv) does not otherwise have a material adverse impact on Customer's rights under the Data Processing Amendment.
- If Google makes a material change to the Data Processing Amendment in accordance with this Section 2.2, Google will inform Customer through the Notification Email Address or the Admin Console.
3.1Customer Requirements. Customer may access or use the Services only if the following conditions are met:
- (a) Customer is a current customer of Google's G Suite products and services and has entered into a valid G Suite Agreement with Google to use such G Suite products and services; and
- (b) Customer will only use the Services within the Territory.
- 3.2Compliance. Customer must ensure that all use of the Services by Customer and any End Users complies with this Agreement, the Acceptable Use Policy, and all applicable laws and regulations.
- 3.3Customer Administration of the Services. Customer's G Suite Administrators may specify one or more Administrators for the Services through the Hire administrative settings. Administrators will have the rights to access Admin Account(s) and to administer the End User Accounts. As between Google and Customer, Customer is solely responsible for the internal management and administration of Customer's Services, including: (a) maintaining the confidentiality of Customer's password(s) and Admin Account(s); (b) designating those individuals who are authorized to access the Admin Account(s); (c) ensuring that all activities that occur in connection with the Admin Account(s) comply with the Agreement.
3.4Administrator Access; End User Consent.
- (a) G Suite Administrators and Administrators may have the ability to access all Customer's End User Accounts, including the ability to access, monitor, use, modify, withhold, or disclose any data available to End Users associated with their End User Accounts.
- (b) If Customer orders Services via Reseller, Reseller may have Administrator access to Customer's Account and Customer's End User Accounts. As between Google and Customer, Customer is solely responsible for: (i) any access by Reseller to Customer's Account or Customer's End User Accounts; and (ii) defining in the Reseller Agreement any rights or obligations as between Reseller and Customer with respect to such access and the Services.
- (c) Customer will obtain and maintain all required consents from any End Users of the Services to allow: (i) Administrators to have the access described in this Agreement; and (ii) Google's provision of the Services to Administrators and End Users, including its processing of Customer Data pursuant to this Agreement.
- 3.5Unauthorized Use. Customer will use commercially reasonable efforts to prevent unauthorized use of the Services and to terminate any unauthorized use. Customer will promptly notify Google of any unauthorized use of, or access to, the Services of which it becomes aware.
- 3.6Restrictions on Use. Unless Google specifically agrees in writing, Customer will not, and will use commercially reasonable efforts to make sure a third party does not: (a) sell, resell, lease, or the functional equivalent, the Services to a third party (unless expressly authorized in this Agreement); (b) attempt to reverse engineer the Services or any component; (c) attempt to create a substitute or similar service through use of, or access to, the Services; (d) use the Services to store or transfer any Customer Data that is controlled for export under Export Control Laws; or (e) use the Services on behalf of or for the benefit of any entity or person who is prohibited from using the Services by United States laws or regulations and other applicable jurisdictions. Google makes no representations or warranties that this product meets or satisfies compliance requirements under HIPAA, ADA, EEOC regulations, Executive Order 11246, or any other laws or regulations applicable to employers or federal contractors, and Customer remains solely responsible for all compliance obligations.
- 4.1Orders via Reseller. If Customer orders the Services from Reseller: (a) any payments will be made directly to Reseller pursuant to the Reseller Agreement; (b) the remaining provisions in this Section 4 (Billing and Payment) will not apply; (c) Google will provide to Reseller any refunds or credits that may be due in respect of Customer; and (d) any obligation on the part of Reseller to provide any such refunds or credits to Customer will depend on the terms of the Reseller Agreement.
4.2Billing. Customer may elect one of the following billing options where available, or from among other options offered by Google on the Order Form, when placing its order for the Services. Google may change its offering of billing options, including by limiting or ceasing to offer any billing option, upon thirty days' written notice to Customer (which may be by email). Billing options may not be available to all customers. Customer may pay for the Services using the payment options listed in Section 4.3 below.
- (a)Monthly Plan. If Customer selects this option where available, Customer will not be committed to purchase the Services for a pre-defined term, but will pay for the Services on a monthly basis. Google will bill Customer: (i) Fees based upon Customer's daily usage of the Services during the preceding month; and (ii) monthly in arrears for its use of the Services. Google will provide Customer with the monthly rate for the Services when Customer orders the Services, and will use this rate to calculate the Fees, on a prorated basis, for Customer's daily usage during that month. Any partial day of Services usages will be rounded up to a full day of Services usage for the purposes of calculating Fees.
- (b)Annual Plan. If Customer selects this option where available, Customer will be committed to purchasing the Services from Google for an annual term. Google will bill Customer according to the terms associated with Customer's elections on the Order Form.
4.3Payment. All payments due are in U.S. dollars unless otherwise indicated on the Order Form or invoice.
- (a)Credit Card or Debit Card. Fees for orders where Customer is paying with a credit card, debit card or other non-invoice form of payment, are due at the end of the month during which Customer received the Services. For credit cards, or debit cards, as applicable: (i) Google will charge Customer for all applicable Fees when due and (ii) these Fees are considered delinquent thirty days after the end of the month during which Customer received the Services.
- (b)Invoices. Payments for invoices are due thirty days after the invoice date, unless otherwise specified on the Order Form, and are considered delinquent after such date.
- (c)Other Forms of Payment. Customer may change its payment method to those available within the Admin Console. Google may enable other forms of payment by making them available in the Admin Console. These other forms of payment may be subject to additional terms which Customer may have to accept prior using the additional forms of payment.
- 4.4Delinquent Payments. Delinquent payments may bear interest at the rate of one-and-one-half percent per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys' fees) incurred by Google in collecting such delinquent amounts, except where such delinquent amounts are due to Google's billing inaccuracies.
- 4.5Purchase Orders. If Customer requires a purchase order number on its invoice, Customer will provide a purchase order number in the Order Form. If Customer fails to provide a purchase order number then (a) Google will invoice Customer without a purchase order number; and (b) Customer will pay invoices without a purchase order number referenced. Any terms on a purchase order do not apply and are void.
- (a)Customer is responsible for any Taxes, and Customer will pay Google for the Services without any reduction for Taxes. If Google is obligated to collect or pay Taxes, the Taxes will be invoiced to Customer, unless Customer provides Google with a timely and valid tax exemption certificate authorized by the appropriate taxing authority. In some jurisdictions the sales tax is due on the total purchase price at the time of sale and must be invoiced and collected at the time of the sale. If Customer is required by law to withhold any Taxes from its payments to Google, Customer must provide Google with an official tax receipt or other appropriate documentation to support such withholding. If under the applicable tax legislation the Services are subject to local VAT and the Customer is required to make a withholding of local VAT from amounts payable to Google, the value of Services calculated in accordance with the above procedure will be increased (grossed up) by the Customer for the respective amount of local VAT and the grossed up amount will be regarded as a VAT inclusive price. Local VAT amount withheld from the VAT-inclusive price will be remitted to the applicable local tax entity by the Customer and Customer will ensure that Google will receives payment for its services for the net amount as would otherwise be due (the VAT inclusive price less the local VAT withheld and remitted to applicable tax authority).
- (b)If required under applicable law, Customer will provide Google with applicable tax identification information that Google may require to ensure its compliance with applicable tax regulations and authorities in applicable jurisdictions. Customer will be liable to pay (or reimburse Google for) any taxes, interest, penalties or fines arising out of any mis-declaration by the Customer.
- 4.7Invoice Disputes. Any invoice disputes must be submitted before the payment due date. If the parties determine that certain billing inaccuracies are attributable to Google, Google will not issue a corrected invoice, but will instead issue a credit memo specifying the incorrect amount in the affected invoice. If the disputed invoice has not yet been paid, Google will apply the credit memo amount to the disputed invoice and Customer will be responsible for paying the resulting net balance due on that invoice.
4.8Suspension for Non-Payment.
- (a)Automatic Suspension. Customer will have thirty days to pay Google delinquent Fees. If Customer does not pay Google delinquent Fees within thirty days, Google will automatically suspend Customer's use of the Services. The duration of this suspension will be until Customer pays Google all outstanding Fees.
- (b)During Suspension. If Customer is on a monthly billing plan, and Customer is suspended for non-payment, Google will stop charging Customer monthly Fees during Customer's suspension for non-payment. If Customer has an annual commitment to Google for the Services, Google will continue to charge Customer monthly Fees during Customer's suspension for non-payment and Customer must pay all outstanding Fees in order to resume its use of the Services.
- (c)Termination After Suspension. If Customer remains suspended for non-payment for more than sixty days, Google may terminate Customer for breach pursuant to Section 12.
- 5.1By Customer. Customer will, at its own expense, respond to questions and complaints from End Users or third parties relating to Customer's or End Users' use of the Services. Customer will use commercially reasonable efforts to resolve support issues before escalating them to Google.
- 5.2By Google. If Customer cannot resolve a support issue consistent with the above, then Customer may escalate the issue to Google in accordance with the TSS Guidelines. Google will provide TSS to Customer in accordance with the TSS Guidelines subject to payment of support Fees, if applicable. Customer acknowledges and agrees that Reseller may disclose End User personal data to Google as reasonably required in order for Reseller to handle any support issues that Customer may choose to escalate to or via Reseller.
- 6.1Of End User Accounts by Google. If Google becomes aware of an End User's violation of the Agreement, then Google may specifically request that Customer Suspend the applicable End User Account. If Customer fails to comply with Google's request to Suspend an End User Account, then Google may do so. The duration of any Suspension by Google will be until the applicable End User has cured the breach which caused the Suspension.
- 6.2Emergency Security Issues. Notwithstanding the foregoing, if there is an Emergency Security Issue, then Google may automatically Suspend the offending use. Suspension will be to the minimum extent and of the minimum duration required to prevent or terminate the Emergency Security Issue. If Google Suspends an End User Account for any reason without prior notice to Customer, at Customer's request, Google will provide Customer the reason for the Suspension as soon as is reasonably possible.
- 6.3Suspension to Comply with Laws. Google may at its sole discretion Suspend the provision of any Services at any time if required to comply with any applicable law.
- 7.1Protection of Confidential Information. The recipient ("Recipient") of Confidential Information disclosed by the other party (the "Provider") will not disclose that information except as described in Section 7.2 (Disclosure of Confidential Information). The Recipient will use the Provider's Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to keep it confidential.
7.2Disclosure of Confidential Information.
- (a)General. Subject to the remainder of this Section 7.2, the Provider's Confidential Information may be disclosed: (i) by the Recipient to its Affiliates, Reseller (where applicable), employees, agents, sub-contractors or professional advisors who need to know it and who have a legal obligation to keep it confidential (collectively, "Delegates"); (ii) by the Recipient or its Affiliates pursuant to a Legal Process; or (iii) with the Provider's written consent. The Recipient will ensure that its Delegates are subject to the same non-disclosure and use obligations as apply to the Recipient under Section 7.1 (Protection of Confidential Information).
- (b)Notification. Before the Provider's Confidential Information is disclosed pursuant to a Legal Process as described in Section 7.2(a), the Recipient will, or will ensure that its Affiliate will, use commercially reasonable efforts to promptly notify the Provider (via the Notification Email Address, in the case of notices given by Google), provided however that the Recipient or its Affiliate may disclose the Provider's Confidential Information pursuant to a Legal Process without giving prior notice if the Recipient or its Affiliate is informed that (i) it is legally prohibited from giving notice or (ii) the Legal Process relates to exceptional circumstances involving danger of death or serious physical injury to any person.
- (c)Opposition. Recipient will comply with the other party's reasonable requests relating to efforts to oppose disclosure of its Confidential Information.
- 8.1Intellectual Property Rights. Except as expressly stated in this Agreement, this Agreement does not grant either party any rights, implied or otherwise, to the other's content or any of the other's intellectual property. As between the parties, Customer owns all Intellectual Property Rights in Customer Data and Google owns all Intellectual Property Rights in the Services.
- 8.2Display of Brand Features. Google may display only those Customer Brand Features authorized by Customer (such authorization is provided by Customer uploading its Brand Features into the Services) within designated areas of the Service Pages. Customer may specify the nature of this use using the administrative controls within the Services. Google may also display Google Brand Features on the Service Pages to indicate that the Services are provided by Google. Subject to Sections 8.3 (Brand Features Limitation) and 9 (Publicity), neither party may display or use the other party's Brand Features without the other party's prior written consent.
- 8.3Brand Features Limitation. Any use of a party's Brand Features will inure to the benefit of the party holding Intellectual Property Rights in those Brand Features. A party may revoke the other party's right to use its Brand Features pursuant to this Agreement with written notice to the other and a reasonable period to stop the use.
9.. Customer agrees that Google may include Customer's name or Brand Features in a list of Google customers, online or in promotional materials. Customer also agrees that Google may verbally reference Customer as a customer of the Google products or services that are the subject of this Agreement. This section is subject to Section 8.3 (Brand Features Limitation).
- 10.1Representations and Warranties. Each party represents that it has full power and authority to enter into the Agreement. Google warrants that it will provide the Services in accordance with the applicable SLA.
- 10.2Disclaimers. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, (A) NEITHER PARTY NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT; AND (B) NEITHER GOOGLE NOR ITS SUPPLIERS WARRANTS THAT OPERATION OF THE SOFTWARE OR THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, GOOGLE MAKES NO REPRESENTATIONS ABOUT ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY OR THROUGH THE SERVICES. CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE NOT A TELEPHONY SERVICE AND THAT THE SERVICES ARE NOT CAPABLE OF PLACING OR RECEIVING ANY CALLS, INCLUDING EMERGENCY SERVICES CALLS, OVER PUBLICLY SWITCHED TELEPHONE NETWORKS. IF GOOGLE HAS COMPLIED WITH ITS OBLIGATIONS UNDER THE AGREEMENT, AND THERE IS A DELETION OF ANY CUSTOMER DATA, THEN GOOGLE AND ITS SUPPLIERS ARE NOT RESPONSIBLE OR LIABLE FOR SUCH DELETION OF CUSTOMER DATA.
- 11.1Agreement Term. This Agreement will remain in effect for the Term, and notwithstanding anything to the contrary in the Order Form, or any selection made by the Customer in the Admin Console with regards to any renewal Terms, if this Agreement is still in effect on September 1, 2020, then this Agreement will automatically terminate on September 1, 2020 and Customer will no longer have access to the Services after this date.
- 11.2Term and Purchases During Term. Google will provide the Services to Customer during the Term. Unless the parties agree otherwise in writing, End User Accounts purchased during any Term will have a prorated term ending on the last day of that Term.
- (a)With a Monthly Plan. With a Monthly Plan Customer is not committed to purchase the Services for a pre-defined term. As a result, there is no renewal event for the Monthly Plan. Rather, the Services will renew consistent with Customer's election in the Admin Console and Google will continue to provide Services through September 1, 2020, unless Customer terminates this Agreement sooner directly from the billing section of the Admin Console.
- (b)With an Annual Plan. At the end of the Term, the Services will renew consistent with Customer's election in the Admin Console through September 1, 2020.
- 11.4Requesting Additional End User Accounts During Services Term. Customer may request additional End User Accounts during a Term by contacting its designated Google Account Manager or Google support personnel or Reseller, as applicable.
- 11.5Revising Rates. Google may revise its rates for the following Term by providing Customer written notice (which may be by email) at least thirty days before the start of the following Term.
- 12.1Termination for Cause. Either party may suspend performance or terminate this Agreement if: (a) the other party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; (b) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; or (c) the other party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches.
- 12.2Termination for Convenience. Customer may cancel its subscription to the Services at any time and for any reason directly from the billing section of the Admin Console.
- 12.3Effects of Termination. If this Agreement terminates or expires, then: (a) the rights granted by one party to the other will cease immediately (except as set forth in Section 12.3 and Section 15.12 (Survival)); (b) Customer will not have access to, or the ability to export, Customer Data after the effective date of termination or expiry of the Agreement and will be responsible for determining whether (and the extent to which) to use the functionality of the Services to delete Customer Data before such date; (c) Google will delete Customer Data as described in the Data Processing Amendment; (d) upon request each party will promptly use reasonable endeavours to return or destroy all Confidential Information (excluding Customer Data) of the other party; and (e) all Fees owed by Customer to Google are immediately due upon receipt of the final invoice. Customer may export its Customer Data at no additional charge until the end of the Term or September 1, 2020, whichever comes first. Please see our help center at https://support.google.com/hire/answer/7680852 for more details on initiating Customer Data export.
- 13.1Google Indemnification Obligations. Subject to Section 12.4 (Conditions), Google will defend Customer and any of its Affiliates participating under this Agreement ("Customer Indemnified Parties"), and indemnify them against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from an allegation that Customer Indemnified Parties' use in accordance with this Agreement of Google's technology used to provide the Services (excluding any open source software) or of Google's Brand Features infringes the third party's Intellectual Property Rights.
- 13.2Customer Indemnification Obligations. Subject to Section 12.4 (Conditions), Customer will defend Google and its Affiliates ("Google Indemnified Parties"), and indemnify them against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from: : (a) Customer Data or Customer Brand Features; (b) Customer's or an End User's use of the Services in violation of the Acceptable Use Policy.
- 13.3Exclusions. This Section 13 will not apply to the extent the underlying allegation arises from: (a) modifications to the indemnifying party's technology or Brand Features by anyone other than the indemnifying party; or (b) combination of the indemnifying party's technology or Brand Features with materials not provided by the indemnifying party.
13.4Conditions. Obligations under Sections 13.1 (Google Indemnification Obligations) and 12.2 (Customer's Indemnification Obligations) are conditioned on the following:
- (a) The indemnified party has promptly notified the indemnifying party in writing of any allegation(s) that preceded the Third-Party Legal Proceeding and cooperates reasonably with the indemnifying party to resolve the allegation(s) and Third-Party Legal Proceeding. If breach of this Section 13.4(a) prejudices the defense of the Third-Party Legal Proceeding, the indemnifying party's obligations under Section 13.1 or 13.2 (as applicable) will be reduced in proportion to the prejudice.
- (b) The indemnified party tenders sole control of the indemnified portion of the Third-Party Legal Proceeding to the indemnifying party, subject to the following: (i) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party's prior written consent, not to be unreasonably withheld, conditioned, or delayed.
- (a) If Google reasonably believes the Services might infringe a third party's Intellectual Property Rights, then Google may, at its sole option and expense: (i) procure the right for Customer to continue using the Services; (ii) modify the Services to make them non-infringing without materially reducing their functionality; or (iii) replace the Services with a non-infringing, functionally equivalent alternative.
- (b) If Google does not believe the remedies in Section 13.5(a) are commercially reasonable, then Google may suspend or terminate Customer's use of the impacted Services.
- 13.6Sole Rights and Obligations. Without affecting either party's termination rights, this Section 13 states the parties' only rights and obligations under this Agreement for any third party's Intellectual Property Rights allegations and Third-Party Legal Proceedings.
14.1Limitations. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO SECTION 14.2 (EXCEPTIONS TO LIMITATIONS),
- (a) NEITHER PARTY WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT FOR: (i) THE OTHER PARTY'S LOST REVENUES; (ii) INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES (WHETHER OR NOT FORESEEABLE OR CONTEMPLATED BY THE PARTIES AT THE EFFECTIVE DATE); OR (iii) EXEMPLARY OR PUNITIVE DAMAGES; AND
- (b) EACH PARTY'S TOTAL AGGREGATE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT IS LIMITED TO THE AMOUNT PAID BY CUSTOMER DURING THE TWELVE MONTHS BEFORE THE EVENT GIVING RISE TO LIABILITY.
- 14.2Exceptions to Limitations. NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS EITHER PARTY'S LIABILITY FOR: (A) DEATH OR PERSONAL INJURY RESULTING FROM ITS NEGLIGENCE OR THE NEGLIGENCE OF ITS EMPLOYEES OR AGENTS; (B) FRAUD OR FRAUDULENT MISREPRESENTATION; (C) OBLIGATIONS UNDER SECTION 12 (DEFENSE AND INDEMNITY); (D) INFRINGEMENT OF THE OTHER PARTY'S INTELLECTUAL PROPERTY RIGHTS; (E) PAYMENT OBLIGATIONS; OR (F) MATTERS FOR WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
- 15.1Notices. Google may provide any notice to Customer under this Agreement by: (a) sending an email to Notification Email Address or by (b) posting a notice in the Admin Console. Customer may provide notice to Google under this Agreement by sending an email to Google's legal department at firstname.lastname@example.org. Notice will be treated as received when (x) the email is sent, whether or not the other party has received the email or (y) notice is posted in the Admin Console.
- 15.2Assignment. Neither party may assign or transfer any part of this Agreement without the written consent of the other party, except to an Affiliate, but only if: (a) the assignee agrees in writing to be bound by the terms of this Agreement; (b) the assigning party remains liable for obligations incurred under the Agreement before the assignment; and (c) the assigning party has notified the other party of the assignment. Any other attempt to transfer or assign is void.
- 15.3Change 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): (a) that party will give written notice to the other party within thirty days after the change of Control; and (b) the other party may immediately terminate this Agreement any time between the change of Control and thirty days after it receives that written notice.
- 15.4Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party's reasonable control.
- 15.5Subcontracting. Google may subcontract any of its obligations under the Agreement, but will remain liable to Customer for any subcontracted obligations.
- 15.6No Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver.
- 15.7Severability. 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.
- 15.8No Agency. The parties, and Reseller (if applicable) are independent contractors, and this Agreement does not create an agency, partnership or joint venture between or among Customer or Google or Reseller (regardless of the use of the term "partner", "certified" or other similar designation).
- 15.9No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.
- 15.10Equitable Relief. Nothing in this Agreement will limit either party's ability to seek equitable relief.
- (a)For U.S. City, County, and State Government Entities. If Customer is a U.S. city, county or state government entity, then the Agreement will be silent regarding governing law and venue.
- (b)For U.S. Federal Government Entities. If Customer is a U.S. federal government entity then the following applies: ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES WILL BE GOVERNED BY THE LAWS OF THE UNITED STATES OF AMERICA, EXCLUDING ITS CONFLICT OF LAWS RULES. SOLELY TO THE EXTENT PERMITTED BY FEDERAL LAW: (I) THE LAWS OF THE STATE OF CALIFORNIA (EXCLUDING CALIFORNIA'S CONFLICT OF LAWS RULES) WILL APPLY IN THE ABSENCE OF APPLICABLE FEDERAL LAW; AND (II) FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN SANTA CLARA COUNTY, CALIFORNIA.
- (c)For All Other Entities. If Customer is any entity not set forth in Section 11.11(a) or (b) then the following applies: ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES WILL BE GOVERNED BY CALIFORNIA LAW, EXCLUDING THAT STATE'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.
- 15.12Amendments. Except to the extent this Agreement states otherwise, any amendment must be in writing and expressly state that it is amending this Agreement.
- 15.13Survival. The following sections will survive expiration or termination of this Agreement: Section 4 (Payment), 7 (Confidential Information), 8.1 (Intellectual Property Rights), 12.2 (Effects of Termination), 13 (Defense and Indemnity), 14 (Limitation of Liability), 14 (Miscellaneous) and 15 (Definitions).
- 15.14Entire Agreement. This Agreement sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. In entering into this 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 this Agreement. The terms located at a URL referenced in this Agreement are incorporated into this Agreement by such reference.
- 15.15Interpretation of Conflicting Terms. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Order Form, the Agreement, and the terms located at any URL. If Customer signs a physical agreement with Google to receive the Services, the physical agreement will override this online Agreement.
- 15.16Counterparts. The parties may execute this Agreement in counterparts, including facsimile, PDF or other electronic copies, which taken together will constitute one instrument.
- "Acceptable Use Policy" means the acceptable use policy for the Services available at https://hire.google.com/acceptableuse, or such other URL as may be provided by Google.
- "Account" means Customer's Google account credentials and correlating access to the Services under this Agreement.
- "Account Manager" means the Google representative working with Customer regarding Customer's purchase of the Services.
- "ADA" means the Americans with Disabilities Act of 1990, as may be amended from time to time, and any regulations issued thereunder.
- "Additional Product Terms" means the then-current terms and conditions that can be found at the following URL link: https://gsuite.google.com/intl/en/terms/additional_services.html or as otherwise provided by Google. The Additional Product Terms and such URL link may be updated or modified by Google from time to time.
- "Additional Products" means products, services and applications that are not part of the Services but that may be accessible, via the Admin Console or otherwise, for use with the Services. Additional Products does not include G Suite, which is offered under the G Suite Agreement.
- "Admin Account(s)" means the administrative account(s) provided to Customer by Google for the purpose of administering the Services.
- "Admin Console" means the online tool provided by Google to Customer in connection with G Suite services for use in reporting and certain other administration functions.
- "Administrators" mean the Customer-designated personnel who administer the Services to End Users on Customer's behalf.
- "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with a party.
- "Agreement" means the combination of the Order Form and this Hire Agreement.
- "Brand Features" means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.
- "Complementary Product Agreement" has the meaning given in the Data Processing Amendment.
- "Confidential Information" means information that one party (or Affiliate) discloses to the other party under this Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. It does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient. Subject to the preceding sentence, Customer Data is Customer's Confidential Information.
- "Customer Data" has the meaning given in the Data Processing Amendment.
- "Data Processing Amendment" means Google's amendment describing Google's data protection and processing obligations with respect to Customer Data, as available at the following URL link: https://gsuite.google.com/intl/en/terms/dpa_terms.html. The Data Processing Amendment and such URL link may be updated or modified by Google from time to time in accordance with Section 2.2.
- "EEA" means the European Economic Area.
- "EEOC" means the Equal Employment Opportunity Commission, a federal agency of the United States.
- "Emergency Security Issue" means either: (a) Customer's or End Users' use of the Services in violation of the Acceptable Use Policy, in a way that disrupts: (i) the Services; (ii) other customers' use of the Services; or (iii) the Google network or servers used to provide the Services; or (b) to prevent unauthorized third party access to the Services or data within the Services.
- "End Users" means the individuals, including third parties, that Customer permits to use the Services.
- "End User Account" means a Google-hosted account established by Customer through the Services for an End User.
- "Export Control Laws" means all applicable export and reexport control laws and regulations, including trade and economic sanctions maintained by the Treasury Department's Office of Foreign Assets Control, and the International Traffic in Arms Regulations ("ITAR") maintained by the Department of State, but excluding the Export Administration Regulations ("EAR") maintained by the U.S. Department of Commerce.
- "Fees" means the amounts invoiced to Customer by Google, or Reseller, if applicable, for the Services as described in this Agreement.
- "G Suite" means Google's cloud productivity services, which are more fully described here: https://gsuite.google.com/terms/user_features.html or other such URL as Google may provide.
- "G Suite Administrators" mean the Customer-designated personnel who administer the G Suite services on Customer's behalf.
- "G Suite Agreement" means the agreement governing Customer's use of the G Suite services. Customer's termination or expiration of this Agreement does not result in any changes to your G Suite Agreement.
- "GDPR" means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.
- "HIPAA" means the Health Insurance Portability and Accountability Act of 1996, as may be amended from time to time, and any regulations issued thereunder.
- "Indemnified Liabilities" means any (i) settlement amounts approved by the indemnifying party; and (ii) damages and costs finally awarded against the indemnified party and its Affiliates by a court of competent jurisdiction.
- "Intellectual Property Rights" means current and future worldwide rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and other similar rights.
- "Legal Process" means a data disclosure request made under law, governmental regulation, court order, subpoena, warrant, governmental regulatory or agency request, or other valid legal authority, legal procedure, or similar process.
- "Liability" means any liability, whether under contract, tort, or otherwise, including for negligence.
- "Notification Email Address" means the email address(es) designated by Customer in the Admin Console to receive certain notifications from Google. It is Customer's responsibility to keep the Notification Email Address(es) valid and current.
- "Order Form" means the online order page or pages, or other ordering document acceptable to Google under this Agreement, that Customer completes in signing up for the Services or attached to this Agreement, which may include (i) the Services being ordered, which may include applicable billing and renewal terms; (ii) Fees; (iii) number of End User Accounts; and (iv) the applicable form of payment.
- "Purchase Order" means a Customer issued purchase order.
- "Reseller" means, if applicable, the authorized reseller that sells or supplies the Services to Customer.
- "Reseller Agreement" means the separate agreement between Customer and Reseller regarding the Services. The Reseller Agreement is independent of and outside the scope of this Agreement.
- "Service Pages" mean the web pages displaying the Services to End Users.
- "Services" means the applicable Hire functionality provided by Google and used by Customer under this Agreement. The Services are as described here: https://hire.google.com/services, or such other URL as Google may provide.
- "Significant Deprecation" means to discontinue or to make backwards incompatible changes to the Services that results in Google no longer providing to its enterprise-customer base the ability to: (1) posting and accepting applications for open jobs; (2) storing and searching of candidate materials; or (3) ability to use Services with G Suite accounts.
- "SLA" means the Service Level Agreement located here: https://hire.google.com/sla, or such other URL as Google may provide.
- "Suspend" means the immediate disabling of access to the Services, or components of the Services, as applicable, to prevent further use of the Services.
- "Taxes" means any duties, customs fees, or taxes (other than Google's income tax), including indirect taxes such as "goods and services tax" and "value-added tax," associated with the sale of the Services, including any related penalties or interest.
- "Term" means the term of the Agreement, which will begin on the Effective Date and continue until the earlier of: (i) the end of the term of the last Order Form; (ii) the Agreement is terminated as set forth herein; or (iii) September 1, 2020.
- "Territory" means the territory as described here: https://hire.google.com/acceptableuse.
- "Third-Party Legal Proceeding" means any formal legal proceeding filed by an unaffiliated third party before a court or government tribunal (including any appellate proceeding).
- "TSS" means the technical support services provided by Google to the Administrators under the TSS Guidelines.
- "TSS Guidelines" means Google's technical support services guidelines then in effect for the Services. TSS Guidelines are available here: ttps://hire.google.com/tssguidelines, or such other URL as Google may provide.
- "URL Terms" means the Acceptable Use Policy, the SLA, and the TSS Guidelines.