Google Cloud Marketplace Terms of Service

1.1. Use of Marketplace. Google publishes listings for both Vendor Products and Google Products on the Marketplace. Subject to this Agreement, Customer may access and use the Marketplace to purchase those products.

1.2. Product Listings

1.2.1. Vendor Products. For transactions of Vendor Products on the Marketplace, Google will indicate at the time of sale whether Google is acting as the merchant and seller of record, or if Google or an Affiliate is acting as the Vendor’s agent, for that purchase. For transactions of Vendor Products for which Google or an Affiliate acts as Vendor’s agent for that purchase (“Agency Transaction(s)”), please see Appendix A for additional terms that apply to such transactions.

1.2.2. Google Products. For transactions of Google Products on the Marketplace, Google will be the merchant and seller of record for that purchase.

Unless otherwise specified in the applicable product listing, Customer’s purchase and use of Google Products are governed by the agreement under which Google or the applicable Affiliate provides Customer with access to and use of those Google Products and not this Agreement.

1.3. Resellers on the Marketplace. If you are accessing Marketplace as a Google-authorized reseller under the Google Cloud Partner Advantage Program or any successor channel partner program (“GCP Reseller”) or as a Google-authorized distributor under the Google Cloud Partner Advantage Program or any successor channel partner program (“GCP Distributor”) and buying a Vendor Product for resale to a customer or reseller, as applicable, please review the Google Cloud Marketplace Terms of Service - Google Cloud Platform Resellers which are incorporated by reference and specify the terms that apply to your access to and use of Marketplace and your resale of the Vendor Product.

If you are accessing Marketplace as a customer buying a Vendor Product via a GCP Reseller billing account, then prior to completing a purchase on Marketplace, you must confirm with the GCP Reseller applicable to your purchase that the GCP Reseller has reviewed and accepted the Google Cloud Marketplace Terms of Service - Google Cloud Platform Resellers which are incorporated by reference and specify the terms that apply to the GCP Reseller’s access to and use of Marketplace and resale of the Vendor Product.

If you are accessing Marketplace as a Reseller buying a Vendor Product via a GCP Distributor billing account, then prior to completing a purchase on Marketplace, you must confirm with the GCP Distributor applicable to your purchase that the GCP Distributor has reviewed and accepted the Google Cloud Marketplace Terms of Service - Google Cloud Platform Resellers, which are incorporated by reference and specify the terms that apply to the GCP Distributor’s access to and use of Marketplace and resale of the Vendor Product.

1.4. Regional Versions; Public Sector. If your billing account is in EMEA, APAC, India, or the U.S. Public Sector, please review Section 14 (Regional and Public Sector Terms), which specifies the terms that apply to your use of the Marketplace.

Fees for Vendor Products will be included in Customer’s invoice for Google Cloud Platform services. Notwithstanding anything to the contrary in the GCP Agreement, all invoicing and payment terms in the GCP Agreement will apply to Vendor Products.

3.1. Compliance. Customer will (a) ensure that Customer and its End Users' use of the Marketplace and Vendor Products complies with the Agreement and applicable laws, and (b) promptly notify Google of any unauthorized use of, or access to, the Marketplace.

3.2. Third Party License Terms. Google or a Vendor may require Customer to accept a Vendor Agreement. Access to and use of a BYOL Product is governed by the Vendor or third-party software license agreements associated with that BYOL Product.

3.3. Vendor Access to Customer Data. Certain Vendor Products may require the Vendor to access Customer Data from the Customer’s GCP Account in order to provide the Vendor Product, as described in the relevant product listing. By purchasing or enabling any such Vendor Product, Customer will be instructing Google (pursuant to the Cloud Data Processing Addendum under Customer’s GCP Agreement) to share Customer Data with the Vendor of such Vendor Product in order for the Vendor to provide the Vendor Product and in connection with any technical support requests under Section 4 (Support for Vendor Products). Customer acknowledges that Google will have no further access to or control over any Customer Data once shared with the Vendor, that Vendor will not be a Subprocessor (as defined in the Cloud Data Processing Addendum under Customer’s GCP Agreement) in respect of Google’s sharing of Customer Data with the Vendor, and that Vendor’s access, use, storage, deletion and processing of such Customer Data will be governed by a Vendor Agreement or other terms governing Vendor’s provision of the Vendor Product to Customer, and not this Agreement. For clarity, Google’s treatment of Customer Data will be governed by the Cloud Data Processing Addendum under Customer’s GCP Agreement for as long as Google retains such Customer Data.

3.4. Restrictions. Customer will not, and will not allow End Users to, (a) copy, modify, or create a derivative work of the Marketplace; (b) reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any or all of the source code of, the Marketplace (except to the extent such restriction is expressly prohibited by applicable law); (c) sell or resell Vendor Products; or (d) access or use the Marketplace or Vendor Products in a manner intended to avoid incurring Fees or to circumvent usage limits or quotas. Any additional restrictions related to the use of Vendor Products are as set forth in the Vendor Agreement.

3.5. VM Product Deployment. Unless otherwise expressly stated in the Vendor Product listing, Customer and its End Users may only deploy Vendor Products with a virtualization component in Google Cloud Platform instances managed by Customer or its End Users. Vendor Products with a virtualization component may not be deployed outside of the Google Cloud Platform.

4.1. Vendor Products Generally. Except as otherwise specified in Section 4.2 (Google Supported Products), any technical support for Vendor Products will be provided by the applicable Vendor on terms agreed to between the Vendor and Customer. Subject to Section 4.2 (Google Supported Products), Google will not be responsible or liable for any technical support to Customer for any Vendor Products, including any security updates or patches provided by Vendor.

4.2. Google Supported Products. For certain Vendor Products, as described in the applicable product listing page, Google (and not the Vendor) will provide all frontline technical support (“Google Supported Products”). In order to receive access to technical support for Google Supported Products, Customer must purchase a technical support package for Google Cloud Platform pursuant to the Customer’s GCP Agreement. Google will provide Customer with the same level of technical support for Google Supported Products that Customer has purchased for Google Cloud Platform (e.g., Development, Production or Enterprise level support) as described at TSS Guidelines.

5.1. To the Marketplace. Google may make commercially reasonable updates to the Marketplace from time to time. Google will notify Customer of any material changes to the Marketplace.

5.2. To the Agreement. Google may make changes to this Agreement (including the URL Terms) from time to time. Google will provide notice of the changes via posting updates to the Agreement at https://cloud.google.com/terms/marketplace/launcher (or any successor URL where this Agreement may be posted) (“Marketplace TOS”), and unless otherwise noted by Google, such changes will become effective 30 days after they are posted, except to the extent that the changes apply to new functionality, or are required by applicable law, in which case they will be effective immediately. For clarity, changes to this Agreement do not result in changes to any Vendor Agreement.

(a) If Customer does not agree to the revised Agreement, Customer may stop using the Marketplace and Vendor Products under Section 6.2 (Cessation of Use). Customer's continued use of the Marketplace after such material change will constitute Customer's consent to such changes.

(b) If a change under this Section 5.2 has a material adverse impact on Customer during an active subscription term for a Subscription Product and is not a result of Google complying with a court order or applicable law, Customer may notify Google within thirty (30) days of the change that Customer objects to the change. Upon such notice, Customer will remain governed by the terms in effect immediately prior to the change until the end of the then-current subscription term.

5.3. To Fees. Customer acknowledges that Fees for Vendor Products may change upon 30 days’ notice by Google or Vendor, as applicable, provided that any Fee changes for Subscription Products will not become effective during any then-current subscription term.

6.1. Termination of Agreement. Either party may terminate this Agreement if the other party materially breaches this Agreement and does not cure such breach within 30 days of its receipt of written notice of the breach. If this Agreement is terminated, Customer will stop using all Vendor Products, unless Customer has a Vendor Agreement for its continued use of the Vendor Product, including all applicable payment, billing, and usage terms. If Google is the terminating party, Customer will be required to pay all Fees for Subscription Products for the remainder of the subscription terms for such products. If Customer is the terminating party, then (i) Google will provide to Customer a prorated refund of any Fees prepaid by Customer for the Subscription Product, and (ii) Customer’s obligation to pay additional Fees for Subscription Products will be relieved for the remaining portion of the subscription term.

6.2. Cessation of Use. Customer may stop using the Marketplace or any Vendor Product at any time, provided that Customer will be required to pay all Fees for Subscription Products for the remainder of the subscription terms for such products.

6.3. Removal or Termination of Subscription Products. Except as set forth in Section 6.1 (Termination of Agreement), Google may remove a Subscription Product from the Marketplace, terminate Customer’s subscription to a Subscription Product, or otherwise limit or revoke Customer’s access to a Subscription Product during Customer’s then-current subscription term only if:

(a) Google is no longer contractually permitted to offer the Subscription Product on the Marketplace or to Customer;

(b) Google is (i) requested to remove the Subscription Product from the Marketplace by the respective Vendor or (ii) informed by the Vendor that it will no longer provide the Subscription Product to Customer (e.g., for regulatory reasons); or

(c) Google determines that (i) the Subscription Product does not run on or was not deployed on Google Cloud Platform or (ii) continuing to provide the Subscription Product to Customer could create risk or liability for Google.

Google will use commercially reasonable efforts to provide (i) advance notice where practicable before taking any action under this Section 6.3 and (ii) at least six (6) months’ notice where practicable before taking any action pursuant to Section 6.3(a)-(b).

6.4. Fees for Removed Subscription Products. If Google takes any action under 6.3 for any reason other than Customer’s breach of the applicable Vendor Agreement before Customer’s subscription term for the Subscription Product has expired, then (i) Google will provide to Customer a prorated refund of any Fees prepaid by Customer for the Subscription Product, and (ii) Customer’s obligation to pay additional Fees for the Subscription Product will be relieved for the remaining portion of the subscription term.

6.5. Transition Assistance. Upon Customer’s request, Google will use reasonable efforts to provide transition assistance to facilitate Customer’s continued use of a Vendor Product after termination.

The confidentiality terms in Customer’s GCP Agreement will apply to Confidential Information exchanged under this Agreement. “Confidential Information” means information that one party (or an Affiliate) discloses to the other party under this Agreement, and which is marked as confidential or would normally under the circumstances be considered confidential information. It does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient.

Customer acknowledges and agrees that Google may share certain account and usage information related to its purchases and use of Vendor Products with the applicable Vendor.

Except as expressly stated in this Agreement, 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. As between the parties, Customer retains all Intellectual Property Rights in Customer Data, and Google retains all Intellectual Property Rights in the Marketplace.

Except as expressly provided for in the Agreement, Google does not make and expressly disclaims to the fullest extent permitted by applicable law (a) any warranties of any kind, whether express, implied, statutory, or otherwise, including warranties of merchantability, fitness for a particular use, title, noninfringement, or error-free or uninterrupted use of the Marketplace and (b) any representations or warranties regarding any Vendor Products, including any representations or warranties (i) related to the performance, functionality, or security of any Vendor Products or (ii) that any Vendor Product listings in the Marketplace are accurate or up-to-date. Google expressly disclaims any responsibility or liability related to a Vendor’s provision of Vendor Products (including any related technical support), description of Vendor Products, and any data shared with a Vendor in connection with this Agreement or a Vendor Product.

URL links made available via the Marketplace may allow Customer to leave the Marketplace website to go to sites and web pages not controlled by Google (“Linked Site(s)”). Google is not responsible for the Linked Sites (or any weblink or URL contained on them) in any manner, including related content and security or privacy practices. Any access Google provides to Linked Sites is done solely as a Customer convenience, and the inclusion of any link to a Linked Site does not imply endorsement by Google of the Linked Site.

11.1. Limitation on Indirect Liability. To the extent permitted by applicable law and subject to Section 11.3 (Unlimited Liabilities), neither party will have any Liability arising out of or relating to the Agreement for any (a) indirect, consequential, special, incidental, or punitive damages or (b) lost revenues, profits, savings, or goodwill.

11.2. 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 greater of (a) $25,000 and (b) the Fees paid by Customer for use of Vendor Products during the twelve (12) months before the event giving rise to the Liability.

11.3. 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 infringement of the other party’s Intellectual Property Rights;

(d) its payment obligations under the Agreement; or

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

Customer may state publicly that it is a customer of the Marketplace, consistent with Google's Guidelines for Third Party Use of Google brand resources at https://www.google.com/permissions/guidelines.html (“Brand Guidelines”). Google may revoke this right with written notice to the other party and a reasonable period to stop the use.

13.1. Notices. Under the Agreement, notices to Customer must be sent to the Notification Email Address and notices to Google must be sent to legal-notices@google.com. Notice will be treated as received when the email is sent. Customer is responsible for keeping its Notification Email Address current.

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

13.3. 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, and (b) the assigning party has notified the other party of the assignment. Any other attempt to assign is void. If Customer assigns this Agreement to an Affiliate in another jurisdiction such that there is a change in the Google contracting entity as defined at Contracting Entity Page: (i) this Agreement is automatically assigned to the new Google contracting entity; and (ii) if the Affiliate’s billing account is in a region listed in Section 14 (Regional and Public Sector Terms), the applicable terms in that section will apply from the moment of the assignment.

13.4. Change of Control. If a party experiences a change of Control other than as part of an internal restructuring or reorganization (for example, through a stock purchase or sale, merger, or other form of corporate transaction), that party will give written notice to the other party within 30 days after the change of Control.

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

13.6. Representations and Warranties. Each party represents and warrants that (a) it has full power and authority to enter into the Agreement, and (b) it will comply with all laws applicable to its provision, receipt, or use of the Marketplace and Vendor Products, as applicable.

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

13.8. No Agency. Except as otherwise stated herein, this Agreement does not create any agency, partnership, or joint venture between the parties.

13.9. 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.

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

13.11. No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.

13.12. Equitable Relief. Nothing in this Agreement will limit either party's ability to seek equitable relief.

13.13. Governing Law. 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.

13.14. Amendments. Except as stated in Section 5 (Modifications), any amendment must be in writing, signed by both parties, and expressly state that it is amending this Agreement.

13.15. Survival. The following Sections will survive expiration or termination of this Agreement: Section 2 (Payment Terms), Section 6.1 (Termination of Agreement), Section 6.2 (Cessation of Use), Section 6.4 (Fees for Removed Subscription Products), Section 6.5 (Transition Assistance), Section 7 (Confidential Information), Section 8 (Intellectual Property Rights), Section 9 (Disclaimer), Section 10 (Linked Sites), Section 11 (Limitation of Liability), Section 13 (Miscellaneous), and Section 14 (Regional and Public Sector Terms).

13.16. Entire Agreement. This Agreement sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to its 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 stated in this Agreement. Google may provide an updated URL in place of any URL in this Agreement at any time.

13.17. 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.

13.18. Conflicting Languages. If this Agreement is translated into any language other than English, and there is a discrepancy between the English text and the translated text, the English text will govern unless expressly stated otherwise in the translation.

13.19. Definitions.

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

“APAC” means the Asia Pacific Region.

“BYOL Product” means any software, service, or dataset provided by a Vendor, and any updates to the foregoing, which are labeled in the Marketplace as “Google Click to Deploy” or “BYOL” and not redeemed by means of exchanging a license key purchased on the Marketplace.

“Control” means control of greater than 50 percent of the voting rights or equity interests of a party.

“Customer Data” has the meaning given to it in the GCP Agreement.

“EMEA” means Europe, the Middle East, and Africa.

“End Users” means the individuals who are permitted by Customer to use the Marketplace or Vendor Products.

“Fees” means the applicable fees for any Vendor Product and any applicable Taxes.

“GCP Account” means Customer's Google Cloud Platform account.

“GCP Agreement” means the agreement under which Google or its Affiliate provides Customer with access to and use of Google Cloud Platform.

“Google Product” means any software, service, or product made available via the Marketplace by Google or its Affiliates, and any updates to the foregoing.

“including” means including but not limited to.

“Intellectual Property Rights” means current and future worldwide rights under patent, copyright, trade secret, trademark, and moral rights laws, and other similar rights.

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

“Marketplace” means Google’s repository for offerings made available for use with Google Cloud Platform, available at https://console.cloud.google.com/marketplace or a successor URL.

“Notification Email Address” means the email address(es) designated by Customer in its GCP Admin Console.

“Subscription Product” means a Vendor Product for which the Customer has either prepaid Fees or committed to pay Fees for a given time period.

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

"TSS Guidelines" means Google's technical support services guidelines then in effect for the services. TSS Guidelines are at https://cloud.google.com/terms/tssg/ (under Google Cloud Platform Services).

“URL Terms” means, collectively, the Brand Guidelines, Contracting Entity Page, Marketplace, Marketplace TOS, and TSS Guidelines.

“Vendor” means a third-party software or service vendor that makes offerings available on the Marketplace.

“Vendor Agreement” means a separate agreement between Customer and Vendor governing Customer’s use of a Vendor Product, including any end user license agreement or statement of work, and any additional related terms with Vendor or a third-party applicable to Customer’s use of a Vendor Product.

“Vendor Product” means any software, service, or dataset provided by Vendors, and any updates to the foregoing, made available through the Marketplace, in each case excluding BYOL Products. For the avoidance of doubt, Google Products are not “Vendor Products.”

Customer agrees to the following modifications to the Agreement if Customer’s billing address is in the applicable regions or the U.S. Public Sector as described below.

Asia Pacific - All regions, excluding India

The definition of "Taxes" under Section 13.19 (Definitions) is replaced as follows:

"Taxes" means all government-imposed taxes, as per the applicable law associated with the rendering and performance of the products or services under this Agreement, 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's profit.

Asia Pacific (all regions excluding Australia, Japan, India, New Zealand, Singapore)

Section 13.13 (Governing Law) is replaced in its entirety as follows:

13.13 Governing Law; Arbitration.

(a) ALL CLAIMS ARISING OUT OF OR RELATING TO THIS 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, then the Dispute 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 this 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 13.3(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 13.13(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 13.13 (Governing Law; Arbitration) will be considered Confidential Information under Section 7 (Confidential Information), 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 7 (Confidential Information), the parties may disclose the information described in this Subsection 13.13(g) to a competent court as may be necessary to file any order under Subsection 13.13(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 - Indonesia

Section 6.1 (Termination of Agreement) is replaced in its entirety as follows:

Termination of Agreement. Either party may terminate this Agreement if the other party materially breaches this Agreement and does not cure such breach within 30 days of its receipt of written notice of the breach. If the Agreement is terminated, Customer will stop using all Vendor Products and Google Products, unless Customer has reached a direct agreement with a Vendor for its continued use of the Vendor Product, including all payment, billing, and usage terms. If Google is the terminating party, Customer will be required to pay all Fees for Subscription Products for the remainder of the subscription terms for such products. If Customer is the terminating party, then (i) Google will provide to Customer a prorated refund of any Fees prepaid by Customer for the Subscription Product, and (ii) Customer’s obligation to pay additional Fees for Subscription Products will be relieved for the remaining portion of the subscription term. The parties agree to waive any provisions under any applicable laws to the extent that a court decision or order is required for the cancellation of this Agreement.

The Indonesian language version of this Agreement is accessible here and Section 13.18 (Conflicting Languages) is replaced in its entirety as follows:

13.18 Conflicting Languages. This Agreement is made in the Indonesian language and the English language. Both versions of the Agreement are equally authentic. In the event of any inconsistency or different interpretation between the Indonesian version and the English version of the Agreement, the parties agree to amend the Indonesian version to make the relevant part of the Indonesian version consistent with the relevant part of the English version.

Asia Pacific - India.

The introduction paragraph of the Agreement is replaced in its entirety as follows:

Google Asia Pacific Pte. Ltd. runs and operates Google Marketplace under this Agreement. Google Cloud India Private Limited (“Google Cloud India”) is appointed by Google Asia Pacific Pte. Ltd. (together with its affiliates, “Google”), as a non-exclusive reseller of the Google Products, including Vendor Products (as defined below) in India. These Google Cloud Marketplace Terms of Service (the “Agreement”) are entered into between Google Cloud India and the entity or person agreeing to these terms ("Customer") and govern Customer's access to and use of the Marketplace and any Vendor Product. By using the Marketplace, including by purchasing or accessing any product or service through the Marketplace, Customer agrees to be bound by this Agreement.

Asia Pacific - Australia

A new Section 9A is added as follows:

9A. This Section 9A applies only if use of the Marketplace is subject to statutory guarantees under the Australian Competition and Consumer Act 2010 (“ACCA”). Applicable laws, including the ACCA, may confer rights and remedies into this Agreement that cannot be excluded, and which are not excluded by this Agreement. To the extent that the applicable laws permit Google to limit their operation, Google’s and its Affiliates’ liability under those laws will be limited at its option, to the supply of the services again, or payment of the cost of having the services supplied again. 

Section 13.13 (Governing Law) is amended by inserting the following text at the end of that Section: “IF APPLICABLE LAW PREVENTS A DISPUTE FROM BEING RESOLVED IN A CALIFORNIA COURT, THEN CUSTOMER MAY FILE THE DISPUTE IN CUSTOMER’S LOCAL COURTS. IF APPLICABLE LAW PREVENTS CUSTOMER’S LOCAL COURT FROM APPLYING CALIFORNIA LAW TO RESOLVE A DISPUTE, THEN THE DISPUTE WILL BE GOVERNED BY THE APPLICABLE LOCAL LAWS OF CUSTOMER’S COUNTRY, STATE, OR OTHER PLACE OF RESIDENCE.” 

Section 13.16 (Entire Agreement) is amended by inserting the following text at the end of that Section: “Nothing in this Agreement excludes a party’s liability for prior written or oral misrepresentation.”

EMEA

Section 9 (Disclaimer) is replaced in its entirety with the following:

9. Disclaimer. Subject to Section 11.3 (Unlimited Liabilities):

9.1 except as expressly provided for in the Agreement, Google does not make and expressly disclaims to the fullest extent permitted by applicable law (a) any representations, conditions, warranties or other terms of any kind, whether express, implied, statutory, or otherwise, including warranties of satisfactory quality, fitness for a particular purpose or use, title, noninfringement, conformance with description or error-free or uninterrupted use of the Marketplace and (b) any representations, conditions, warranties or other terms regarding any Vendor Products, including any representations, conditions or warranties: (i) related to the performance, functionality, or security of any Vendor Products or (ii) that any Vendor Product listings in the Marketplace are accurate or up-to-date; and

9.2 Google expressly disclaims any responsibility or liability related to a Vendor’s provision of Vendor Products (including any related technical support) and any data shared with a Vendor in connection with this Agreement or a Vendor Product.

Section 11 (Limitation of Liability) is replaced in its entirety with the following:

11. Limitation of Liability.

11.1 Limitation on Indirect Liability. To the extent permitted by applicable law and subject to Section 11.3 (Unlimited Liabilities), neither party will have any Liability arising out of or relating to the Agreement for any: (a) indirect, consequential, special, incidental, or punitive damages; (b) loss of revenues; (c) loss of profits; (d) loss of savings; or (e) loss of goodwill.

11.2 Limitation on Amount of Liability. Subject to Section 11.3 (Unlimited Liabilities) each party’s total aggregate Liability for damages arising out of or relating to the Agreement is limited to the greater of (a) £25,000 and (b) the Fees paid by Customer to Google for use of Vendor Products during the twelve (12) months before the event giving rise to the Liability.

11.3 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 infringement of the other party’s Intellectual Property Rights;

(d) breach of any implied condition as to title or quiet enjoyment;

(e) its payment obligations under the Agreement; or

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

Section 13.12 (Equitable Relief) is replaced in its entirety with the following:

13.12. Equitable Relief. Section 13.13 (Governing Law) below shall be without prejudice to the right of either party to apply to any court of competent jurisdiction for emergency, interim or injunctive relief (together "Interim Relief"). Except where Customer has its registered office or principal place of business in Russia or Ukraine, such Interim Relief shall be subject to review and subsequent adjudication by the arbitral tribunal such that any dispute in respect of Interim Relief shall be determined by the arbitral tribunal.

Section 13.13 (Governing Law) is replaced in its entirety with the following:

13.13 Governing Law.

(a) The Agreement and any dispute (contractual or non-contractual) concerning the Agreement or its subject matter or formation (a “Dispute”) is/are governed by English law.

(b) Any Dispute will be referred to and finally resolved by arbitration under the rules of the LCIA, which rules are deemed to be incorporated by reference into this Section. The number of arbitrators will be three. The seat, or legal place, of arbitration will be London, England. The language to be used in the arbitration will be English.

(c) This Section 13.13 is without prejudice to the right of either party to apply to any court of competent jurisdiction for emergency, interim or injunctive relief.

Section 13.16 (Entire Agreement) is replaced in its entirety with the following:

13.16. Entire Agreement. Subject to Section 11.3 (Unlimited Liabilities): (i) this Agreement sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter; (ii) in entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, condition, representation, or warranty (whether made negligently or innocently), except those expressly stated in this Agreement; and (iii) Google may provide an updated URL in place of any URL in this Agreement at any time.

The following definitions are added to Section 13.19 (Definitions):

“reasonable efforts” means reasonable endeavours.

The following definitions in Section 13.19 (Definitions) replace the existing definitions in Section 13.19 (Definitions) with the same name in their entirety:

“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 products or services under this Agreement, and any related penalties or interest.

“BYOL Product” means any software, service, or dataset provided by a Vendor, and any updates to the foregoing, which are labeled in the Marketplace as “Google Click to Deploy” or “BYOL” and not redeemed by means of exchanging a license key purchased on the Marketplace.

Public Sector

The following sentence is added to Section 7 (Confidential Information):

Notwithstanding anything to the contrary in this Agreement or your GCP Agreement, a recipient of Confidential Information may disclose Confidential Information ​if required by the Freedom of Information Act or similar state open records or sunshine law.

Section 13.3 (Assignment) is deleted in its entirety.

Section 13.13 (Governing Law) is replaced in its entirety with the following:

13.13 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.

Additional Terms for Agency Transactions

For Agency Transactions, the terms in this Appendix A will apply to the transaction in addition to the terms in the Agreement. 

To the extent there is a conflict between the terms stated in this Appendix and the provisions of the Agreement, the terms stated in this Appendix will prevail.

For Agency Transactions where both the Vendor and Customer are located in the United States, Google Payment Corp. (“GPC”), a subsidiary of Google LLC, will act as the agent of the Vendor for payment transactions.

1. Payment Authorization

Customer authorizes GPC to, in accordance with the payment terms in its GCP Agreement, submit charges (and, in the case of refunds, credits) to Customer’s agreed upon payment method. GPC receives and processes such transactions on behalf of Vendors, as the agent of the Vendor, through the appropriate payment network. Customer’s payment to Google and/or the Vendor for its purchase(s) is deemed completed upon receipt by GPC on behalf of Google or the Vendor, as applicable.

2. Settlement of Payment Transactions

GPC reserves the right to delay processing or settlement of payment transactions to Vendors, in the event Customer or the Vendor do not successfully complete Google’s onboarding and due-diligence process, including identity verification, or Google or GPC reasonably believe there is potentially suspicious, illegal or fraudulent activity related to Customer’s or a Vendor’s use of the Marketplace or a transaction on the Marketplace for Vendor Products. Neither Google nor its Affiliates have any liability to Customer for any delay in making settled funds available under this Section to the Vendor.

3. Disclaimer/Limitation of Liability

Customer agrees that Section 9 (Disclaimer) and Section 11 (Limitation of Liability) of this Agreement shall be deemed to apply to GPC in addition to Google with respect to transactions processed by GPC. This Section 3 (Disclaimer/Limitation of Liability) shall survive termination of the Agreement.

4. No Interest 

GPC will hold funds received from Customer’s payment method issuer or account-holding institution as the Vendor’s payment agent, pending transfer to the Vendor. Customer will not have access to funds in the process of transmission to the Vendor. Customer also will not earn interest on such funds, and the funds are not insured for Customer’s benefit by any government agency. Customer acknowledges that Google or its Affiliate may earn interest on such funds.

5. USA PATRIOT Act Notice 

To help the government fight the funding of terrorism and money laundering activities, federal law requires all financial institutions to obtain, verify, and record information that identifies each individual or business that opens an account or requests credit.