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Mandiant Consulting Services Agreement

Last modified: September 6, 2023

This is not the current version of this document and is provided for archival purposes. View the current version

This Mandiant Consulting Services Agreement (the “Agreement”) is entered into by Google and the entity or person agreeing to these terms (“Customer”), and governs Customer’s receipt of Services. “Google” has the meaning given at https://cloud.google.com/terms/google-entity.

This Agreement is effective as of the date Customer clicks to accept the Agreement or otherwise agrees to the Agreement (the “Effective Date”). If you are accepting on behalf of Customer, you represent and warrant that: (i) you have full legal authority to bind Customer to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of Customer, to this Agreement. If you do not have the legal authority to bind Customer, please do not click to accept or otherwise agree to the Agreement.

1. Services.

1.1 Provision of Services. Google will provide Customer with the Services, including Deliverables, subject to Customer fulfilling its obligations under Section 2.1 (Cooperation).

1.2 Personnel. Google will determine which Personnel will perform the Services. If Customer requests a change of Personnel and provides a reasonable and lawful basis for such request, then Google will use commercially reasonable efforts to replace the assigned Personnel with alternative Personnel.

1.3 Compliance with Customer’s Onsite Policies and Procedures. Google Personnel performing the Services at Customer’s facilities will comply with Customer’s reasonable onsite policies and procedures made known to Google in writing in advance.

1.4 SecOps Service Specific Terms. The General Service Terms of the SecOps Service Specific Terms are incorporated by reference into this Agreement.

2. Customer Obligations.

2.1 Cooperation. Customer will provide reasonable and timely cooperation in connection with Google’s provision of the Services. Google will not be responsible for a delay caused by Customer’s failure to provide Google with the information, materials, consents, or access to Customer facilities, networks, or systems required for Google to perform the Services. If Google informs Customer of such failure and Customer does not cure the failure within 30 days, then Google may terminate any incomplete Services and Customer will pay actual costs incurred by Google for the canceled Services.

2.2 Consents. Customer is responsible for any consents and notices required to permit (a) Customer’s receipt of the Services and (b) Customer’s provision of data (including Customer Data) under the Agreement, and Google’s accessing, storing, and processing of such data in accordance with the Agreement.

3. Data Processing and Security. Google will only access, use, and otherwise process Customer Data in accordance with the Data Processing Addendum and will not access, use, or process Customer Data for any other purpose. Google has implemented and will maintain technical, organizational, and physical safeguards to protect Customer Data, as further described in the Data Processing Addendum.

4. Payment Terms.

4.1 Invoicing and Payment. Google will invoice Customer for the Fees. Customer will pay Google all invoiced amounts by the Payment Due Date. All payments are due in the currency described in the invoice. Wire transfer payments must include the bank information described in the invoice. Fees for some Services may be non-cancellable, as specified in the Order Form. Unless otherwise provided in the Agreement or required by law, Fees for Services are nonrefundable.

4.2 Taxes. Google will itemize any invoiced Taxes. Customer will pay invoiced Taxes unless Customer provides a valid tax exemption certificate. Customer may withhold Taxes if Customer provides a valid receipt evidencing the taxes withheld.

4.3 Invoice Disputes. Customer may dispute invoiced Fees if Customer believes in good faith that Fees were inaccurately invoiced (an “Invoice Dispute”). Invoice Disputes must be submitted to [e-mail] and identify all disputed amounts and the reasons for dispute. Google will review in good faith all Invoice Disputes, and will provide Customer an explanation of Fees due following such review (an “Invoice Dispute Report”). If an Invoice Dispute is submitted before the Payment Due Date, then notwithstanding Section 4.1 (Invoicing and Payment), (a) Customer must only pay the amounts not subject to the Invoice Dispute, and (b) unpaid Fees stated in an Invoice Dispute Report to be accurately invoiced are due within 30 days after delivery of such report. If an Invoice Dispute is submitted after the Payment Due Date and the Invoice Dispute Report states that Fees paid were incorrectly invoiced, then Google will issue a credit equal to the agreed amount.

4.4 Overdue Payments.

(a) If Customer’s payment is overdue, then Google may (i) charge interest on overdue amounts at 1.5% per month (or the highest rate permitted by law, if less) from the Payment Due Date until paid in full, and (ii) Suspend the Services if Customer’s payment is overdue for more than 14 days after the Payment Due Date. Google will notify Customer at least 7 days before such Suspension.

(b) Customer will reimburse Google for all reasonable expenses (including attorneys’ fees) incurred by Google in collecting overdue payments except where such payments are due to Google’s billing inaccuracies.

4.5 Purchase Orders. If Customer requires a purchase order number on its invoice, Customer will provide a purchase order number in the Order Form. If Customer does not provide a purchase order number, then (a) Google will invoice Customer without a purchase order number, and (b) Customer will pay invoices without a purchase order number referenced. Any terms on a purchase order are void.

4.6 Expenses.

(a) General. Customer will reimburse expenses as specified in the applicable Order Form.

(b) Litigation Expenses. If Google is requested by Customer or required by applicable law, legal process or government action to produce information, documents or personnel as witnesses with respect to the Services or the Agreement, Customer will reimburse Google for any time, expenses, and liabilities (including reasonable external and internal legal costs or fines) incurred to respond to the request, unless Google is itself a party to the proceeding or the subject of the investigation.

5. Resold Customers. This Section 5 (Resold Customers) applies only if Customer orders Mandiant Services from a Reseller under a Reseller Agreement (such Services, “Resold Services”).

5.1 Applicable Terms. For the purposes of Resold Services:

(a) Section 4 (Payment Terms) of this Agreement will not apply;

(b) Reseller Fees will apply and be payable directly to the Reseller, and all prices for Resold Services will be solely determined between Reseller and Customer; and

(c) Customer will receive any applicable monetary remedies described in this Agreement from Reseller.

5.2 Liability Cap. For the purposes of Section 15.1(b), where the event giving rise to Liability is a breach of this Agreement or otherwise arises in connection with the Resold Services, "Fees" as it is used in that Section means "Reseller Fees", and "Services" as it is used in that Section means "Resold Services".

5.3 Confidential Information. Google may share Customer Confidential Information with Reseller as a Delegate subject to General Terms Section 10.1 (Use and Disclosure of Confidential Information).

6. Intellectual Property.

6.1 Background IP. Customer owns all rights, title, and interest in Customer’s Background IP. Google owns all rights, title, and interest in Google’s Background IP. Customer grants Google a license to use Customer’s Background IP to perform the Services (with a right to sublicense to Google Affiliates and subcontractors). Except for the license rights under Sections 6.2 (Google Technology) and 6.3 (Deliverables) neither party will acquire any right, title, or interest in the other party’s Background IP under this Agreement.

6.2 Google Technology. Google owns all rights, title, and interest in Google Technology. To the extent Google Technology is incorporated into Deliverables, Google grants Customer a limited, worldwide, non-exclusive, non-transferable license (with the right to sublicense to Affiliates), for the maximum term permitted by applicable law, to use the Google Technology in connection with the Deliverables for Customer’s internal business purposes. This Agreement does not grant Customer any right to use materials, products, or services that are made available to Google customers under a separate agreement or license.

6.3. Deliverables. Google grants Customer a limited, worldwide, non-exclusive, fully-paid, non-transferable license (with the right to sublicense to Affiliates), for the maximum term permitted by applicable law, to use and reproduce the Deliverables for Customer’s internal business purposes.

6.4 Feedback. At its option, Customer may provide feedback and suggestions about the Services to Google (“Feedback”). If Customer provides Feedback, then Google and its Affiliates may use that Feedback without restriction and without obligation to Customer, excluding any Feedback marked as Customer Confidential Information.

7. Updates to URL Terms.

7.1 Changes to Terms. Google may update the URL Terms, provided the updates do not (a) result in a material reduction of the security of the Services, (b) expand the scope of or remove any restrictions on Google’s processing of Customer Data as described in the Data Processing Addendum, or (c) have a material adverse impact on Customer’s rights under the URL Terms. Google will notify Customer of any material changes to the URL Terms. Material changes to the URL Terms will be effective 30 days after Customer receives notice of such changes.

7.2 Permitted Changes. Section 7.1 (Changes to Terms) does not limit Google’s ability to make changes required to comply with applicable law or address a material security risk, or that are applicable to new or pre-general availability Services, offerings, or functionality. Notwithstanding Section 7.1 (Changes to Terms), material changes to the URL Terms made to comply with applicable law or to address a material security risk will be effective upon notice.

8. Temporary Suspension.

8.1 Services Suspension. Google may Suspend Services if necessary to comply with law or protect the Services or Google's infrastructure supporting the Services.

8.2. Limitations on Services Suspensions. If Google Suspends Services under Section 8.1 (Services Suspension), then (a) Google will provide Customer notice of the cause for Suspension without undue delay, to the extent legally permitted, and (b) the Suspension will be to the minimum extent and for the shortest duration required to resolve the cause for Suspension.

9. Software. Google may make Software available to Customer, including third-party software. Customer’s use of any Software is subject to the applicable provisions in the SecOps Service Specific Terms.

10. Confidentiality. 

10.1 Use and Disclosure of Confidential Information. The Recipient will only use the Disclosing Party’s Confidential Information to exercise its rights and fulfill its obligations under the Agreement, and will use reasonable care to protect against the disclosure of the Disclosing Party’s Confidential Information. Notwithstanding any other provision in the Agreement, the Recipient may disclose the Disclosing Party’s Confidential Information (a) to its Delegates who have a need to know and who are bound by confidentiality obligations at least as protective as those in this Section 10 (Confidentiality); (b) with the Disclosing Party’s written consent; or (c) subject to Section 10.2 (Legal Process), as strictly necessary to comply with Legal Process.

10.2 Legal Process. If the Recipient receives Legal Process for the Disclosing Party’s Confidential Information, the Recipient will: (a) promptly notify the Disclosing Party prior to such disclosure unless the Recipient is legally prohibited from doing so; (b) attempt to redirect the third party to request it from the Disclosing Party directly; (c) comply with the Disclosing Party’s reasonable requests to oppose disclosure of its Confidential Information; and (d) use commercially reasonable efforts to object to, or limit or modify, any Legal Process that the Recipient reasonably determines is overbroad, disproportionate, incompatible with applicable law, or otherwise unlawful. To facilitate the request in (b), the Recipient may provide the Disclosing Party’s basic contact information to the third party. Notwithstanding the foregoing, subsections (a) to (d) above will not apply in exceptional circumstances involving an imminent threat to life or risk or serious physical injury.

11. Marketing and Publicity. Neither party will publicly disclose that Google is providing the Services to Customer or use the other party’s Brand Features without the other party's prior written consent in each instance. Any use of a party’s Brand Features will inure to the benefit of the party holding Intellectual Property Rights to those Brand Features.

12. Warranties and Remedies.

12.1 Mutual Warranty. Each party represents and warrants that it (a) has full power and authority to enter into the Agreement and (b) will comply with all laws applicable to its provision, receipt, or use of the Services, as applicable.

12.2 Google Warranty. Google will perform the Services in a professional and workmanlike manner, in accordance with practices used by other service providers performing services similar to the Services. Google will use Personnel with requisite skills, experience, and qualifications to perform the Services.

12.3. Remedies. Google’s entire liability and Customer’s sole remedy for Google’s failure to provide Services that conform with Section 12.2 (Google Warranty) will be for Google to, at its option, (a) use commercially reasonable efforts to re-perform the Services or (b) terminate the Order Form and refund any applicable Fees received for the nonconforming Services. Any claim that Google has breached the warranty as described in Section 12.2 (Google Warranty) must be made within 30 days following the date that Google has performed the Services.

13. Disclaimer. Except as expressly provided for in the Agreement, to the fullest extent permitted by applicable law, Google and its Affiliates (a) do not make any warranties of any kind, whether express, implied, statutory, or otherwise, including warranties of merchantability, fitness for a particular use, noninfringement, or error-free or uninterrupted use of the Services or Software and (b) make no representation about content or information received in connection with the Services.

14. Indemnification.

14.1 Google Indemnification Obligations. Google will defend Customer and its Covered Affiliates and indemnify them against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from an allegation that the use of Google Indemnified Materials used in accordance with the Agreement infringe the third party’s Intellectual Property Rights.

14.2 Customer Indemnification Obligations. Customer will defend Google and its Affiliates and indemnify them against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from any Customer Indemnified Materials.

14.3 Indemnification Exclusions. Sections 14.1 (Google Indemnification Obligations) and 14.2 (Customer Indemnification Obligations) will not apply to the extent the underlying allegation arises from (a) the indemnified party’s breach of the Agreement (b) a combination of the Google Indemnified Materials or Customer Indemnified Materials (as applicable) with materials not provided by the indemnifying party under the Agreement, unless the combination is required by the Agreement (c) modifications to the Google Indemnified Materials or Customer Indemnified Materials (as applicable) by anyone other than the indemnifying party or (d) compliance with the indemnified party’s instructions, design or request for customized features.

14.4 Indemnification Conditions. Sections 14.1 (Google Indemnification Obligations) and 14.2 (Customer Indemnification Obligations) are conditioned on the following:

(a) Any indemnified party must promptly notify the indemnifying party in writing 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 breach of this Section 14.4(a) prejudices the defense of the Third-Party Legal Proceeding, the indemnifying party’s obligations under Section 14.1 (Google Indemnification Obligations) or 14.2 (Customer Indemnification Obligations) (as applicable) will be reduced in proportion to the prejudice.

(b) 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.

14.5 Remedies.

(a) If Google reasonably believes the Services or Deliverables might infringe a third party’s Intellectual Property Rights, then Google may, at its sole option and expense, (i) procure the right for Customer to continue using the Services or Deliverables, (ii) modify the Services or Deliverables to make them non-infringing without materially reducing their functionality, or (iii) replace the Services or Deliverables with a non-infringing, functionally equivalent alternative.

(b) If Google does not believe the remedies in Section 14.5(a) are commercially reasonable, then Google may Suspend or terminate the impacted Services and Customer’s use of the impacted Deliverables.

14.6 Sole Rights and Obligations. Without affecting either party’s termination or Suspension rights, this Section 14 (Indemnification) states the parties’ sole and exclusive remedy under the Agreement for any third-party allegations of Intellectual Property Rights infringement covered by this Section 14 (Indemnification).

15. Liability.

15.1 Limited Liabilities.

(a) Exclusions. To the extent permitted by applicable law and subject to Section 15.2 (Unlimited Liabilities), neither party will have any Liability arising out of or relating to the Agreement for any

(i) indirect, consequential, special, incidental, or punitive damages or

(ii) lost revenues, profits, savings, or goodwill.

(b) Limitation on Amount of Liability. Each party’s total aggregate Liability for damages arising out of or relating to the Agreement is limited to the Fees Customer paid for the Services under this Agreement during the 12 month period before the event giving rise to Liability.

15.2 Unlimited Liabilities. Nothing in the Agreement excludes or limits either party’s Liability for:

(a) death, personal injury, or tangible personal property damage resulting from its negligence or the negligence of its employees or agents;

(b) its fraud or fraudulent misrepresentation;

(c) its obligations under Section 14 (Indemnification);

(d) its infringement of the other party’s Intellectual Property Rights;

(e) its payment obligations under the Agreement; or

(f) matters for which liability cannot be excluded or limited under applicable law.

16. Term and Termination.

16.1 Agreement Term. The Agreement is effective from the Effective Date until it is terminated in accordance with its terms (the “Term”).

16.2 Termination for Convenience. Subject to any financial commitments in an Order Form or addendum to the Agreement, Customer may terminate the Agreement or an Order Form for any reason with 30 days’ prior written notice to Google.

16.3 Termination for Breach.

(a) Termination of an Order Form. Either party may terminate an Order Form if the other party is in material breach of this Agreement and fails to cure that breach within 30 days after receipt of written notice.

(b) Termination of the Agreement. Either party may terminate the Agreement if the other party (i) is in material breach of the Agreement and fails to cure that breach within 30 days after receipt of written notice, (ii) ceases its business operations, or (iii) becomes subject to insolvency proceedings and such proceedings are not dismissed within 90 days.

16.4 Effects of Termination. If the Agreement terminates, then all Order Forms also terminate. The termination or expiration of one Order Form will not affect other Order Forms. If an Order Form terminates or expires, then after that Order Form’s termination or expiration effective date:

(a) Effect on Services. All rights granted by one party to the other regarding the Services under that Order Form will terminate unless otherwise described in this Agreement; and Google will stop work on the Services; and

(b) Effect on Payment. Customer will pay for: (i) Services, including work-in-progress, performed before the effective date of termination or expiration and (b) any remaining non-cancellable Fees. Google will send Customer a final invoice for payment obligations under the Order Form.

16.5 Survival. The following Sections will survive expiration or termination of the Agreement: Section 4 (Payment Terms), Section 6 (Intellectual Property), Section 10 (Confidentiality), Section 12.3 (Remedies), Section 13 (Disclaimer), Section 14 (Indemnification), Section 15 (Liability), Section 16 (Term and Termination), Section 18 (Miscellaneous), Section 19 (Definitions).

17. Insurance. During the Term of the Agreement, each party will maintain, at its own expense, appropriate insurance coverage applicable to performance of the party’s respective obligations under the Agreement, including general commercial liability, workers’ compensation, automobile liability, and professional liability.

18. Miscellaneous.

18.1 Notices. Under the Agreement, notices to Customer must be sent to the Notification Email Address and notices to Google must be sent to [e-mail]. Notice will be treated as received when the email is sent. Customer is responsible for keeping its Notification Email Address current throughout the Term.

18.2 Emails. The parties may use emails to satisfy written approval and consent requirements under the Agreement.

18.3 Assignment. Neither party may assign the 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 the Agreement, (b) the assigning party has notified the other party of the assignment, and (c) if Customer is the assigning party, the assignee is established in the same country as Customer. Any other attempt to assign is void.

18.4 Change of Control. If a party experiences a change of Control other than an internal restructuring or reorganization, then (a) that party will give written notice to the other party within 30 days after the change of Control and (b) the other party may immediately terminate the Agreement any time within 30 days after it receives that written notice.

18.5 Force Majeure. Neither party will be liable for failure or delay in performance of its obligations to the extent caused by circumstances beyond its reasonable control, including acts of God, natural disasters, terrorism, riots, or war.

18.6 Subcontracting. Google may subcontract obligations under the Agreement but will remain liable to Customer for any subcontracted obligations.

18.7 No Agency. The Agreement does not create any agency, partnership, or joint venture between the parties.

18.8 No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under the Agreement.

18.9 Severability. If any part of the Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.

18.10 No Third-Party Beneficiaries. The Agreement does not confer any rights or benefits to any third party unless it expressly states that it does.

18.11 Equitable Relief. Nothing in the Agreement will limit either party’s ability to seek equitable relief.

18.12 Governing Law. 

(a) For U.S. City, County, and State Government Entities. If Customer is a U.S. city, county, or state government entity, then the Agreement will be silent regarding governing law and venue.

(b) For U.S. Federal Government Entities. If Customer is a U.S. federal government entity, then the following applies: ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES WILL BE GOVERNED BY THE LAWS OF THE UNITED STATES OF AMERICA, EXCLUDING ITS CONFLICT OF LAWS RULES. SOLELY TO THE EXTENT PERMITTED BY FEDERAL LAW, (I) THE LAWS OF THE STATE OF CALIFORNIA (EXCLUDING CALIFORNIA'S CONFLICT OF LAWS RULES) WILL APPLY IN THE ABSENCE OF APPLICABLE FEDERAL LAW; AND (II) FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN SANTA CLARA COUNTY, CALIFORNIA.

(c) For All Other Entities. If Customer is any entity not stated in Section 18.12(a) or (b) then the following applies: ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES WILL BE GOVERNED BY CALIFORNIA LAW, EXCLUDING THAT STATE'S CONFLICT OF LAWS RULES, AND WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF SANTA CLARA COUNTY, CALIFORNIA, USA; THE PARTIES CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS.

18.13 Amendments. Except as specifically described otherwise in the Agreement, any amendment to the Agreement must be in writing, expressly state that it is amending the Agreement, and be signed by both parties.

18.14 Independent Development. Nothing in the Agreement will be construed to limit or restrict either party from independently developing, providing, or acquiring any materials, services, products, programs, or technology that are similar to the subject of the Agreement, provided that the party does not breach its obligations under the Agreement in doing so.

18.15 Entire Agreement. The Agreement states all terms agreed between the parties, and supersedes any prior or contemporaneous agreements between the parties relating to the subject matter of the Agreement. In entering into the 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 described in the Agreement. Nothing in the Agreement grants any right for Customer to use materials, products or services that are made available to Google customers under a separate license or agreement. The URL Terms are incorporated by reference into the Agreement.

18.16 Conflicting Terms. If there is a conflict among the documents that make up the Agreement, then the documents will control in the following order (of decreasing precedence): the Data Processing Addendum, the applicable Order Form, the Agreement (excluding the URL Terms), and any remaining URL Terms.

18.17 Conflicting Languages. If the Agreement is translated into any other language, and there is a discrepancy between the English text and the translated text, the English text will control.

18.18 Counterparts. The parties may execute the Agreement in counterparts, including facsimile, PDF, and other electronic copies, which taken together will constitute one instrument.

18.19 Electronic Signatures. The parties consent to electronic signatures.

18.20 Headers. Headings and captions used in the Agreement are for reference purposes only and will not have any effect on the interpretation of the Agreement.

19. Definitions.

“Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a party.

“Background IP” means all Intellectual Property Rights owned or licensed by a party (a) before the effective date of the applicable Order Form or (b) independent of the Services.

“Brand Features” means each party’s trade names, trademarks, logos, domain names, and other distinctive brand features.

“Branding Guidelines” means Google’s then-current Google branding guidelines at https://services.google.com/fh/files/misc/external_customer_co_branding_eligibility.pdf, as may be updated by Google from time to time.

“Confidential Information” means information that one party or its Affiliate (“Disclosing Party”) discloses to the other party (“Recipient”) under the Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. Customer Data is Customer’s Confidential Information. Confidential Information does not include information that is independently developed by the Recipient, is shared with the Recipient by a third party without confidentiality obligations, or is or becomes public through no fault of the Recipient.

“Control” means control of greater than 50% of the voting rights or equity interests of an entity.

“Covered Affiliate” ​​means a Customer Affiliate that uses the Services under the Agreement.

“Customer Data” means data provided by or on behalf of Customer to Google in connection with receiving the Services.

“Customer Indemnified Materials” means Customer Data, Customer Background IP and any other information, materials, or technology provided to Google by Customer in connection with the Services (in each case, excluding any open source software) and (b) Customer’s Brand Features. Customer Indemnified Materials do not include Google Technology or Deliverables.

“Data Processing Addendum” means the then-current terms describing data processing and security obligations with respect to Customer Data, at https://cloud.google.com/terms/secops/data-processing-addendum.

“Delegates” means the Recipient’s and its Affiliates’ respective employees, agents, subcontractors, and professional advisors.

“Deliverables” means written reports that are created specifically for Customer as a result of the Services provided under the Agreement.

“Fees” means the product of the amount of Services and Software used or ordered by Customer multiplied by the Prices, plus any reimbursable expenses and Taxes (if applicable).

“Google Indemnified Materials” means the Services and Google’s Brand Features.

“Google Technology” means (a) Google Background IP; (b) all Intellectual Property and know-how applicable to Google products and services; (c) Indicators of Compromise; and (d) tools, code, algorithms, modules, materials, documentation, reports, and technology developed in connection with the Services that have general application to Google’s other customers, including derivatives of and improvements to Google’s Background IP. Google Technology does not include Customer Background IP or Customer Confidential Information.

"Indicators of Compromise" or "Indicators" means specifications of anomalies, configurations, or other conditions that Google can identify within an information technology infrastructure, used by Google in performing the Services.

“including” means including but not limited to.

“Indemnified Liabilities” means any (a) settlement amounts approved by the indemnifying party, and (b) damages and costs finally awarded against the indemnified party by a court of competent jurisdiction.

“Intellectual Property Right(s)” means all patent rights, copyrights, trademark rights, rights in trade secrets (if any), design rights, database rights, domain name rights, moral rights, and any other intellectual property rights (registered or unregistered) throughout the world.

“Legal Process” means an information disclosure request made under law, governmental regulation, court order, subpoena, warrant, or other valid legal authority, legal procedure, or similar process.

“Liability” means any liability, whether under contract, tort (including negligence), or otherwise, regardless of whether foreseeable or contemplated by the parties.

“Notification Email Address” means the email address(es) designated by Customer in the Order Form, or if none exist, the email address for Customer’s primary contact.

“Order Form” means (a) an order form, statement of work, or other ordering document issued by Google under the Agreement and executed by Customer and Google, or (b) a quote issued by Google to Customer, in either case specifying the Services that Google will provide to Customer under this Agreement. In the case of Resold Services, an Order Form will mean an order form, statement of work, or other document issued by a Reseller and executed by Customer and the Reseller specifying the Services Customer is ordering from the Reseller.

“Payment Due Date” means 30 days from the invoice date.

“Personnel” means a party’s and its Affiliates’ respective directors, officers, employees, agents, and subcontractors.

"Prices" means the prices for the Services and Software, as described in an Order Form or amendment to this Agreement.

“Reseller” means, if applicable, the authorized unaffiliated third party reseller that sells the Services to Customer.

“Reseller Agreement” means, if applicable, the separate agreement between Customer and Reseller regarding the Services. The Reseller Agreement is independent of and outside the scope of this Agreement.

“Reseller Fees” means the fees (if any) for Services used or ordered by Customer as agreed in a Reseller Agreement, plus any applicable Taxes.

“SecOps Service Specific Terms” means the then-current terms specific to the Services and Software, at https://cloud.google.com/terms/secops/service-terms. For the avoidance of doubt, the Service Terms of the SecOps Service Specific Terms do not apply to this Agreement.

“Services” means the then-current Mandiant Consulting services described at https://cloud.google.com/terms/secops/services or in an applicable Order Form, excluding any Third-Party Offerings and Training Services.

"Software" means any downloadable tools, software development kits, or other such computer software provided by Google for use in connection with the Services, and any updates Google may make to such Software from time to time, excluding any Third-Party Offerings.

“Suspend” or “Suspension” means disabling or limiting access to or use of the Services or components of the Services.

“Third-Party Offerings” means (a) third-party services, software, products, and other offerings, and (b) third-party operating systems.

“Training Services” means education and certification services related to products and services for individual users, as more fully described in an applicable Order Form.

“Taxes” means all government-imposed taxes, except for taxes based on Google’s net income, net worth, asset value, property value, or employment.

“Third-Party Legal Proceeding” means any formal legal proceeding filed by an unaffiliated third party before a court or government tribunal (including any appellate proceeding).

“URL” means a uniform resource locator address to a site on the internet.

“URL Terms” means the Data Processing Addendum and the SecOps Service Specific Terms.

20. Regional Terms. Customer agrees to the following modifications to the Agreement if Customer’s billing address is in the applicable region as described below.

Asia Pacific	A new Section 16.6 is added: 16.6 Termination Waiver. The parties agree that for the effectiveness of the termination clauses under the Agreement, to waive any provisions, procedures and operation of any applicable law to the extent that a court order is required for termination of the Agreement.
Asia Pacific - All regions, excluding India	Section 4.2 (Taxes) is replaced as follows: 4.2 Taxes. Google will itemize any invoiced Taxes. If Taxes must be withheld from any payment to Google, then Customer will increase the payment to Google so that the net amount received by Google is equal to the amount invoiced, without reduction for Taxes. The definition of “Taxes” under Section 19 (Definitions) is replaced as follows: “Taxes” means all government-imposed taxes, as per the applicable law associated with the rendering and performance of the Services, including but not limited to any duties, customs duties, and any direct or indirect taxes, including any related penalties or interest, except for taxes based on Google profit.
Asia Pacific - All regions excluding Australia, Japan, India, New Zealand, Singapore) and Latin America - All regions excluding Brazil	Section 18.12 (Governing Law) is replaced with the following: 18.12 Governing Law; Arbitration. (a) ALL CLAIMS ARISING OUT OF OR RELATING TO THE AGREEMENT OR ANY RELATED GOOGLE PRODUCTS OR SERVICES (INCLUDING ANY DISPUTE REGARDING THE INTERPRETATION OR PERFORMANCE OF THE AGREEMENT) (“DISPUTE”) WILL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, USA, EXCLUDING CALIFORNIA’S CONFLICTS OF LAWS RULES. (b) The parties will try in good faith to settle any Dispute within 30 days after the Dispute arises. If the Dispute is not resolved within 30 days, it must be resolved by arbitration by the American Arbitration Association’s International Centre for Dispute Resolution in accordance with its Expedited Commercial Rules in force as of the date of the Agreement (“Rules”). (c) The parties will mutually select one arbitrator. The arbitration will be conducted in English in Santa Clara County, California, USA. (d) Either party may apply to any competent court for injunctive relief necessary to protect its rights pending resolution of the arbitration. The arbitrator may order equitable or injunctive relief consistent with the remedies and limitations in the Agreement. (e) Subject to the confidentiality requirements in Subsection 18.12(g), either party may petition any competent court to issue any order necessary to protect that party’s rights or property; this petition will not be considered a violation or waiver of this governing law and arbitration section and will not affect the arbitrator’s powers, including the power to review the judicial decision. The parties stipulate that the courts of Santa Clara County, California, USA, are competent to grant any order under this Subsection 18.12(e). (f) The arbitral award will be final and binding on the parties and its execution may be presented in any competent court, including any court with jurisdiction over either party or any of its property. (g) Any arbitration proceeding conducted in accordance with this Section 18.12 (Governing Law; Arbitration) will be considered Confidential Information under Section 10 (Confidentiality), including: (i) the existence of, (ii) any information disclosed during, and (iii) any oral communications or documents related to the arbitration proceedings. In addition to the disclosure rights under Section 10 (Confidentiality), the parties may also disclose the information described in this Subsection 18.12(g) to a competent court as may be necessary to file any order under Subsection 18.12(e) or execute any arbitral decision, but the parties must request that those judicial proceedings be conducted in camera (in private). (h) The parties will pay the arbitrator’s fees, the arbitrator’s appointed experts’ fees and expenses, and the arbitration center’s administrative expenses in accordance with the Rules. In its final decision, the arbitrator will determine the non-prevailing party’s obligation to reimburse the amount paid in advance by the prevailing party for these fees. (i) Each party will bear its own lawyers’ and experts’ fees and expenses, regardless of the arbitrator’s final decision regarding the Dispute.
Asia Pacific - India	Google Cloud India Private Limited has been appointed by Google Asia Pacific Pte. Ltd. (‘GAP’) as a non-exclusive reseller of the Services (as defined above) in India. For avoidance of any doubts, whilst in the Agreement, both the entities have been referred to as ‘Google.’ It is hereby clarified that wherever the provisions refer to Google for sales or rights and obligations in relation thereto (including any terms relating to invoicing for sale of services, credit limit, termination of this Agreement, etc.), ‘Google’ shall mean Google Cloud India Private Limited, and wherever in the Agreement, the provisions refer to ‘Google’ as a provider of the Services or rights and obligations in relation thereto (including Intellectual Property Rights as defined below) shall mean ‘GAP’. Google Cloud India Private Limited may execute Order Form(s) referencing the Agreement, but the Order Form will form a separate contract between Google Cloud India Private Limited and the Customer, and incorporate all of the terms of this Agreement. Under the Agreement, whereas, as a reseller of Services, Google Cloud India Private Limited purchases the Services from GAP for resale to the Customer, the entire obligation to provide such Services under the Agreement will be met by GAP and as such, Google Cloud India Private Limited will not have any obligation related to performance of Services. Section 4.2 (Taxes) is replaced as follows: 4.2 Taxes. (a) In consideration of the sale of Services, Customer agrees to pay to Google, the Fees plus any applicable taxes. If Google is obligated to collect or pay Taxes, the Taxes will be invoiced to Customer along with the Fees for sale of services, unless Customer provides Google with a timely and valid tax exemption certificate authorized by the appropriate taxing authority. (b) If required under the applicable law, Customer will provide Google with applicable tax identification information (Goods and Services Tax Identification Number (“GSTIN”), location where the Services would be received by the customer, tax status etc.) that Google may require to ensure its compliance with applicable tax regulations in India. The Customer acknowledges that all the details provided such as the GSTIN, location where the Services would be received by the Customer, tax status etc. are correct. The address and GSTIN provided are of the location where the Services would be received by the Customer. Customer will be liable to pay (or reimburse Google for) any taxes, interest or fines arising out of any mis-declaration by the Customer. (c) If Customer is required by law to withhold any amounts for Income Tax on its payments to Google for sale of services, Customer must provide Google in a timely manner with a withholding tax certificate or other appropriate documentation and undertake to carry out the necessary compliances as per the applicable tax laws in India to enable Google to claim credit of such withholding taxes and provide support, as may be required for such purpose. Section 19 Definitions (i) The definition of Payment Due Date under Section 19 (Definitions) is replaced as follows: “Payment Due Date” means the payment due date set out in the applicable Order Form. (ii) The definition of “Taxes” under Section 19 (Definitions) is replaced as follows: “Taxes” means all taxes as per the applicable law including but not limited to any duties, or taxes (other than income tax on income), including indirect taxes such as goods and services tax (“GST”) or the taxes associated with the purchase of the Services.
Europe, the Middle East, and Africa	Section 4.2 (Taxes) is replaced with: Taxes. Google will itemise any invoiced Taxes. Customer will pay invoiced amounts without any deduction or withholding. The definition of “Taxes” under Section 19 (Definitions) is replaced as follows: “Taxes” means any duties, customs fees, or taxes (other than taxes on Google’s net income), including indirect taxes such as goods and services tax and value-added tax, associated with the purchase of the Services, and any related penalties or interest.
North America - United States	A new Section 18.21 is added: 18.21 U.S. Federal Agency Users. The Services were developed solely at private expense and are commercial computer software and related documentation within the meaning of the applicable Federal Acquisition Regulations and their agency supplements.