Exhibit A
G Suite PRODUCT AGREEMENT EXTENSION
This G Suite Product Agreement Extension is an addendum to the Reseller Master Agreement (the "Extension") entered into between TriDomainHost ("Distributor") and you ("Distributor Authorized Reseller"). The terms of this Extension govern Distributor Authorized Reseller's offering of the Products provided by Google (as defined in Section 9) to Distributor Distributor Authorized Reseller's End Users (as defined in Section 9).
The terms of this Extension are in addition to the terms contained in the Distributor Authorized Reseller Master Agreement. If there is a conflict between the terms of this Extension and the terms of the Distributor Authorized Reseller Master Agreement with regard to the Products, the terms of this Extension shall prevail. Except as otherwise amended, the terms of the Distributor Authorized Reseller Master Agreement shall remain in full force and effect. Distributor has the right to modify the terms of this Extension at any time.
1. End User Agreements.
1.1 End User Agreement Requirement. Distributor Authorized Reseller must ensure that any resale and/or supply of the Products to an End User (as defined in Section 9) is governed by an enforceable End User Agreement (as defined in Section 9).
1.2 Records. Distributor Authorized Reseller will: (a) keep copies of all End User Agreements; (b) track and keep records of all online acceptances of End User Agreements; and (c) provide such copies and/or online acceptance details to Distributor upon Distributor's request.
1.3 Enforcement. Distributor Authorized Reseller will enforce each End User Agreement with at least the same degree of diligence used by Distributor Authorized Reseller to enforce similar agreements for its own products, but in no event less than a reasonable degree of diligence.
1.4 Required Provisions. Distributor Authorized Reseller will include the following provisions in each End User Agreement:
(a) Distributor Authorized Reseller, Distributor, Google and End User are independent contractors with respect to the resale and purchase of the Product;
(b) Distributor Authorized Reseller is the processor of any personal data processed by it on End User's behalf, and End User is the controller of any such data, as the terms "controller", "processed", "processor" and "personal data" are defined in the EU Directive (as defined in Section 9);
(c) End User will permit Distributor Authorized Reseller to disclose End User Data to its suppliers as reasonably required in connection with End User's use of the Product or any End User support issues; and
(d) End User agrees that Distributor and/or Google may contact End User directly in the event that the Distributor Authorized Reseller Master Agreement and/or this Extension between Distributor and Distributor Distributor Authorized Reseller are terminated for the purpose of providing the Product without disruption.
1.5 Multi-tier Distribution. Distributor Authorized Reseller agrees that the Products may be made available to Sub- Distributor Authorized Resellers and Lower Tier Sub- Distributor Authorized Resellers (as defined in the Reseller Master Agreement) only after each of those parties enter into a legally binding agreement that is no less protective of Google and Distributor than this Extension and which contains the requirements contained herein applicable to the Distributor Authorized Reseller.
2. Google TOS. Distributor Authorized Reseller will ensure that End User is notified of and accepts the Google TOS (as defined in Section 9), with no alteration or amendment (unless otherwise expressly agreed in writing by Google), prior to logging into the Product. Distributor Authorized Reseller will: (a) not accept (or allow any other third party to accept) the Google TOS on behalf of any End User; and (b) not accept (or allow any other third party to accept) separate terms of service on behalf of any End User for use of other Google services; except where in each of the foregoing cases Distributor Authorized Reseller has been expressly authorized to do so on End User's behalf under the End User Agreement.
3. Privacy and Security.
3.1 Distributor Authorized Reseller Privacy Compliance. Distributor Authorized Reseller acknowledges that in connection with the processing of any personal data undertaken in relation to the Distributor Authorized Reseller Agreement or a Customer: (i) Non-European Data Protection Legislation may apply; and/or (ii) the European Data Protection Legislation may apply if, for example, the processing is carried out in the context of the activities of an establishment of Distributor Authorized Reseller (or the Customer) in the territory of the EEA or the personal data relates to data subjects who are in the EEA and the processing relates to the offering to them of goods or services in the EEA or the monitoring of their behaviour in the EEA.
(a) Processing on Distributor Authorized Reseller's Own Behalf.
(i) If Non-European Data Protection Legislation applies to Distributor Authorized Reseller's processing of any personal data in relation to the Distributor Authorized Reseller Agreement (e.g., Customer names and contact details) on Distributor Authorized Reseller's own behalf, Distributor Authorized Reseller acknowledges that it will be subject to any obligations imposed on it under the Non-European Data Protection Legislation with respect to such processing.
(ii) If the European Data Protection Legislation applies to Distributor Authorized Reseller's processing of any personal data in relation to the Distributor Authorized Reseller Agreement (e.g., Customer names and contact details) as a controller, Distributor Authorized Reseller acknowledges that it will be subject to the obligations imposed on controllers under the European Data Protection Legislation with respect to such processing, including (without limitation) the obligation to provide appropriate privacy notices to data subjects with respect to any processing of their personal data.
(b) Processing on Behalf of Customers. If Non-European Data Protection Legislation or European Data Protection Legislation applies to Distributor Authorized Reseller's processing of any personal data on behalf of any Customer (including where that Customer is a controller under European Data Protection Legislation), Distributor Authorized Reseller acknowledges that it will be subject to the obligations imposed on it with respect to such processing under the Non-European Data Protection Legislation and/or European Data Protection Legislation, as applicable.
(c) Default Requirements for Processing on Behalf of Customers. Without prejudice to any obligations of Distributor Distributor Authorized Reseller under Section 3.1(b) (Processing on Behalf of Customers):
(i) if Non-European Data Protection Legislation applies to Distributor Authorized Reseller's processing of any personal data on behalf of any Customer, Distributor Authorized Reseller will not process such data without first implementing appropriate terms in the applicable Customer Agreement for protection of such data and, unless otherwise agreed in an applicable Customer Agreement, Distributor Authorized Reseller will comply with Part A of Exhibit A to these Minimum Terms (Data Processing Terms for Processing on Behalf of Customers); and
(ii) if the European Data Protection Legislation applies to Distributor Authorized Reseller's processing as processor of any personal data on behalf of any Customer as controller, Distributor Authorized Reseller will ensure that the applicable Customer Agreement complies with Part B of Exhibit A to these Minimum Terms (Data Processing Terms for Processing on Behalf of Customers).
(d) Interpretation. The terms "processing", "personal data", "processor" and "controller" as used in this Section 3.1 have the meanings given in the European Data Protection Legislation.
3.2 Google's Communications with Customers. Distributor Authorized Reseller will use reasonable endeavours to procure the appropriate consents from Customers and/or their representatives, to allow Google to use the Customer details provided under Section Section 2.7(a) (Google's Communications with Customers) of the Program Agreement to inform Customers about new or additional Google products related to the Product(s) Customers are using.
3.3 Separate Processors. Nothing in the Distributor Authorized Reseller Agreement will make either Google or the Distributor Authorized Reseller the processor (within the meaning of the European Data Protection Legislation) of the other.
4. Obligations.
4.1 Compliance with Laws. Distributor Authorized Reseller will comply with, and will not attempt to cause a violation of, all applicable laws, rules and regulations.
4.2 Indemnification Obligations.
(a) Distributor Authorized Reseller will defend Google and its Affiliates (collectively, the "Google Indemnified Parties"), and indemnify them against (1) settlement amounts approved by Distributor Authorized Reseller, and (2) damages and costs awarded in a final judgment against the Google Indemnified Parties by a competent court in any third-party legal proceeding to the extent arising from:
(i) infringement of any third party's Intellectual Property Rights (as defined in Section 9) by Google Indemnified Parties' use of Distributor Authorized Reseller's technology or Brand Features (as defined in Section 9) in accordance with this Extension;
(ii) Distributor Authorized Reseller's breach of the terms of this Extension; or
(iii) data maintained or submitted by Distributor Authorized Reseller in relation to the Product.
(iv) acts and omissions of Distributor Authorized Reseller's Sub-Resellers and Lower Tier Sub-Resellers in relation to the subject matter of this Extension.
(b) Distributor Authorized Reseller's indemnification obligations under this section are conditioned on the
Google Indemnified Parties requesting indemnification: (a) by promptly notifying Distributor Authorized Reseller in writing of any allegations that preceded the legal proceeding, provided, however, that any failure to provide such notice shall relieve Distributor Authorized Reseller of its indemnification obligations hereunder only to the extent of any actual prejudice suffered by Distributor Authorized Reseller as a result of such failure; (b) reasonably cooperating with Distributor Authorized Reseller to resolve the allegation(s); and (c) tendering sole control of the indemnified portion of the legal proceeding to Distributor Authorized Reseller. The Google Indemnified Parties may appoint their own non-controlling counsel, at their own expense.
(c) For the avoidance of doubt, the indemnification obligations contained herein
relate to the Products and are in addition to any of Distributor Authorized Reseller's indemnification obligations under the Distributor Authorized Reseller Master Agreement.
4.3 Inconsistent Representation or Warranty. Distributor Authorized Reseller will not make any representation or warranty which are, or enter into any agreement which is, inconsistent with materials regarding the Products as offered by Google.
4.4 Misleading Statements. If Distributor Authorized Reseller offers commitments or remedies, or both, financial or otherwise, that are contrary to or absent from the Google TOS, then Distributor Authorized Reseller is solely liable for all additional commitments or remedies. Distributor Authorized Reseller will not make any unauthorized, false, misleading, or illegal statements regarding the Products.
4.5 Publicity, Marketing and Promotion.
(a) Publicity. Distributor Authorized Reseller will use commercially reasonable efforts to market and promote the Products, and will do so in accordance with the training and materials that may be provided. Without Distributor's prior written approval (which may be via e-mail), which approval will not be unreasonably withheld or delayed, Distributor Authorized Reseller will not issue, any press releases, public announcement, or public statement regarding its authority to resell Products.
(b) Marketing and Promotion. Distributor Authorized Reseller will use commercially reasonable efforts to market and promote the Products to potential End Users in the Territory (as defined in Section 9), and will do so in accordance with the training made available to Distributor Authorized Reseller. Distributor Authorized Reseller is responsible for creating any required advertising materials at its own cost and expense, in accordance with the requirements made available to Distributor Authorized Reseller.
4.6 Deceptive Practices. Distributor Authorized Reseller will not engage in, and will not solicit, accept, or maintain any End User who, engages in, illegal or deceptive trade practices or any other behavior prohibited by this Extension and/or the Google TOS.
4.7 High Risk Activities. Distributor Authorized Reseller will not resell or supply the Products in connection with any use involving High Risk Activities (as defined in Section 9).
4.8 No Subcontracting. Distributor Authorized Reseller may not subcontract any of its obligations regarding the marketing, resale, or supply of the Products.
4.9 Restrictions. Except as expressly permitted in this Extension, Distributor Authorized Reseller will not: (a) resell or supply the Products to any third party who will resell, distribute, supply, lease, or allow another third party to use, the Products; (b) use the Products or any Google documentation provided for any purpose other than to resell and/or supply the Products as permitted hereunder; or (c) adapt, alter, modify, decompile, translate, disassemble, or reverse engineer any Product or any part thereof, including the source code and any other underlying ideas or algorithms of the software forming part of the Product (except to the extent such act cannot be prohibited by law or is expressly permitted under this Extension).
4.10 Distributor Authorized Reseller Status. Distributor Authorized Reseller will not represent itself as an agent of Google for any purpose.
4.11 End User Notifications. Distributor Authorized Reseller agrees to procure the appropriate consents from End User, and provide relevant End User contact notices, to allow Google to communicate directly with End User only for the following purposes: (i) to conduct customer service and satisfaction surveys; (ii) to the extent required to provide options regarding continuity of the Product(s) (including where Distributor Authorized Reseller's authorization to continue to resell or provision the Product has been terminated); and (iii) for purposes related to the provisioning of the Product(s) to End User's account, including in relation to any Product updates or security incidents.
4.12 Distributor Authorized Reseller will disclaim, to the extent permitted by applicable law, all warranties with respect to the Products, including without limitation, warranties for merchantability, fitness for a particular purpose, and non-infringement; and disclaim Google's liability for any damages, whether direct, indirect, incidental or consequential, arising from Distributor Authorized Reseller's sale of the Product.
5. Termination.
5.1 Distributor's Termination Rights. In addition to Distributor's termination rights contained in the Reseller Master Agreement, Distributor may terminate this Extension immediately upon written notice to Distributor Authorized Reseller if as determined in Distributor's sole discretion:
(a) Distributor Authorized Reseller is in material breach of this Extension and, where that breach is capable of cure, fails to cure the breach;
(b) Distributor Authorized Reseller is in material breach of this Extension and that breach is incapable of cure;
(c) Distributor Authorized Reseller ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days;
(d) Distributor Authorized Reseller is in material breach of this Extension more than two times, notwithstanding any cure of such breaches;
(e) Distributor Authorized Reseller engages in illegal or deceptive trade practices or any other prohibited behavior;
(f) Distributor Authorized Reseller has violated or caused Distributor or Google to violate Anti-Bribery laws, or that such a violation is reasonably likely to occur; or
(g) Distributor Authorized Reseller would harm or devalue Distributor's or Google's business, brand, or name; or violate Distributor's or Google's principles or guidelines.
5.2 Effect of Termination. In the event that the Reseller Master Agreement and/or this Extension are terminated, Distributor Authorized Reseller grants Distributor the right to contact End Users directly or to provide the End Users' information to Google for Google to contact them directly for the purpose of providing the Product without disruption. Distributor Authorized Reseller hereby represents and warrants that it has obtained the necessary permissions from its End Users to grant the rights contained herein.
6. Confidentiality. Distributor Authorized Reseller will use, and ensure that its personnel use, Confidential Information (as defined in Section 9) only to exercise rights and fulfill obligations under this Agreement, while using no less than reasonable care to keep it confidential.
7. Modification of the Products. Distributor Authorized Reseller understands that Google may make commercially reasonable modifications to the Products.
8. Google Intellectual Property Rights; Brand Features.
8.1 Intellectual Property Rights. Google owns all rights, title, and Intellectual Property Rights in and to the Products. All ownership rights, title, and Intellectual Property Rights in and to the content accessed through any Products are the property of the applicable content owner and may be protected by copyright or other applicable laws.
8.2 Google Brand Features. For as long as Distributor Authorized Reseller is authorized to resell/supply Products, Google grants to Distributor Authorized Reseller a non-exclusive, non-royalty bearing, sublicensable license to display Google's Brand Features solely for the purpose of Distributor Authorized Reseller's marketing, resale and/or supply of the Products, subject to, and in accordance with, this Extension and the Trademark Guidelines (as defined in Section 9).
8.3 Distributor Authorized Reseller Brand Features. Distributor Authorized Reseller grants to Google a non-exclusive, non-royalty bearing, and non-sublicensable licence during the Term to include Distributor Authorized Reseller's Brand Features in presentations, materials related to the Google Products.
8.4 Restricted Use. Each party may use the other party's Brand Features only as expressly permitted in this Extension. A party may revoke the other party's right to use its Brand Features pursuant to this Extension with written notice to the other and a reasonable period to stop the use.
8.5 Goodwill. All goodwill arising from Distributor Authorized Reseller's use of Google's Brand Features shall belong to Google. All goodwill arising from Google's use of Distributor Authorized Reseller's Brand Features shall belong to Distributor Authorized Reseller.
9. Definitions.
"Affiliate" means, in relation to each of the parties, any entity that directly or indirectly controls, is controlled by, or is under common control with that party.
"Brand Features" means the trade names, trademarks, service marks, logos, domain names, and other distinctive features of an entity, as secured by such entity from time to time.
"Confidential Information" means information exchanged under this Extension, 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.
"EEA" means the European Economic Area.
"EU Directive" means Directive 95/46/EC of the European Parliament and of the Council on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data.
"End User(s)" means those parties that have a principal place of business within the Territory and to whom Distributor Authorized Reseller is permitted to resell the Product(s) in accordance with this Extension.
"End User Agreement" means an agreement between Distributor Authorized Reseller and End User pursuant to which Distributor Authorized Reseller makes the Product(s) available to End User.
"End User Data" means: (a) any data received by Distributor Authorized Reseller from, or maintained by Distributor Authorized Reseller on behalf of, an End User in connection with the resale of the Products.
"Export Laws" means all applicable export and re-export 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.
"European Data Protection Legislation" means, as applicable: (a) any national provisions adopted pursuant to the Directive; (b) the Federal Data Protection Act of 19 June 1992 (Switzerland); (c) the GDPR; and/or (d) any other data protection or privacy legislation in force in the EEA or Switzerland.
"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.
"Google" means the third party provider of the Products.
"Google TOS" means those terms of service that govern use of the Product and that must be accepted and agreed to by End User prior to End User's first log in to the Product.
"High Risk Activities" means uses such as the operation of nuclear facilities, air traffic control or life support systems, where the failure of the Product could lead to death, personal injury, or environmental damage.
"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.
"Non-European Data Protection Legislation" means any applicable data protection and privacy legislation, guidelines and industry standards, other than the European Data Protection Legislation.
"Product(s)" means, for the purposes of this Extension only the G Suite Core Services, as made available for resale by Distributor and as further described at the following URL: http://www.google.com/apps/intl/en/terms/user_features.html (as the content at such URL and the URL itself may be updated or modified by Google from time to time).
"Reseller Master Agreement" means the agreement between the Distributor and the Distributor Authorized Reseller.
"Territory" means those regions where resale and/or supply of the relevant Product is permitted. Territory excludes any countries where either party is prohibited from providing the Product due to applicable Export Laws (as defined in Section 9).
"Trademark Guidelines" means Google's guidelines for use of Google Brand Features, located at the following URL: http://www.google.com/permissions/ (as the content at such URL and the URL itself may be updated or modified by Google from time to time).
G Suite PRODUCT AGREEMENT EXTENSION
This G Suite Product Agreement Extension is an addendum to the Reseller Master Agreement (the "Extension") entered into between TriDomainHost ("Distributor") and you ("Distributor Authorized Reseller"). The terms of this Extension govern Distributor Authorized Reseller's offering of the Products provided by Google (as defined in Section 9) to Distributor Distributor Authorized Reseller's End Users (as defined in Section 9).
The terms of this Extension are in addition to the terms contained in the Distributor Authorized Reseller Master Agreement. If there is a conflict between the terms of this Extension and the terms of the Distributor Authorized Reseller Master Agreement with regard to the Products, the terms of this Extension shall prevail. Except as otherwise amended, the terms of the Distributor Authorized Reseller Master Agreement shall remain in full force and effect. Distributor has the right to modify the terms of this Extension at any time.
1. End User Agreements.
1.1 End User Agreement Requirement. Distributor Authorized Reseller must ensure that any resale and/or supply of the Products to an End User (as defined in Section 9) is governed by an enforceable End User Agreement (as defined in Section 9).
1.2 Records. Distributor Authorized Reseller will: (a) keep copies of all End User Agreements; (b) track and keep records of all online acceptances of End User Agreements; and (c) provide such copies and/or online acceptance details to Distributor upon Distributor's request.
1.3 Enforcement. Distributor Authorized Reseller will enforce each End User Agreement with at least the same degree of diligence used by Distributor Authorized Reseller to enforce similar agreements for its own products, but in no event less than a reasonable degree of diligence.
1.4 Required Provisions. Distributor Authorized Reseller will include the following provisions in each End User Agreement:
(a) Distributor Authorized Reseller, Distributor, Google and End User are independent contractors with respect to the resale and purchase of the Product;
(b) Distributor Authorized Reseller is the processor of any personal data processed by it on End User's behalf, and End User is the controller of any such data, as the terms "controller", "processed", "processor" and "personal data" are defined in the EU Directive (as defined in Section 9);
(c) End User will permit Distributor Authorized Reseller to disclose End User Data to its suppliers as reasonably required in connection with End User's use of the Product or any End User support issues; and
(d) End User agrees that Distributor and/or Google may contact End User directly in the event that the Distributor Authorized Reseller Master Agreement and/or this Extension between Distributor and Distributor Distributor Authorized Reseller are terminated for the purpose of providing the Product without disruption.
1.5 Multi-tier Distribution. Distributor Authorized Reseller agrees that the Products may be made available to Sub- Distributor Authorized Resellers and Lower Tier Sub- Distributor Authorized Resellers (as defined in the Reseller Master Agreement) only after each of those parties enter into a legally binding agreement that is no less protective of Google and Distributor than this Extension and which contains the requirements contained herein applicable to the Distributor Authorized Reseller.
2. Google TOS. Distributor Authorized Reseller will ensure that End User is notified of and accepts the Google TOS (as defined in Section 9), with no alteration or amendment (unless otherwise expressly agreed in writing by Google), prior to logging into the Product. Distributor Authorized Reseller will: (a) not accept (or allow any other third party to accept) the Google TOS on behalf of any End User; and (b) not accept (or allow any other third party to accept) separate terms of service on behalf of any End User for use of other Google services; except where in each of the foregoing cases Distributor Authorized Reseller has been expressly authorized to do so on End User's behalf under the End User Agreement.
3. Privacy and Security.
3.1 Distributor Authorized Reseller Privacy Compliance. Distributor Authorized Reseller acknowledges that in connection with the processing of any personal data undertaken in relation to the Distributor Authorized Reseller Agreement or a Customer: (i) Non-European Data Protection Legislation may apply; and/or (ii) the European Data Protection Legislation may apply if, for example, the processing is carried out in the context of the activities of an establishment of Distributor Authorized Reseller (or the Customer) in the territory of the EEA or the personal data relates to data subjects who are in the EEA and the processing relates to the offering to them of goods or services in the EEA or the monitoring of their behaviour in the EEA.
(a) Processing on Distributor Authorized Reseller's Own Behalf.
(i) If Non-European Data Protection Legislation applies to Distributor Authorized Reseller's processing of any personal data in relation to the Distributor Authorized Reseller Agreement (e.g., Customer names and contact details) on Distributor Authorized Reseller's own behalf, Distributor Authorized Reseller acknowledges that it will be subject to any obligations imposed on it under the Non-European Data Protection Legislation with respect to such processing.
(ii) If the European Data Protection Legislation applies to Distributor Authorized Reseller's processing of any personal data in relation to the Distributor Authorized Reseller Agreement (e.g., Customer names and contact details) as a controller, Distributor Authorized Reseller acknowledges that it will be subject to the obligations imposed on controllers under the European Data Protection Legislation with respect to such processing, including (without limitation) the obligation to provide appropriate privacy notices to data subjects with respect to any processing of their personal data.
(b) Processing on Behalf of Customers. If Non-European Data Protection Legislation or European Data Protection Legislation applies to Distributor Authorized Reseller's processing of any personal data on behalf of any Customer (including where that Customer is a controller under European Data Protection Legislation), Distributor Authorized Reseller acknowledges that it will be subject to the obligations imposed on it with respect to such processing under the Non-European Data Protection Legislation and/or European Data Protection Legislation, as applicable.
(c) Default Requirements for Processing on Behalf of Customers. Without prejudice to any obligations of Distributor Distributor Authorized Reseller under Section 3.1(b) (Processing on Behalf of Customers):
(i) if Non-European Data Protection Legislation applies to Distributor Authorized Reseller's processing of any personal data on behalf of any Customer, Distributor Authorized Reseller will not process such data without first implementing appropriate terms in the applicable Customer Agreement for protection of such data and, unless otherwise agreed in an applicable Customer Agreement, Distributor Authorized Reseller will comply with Part A of Exhibit A to these Minimum Terms (Data Processing Terms for Processing on Behalf of Customers); and
(ii) if the European Data Protection Legislation applies to Distributor Authorized Reseller's processing as processor of any personal data on behalf of any Customer as controller, Distributor Authorized Reseller will ensure that the applicable Customer Agreement complies with Part B of Exhibit A to these Minimum Terms (Data Processing Terms for Processing on Behalf of Customers).
(d) Interpretation. The terms "processing", "personal data", "processor" and "controller" as used in this Section 3.1 have the meanings given in the European Data Protection Legislation.
3.2 Google's Communications with Customers. Distributor Authorized Reseller will use reasonable endeavours to procure the appropriate consents from Customers and/or their representatives, to allow Google to use the Customer details provided under Section Section 2.7(a) (Google's Communications with Customers) of the Program Agreement to inform Customers about new or additional Google products related to the Product(s) Customers are using.
3.3 Separate Processors. Nothing in the Distributor Authorized Reseller Agreement will make either Google or the Distributor Authorized Reseller the processor (within the meaning of the European Data Protection Legislation) of the other.
4. Obligations.
4.1 Compliance with Laws. Distributor Authorized Reseller will comply with, and will not attempt to cause a violation of, all applicable laws, rules and regulations.
4.2 Indemnification Obligations.
(a) Distributor Authorized Reseller will defend Google and its Affiliates (collectively, the "Google Indemnified Parties"), and indemnify them against (1) settlement amounts approved by Distributor Authorized Reseller, and (2) damages and costs awarded in a final judgment against the Google Indemnified Parties by a competent court in any third-party legal proceeding to the extent arising from:
(i) infringement of any third party's Intellectual Property Rights (as defined in Section 9) by Google Indemnified Parties' use of Distributor Authorized Reseller's technology or Brand Features (as defined in Section 9) in accordance with this Extension;
(ii) Distributor Authorized Reseller's breach of the terms of this Extension; or
(iii) data maintained or submitted by Distributor Authorized Reseller in relation to the Product.
(iv) acts and omissions of Distributor Authorized Reseller's Sub-Resellers and Lower Tier Sub-Resellers in relation to the subject matter of this Extension.
(b) Distributor Authorized Reseller's indemnification obligations under this section are conditioned on the
Google Indemnified Parties requesting indemnification: (a) by promptly notifying Distributor Authorized Reseller in writing of any allegations that preceded the legal proceeding, provided, however, that any failure to provide such notice shall relieve Distributor Authorized Reseller of its indemnification obligations hereunder only to the extent of any actual prejudice suffered by Distributor Authorized Reseller as a result of such failure; (b) reasonably cooperating with Distributor Authorized Reseller to resolve the allegation(s); and (c) tendering sole control of the indemnified portion of the legal proceeding to Distributor Authorized Reseller. The Google Indemnified Parties may appoint their own non-controlling counsel, at their own expense.
(c) For the avoidance of doubt, the indemnification obligations contained herein
relate to the Products and are in addition to any of Distributor Authorized Reseller's indemnification obligations under the Distributor Authorized Reseller Master Agreement.
4.3 Inconsistent Representation or Warranty. Distributor Authorized Reseller will not make any representation or warranty which are, or enter into any agreement which is, inconsistent with materials regarding the Products as offered by Google.
4.4 Misleading Statements. If Distributor Authorized Reseller offers commitments or remedies, or both, financial or otherwise, that are contrary to or absent from the Google TOS, then Distributor Authorized Reseller is solely liable for all additional commitments or remedies. Distributor Authorized Reseller will not make any unauthorized, false, misleading, or illegal statements regarding the Products.
4.5 Publicity, Marketing and Promotion.
(a) Publicity. Distributor Authorized Reseller will use commercially reasonable efforts to market and promote the Products, and will do so in accordance with the training and materials that may be provided. Without Distributor's prior written approval (which may be via e-mail), which approval will not be unreasonably withheld or delayed, Distributor Authorized Reseller will not issue, any press releases, public announcement, or public statement regarding its authority to resell Products.
(b) Marketing and Promotion. Distributor Authorized Reseller will use commercially reasonable efforts to market and promote the Products to potential End Users in the Territory (as defined in Section 9), and will do so in accordance with the training made available to Distributor Authorized Reseller. Distributor Authorized Reseller is responsible for creating any required advertising materials at its own cost and expense, in accordance with the requirements made available to Distributor Authorized Reseller.
4.6 Deceptive Practices. Distributor Authorized Reseller will not engage in, and will not solicit, accept, or maintain any End User who, engages in, illegal or deceptive trade practices or any other behavior prohibited by this Extension and/or the Google TOS.
4.7 High Risk Activities. Distributor Authorized Reseller will not resell or supply the Products in connection with any use involving High Risk Activities (as defined in Section 9).
4.8 No Subcontracting. Distributor Authorized Reseller may not subcontract any of its obligations regarding the marketing, resale, or supply of the Products.
4.9 Restrictions. Except as expressly permitted in this Extension, Distributor Authorized Reseller will not: (a) resell or supply the Products to any third party who will resell, distribute, supply, lease, or allow another third party to use, the Products; (b) use the Products or any Google documentation provided for any purpose other than to resell and/or supply the Products as permitted hereunder; or (c) adapt, alter, modify, decompile, translate, disassemble, or reverse engineer any Product or any part thereof, including the source code and any other underlying ideas or algorithms of the software forming part of the Product (except to the extent such act cannot be prohibited by law or is expressly permitted under this Extension).
4.10 Distributor Authorized Reseller Status. Distributor Authorized Reseller will not represent itself as an agent of Google for any purpose.
4.11 End User Notifications. Distributor Authorized Reseller agrees to procure the appropriate consents from End User, and provide relevant End User contact notices, to allow Google to communicate directly with End User only for the following purposes: (i) to conduct customer service and satisfaction surveys; (ii) to the extent required to provide options regarding continuity of the Product(s) (including where Distributor Authorized Reseller's authorization to continue to resell or provision the Product has been terminated); and (iii) for purposes related to the provisioning of the Product(s) to End User's account, including in relation to any Product updates or security incidents.
4.12 Distributor Authorized Reseller will disclaim, to the extent permitted by applicable law, all warranties with respect to the Products, including without limitation, warranties for merchantability, fitness for a particular purpose, and non-infringement; and disclaim Google's liability for any damages, whether direct, indirect, incidental or consequential, arising from Distributor Authorized Reseller's sale of the Product.
5. Termination.
5.1 Distributor's Termination Rights. In addition to Distributor's termination rights contained in the Reseller Master Agreement, Distributor may terminate this Extension immediately upon written notice to Distributor Authorized Reseller if as determined in Distributor's sole discretion:
(a) Distributor Authorized Reseller is in material breach of this Extension and, where that breach is capable of cure, fails to cure the breach;
(b) Distributor Authorized Reseller is in material breach of this Extension and that breach is incapable of cure;
(c) Distributor Authorized Reseller ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days;
(d) Distributor Authorized Reseller is in material breach of this Extension more than two times, notwithstanding any cure of such breaches;
(e) Distributor Authorized Reseller engages in illegal or deceptive trade practices or any other prohibited behavior;
(f) Distributor Authorized Reseller has violated or caused Distributor or Google to violate Anti-Bribery laws, or that such a violation is reasonably likely to occur; or
(g) Distributor Authorized Reseller would harm or devalue Distributor's or Google's business, brand, or name; or violate Distributor's or Google's principles or guidelines.
5.2 Effect of Termination. In the event that the Reseller Master Agreement and/or this Extension are terminated, Distributor Authorized Reseller grants Distributor the right to contact End Users directly or to provide the End Users' information to Google for Google to contact them directly for the purpose of providing the Product without disruption. Distributor Authorized Reseller hereby represents and warrants that it has obtained the necessary permissions from its End Users to grant the rights contained herein.
6. Confidentiality. Distributor Authorized Reseller will use, and ensure that its personnel use, Confidential Information (as defined in Section 9) only to exercise rights and fulfill obligations under this Agreement, while using no less than reasonable care to keep it confidential.
7. Modification of the Products. Distributor Authorized Reseller understands that Google may make commercially reasonable modifications to the Products.
8. Google Intellectual Property Rights; Brand Features.
8.1 Intellectual Property Rights. Google owns all rights, title, and Intellectual Property Rights in and to the Products. All ownership rights, title, and Intellectual Property Rights in and to the content accessed through any Products are the property of the applicable content owner and may be protected by copyright or other applicable laws.
8.2 Google Brand Features. For as long as Distributor Authorized Reseller is authorized to resell/supply Products, Google grants to Distributor Authorized Reseller a non-exclusive, non-royalty bearing, sublicensable license to display Google's Brand Features solely for the purpose of Distributor Authorized Reseller's marketing, resale and/or supply of the Products, subject to, and in accordance with, this Extension and the Trademark Guidelines (as defined in Section 9).
8.3 Distributor Authorized Reseller Brand Features. Distributor Authorized Reseller grants to Google a non-exclusive, non-royalty bearing, and non-sublicensable licence during the Term to include Distributor Authorized Reseller's Brand Features in presentations, materials related to the Google Products.
8.4 Restricted Use. Each party may use the other party's Brand Features only as expressly permitted in this Extension. A party may revoke the other party's right to use its Brand Features pursuant to this Extension with written notice to the other and a reasonable period to stop the use.
8.5 Goodwill. All goodwill arising from Distributor Authorized Reseller's use of Google's Brand Features shall belong to Google. All goodwill arising from Google's use of Distributor Authorized Reseller's Brand Features shall belong to Distributor Authorized Reseller.
9. Definitions.
"Affiliate" means, in relation to each of the parties, any entity that directly or indirectly controls, is controlled by, or is under common control with that party.
"Brand Features" means the trade names, trademarks, service marks, logos, domain names, and other distinctive features of an entity, as secured by such entity from time to time.
"Confidential Information" means information exchanged under this Extension, 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.
"EEA" means the European Economic Area.
"EU Directive" means Directive 95/46/EC of the European Parliament and of the Council on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data.
"End User(s)" means those parties that have a principal place of business within the Territory and to whom Distributor Authorized Reseller is permitted to resell the Product(s) in accordance with this Extension.
"End User Agreement" means an agreement between Distributor Authorized Reseller and End User pursuant to which Distributor Authorized Reseller makes the Product(s) available to End User.
"End User Data" means: (a) any data received by Distributor Authorized Reseller from, or maintained by Distributor Authorized Reseller on behalf of, an End User in connection with the resale of the Products.
"Export Laws" means all applicable export and re-export 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.
"European Data Protection Legislation" means, as applicable: (a) any national provisions adopted pursuant to the Directive; (b) the Federal Data Protection Act of 19 June 1992 (Switzerland); (c) the GDPR; and/or (d) any other data protection or privacy legislation in force in the EEA or Switzerland.
"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.
"Google" means the third party provider of the Products.
"Google TOS" means those terms of service that govern use of the Product and that must be accepted and agreed to by End User prior to End User's first log in to the Product.
"High Risk Activities" means uses such as the operation of nuclear facilities, air traffic control or life support systems, where the failure of the Product could lead to death, personal injury, or environmental damage.
"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.
"Non-European Data Protection Legislation" means any applicable data protection and privacy legislation, guidelines and industry standards, other than the European Data Protection Legislation.
"Product(s)" means, for the purposes of this Extension only the G Suite Core Services, as made available for resale by Distributor and as further described at the following URL: http://www.google.com/apps/intl/en/terms/user_features.html (as the content at such URL and the URL itself may be updated or modified by Google from time to time).
"Reseller Master Agreement" means the agreement between the Distributor and the Distributor Authorized Reseller.
"Territory" means those regions where resale and/or supply of the relevant Product is permitted. Territory excludes any countries where either party is prohibited from providing the Product due to applicable Export Laws (as defined in Section 9).
"Trademark Guidelines" means Google's guidelines for use of Google Brand Features, located at the following URL: http://www.google.com/permissions/ (as the content at such URL and the URL itself may be updated or modified by Google from time to time).