The Customer agreeing to these terms ("Customer") is signing up for or has previously entered into a G Suite agreement ("G Suite Agreement") for Services (as defined under the terms of the G Suite Agreement) with Google LLC, Google Ireland Limited, Google Commerce Limited, Google Asia Pacific Pte. Ltd., or Google Australia Pty Ltd (as may be applicable, "Google") if Customer’s billing address is not in New Zealand. For Customers with a billing address in New Zealand, the G Suite Agreement and this Jamboard Hardware Agreement are entered into by and 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 Service, and “Google” means Google Asia Pacific Pte. Ltd. and/or its affiliates (including Google New Zealand Limited) as the context requires. This Jamboard Hardware Agreement (“Agreement”) is effective as of the date Customer signs or electronically accepts the Agreement. If you are accepting on behalf of Customer, you represent and warrant that: (i) you have 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. This Agreement governs Customer's access to and use of the Service.
Jamboard Hardware Services.
- Hardware License. Google will grant Customer a non-sublicensable, non-transferable, non-exclusive, limited license to use the Service, including any updates, on the Hardware. This limited license is subject to the terms of this Agreement and the terms of any Purchase Agreement that the Customer signs in connection with the use of the Service.
- Provisioning. The Hardware requires delivery and set-up, and must be configured to work on Customer’s network. The Service must also be customized for each Customer. Customer agrees to cooperate with Reseller (or Reseller’s agent) and Google concerning Hardware and Service provisioning.
- Modification and Updates to the Hardware. The Hardware may automatically download and install updates from Google. These updates are designed to improve, enhance, and further develop the Service as well as the Hardware upon which the Service operates. The updates may address bug fixes, enhance functions of the Service and/or Hardware, provide new software modules and/or provide a completely new version of the software. Customer agrees to receive (and permit Google to deliver) such updates as part of Customer’s use of the Service on the Hardware.
- Privacy. Data privacy and security for the Service is addressed in the G Suite Agreement.
- Service Support. Subject to Sections 1.7, and 1.8, the Service will function with the Hardware, and Google will continue to provide support for the Service on the Hardware for so long as such Hardware remains supported in accordance with Jamboard Hardware End of Life Policy located at https://support.google.com/jamboard/answer/7374455.
- No Hardware Supplied under this Agreement. This Agreement does not cover the purchase, replacement, updating, or support of any Hardware. Google is under no obligation to provide Customer with Hardware, Hardware replacement, Hardware updates, or Hardware support under this Agreement. Notwithstanding the foregoing, the Hardware may require updates designed to improve, enhance and further develop the operation of the Service. Such Hardware updates may take the form of bug fixes, enhanced functions, new software modules and/or completely new versions. Although Google does not provide such updates under this Agreement, it is the Customer’s responsibility to ensure that the Hardware is updated and is properly maintained. If Customer Hardware is not updated, or the Hardware is not properly maintained, the Service may not perform or may lose functionality.
- Replacement Customer Hardware. Customer may at any time, through such procedure as Google may prescribe, transfer a License to use the Service with a unit of Customer Hardware to a replacement unit of Customer Hardware.
- Reservation of Rights. Except as expressly specified, 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. Intellectual Property Rights in and to the content accessed through the Service or G Suite are the property of the applicable content owner and may be protected by applicable laws. As between the parties, Google (and/or its licensors or suppliers) owns all Intellectual Property Rights in the Service.
- Prohibitions. Subject to Section 2.2, Customer will not, and will not allow others to do any of the following unless Google consents in writing: (a) adapt, alter, modify, decompile, translate, disassemble, or reverse engineer the Service and/or the Hardware, or any component thereof, except as permitted by law; (b) use the Service and/or Hardware for High Risk Activities; or (c) remove or alter any Brand Features or other proprietary notices.
- Third Party Components. To the extent the Hardware or Service operating on the Hardware include components governed by open source licenses with provisions inconsistent with this Agreement, those components are instead governed solely by the applicable open source licenses. If the Hardware or Service operating on the Hardware include components governed by open source licenses requiring the provision of corresponding source code for those components, Google provides that source code consistent with those licenses.
Technical Support Services for Jamboard Hardware.
- By 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 Hardware. Customer will use reasonable efforts to resolve support issues before escalating them to Google.
- By Google. If Customer cannot resolve a support issue as described above, Customer may escalate the issue to Google.
- Technical Support Guidelines. The Technical Support Service Guidelines for the Service can be accessed at this link: https://gsuite.google.com/intl/en/terms/jamboard_tssg.html
- TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, NEITHER PARTY OR THEIR LICENSORS MAKE 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. GOOGLE DOES NOT WARRANT AND MAKES NO REPRESENTATIONS (I) THAT THE OPERATION OF THE THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED OR (II) ABOUT ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY OR THROUGH THE SERVICE.
Term and Termination.
- License Term. Subject to early termination in accordance with this Agreement, any License(s) covered under this Agreement will: (a) commence on the Hardware License Commencement Date or, for Licenses purchased after the Hardware License Commencement Date, on the date specified in the relevant Order Form, and (b) continue for the license period(s) specified for the SKU(s) listed on the relevant Order Form accepted by Google (each such period being a “License Term”). If any additional Licenses are purchased or acquired during a then-current License Term (an “Existing License Term”) and correspond to a SKU listed on an Order Form previously accepted by Google, they will have a pro-rated License Term ending on expiry (if applicable) of the Existing License Term.
- Agreement Term. This Agreement will commence on the Hardware License Commencement Date and will remain in force until expiry (if applicable) of all License Terms.
- Termination for Breach. 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 30 calendar days after receipt of written notice; or (b) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 calendar days; or (c) the other party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches.
- Termination for Insolvency. Either party may, by written notice to the other party, suspend performance and/or terminate this Agreement if: (a) the other party enters into an arrangement or composition with or for the benefit of its creditors, goes into administration, receivership or administrative receivership, is declared bankrupt or insolvent or is dissolved or otherwise ceases to carry on business; or (b) any analogous event happens to the other party in any jurisdiction in which it is incorporated or resident or in which it carries on business or has assets.
- Effects of Termination. Termination is effective immediately unless otherwise specified in the termination notice. Termination of the Agreement also terminates all then-outstanding Order Forms. Upon expiration or termination of this Agreement, the rights granted by one party to the other will cease immediately (except as specified in this Section).
- Survival. The following sections will survive expiration or termination of this Agreement: 1.8, 2, 4, 6, 7, 8, 10, and 11.
- The recipient will not disclose Confidential Information, except to Affiliates, employees, agents or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that those people and entities use the Confidential Information only to exercise rights and fulfill obligations under this Agreement, and that they keep it confidential. The recipient may also disclose Confidential Information when required by law after giving reasonable notice to the discloser, if permitted by law.
- 7.1.1. “Indemnified Liabilities” means any (i) settlement amounts approved by the indemnifying party; and (ii) damages and costs in final judgment awarded against the indemnified party or parties by a competent court.
- 7.1.2. “Third-Party Legal Proceeding” means any formal legal proceeding filed by an unaffiliated third party before a court or governmental tribunal (including any civil, administrative, investigative or appellate proceeding).
- 7.2.1. Google’s Obligations. Google will defend Customer and its affiliates, and indemnify them against Indemnified Liabilities, in any Third-Party Legal Proceeding to the extent arising from any allegation that Customer’s use of Google’s technology used to provide the Services on the Hardware (excluding any open source software) in accordance with this Agreement infringes the third party’s Intellectual Property Rights.
- 7.2.2. Customer’s Obligations. Unless prohibited by applicable law and without waiving sovereign immunity, Customer will defend Google and its affiliates, and indemnify them against Indemnified Liabilities, in any Third Party Legal Proceeding to the extent arising from:
- (i) an allegation made against Google for infringement or misappropriation based on conduct by Customer as described in Section 7.3; or
- (ii) Customer’s breach of Section 10.5 (Export Compliance).
- Exclusions. This Section 7 (Defense and Indemnity) will not apply to the extent the underlying allegation arises from: (a) the indemnified party’s breach of this Agreement; (b) modification to Google’s technology by anyone other than Google; (c) combination of Google’s technology with materials not provided by Google; (d) failure to use the most current, supported version of Google’s technology provided under this Agreement; or (e) compliance with Customer’s design or request for customized features.
- Conditions. The indemnified party must promptly notify the indemnifying party of any allegation(s) that preceded the Third-Party Legal Proceeding and cooperate reasonably with the indemnifying party to resolve the allegation(s) and Third-Party Legal Proceeding. If a breach of this section prejudices the defense of the Third-Party Legal Proceeding, the indemnifying party’s obligations under this Section will be reduced in proportion to the prejudice. The indemnified party must tender 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.
- Remedies. If Google’s technology is subject to an Intellectual Property Rights allegation or Third-Party Legal Proceeding, Google may do the following at its sole option and expense: (i) procure the right to continue providing the Services in compliance with this Agreement; or (ii) modify the Service without materially reducing their functionality; or (iii) replace the Service with a functionally-equivalent alternative.
- Injunctions. If an injunction prevents continued use of the Service, Google will use reasonable efforts to provide one of the remedies in this Section in its sole expense.
- Miscellaneous. If the remedies in this Section are not commercially reasonable in the circumstances, or are not provided within 30 business days of an injunction, then Google will notify Customer and the parties will discuss practical remedies. If the parties cannot agree on remedies within 15 business days of initiating discussions, then: (i) either party may terminate the Agreement on written notice to the other; and (ii) Google may terminate or suspend the impacted portion of the Service (but not the entirety of the Services) on written notice to Customer; (iii) within 45 business days after a termination of the Agreement under this Section or termination of the impacted portion of the Services under this Section, Google will refund to Reseller (or Customer if applicable) any fees paid to Google in respect of the Service, or terminated portion of the Service, for the period following either the termination or (if earlier) the injunction. Customer's eligibility to receive a refund in respect of the Service for such period will then be governed by the terms of the Purchase Agreement.
- Sole Rights and Obligations. Without affecting either party’s termination rights, this Section 7 states the parties’ only rights and obligations under this Agreement for Intellectual Property Rights-related allegations and Third-Party Legal Proceedings.
Limitation of Liability.
- Limitation on Indirect Liability. NEITHER PARTY NOR ITS LICENSORS WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
- Limitation on Amount of Liability. NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. NEITHER PARTY MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID BY CUSTOMER TO GOOGLE HEREUNDER DURING THE TWELVE MONTHS BEFORE THE EVENT GIVING RISE TO LIABILITY
- Exceptions to Limitations. These limitations of liability apply to the fullest extent permitted by applicable law but do not apply to indemnification obligations under Section 7 or violations of a party's Intellectual Property Rights by the other party. In addition, the limitations discussed in the sections above do not apply to fraud or fraudulent misrepresentation or death or personal injury arising from negligence.
- Customer agrees that Google may include Customer's name and Brand Features in a list of Google Customers. 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.
- Notices. All notices of termination or breach must be in writing and addressed to the other party's Legal Department. The address for notices being sent to Google's Legal Department is email@example.com. All other notices must be in English, in writing and addressed to the other party's primary contact. Notice will be treated as given on receipt, as verified by written or automated receipt or by electronic log (as applicable).
- Notices. 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.
- Assignment. Neither party may assign any part of this Agreement without the written consent of the other, except to an Affiliate where: (a) the assignee has agreed in writing to be bound by the terms of this Agreement; (b) the assigning party remains liable for obligations under the Agreement if the assignee defaults on them; and (c) the assigning party has notified the other party of the assignment. Any other attempt to assign is void.
- Change of Control. If a party experiences a change of control (for example, through a stock purchase or sale, merger, or other form of corporate transaction): (a) that party will give written notice to the other party within 30 calendar days after the change of control, and (b) the other party may immediately terminate this Agreement any time between the change of control and 30 calendar days after it receives that written notice.
- Force Majeure. Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.
- Export Compliance. Customer will comply with, and will obtain all prior authorization from the competent government authorities required by, the Export Control Laws.
- No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
- No Agency. This Agreement does not create any agency, partnership or joint venture between the parties.
- No Third Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.
- Severability. If any term (or part of a term) of this Agreement is invalid, illegal or unenforceable, the rest of the Agreement will remain in effect.
- 10.11.1. For City, County, and State Government Entities. If Customer is a city, county or state government entity, then the parties agree to remain silent regarding governing law and venue.
- 10.11.2. For Federal Government Entities. If Customer is a federal government entity then the following applies: This Agreement will be governed by and interpreted and enforced in accordance with the laws of the United States of America without reference to conflict of laws. Solely to the extent permitted by federal law: (i) the laws of the State of California (excluding California's choice of law rules) will apply in the absence of applicable federal law; and (ii) FOR ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN SANTA CLARA COUNTY, CALIFORNIA.
- 10.11.3. For All Other Entities. If Customer is any entity not specified in Clause 10.11.1 or 10.11.2 then the following applies: This Agreement is governed by California law, excluding that state's choice of law rules. FOR ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN SANTA CLARA COUNTY.
- Amendments. Any amendment must be in writing, signed by both parties, and expressly state that it is amending this Agreement.
- Conflicting Terms. In the event of a conflict, the order of precedence is as follows: (1) this Agreement, (2) the Order Form, and (3) any direct Purchase Agreement between Google and Customer.
- Conflicting Languages. If this Agreement is translated into any other language, and there is a discrepancy between the English text and the text of the other language, the English text will govern.
- Counterparts. The parties may enter into this Agreement by Google’s acceptance of the initial Order Form, or subsequent Order Forms, which may be executed in counterparts, including facsimile, PDF or other electronic copies, which taken together will constitute one instrument.
- Entire Agreement. This Agreement, and all documents or terms referenced, set out all terms agreed between the parties relating to their subject matter, and cancel and replace all prior and contemporaneous representations, discussions, negotiations and agreements between the parties, whether written or oral, relating to such 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.
- "Affiliate" means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a party.
- "Brand Features" means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively.
- "Confidential Information" means information that one party (or an 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 the recipient already knew, that becomes public through no fault of the recipient, that was independently developed by the recipient, or that was lawfully given to the recipient by a third party.
- "Control" means control of greater than fifty percent of the voting rights or equity interests of a party.
- "End Users" means the individuals Customer permits to use the Service.
- "Export Control Laws" means all applicable export and re-export control laws and regulations, including the Export Administration Regulations ("EAR") maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the U.S. Treasury Department's Office of Foreign Assets Control, and the International Traffic in Arms Regulations ("ITAR") maintained by the U.S. Department of State.
- “Google Jamboard" is a web-based service that allows End Users to create, edit, share, collaborate, draw, export, and embed content within a document.
- “G Suite” means the terms of service available at https://gsuite.google.com/intl/en/terms/2013/1/premier_terms.html or such other terms provided by Reseller.
- “Hardware” means the Jamboard monitor.
- "Hardware License Commencement Date" means, after Google's acceptance of the Order Form, the date Google makes the Services available on the Hardware to Customer.
- "High Risk Activities" means uses such as the operation of nuclear facilities, air traffic control or life support systems, where the use or failure of the Services could lead to death, personal injury, or environmental damage.
- "Intellectual Property Rights" means current and future worldwide rights under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or later in force and effect worldwide.
- "Notification Email Address" means the email address designated by Customer to receive email notifications from Google. Customer may change this email address through the Jamboard Admin Management Console.
- "Order Form" means the written or online order form for the Hardware license that is submitted to Google by (or on behalf of) Customer and that describes (among other things): the Hardware license SKU ordered; fees invoiced by Google for the Hardware license; and quantity. Each Order Form is subject to the terms of this Agreement.
- "Purchase Agreement" means the separate agreement under which Customer purchases the Services from a Reseller (or, in limited circumstances, directly from Google). For clarity, Google is not bound by or responsible for the terms of any Purchase Agreement (unless and solely to the extent that Google and Customer have entered into a direct Purchase Agreement), and any obligations as between Reseller and Customer with respect to the provision of the Services to Customer or Reseller's access (if any) to the Admin Account will be solely as agreed between Customer and Reseller in the Purchase Agreement and are outside the scope of this Agreement.
- "Reseller" means a designee within Google's applicable distribution or reseller channel authorized to make the Services available to Customer.
- “Service” means the Google Jamboard service.
- "Term" means all License Terms, collectively.