1. Software Terms. If Customer will be using any Software on (1) systems owned, operated, or managed by or on behalf of Customer and pre-approved and authorized by Google in writing (“Customer Systems”) or (2) Hardware, then the following terms apply to that Software:
a. License. Google grants Customer a non-exclusive, non-sublicensable, non-transferable license during the Subscription Term to use the Software ordered by Customer on Customer Systems or Hardware only in accordance with (i) the Agreement and (ii) if applicable, the Scope of Use. Customer may authorize its and its Affiliates' employees, agents, and subcontractors (collectively, “Software Users”) to use the Software in accordance with this subsection. Customer may make a reasonable number of copies of the Software for back-up and archival purposes.
b. Additional Reproduction and Distribution Limitations. To the extent such restrictions are permitted under applicable law, Customer may not (i) reproduce the Software (except as necessary to use the Software as permitted) or (ii) distribute the Software to any third party.
c. Documentation. Google may provide Documentation describing the appropriate operation of the Software, including a description of how Software is properly used, and whether and how the Software collects and processes data. Customer will comply with any restrictions in the Documentation regarding Software use.
d. Compliance With Scope of Use. As described in the Agreement, Customer will provide a sufficiently detailed written report describing its usage of each Software product used by Customer and its Software Users during the requested period (including as it relates to the applicable Scope of Use). If requested, Customer will provide reasonable assistance and access to information to verify the accuracy of Customer’s Software usage report(s). Google reserves the right to periodically audit Customer to ensure Customer’s compliance with the Scope of Use and the terms of this “Software Terms” section.
e. Other Warranties and Compliance. Each party represents and warrants that it will comply with all laws applicable to its provision or use of the Software. Customer will: (i) ensure that Customer and its Software Users' use of the Software complies with the Agreement (including the Scope of Use) and the restrictions in the Agreement applying to Customer's use of the Services; (ii) use commercially reasonable efforts to prevent and terminate any unauthorized access to or use of the Software; and (iii) promptly notify Google of any unauthorized access to or use of the Software of which Customer becomes aware.
f. Google Software Warranty.
i. Google warrants to Customer that for one year from its delivery, the Software will perform in material conformance with the applicable Documentation. This warranty will not apply if (A) Customer does not notify Google of the non-conformity within 30 days after Customer first discovers it, (B) Customer modifies the Software or uses it in violation of the Agreement, or (C) the non-conformity is caused by any third-party hardware, software, services, or other offerings or materials, in each case not provided by Google.
ii. If Google breaches this warranty, then Google will, in its discretion, repair or replace the impacted Software at no additional charge. If Google does not believe that repairing or replacing would be commercially reasonable, then Google will notify Customer and (A) Customer will immediately cease use of the impacted Software and (B) Google will refund or credit any prepaid amounts for the impacted Software (or Products, as applicable) and Customer will be relieved of any then-current commitment to pay for future use of the impacted Software (or Products). Without limiting the parties’ termination rights, this subsection states Customer’s sole remedy for Google’s breach of the warranty in this section (Google Software Warranty).
g. Software Indemnification. Google’s Intellectual Property Rights infringement indemnity obligations under the Agreement apply to Software, and Customer’s indemnity obligations under the Agreement with respect to Customer’s use of the Products apply to Customer’s use of Software. In addition to any other indemnity exclusions in the Agreement, Google’s indemnity obligations will not apply to the extent the underlying allegation arises from modifications to Software not made by Google or use of versions of Software that are no longer supported by Google.
h. Updates and Maintenance. During the Subscription Term, Google will make available to Customer copies of all current versions, updates, and upgrades of Software, promptly upon general availability, as described in the Documentation. Google will notify Customer of each new release of the Software and Customer is required to download and install each new release within 30 days of such notice. The Documentation will state Google’s maintenance obligations for the applicable component of Software. Maintenance for any Software may be discontinued with one year’s notice from Google, except Google may eliminate maintenance for a version and require upgrading to a maintained version to address a material security risk or when reasonably necessary to avoid an infringement claim or comply with applicable law. Google disclaims all liability for any damages or harm incurred by the Customer, Customer Systems, Hardware, or any End User or other third party due to Customer’s failure to download and install any new release of the Software.
i. Termination. On termination or expiration of the Subscription Term, Customer will stop using all Software and delete all copies.
2. Pre-GA Offerings Terms.
a. Introduction. Google may make available to Customer pre-general availability GDC air-gapped features, services, or software that are either not yet listed at the Services Summary or identified as “Early Access,” “Alpha,” “Beta,” “Preview,” “Experimental,” or a similar designation in related documentation or materials (collectively, “Pre-GA Offerings”). Customer's access to and use of any Pre-GA Offering is subject to any applicable Scope of Use. While Pre-GA Offerings are not Services or Software, Customer’s use of Pre-GA Offerings is subject to the terms of the Agreement applicable to Services or Software, as amended by this Section (Pre-GA Offerings Terms).
b. Disclaimer. PRE-GA OFFERINGS ARE PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS OF ANY KIND. Pre-GA Offerings (i) may be changed, suspended, or discontinued at any time without prior notice to Customer and (ii) are not covered by any SLA or Google indemnity. Except as otherwise expressly indicated in a written notice or Google documentation for a given Pre-GA Offering, Pre-GA Offerings are not covered by TSS.
c. Liability. Notwithstanding anything to the contrary in any other limitation of liability Section in the Agreement, with respect to Pre-GA Offerings, Google will not be liable for any amounts in excess of the lesser of (i) the limitation on the amount of liability stated in the Agreement or (ii) $25,000. Nothing in the preceding sentence will affect any exclusions from any limitation of liability in the Agreement with respect to the following: (A) death or personal injury resulting from negligence, (B) fraud or fraudulent misrepresentation, (C) infringement of the other party’s Intellectual Property Rights, or (D) matters for which liability cannot be excluded or limited under applicable law.
d. Data Processing. Except as otherwise expressly indicated in a written notice or Documentation, no data processing terms apply to Pre-GA Offerings and Customer should not use Pre-GA Offerings to process personal data or other data subject to legal or regulatory compliance requirements.
e. Termination. Either party may terminate Customer's use of a Pre-GA Offering at any time with written notice to the other party.
3. Machine Learning Models. The following terms apply to each Service or Software that includes machine learning models (“AI/ML Services“) used to deploy machine learning features:
a. Customer Models. As between Customer and Google and in connection with the Services and Software, Google does not assert any ownership rights in (i) any model that Customer creates without using a Google Pre-Trained Model, (ii) any model owned by Customer or a third party that Customer uploads, fine tunes, or deploys, or (iii) any adapter model created by Customer using Customer Data, to the extent that the adapter model does not contain any pre-existing Google intellectual property ((i) - (iii), collectively, “Customer Models”). A “Google Pre-Trained Model” is a model trained by Google and not released under an open source or other license.
b. Google Models. Customer will have sole (to the exclusion of Google and other third parties) access to use any uptrained model that Customer builds by using the Services or Software to retrain or tune a Google Pre-Trained Model using Customer Data (as retrained or tuned, a “Fine-Tuned Model”). Google Pre-Trained Models and Fine-Tuned Models are collectively referred to in this Section as “Google ML Models”. Google owns all Intellectual Property Rights in Google ML Models. Where permitted by the Service, any exported Fine-Tuned Model is licensed as Software. Customer may use Google ML Models only in the Services and Software during the Subscription Term and may not share the Google ML Models with any third party.
c. Separate Offerings and Customer Models.
i. Use of Separate Offerings. Customer’s use of Separate Offerings is subject to seperate terms and conditions. “Separate Offering“ means a model, dataset, application, product, service, solution, or any other offering that Google makes available for use with AI/ML Services that is subject to terms and conditions separate from the Agreement, such as an open source license, third party terms, or other terms.
ii. Disclaimer and Indemnity. Google disclaims all liability arising from Customer’s use of Separate Offerings and Customer Models, and Google’s indemnification obligations (if any) do not apply to allegations arising from Separate Offerings or Customer Models.
d. Restrictions on Use of ML Models. Customer will ensure that Customer and its End Users' use of the Google ML Models complies with the Agreement and the restrictions in the Agreement that apply to Customer's use of the Services and Software. Customer will not, and will not allow End Users to, use the Services or Software to: (a) develop models that compete with any Google Cloud offering, including those at https://cloud.google.com/terms/services and https://cloud.google.com/terms/gdcag/services or (b) reverse engineer or extract components of any Service, Software, or their models. Google may immediately suspend or terminate Customer's use of any Service or Software based on any suspected violation of the preceding sentence. The restriction in subsection (a) of this Section does not apply to Vertex AI Platform so long as Customer does not use a Google Pre-Trained Model.
e. Termination.
i. Use of ML Models. Upon termination of Customer’s use of the Services or Software, Customer will cease all use of Google ML Models and delete Google ML Models from Hardware, Customer Systems, and all other systems used to provide the Services or Software and any other systems accessible to Customer.
ii. Termination Upon Breach. Upon breach of this Section entitled “Machine Learning Models,” or the Section of these Service Specific Terms entitled “Customer Security Measures”, Google may immediately suspend or terminate Customer's use of any or all Google ML Models.
4. Confidentiality. The Services, Software, and Google ML Models are Google Confidential Information.
5. Customer Security Measures.
a. Access Limitations. Customer will ensure that access to Software and Google ML Models is limited to a reasonable number of employees or agents who have a legitimate need to access such Software and Google ML Models in order to deploy or maintain the Services (“Designated Persons”).
b. Digital Security Measures. Customer will ensure that reasonable digital security measures are implemented to ensure that only Designated Persons have access to copy, download, backup, write to, or modify Software and Google ML Models. Such measures include, but are not limited to, digital access control, access logs, restrictions on the use of external storage devices, vulnerability scans, firewalls, and intrusion detection systems.
c. Physical Security Measures. Customer will ensure that reasonable security measures are implemented to ensure that only Designated Persons have physical access to Hardware and other computing systems and storage media that store Software and Google ML Models. Such measures will include, but are not limited to, secured rooms containing such Hardware, computing systems, and storage media, building surveillance, policies for registering and escorting building guests, and processes for tracking custody of Hardware, computing systems, and storage media that store Software and Google ML Models.
d. Security Incidents. Upon becoming aware of a breach of security leading to disclosure of or access to the Software and Google ML Models by anyone other than a Designated Person or the accidental or unlawful destruction, loss, or alteration of the Software and Google ML Models on Hardware and other systems managed or otherwise controlled by Customer, Customer will notify Google promptly and without undue delay. Customer will promptly take reasonable steps to minimize harm and secure the Software and Google ML Models and will cooperate with Google’s requests to investigate and mitigate the incident.
e. Reporting Verification. For the avoidance of doubt, the provisions of the Agreement titled “Reporting Verification” will apply to this Section.
6. Benchmarking. Customer may conduct benchmark tests of the Services and Software, but not Hardware (each such test, a “Test”). Customer may only publicly disclose the results of such Tests if (a) the public disclosure includes all necessary information to replicate the Tests, and (b) Customer allows Google to conduct benchmark tests of Customer's publicly available products or services and publicly disclose the results of such tests. Notwithstanding the foregoing, Customer may not do either of the following on behalf of a hyperscale public cloud provider without Google's prior written consent: (i) conduct (directly or through a third party) any Test or (ii) disclose the results of any such Test.
7. Trials. Certain Software or Services may be made available to Customer on a trial basis subject to parameters and any Scope of Use, as presented in the Admin Console, Documentation, or otherwise. Use of a trial indicates Customer’s acceptance of any such parameters.
8. User Experience Research. If Customer enrolls in the Google Cloud User Experience Research Program for GDC air-gapped, Customer’s participation will be subject to the Google Cloud User Experience Research Panel Addendum available at https://cloud.google.com/terms/user-experience-research or a successor URL, with “Google Cloud Agreement” as used in that URL meaning the Agreement and “Google Cloud products” including the Products.
9. Government Rights. Google provides GDC air-gapped (including any related hardware, software, technology, machine learning models (including Google ML Models), and documentation) as commercial products and services for government use solely in accordance with these Service Specific Terms and the Agreement. To the extent that any Google software, technology, machine learning models (including Google ML Models), binaries, or source code, are provided to a government customer or its affiliate/contractor, customer shall cease use of, and delete or destroy, such software, technology, machine learning models, binaries, or source code upon the end of any applicable Order Form(s). Except as may be otherwise agreed, any government rights related to GDC air-gapped include only those rights customarily provided to commercial customers and the public as described in these Service Specific Terms or the Agreement. No other rights in GDC air-gapped (including any related hardware, software, technology, machine learning models, and documentation) will be transferred to the government unless agreed in the Agreement or an amendment to the Agreement. As it relates to U.S. government customers, this customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for U.S. Department of Defense transactions, DFARS 252.227-7015 (Technical Data - Commercial Items) and DFARS 227.7202-3 (rights in Commercial Computer Software or Computer Software Documentation), and “commercial products and services” has the meaning in FAR 2.101.
10. Additional Definitions.
“Documentation” means the then-current Google documentation made available by Google to its customers for use with the Services and Software, including at https://cloud.google.com/distributed-cloud/hosted/docs/latest/gdch/overview.
“Scope of Use” means any limits on installation or usage of Services or Software described at the Admin Console, order form, or otherwise presented by Google.
