Google Cloud Marketplace Terms of Service - Google Cloud Platform Resellers

1.1. Use of Marketplace. Google publishes listings for both Vendor Products and Google Products on the Marketplace. Subject to this Agreement, Partner may access and use the Marketplace to purchase Vendor Products for resale only to Customers (or, in the case of a GCP Distributor, to a Reseller for further resale to Customer).

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, Partner’s use and resale of Google Products are governed by the agreement under which Google has appointed Partner as a reseller and/or supplier of the applicable Google Products under the Program (“Reseller Agreement”) and not this Agreement. Additionally, the terms of the Reseller Agreement may be applied to transactions under this Agreement as specified in this Agreement.

1.3. Regional Versions; Public Sector. If Partner’s billing account is in EMEA, APAC, India, or the U.S. Public Sector, Section 14 (Regional and Public Sector Terms) specifies additional terms that apply.

2.1. Payment Terms. Partner will pay all Fees based on: (a) Partner’s purchase of Vendor Products for purposes of resale to Customer (or, in the case of a GCP Distributor, to a Reseller for further resale to Customer); and (b) Customer’s or Partner End User’s purchase and use of Vendor Products, as applicable. Fees for Vendor Products will be included in Partner’s invoice for Google Cloud Platform services. Notwithstanding anything to the contrary in the Reseller Agreement, all invoicing and payment terms in the Reseller Agreement will apply to Partner’s purchase of Vendor Products for resale to Customers (or, in the case of a GCP Distributor, to a Reseller for further resale to Customer). 

2.2. Discount. Partner may receive programmatic discount on Vendor Products (purchased through Marketplace) for resale to Customers (or, in the case of a GCP Distributor, to a Reseller for further resale to Customer), at Vendor’s discretion.

2.3. Program Incentives. No Program incentives, including (the following capitalized terms are as defined in the Program) Deal Registration and Deal Referral, the Partner Funding Program (formerly known as Partner Services Funding Program), the Marketing Incentive Program, and Marketing Development Services funds, will apply to transactions under this Agreement.

3.1. Compliance. Partner will (a) ensure that Partner’s, any Customer’s, any Reseller’s, and any Partner End Users' use of the Marketplace and Vendor Products complies with this 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 Partner to accept a Vendor Agreement. Additionally, a Vendor Agreement will govern each Customer’s (or Reseller’s or Partner End User’s, as applicable) access to and use of the Vendor Products. Unless Google expressly agrees otherwise in writing, Partner will ensure that each Customer (or, as applicable, Reseller) is notified of and accepts the Vendor Agreement, with no alteration or amendment, before reselling the Vendor Products to that Customer (or, in the case of a GCP Distributor, to a Reseller for further resale to Customer). Partner will not accept (or allow any third party to accept) the Vendor Agreement on behalf of any Customer, except where Partner has been expressly authorized to do so by Customer. As applicable, Partner will ensure that Customers (or Resellers, as applicable) are notified and accept that 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 Partner Data. Partner will notify Customer and obtain Customer’s consent to the following:

Certain Vendor Products may require the Vendor to access Partner Data as related to the Customer in order to provide the Vendor Product, as described in the relevant product listing. By purchasing or enabling any such Vendor Product, Customer (or Partner) will be instructing Google (pursuant to the Cloud Data Processing Addendum as defined in the Reseller Agreement) to share Partner Data as related to the Customer 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 5 (Support for Vendor Products). Customer acknowledges that Google will have no further access to or control over any Partner Data once shared with the Vendor, that Vendor will not be a Subprocessor (as defined in the Cloud Data Processing Addendum as defined in the Reseller Agreement) in respect of Google’s sharing of Partner Data with the Vendor, and that Vendor’s access, use, storage, deletion, and processing of such Partner Data will be governed by a Vendor Agreement or other terms governing Vendor’s provision of the Vendor Product to Partner and thereby to Customer, and not this Agreement. For clarity, Google’s treatment of Partner Data will be governed by the Cloud Data Processing Addendum under the Reseller Agreement for as long as Google retains such Partner Data.

3.4. Restrictions. Partner will not, and will not allow Customers, Resellers, or Partner End Users to (a) copy, modify, or create a derivative work of the Marketplace or Vendor Products; (b) reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any or all of the source code of the Marketplace or Vendor Products (except to the extent such restriction is expressly prohibited by applicable law); (c) except as authorized in this Agreement, sell, resell, sublicense, transfer, or distribute any or all of the Marketplace or 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, Partner, Customer, and Reseller may only deploy Vendor Products with a virtualization component in Google Cloud Platform instances managed by Partner, Reseller, or Customer. Vendor Products with a virtualization component may not be deployed outside of the Google Cloud Platform.

The Marketplace TOS will govern each Customer’s, Reseller’s, or Partner End User’s access to and use of the Marketplace, as applicable. Partner will ensure that each Customer or Reseller that directly accesses the Marketplace is notified of and accepts the Marketplace TOS, with no alteration or amendment, before the Customer or Reseller first logs into Marketplace. Partner will: (a) not accept (or allow any third party to accept) the Marketplace TOS on behalf of any Customer or Reseller; and (b) not accept (or allow any third party to accept) separate terms of service on behalf of any Customer or Reseller for use of other Google services; except where in each of the foregoing cases Partner has been expressly authorized to do so by the Customer or Reseller.

5.1. Vendor Products Generally. Except as otherwise specified in Section 5.2 (Google Supported Products), any technical support for Vendor Products will be provided by the applicable Vendor on terms agreed to between Vendor and Customer, Vendor and Reseller, or Vendor and Partner, as applicable. Subject to Section 5.2 (Google Supported Products), Google will not be responsible or liable for any technical support to Partner, Reseller, or Customer for any Vendor Products, including any security updates or patches provided by Vendor.

5.2. 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, Partner must purchase, or as applicable, Partner must resell to Customer (or, in the case of a GCP Distributor, to a Reseller for further resale to Customer), a Google-supplied technical support package for Google Cloud Platform pursuant to the Reseller Agreement. Google will provide Partner, Reseller, or Customer with the same level of technical support for Google Supported Products that Partner has purchased, or as applicable, resold to Customer (or, in the case of a GCP Distributor, to a Reseller for further resale to Customer), for Google Cloud Platform (e.g., Development, Production or Enterprise level support) as described at TSS Guidelines.

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

6.2. 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), 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 Partner does not agree to the revised Agreement, Partner may stop using the Marketplace to resell the applicable Vendor Products at any time under Section 7.2 (Cessation of Use). Partner’s continued use of the Marketplace after such material change will constitute Partner’s consent to such changes. 

(b) If a change under this Section 6.2 has a material adverse impact on Partner during an active subscription term for a Subscription Product and is not a result of Google complying with a court order or applicable law, Partner may notify Google within sixty (60) days of the change that Partner objects to the change. Upon such notice, Partner will remain governed by the terms in effect immediately prior to the change until the end of the then-current subscription term.

6.3. To Fees. Partner 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.

7.1. 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, Partner must cease resale of the applicable Vendor Products and must have its Customer cease use of the applicable Vendor Products, unless its 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, Partner will be required to pay all Fees for Subscription Products for the remainder of the subscription terms for such products. If Partner is the terminating party, then (i) Google will provide to Partner a prorated refund of any Fees prepaid by Partner for the Subscription Product, and (ii) Partner’s obligation to pay additional Fees for Subscription Products will be relieved for the remaining portion of the subscription term.

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

7.3. Removal or Termination of Subscription Products. Except as set forth in Section 7.1 (Termination of Agreement), Google may remove a Subscription Product from the Marketplace, terminate Partner’s subscription to a Subscription Product, or otherwise limit or revoke Partner’s, Reseller’s, Customer’s, and Partner End User’s access to a Subscription Product during the then-current subscription term only if:

(a) Google is no longer contractually permitted to offer the Subscription Product on the Marketplace or to Partner, Reseller, or 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 Partner, Reseller, or 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 Partner, Reseller, or 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 7.3 and (ii) at least six (6) months’ notice where practicable before taking any action pursuant to Section 7.3(a)-(b).

7.4. Fees for Removed Subscription Products. If Google takes any action under 7.3 for any reason other than Partner, Reseller, or Customer’s breach of the applicable Vendor Agreement before the subscription term for the Subscription Product has expired, then (i) Google will provide to Partner a prorated refund of any Fees prepaid by Partner for the Subscription Product, and (ii) Partner’s obligation to pay additional Fees for the Subscription Product will be relieved for the remaining portion of the subscription term.

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

The confidentiality terms in Partner’s Reseller 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. Partner acknowledges and agrees that Google may share certain account and usage information related to its purchases and Customer’s 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, Partner retains all Intellectual Property Rights in Partner Data, and Google retains all Intellectual Property Rights in the Marketplace.

10.1. Except as expressly provided for in this 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.

10.2. 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 Partner 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 convenience, and the inclusion of any link to a Linked Site does not imply endorsement by Google of the Linked Site.

12.1. Limitation on Indirect Liability. To the extent permitted by applicable law and subject to Section 12.3 (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.

12.2. 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 Partner for purchase of Vendor Products for resale to Customers (or, in the case of a GCP Distributor, to a Reseller for further resale to Customer) during the twelve (12) months before the event giving rise to the Liability.

12.3. 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.

Partner may state publicly that it is a reseller of Vendor Products via 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.

14.1. Notices. Under the Agreement, notices to Partner 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. Partner is responsible for keeping its Notification Email Address current.

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

14.3. 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 Partner assigns this Agreement to an Affiliate in another jurisdiction such that there is a change in the Google contracting entity as defined at Contract 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 15 (Regional and Public Sector Terms), the applicable terms in that section will apply from the moment of the assignment.

14.4. 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.

14.5. 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.

14.6. 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.

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

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

14.9. 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.

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

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

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

14.13. Governing Law. The Reseller Agreement’s governing law and (if applicable) dispute resolution provisions also apply to this Agreement.

14.14. Amendments. Except as stated in Section 6 (Modifications), any amendment must be in writing, signed by both parties, and expressly state that it is amending this Agreement.

14.15. Survival. The following Sections will survive expiration or termination of this Agreement: Section 2 (Payment Terms and Discount), Section 7.1 (Termination of Agreement), Section 7.2 (Cessation of Use), Section 7.4 (Fees for Removed Subscription Products), Section 7.5 (Transition Assistance), Section 8 (Confidential Information), Section 9 (Intellectual Property Rights), Section 10 (Disclaimer), Section 11 (Linked Sites), Section 12 (Limitation of Liability), Section 14 (General), and Section 15 (Regional and Public Sector Terms).

14.16. 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.

14.17. 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.

14.18. 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.

14.19. Definitions.

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

“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.

“Partner Data” has the meaning given to it in the Reseller Agreement.  

“Customer” means the entity to which Partner or Reseller resells Vendor Products purchased from the Marketplace.

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

“GCP Account” means Partner’s, Reseller’s, or Customer's Google Cloud Platform account, as applicable.

“GCP Admin Console” means the online console(s) and/or tool(s) provided by Google to Partner or Reseller for administering Google Cloud Platform services.

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

“GCP Distributor”, means an entity authorized by Google to distribute GCP under the Google Cloud Partner Advantage Program or any successor channel partner program.

“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. For the avoidance of doubt, Marketplace is neither a Google Product nor Google Service and any terms of the Reseller Agreement relating to Google Products or Google Services do not apply to Marketplace.

“Marketplace TOS” or “Marketplace Terms of Service” means the then-current direct Marketplace terms provided at: https://cloud.google.com/terms/marketplace/launcher. 

“Notification Email Address” means the email address(es) designated by Partner in its Google Cloud Platform Admin Console.

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

“Program” refers to the Google Cloud channel partner program as described in the Program Guide and as such program may be rebranded from time to time by Google.

“Program Guide” means the then-current Google Cloud Partner Advantage Guide for the Program available at the Program Resource Site or at any other location communicated to Partner by Google.

“Program Resource Site” means Google’s then-current website at https://www.partneradvantage.goog that makes relevant information regarding Google’s Partner Program available to Partner.

“Reseller” means either a third party that is directly authorized by Google to resell or supply the applicable Vendor Product(s) under the Program or an entity who is authorized by a GCP Distributor to resell or supply the applicable Vendor Product(s).

“Subscription Product” means a Vendor Product for which the Partner 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, Program Resource Site, and TSS Guidelines.

“Vendor” means a third-party software or service vendor that makes offerings available on the Marketplace for resale by Google-authorized resellers under the Program.

“Vendor Agreement” means a separate agreement (between Vendor and Customer, Reseller, and/or Partner) governing Customer’s access to and 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, and/or Partner’s or Reseller’s access to and resale 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.”

Partner agrees to the following modifications to the Agreement if Partner’s billing address is in the applicable regions described below.

Asia Pacific - All regions, excluding India

The definition of "Taxes" under Section 14.19(u) (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 - Indonesia

Section 7.1 (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, Partner must cease resale of the applicable Vendor Products and must have its Customer cease use of the applicable Vendor Products, unless its 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, Partner will be required to pay all Fees for Subscription Products for the remainder of the subscription terms for such products. If Partner is the terminating party, then (i) Google will provide to Partner a prorated refund of any Fees prepaid by Partner for the Subscription Product, and (ii) Partner’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 14.18 (Conflicting Languages) is replaced in its entirety as follows:

14.18 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 (together, the “Agreement”) are entered into between Google Cloud India and the entity or person agreeing to these terms ("Partner") and govern Partner’s access to and use of (as applicable), the Marketplace and Vendor Products for resale to Customer (or, in the case of a GCP Distributor, to a Reseller for further resale to Customer). By using the Marketplace, including by purchasing, reselling, or accessing any product or service through the Marketplace, Partner agrees to be bound by this Agreement. 

This Agreement is effective when a Partner purchases a Vendor Product on the Marketplace for resale to Customers (or, in the case of a GCP Distributor, to a Reseller for further resale to Customer) (the "Effective Date"). If you are accepting on behalf of Partner, you represent and warrant that (i) you have full legal authority to bind Partner to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of Partner, to this Agreement.

Asia Pacific - Australia

A new Section 10.3 is added as follows:

10.3. This Section 10.3 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 14.16 (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 10 (Disclaimer) is replaced in its entirety with the following:

10. Disclaimer. Subject to Section 12.3 (Unlimited Liabilities): 

10.1 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 

10.2 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 12 (Limitation of Liability) is replaced in its entirety with the following:

12. Limitation of Liability.

12.1 Limitation on Indirect Liability. To the extent permitted by applicable law and subject to Section 12.3 (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) loss of revenues; (c) loss of profits; (d) loss of savings; or (e) loss of goodwill.

12.2 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 Partner to Google for purchase of Vendor Products for resale to Customers (or, in the case of a GCP Distributor, to a Reseller for further resale to Customer) during the twelve (12) months before the event giving rise to the Liability.

12.3 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 14.12 (Equitable Relief) is replaced in its entirety with the following:

14.12. Equitable Relief. The Reseller Agreement’s governing law and (if applicable) dispute resolution provisions 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 Partner 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 14.16 (Entire Agreement) is replaced in its entirety with the following:

14.16 Entire Agreement. Subject to Section 12.3 (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 14.19 (Definitions):

“reasonable efforts” means reasonable endeavours.

The following definitions in Section 14.19 (Definitions) replace the existing definitions in Section 14.19 (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 licence key purchased on the Marketplace.

Public Sector

The following sentence is added to Section 8 (Confidential Information): 

Notwithstanding anything to the contrary in this Agreement or the Reseller 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 14.3 (Assignment) is deleted in its entirety.

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 on in this Appendix will prevail.

For Agency Transactions where both the Vendor and Partner 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

Partner authorizes GPC to, in accordance with the payment terms in its GCP Agreement, submit charges (and, in the case of refunds, credits) to Partner’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. Partner’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 Partner 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 Partner’s, Reseller’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 Partner for any delay in making settled funds available under this Section to the Vendor.

3. Disclaimer/Limitation of Liability

Partner agrees that Section 10 (Disclaimer) and Section 12 (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 Partner’s payment method issuer or account-holding institution as the Vendor’s payment agent, pending transfer to the Vendor. Partner will not have access to funds in the process of transmission to the Vendor. Partner also will not earn interest on such funds, and the funds are not insured for Partner’s benefit by any government agency. Partner 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.