Google Customer Engineering Migration Center Project Agreement (“Agreement”)

This Agreement is entered into by Google and the entity or person agreeing to these terms ("Customer") and governs the provision and receipt of CE Services for Migration Center assessment.

2.1. “Background IP” means all intellectual property owned or licensed by a party (a) before the Effective Date of the Agreement or (b) independent of the CE Services.

2.2. “CE Services” means all services provided by Google customer engineers as part of the Project. 

2.3. “Customer Data” means non-production, non-personal data which Customer provides to Google for the Project.

2.4. “GCP Agreement” means the Google Cloud Platform License Agreement, Google Cloud Enterprise Trial Participation Agreement, or Google Cloud Platform Service Schedule to the Cloud Master Agreement previously entered into between Google or its affiliate and Customer, as applicable.

2.5. “GDPR” means the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 (“EU GDPR”) or other applicable privacy law or regulation including, but not limited to, the EU GDPR as amended and incorporated into UK law under the UK European Union (Withdrawal) Act 2018, and applicable secondary legislation made under that Act (“UK GDPR”) and the Brazilian Federal Law No. 13,709/18 (“LGPD”), as applicable.

2.6. “Google Technology” means: (a) Google Background IP, (b) all intellectual property and know-how applicable to Google products and services, and (c) tools, code, algorithms, modules, materials, documentation, reports and technology developed in connection with any Google 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 Data. 

2.7. “Personal Data” as used in this Agreement has the meaning given in the GDPR.

2.8. “Project” means an initiative for which Customer authorizes and instructs Google to access Customer Data for the purposes of using Migration Center to evaluate possible solutions to Customer’s business needs on Google Cloud Platform.

Google will provide CE Services, at no cost, to Customer, in accordance with the Agreement, subject to Customer fulfilling its obligations under Section 4 (Customer Obligations).

4.1. Customer’s Processing Instructions. Customer authorizes and instructs Google to access and process the Customer Data only for the purposes of conducting the Project. Customer will be responsible for terminating such access upon completion or termination of the Project.

4.2. Restrictions. As part of the Project, Customer (a) will not share Personal Data; and (b) will provide Google with access only to a non-production instance of Google Cloud Platform.

4.3. Consents. Customer is responsible for any consents and notices required to permit Google to access, view, or process any Customer Data under this Agreement.

Confidential information disclosed under this Agreement is governed by the effective non-disclosure agreement between the parties or the confidentiality obligations in the GCP Agreement, as applicable.

Customer retains all intellectual property rights in Customer Data. Google retains all intellectual property rights in Google Technology.

7.1. Mutual Warranty. Each party represents and warrants that it will follow all laws applicable to its provision, receipt, or use of the CE Services, as applicable.

7.2. DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED FOR IN THE AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CE SERVICES ARE NOT COVERED BY ANY GOOGLE INDEMNITY AND ARE PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES, WARRANTY REMEDIES OR REPRESENTATIONS OF ANY KIND.

The Agreement will start on the Effective Date and continue until its termination as described in this Section 8. A party may terminate the Agreement for convenience upon 30 days’ written notice to the other party. Customers may terminate this agreement also through the Migration Center user interface within Google Cloud Console.

To the extent permitted by applicable law, 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. Except for damages arising from Section 10 (Indemnity), each party's total aggregate liability for damages arising out of or relating to the Agreement is limited to US $10,000.

Customer will defend and indemnify Google and its affiliates, directors, officers, and employees against any third-party legal or regulatory proceeding to the extent arising from Customer’s breach of Section 4.2 (Restrictions) of this Agreement.

California law will govern all disputes arising out of or relating to this Agreement or any related Google products or services, regardless of any conflict of laws rules. These disputes will be resolved exclusively in the federal or state courts of Santa Clara County, California, USA, and the parties consent to personal jurisdiction in those courts.

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

12.1. For Latin America, Section 11 (Governing Law) is replaced as follows:

11.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, 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 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 (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 11 (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 11 (Governing Law; Arbitration) will be considered Confidential Information under Section 5 (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 5 (Confidential Information), the parties may disclose the information described in this Subsection 11 (g) to a competent court as may be necessary to file any order under Subsection 11 (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.

12.2. For Europe, the Agreement shall be amended as follows:

Section 9 (Limited Liabilities) is replaced as follows:

Section 9 (Liability)

9.1 Limited Liabilities. Neither party will have any liability arising out of or relating to the Agreement for any:

(a) loss of profits;

(b) loss of anticipated savings;

(c) loss of business opportunity;

(d) loss of reputation or goodwill; or

(e) indirect or consequential losses.

9.2. Limitation of Liability. Subject to Section 9.3 below each party’s total aggregate liability (whether under contract, tort (including negligence) or otherwise) for damages arising out of or relating to the Agreement is limited to US $10,000.

9.3. Exclusions. Nothing in the Agreement excludes or limits either party’s liability for:

(a) death or personal injury resulting from its negligence; 

(b) fraud or fraudulent misrepresentation; 

(c) obligations under Section 10 (Indemnity); or 

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

Section 11 (Governing Law) is replaced as follows:

11. Governing Law. The Agreement and any dispute(s) (contractual or non-contractual) concerning the Agreement or its subject matter or formation (a "Dispute" ) is/are governed by English law. 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. This Section 11 is 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").

12.3. For APAC, the Agreement will be amended as follows:

Section 9 (Limited Liabilities) is replaced as follows:

Section 9 (Liability)

9.1 Limited Liabilities. To the extent permitted by applicable law, 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.

9.2 Limitation of liability. Subject to Section 9.3 below each party’s total aggregate liability for damages arising out of or relating to this Agreement is limited to US $10,000.

9.3 Exclusions. Nothing in this Agreement excludes or limits either party’s liability for:

(a) death or personal injury resulting from its negligence or negligence of its employees or agents; 

(b) fraud or fraudulent misrepresentation; 

(c) obligations under Section 9 (Indemnity); or 

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

Section 11. (Governing Law) is replaced as follows:

11. Governing Law; Arbitration.

(a) ALL CLAIMS ARISING OUT 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 (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 (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 will be considered Confidential Information under the Agreement's confidentiality section, including (i) the existence of, (ii) any information disclosed during, and (iii) any oral communications or documents related to the arbitration proceedings. The parties may also disclose the information described in this Subsection (g) to a competent court as may be necessary to file any order under Subsection (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.

For Indonesia: A new section 13 is added as follows:

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.