Google Cloud Pre-General Availability Program Agreement

Google Cloud Pre-General Availability Program Agreement

This Google Cloud Pre-General Availability Program Agreement (the "PAPA") supplements Customer's G Suite Agreement, Google Cloud Master Agreement or Cloud Identity Agreement entered with Google (the "Google Cloud Agreement"). Capitalized terms not defined in this PAPA will have the meanings given in the Google Cloud Agreement. This PAPA is effective as of the date Customer clicks to accept it (the "Effective Date").

1. Participation in Pre-General Availability Program.

(a) General. Customer may apply to participate in the Google Cloud Pre-General Availability Program ("Pre-General Availability Program") as a test user ("Tester") of one or more pre-general availability products ("Test Products") identified in one or more pre-general availability test applications submitted by Customer ("Test Applications"). If Google in its sole discretion accepts Customer as a Tester of any Test Product, Google will make that Test Product available for use by Customer subject to the terms of this PAPA. Additional terms ("Specific Test Terms") may apply to that Test Product and, if applicable, will be provided by Google via the Test Application or otherwise in writing before any use by Customer of the Test Product. The Test Application and any Specific Test Terms are incorporated into this PAPA and will govern over any conflicting term in the remainder of this PAPA.

(b) Performance of Test Products; No SLA or Support. Test Products may not always perform as specified, and may be changed from time to time without notice. Except as described in Section 1(c) (Use of Customer Test Data) of this PAPA, Customer is responsible for protecting itself, Customer's property and data and others from any risks associated with Customer's use of Test Products. Customer acknowledges and agrees that no Service Level Agreement ("SLA") or Technical Support Services are available for Test Products and that Google will not provide Service Credits relating to Test Products in the event of any Test Product downtime.

(c) Use of Customer Test Data. Subject to Section 1(g) (Use Restriction for Government Customers) of this PAPA, Google may, and Customer will (including by collecting or providing any required consents or notices) ensure that Google may use any Customer Data (including Customer Personal Data) submitted, stored, sent or received via any Test Products by Customer or its End Users ("Customer Test Data") to provide, test, analyze, develop and improve those Test Products and any Google products and services used with them (the "Test Purpose") without any restriction or obligation to Customer, any End User or any third party, other than as set out in Section 5 (Confidentiality) of this PAPA and below:

(i) If Customer has accepted or the parties have otherwise agreed to the Data Processing Amendment to G Suite and/or Complementary Product Agreement ("Data Processing Amendment" or "DPA"), the DPA will apply to Test Products as "Services" for purposes of the DPA, subject to the following amendments:

(1) Test Products will not be "Audited Services" under the DPA;

(2) the applicable "Term" for purposes of the DPA will be the Term of the Google Cloud Agreement;

(3) this PAPA will form part of the "Agreement" referred to in Section 5.2.1 (Customer's Instructions) of the DPA and, as such, document and constitute Customer's instructions to Google under that section to process any personal data within Customer Test Data for the Test Purpose as described in the PAPA;

(4) Section 6.1 (Deletion During Term) of the DPA will not apply to Customer Test Data which will only be deleted by Google in accordance with Section 6.2 (Deletion on Term Expiry) of the DPA on expiry of the Term;

(5) information about Subprocessors engaged in relation to Test Products, including their functions and locations, will be made available in writing by Google; and

(6) Google will inform Customer of the engagement during the Term of any New Third Party Subprocessor in relation to Test Products (including the name and location of the Subprocessor and its activities) by sending an email to the Notification Email Address before the Subprocessor starts processing any Customer Test Data and Customer may, as its sole and exclusive remedy if Customer objects to the Subprocessor, terminate this PAPA or its participation in the Pre-General Availability Program as described in Section 6(a) of this PAPA.

(ii) If Customer has not accepted or the parties have not otherwise agreed to the DPA, Google's use of any personal data within Customer Test Data will be subject to Google's Privacy Policy at http://www.google.com/privacy.html as amended from time to time (the "Privacy Policy").

(d) No Data Location or Access Transparency. Data processed as part of or for the Pre-General Availability Program will not be subject to any data location or access transparency requirements (which can be found at https://cloud.google.com/access-transparency/).

(e) Suspension. Google may suspend Customer's use of the Test Product(s) or participation in the Pre-General Availability Program at any time. Google will inform Customer of the basis for the suspension if reasonably practicable.

(f) Customer Compliance; Use Restrictions. Customer will ensure that its use of Test Products (including use by End Users) complies with the Acceptable Use Policy and will use commercially reasonable efforts to prevent, terminate and promptly notify Google of any unauthorized access to Test Products. Customer will not, and will not allow End Users or third parties under its control to: (i) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract the source code of Test Products (unless such restriction is expressly prohibited by applicable law); (ii) sublicense, transfer, or distribute any Test Products; (iii) sell, resell, or otherwise make Test Products available to a third party as part of a commercial offering without material value independent of the Test Products; or (iv) access or use Test Products: (1) for High Risk Activities; (2) for materials or activities subject to the International Traffic in Arms Regulations (ITAR) maintained by the United States Department of State; or (3) in a manner that breaches, or causes the breach of, Export Control Laws. Unless expressly permitted by Google in writing, Customer will not use or allow End Users to use Test Products to place or receive emergency services calls.

(g) Use Restriction for Government Customers. Unless authorized in writing by Google, the following Customers may only use test or experimental data with Test Products and are prohibited from using any "live" or production data in connection with Test Products: U.S. or other government customers, including federal, national, state or local government or regulatory entities or agencies and excluding Customers that are educational institutions (collectively, "Government Customers").

2. Intellectual Property Rights.

(a) Google Products. Google owns all Intellectual Property Rights in the Test Products and other products, services and materials Google may make available to Customer under the Pre-General Availability Program, and grants Customer a non-exclusive revocable license to use Test Products for evaluation purposes under this PAPA.

(b) Software Developed by Customer. Customer may use Test Products to develop software that interacts with Test Products ("Pre-General Availability Program Software"), provided Customer does not modify or distribute Test Products or include Test Products in any Pre-General Availability Program Software. Pre-General Availability Program Software developed by Customer must not violate (i) applicable laws, (ii) Google's or any third party rights, or (iii) any Google policies notified to Customer. Subject to the terms of this Section 2(b), Customer owns all Intellectual Property Rights in Pre-General Availability Program Software Customer develops under this PAPA.

3. Disclaimers.

(a) HIPAA Disclaimer. Unless otherwise specified in writing by Google, Google does not intend the use of Test Products to create obligations under the Health Insurance Portability and Accountability Act, as amended ("HIPAA"), and does not represent or commit that Test Products satisfy HIPAA requirements. If Customer is (or becomes) a Covered Entity or Business Associate under HIPAA, Customer agrees not to use Test Products for any purpose or in any manner involving Protected Health Information (as defined under HIPAA) unless Customer has received Google's prior written consent to such use. Test Products are not Included Functionalities (as the term "Included Functionalities" is defined in the G Suite HIPAA Business Associate Amendment and HIPAA Business Associate Addendum).

(b) Other Compliance Disclaimer. Unless otherwise specified in writing by Google, Google does not represent or commit that Test Products comply with any certification or standard such as FedRAMP. Government Customers are solely responsible for determining whether their use of Test Products in accordance with Section 1(g) (Use Restriction for Government Customers) and the remainder of this PAPA is permitted under applicable law.

(c) General Disclaimer. GOOGLE PROVIDES TEST PRODUCTS AND OTHER ITEMS AND INFORMATION RELATING TO THE PRE-GENERAL AVAILABILITY PROGRAM "AS IS", WITHOUT ANY EXPRESS WARRANTIES OR REPRESENTATIONS OF ANY KIND, AND DISCLAIMS ALL IMPLIED WARRANTIES AND REPRESENTATIONS INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.

4. Participation in UX Program. This Section 4 will only apply if Google invites Customer to participate in the Google Cloud User Experience Research Program ("UX Program") and if Customer opts to participate.

(a) Feedback and UX Program. Google may ask Customer and its End Users participating in the UX Program to do the following in order to help Google provide, test, analyze, develop and improve Google products and services (including Test Products) and address barriers to implementation and adoption of Google Cloud products (the "UX Purpose"):

(i) provide Google with comments, feedback, ideas, reports, suggestions, survey responses, feature requests, data and other information including through optional use of certain Test Products (collectively, "UX Information"); and

(ii) permit Google to record the voices and/or images of consenting participants and to create transcripts of such recordings (collectively, "Recordings").

UX Information and Recordings ("Feedback") are not required but may be provided or permitted on a voluntary basis. For clarity, nothing in this Section 4(a) requires Customer or End Users to provide Customer Personal Data (including as part of Customer Test Data) as Feedback.

(b) Use of Feedback. Google may, and Customer will (including by collecting or providing any required consents or notices) ensure that Google may, use any Feedback (including any Customer Personal Data that Customer or End Users opt to provide as Feedback) for the UX Purpose without any restriction or obligation to Customer, any End User or any third party, other than as set out in Section 5 (Confidentiality) of this PAPA and below:

(i) Google will not publicly display any Feedback that personally identifies any End User without written consent from Customer and the relevant End User;

(ii) Google will accept any End User's revocation of consent to participate in the UX Program or request for deletion of his/her personal data related to the UX Program if notified to Google as described in Section 4(c)(iii) of this PAPA; and

(iii) Google's use of any personal data within Feedback will otherwise be subject to the Privacy Policy.

(c) Customer UX Program Responsibilities. Customer will:

(i) authorize Google to contact participating End Users for the UX Purpose and collect written consents from those End Users enabling Google to do so;

(ii) not permit participation in the UX Program by an End User who has not consented in writing to participate or has revoked a consent already executed;

(iii) promptly notify Google via email to cloud-panel-support@google.com if, in relation to the UX Program, an End User revokes his/her consent to participate or requests deletion of his/her personal data; and

(iv) permit Google, at its option, to obtain audio-visual releases from participating End Users who consent to recording of their voices and/or images for the UX Program.

5. Confidentiality.

Any information that one party (or its Affiliate) discloses to the other party under this PAPA, and that is marked as confidential or would normally be considered confidential information under the circumstances, will be "Confidential Information" under the Google Cloud Agreement. Confidential Information includes Customer Test Data and Feedback. Confidential Information may only be used or disclosed in accordance with the applicable terms of the Google Cloud Agreement as supplemented by this PAPA. For clarity, under those terms use or disclosure of Confidential Information is subject to the U.S. Freedom of Information Act and any similar open records laws that may apply.

6. Term; Termination.

(a) This PAPA will remain in force from the Effective Date until terminated in accordance with its terms. Either party may terminate this PAPA or Customer's participation in the Pre-General Availability Program or UX Program by written notice to the other party, and such termination will be effective immediately. If requested by Google on any such termination, Customer will promptly provide to Google or, at Google's discretion, certify the destruction and deletion of, all Confidential Information disclosed by Google in connection with this PAPA or the applicable Program. Google will remove Customer from the applicable Program and any related mailing lists within 30 days of termination of this PAPA or Customer's participation in that Program. Sections 1(c), 2, 3, 4(b), 5, 6(a), 7, 8, 9 and 10 of this PAPA will survive any such termination.

(b) Google will notify Customer before any Test Products in use by Customer enter the General Availability launch stage. Once any such Test Product enters such stage, this PAPA will automatically terminate with respect to the applicable Test Product, which will be governed solely by the Google Cloud Agreement (including the Data Processing Amendment if applicable) as from the date of such termination.

7. Limitation of Liability.

GOOGLE'S LIABILITY WILL BE LIMITED AS FOLLOWS:

(a) IF CUSTOMER IS ESTABLISHED OUTSIDE THE EUROPEAN ECONOMIC AREA AND SWITZERLAND, GOOGLE WILL NOT BE LIABLE FOR ANY LOST REVENUES OR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL EXEMPLARY OR PUNITIVE DAMAGES UNDER THIS PAPA OR HAVE ANY OBLIGATIONS UNDER THE INDEMNITY SECTION OF THE GOOGLE CLOUD AGREEMENT WITH RESPECT TO TEST PRODUCTS, AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING FROM ITS USE OF SERVICES UNDER THIS PAPA IS TERMINATION IN ACCORDANCE WITH SECTION 6 (TERM; TERMINATION); OR

(b) IF CUSTOMER IS ESTABLISHED WITHIN THE EUROPEAN ECONOMIC AREA OR SWITZERLAND, GOOGLE'S LIABILITY UNDER THIS PAPA WILL BE LIMITED AS STATED IN THE LIMITATION OF LIABILITY SECTION IN THE GOOGLE CLOUD AGREEMENT AND GOOGLE WILL NOT HAVE ANY LIABILITY UNDER THE INDEMNITY SECTION OF THE GOOGLE CLOUD AGREEMENT WITH RESPECT TO TEST PRODUCTS.

8. Indemnification.

To the extent permitted by applicable law, Customer will indemnify Google and its affiliates, directors, officers, and empIoyees against all liabilities, damages, losses, costs, fees (including legal fees) and expenses relating to any allegation or third-party legal proceeding to the extent arising from Customer's use of any Test Product or acts or omissions under this PAPA.

9. Conflicting Terms.

This PAPA forms part of Customer's Google Cloud Agreement. If there is a conflict between this PAPA and the remainder of the Google Cloud Agreement (including the Data Processing Amendment if applicable), then notwithstanding any term to the contrary in the remainder of the Google Cloud Agreement (including the Data Processing Amendment), this PAPA will govern.

10. Miscellaneous.

Customer acknowledges that its and its End Users' participation in the Pre-General Availability Program and (if applicable) UX Program is voluntary. Customer further acknowledges that it does not have a partnership, employer-employee, agency, or joint venture relationship with Google, and that neither Customer nor any End User has any expectation of receiving compensation for Customer's or the End User's participation in the Pre-General Availability Program or (if applicable) UX Program. Google may modify this PAPA with written notice to Customer, and Customer's continued use of Test Products or continued participation in the UX Program will constitute Customer's acceptance of the modified PAPA. By accepting this PAPA, Customer represents and warrants that it has full power and authority to enter into this PAPA.

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