Exhibit A
GOOGLE APPS PRODUCT AGREEMENT EXTENSION
This Google Apps Product Agreement Extension is an addendum to the Reseller Master Agreement (the "Addendum") entered into between P.D.R Solutions FZC ("Parent") and you ("Reseller"). The terms of this Addendum govern Reseller's offering of the Products provided by Google (as defined in Section 9) to Reseller's End Users (as defined in Section 9).
The terms of this Addendum are in addition to the terms contained in the Reseller Master Agreement. If there is a conflict between the terms of this Addendum and the terms of the Reseller Master Agreement with regard to the Products, the terms of this Addendum shall prevail. Except as otherwise amended, the terms of the Reseller Master Agreement shall remain in full force and effect. Parent has the right to modify the terms of this Addendum at any time.
1. End User Agreements.
1.1 End User Agreement Requirement. Reseller must ensure that any resale and/or supply of the Products to an End User (as defined in Section 9) is governed by an enforceable End User Agreement (as defined in Section 9).
1.2 Records. Reseller will: (a) keep copies of all End User Agreements; (b) track and keep records of all online acceptances of End User Agreements; and (c) provide such copies and/or online acceptance details to Parent upon Parent's request.
1.3 Enforcement. Reseller will enforce each End User Agreement with at least the same degree of diligence used by Reseller to enforce similar agreements for its own products, but in no event less than a reasonable degree of diligence.
1.4 Required Provisions. Reseller will include the following provisions in each End User
Agreement:
(a) Reseller, Parent, Google and End User are independent contractors with respect to the resale and purchase of the Product;
(b) Reseller is the processor of any personal data processed by it on End User's behalf, and End User is the controller of any such data, as the terms "controller", "processed", "processor" and "personal data" are defined in the EU Directive (as defined in Section 9);
(c) End User will permit Reseller to disclose End User Data to its suppliers as reasonably required in connection with End User's use of the Product or any End User support issues; and
(d) End User agrees that Parent and/or Google may contact End User directly in the event that the Reseller Master Agreement and/or this Addendum between Parent and Reseller are terminated for the purpose of providing the Product without disruption.
1.5 Multi-tier Distribution. Reseller agrees that the Products may be made available to Sub-Resellers and Lower Tier Sub-Resellers (as defined in the Reseller Master Agreement) only after each of those parties enter into a legally binding agreement that is no less protective of Google and Parent than this Addendum and which contains the requirements contained herein applicable to the Reseller.
2. Google TOS. Reseller will ensure that End User is notified of and accepts the Google TOS (as defined in Section 9), with no alteration or amendment (unless otherwise expressly agreed in writing by Google), prior to logging into the Product. Reseller will: (a)not accept (or allow any other third party to accept) the Google TOS on behalf of any End User; and (b)not accept (or allow any other third party to accept) separate terms of service on behalf of any End User for use of other Google services; except where in each of the foregoing cases Reseller has been expressly authorized to do so on End User's behalf under the End User Agreement.
3. Privacy and Security.
3.1 Privacy Policy. Reseller is responsible for maintaining appropriate privacy policies as required in accordance with applicable laws.
3.2 Processing Personal Data on Google's Behalf. To the extent that Reseller processes any personal data (e.g., names and contact details of End Users) in connection with the Products on Google's behalf (as the terms "personal data" and "process" are defined in the EU Directive), Reseller will:
(a) comply with, and only act on, instructions from and on behalf of Google regarding the processing of that personal data;
(b) not process that personal data for any purpose other than the performance of its obligations under this Addendum;
(c) ensure that appropriate technical and organizational measures are taken to avoid unauthorized or unlawful processing of that personal data and against loss or destruction of, or damage to, that personal data;
(d) ensure the reliability of, and be responsible for, all of Reseller's employees, agents and contractors who will have access to that personal data;
(e) not, by any act or omission, place Google in breach of Data Protection Legislation (as defined in Section 9);
(f) inform Parent immediately of any suspected or confirmed data protection breaches or unauthorized or unlawful processing, loss, or destruction of, or damage to, that personal data;
(g) ensure that any third party sub-contractor engaged by Reseller to process that personal data on behalf of Google only uses and accesses that data in accordance with the terms of this Addendum and is bound by written obligations requiring it to provide at least the level of data protection required under this Section 3; and
(h) not process, or cause to be processed, that personal data outside the European Economic Area unless Reseller adopts a compliance solution which achieves compliance with the terms of Article 25 of the EU Directive.
3.3 Processing Personal Data on End Users' Behalf. Reseller will not process any data on any End User's behalf that is subject to regulatory requirements without first implementing appropriate terms in the applicable End User Agreement for protection of such data, including, where applicable, with respect to the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") and the rules and regulations thereunder, as amended. For the avoidance of doubt, Reseller acknowledges that Parent's products and services are not HIPAA compliant and are not appropriate for the storage or control of access to sensitive data, such as information about children or medical or health information. Unless otherwise agreed in an applicable End User Agreement, Reseller will do the following, at a minimum, with respect to all personal data that it processes on an End User's behalf (as the terms "personal data" and "process" are defined in the EU Directive):
(a) comply with, and only act on, instructions from or on behalf of that End User regarding the processing of that personal data;
(b) not process that personal data for any purpose other than for the performance of its obligations under this Addendum or the End User Agreement;
(c) ensure that appropriate technical and organizational measures are taken to avoid unauthorized or unlawful processing of that data and against loss or destruction of, or damage to, that personal data;
(d) ensure the reliability of, and be responsible for, all of Reseller's employees, agents and contractors who will have access to that personal data;
(e) not, by any act or omission, place that End User or Google in breach of Data Protection Legislation;
(f) inform End User immediately of any suspected or confirmed data protection breaches or unauthorized or unlawful processing, loss, or destruction of, or damage to, that personal data;
(g) ensure that any third party sub-contractor engaged by Reseller to process that personal data on behalf of End User only uses and accesses that data in accordance with the terms of this Addendum and is bound by written obligations requiring it to provide at least the level of data protection required under this Section 3; and
(h) not process, or cause to be processed, that personal data outside the European Economic Area unless Reseller adopts a compliance solution which achieves compliance with the terms of Article 25 of the EU Directive.
4. Obligations.
4.1 Compliance with Laws. Reseller will comply with, and will not attempt to cause a violation of, all applicable laws, rules and regulations.
4.2 Indemnification Obligations.
(a) Reseller will defend Google and its Affiliates (collectively, the "Google Indemnified Parties"), and indemnify them against (1)settlement amounts approved by Reseller, and (2)damages and costs awarded in a final judgment against the Google Indemnified Parties by a competent court in any third-party legal proceeding to the extent arising from:
(i) infringement of any third party's Intellectual Property Rights (as defined in Section 9) by Google Indemnified Parties' use of Reseller's technology or Brand Features (as defined in Section 9) in accordance with this Addendum;
(ii) Reseller's breach of the terms of this Addendum; or
(iii) data maintained or submitted by Reseller in relation to the Product.
(iv) acts and omissions of Reseller's Sub-Resellers and Lower Tier Sub-Resellers in relation to the subject matter of this Addendum.
(b) Reseller's indemnification obligations under this section are conditioned on the Google Indemnified Parties requesting indemnification: (a)by promptly notifying Reseller in writing of any allegations that preceded the legal proceeding, provided, however, that any failure to provide such notice shall relieve Reseller of its indemnification obligations hereunder only to the extent of any actual prejudice suffered by Reseller as a result of such failure; (b)reasonably cooperating with Reseller to resolve the allegation(s); and (c)tendering sole control of the indemnified portion of the legal proceeding to Reseller. The Google Indemnified Parties may appoint their own non-controlling counsel, at their own expense.
(c) For the avoidance of doubt, the indemnification obligations contained herein relate to the Products and are in addition to any of Reseller's indemnification obligations under the Reseller Master Agreement.
4.3 Inconsistent Representation or Warranty. Reseller will not make any representation or warranty which are, or enter into any agreement which is, inconsistent with materials regarding the Products.
4.4 Misleading Statements. If Reseller offers commitments or remedies, or both, financial or otherwise, that are contrary to or absent from the Google TOS, then Reseller is solely liable for all additional commitments or remedies. Reseller will not make any unauthorized, false, misleading, or illegal statements regarding the Products.
4.5 Publicity, Marketing and Promotion.
(a) Publicity. Reseller will use commercially reasonable efforts to market and promote the Products, and will do so in accordance with the training and materials that may be provided. Without Parent's prior written approval (which may be via e-mail), which approval will not be unreasonably withheld or delayed, Reseller will not issue, any press releases, public announcement, or public statement regarding its authority to resell Products.
(b) Marketing and Promotion. Reseller will use commercially reasonable efforts to market and promote the Products to potential End Users in the Territory (as defined in Section 9), and will do so in accordance with the training made available to Reseller. Reseller is responsible for creating any required advertising materials at its own cost and expense, in accordance with the requirements made available to Reseller.
4.6 Deceptive Practices. Reseller will not engage in, and will not solicit, accept, or maintain any End User who, engages in, illegal or deceptive trade practices or any other behavior prohibited by this Addendum and/or the Google TOS.
4.7 High Risk Activities. Reseller will not resell or supply the Products in connection with any use involving High Risk Activities (as defined in Section 9).
4.8 No Subcontracting. Reseller may not subcontract any of its obligations regarding the marketing, resale, or supply of the Products.
4.9 Restrictions. Except as expressly permitted in this Addendum, Reseller will not: (a)resell or supply the Products to any third party who will resell, distribute, supply, lease, or allow another third party to use, the Products; (b)use the Products or any Google documentation provided for any purpose other than to resell and/or supply the Products as permitted hereunder; or (c)adapt, alter, modify, decompile, translate, disassemble, or reverse engineer any Product or any part thereof, including the source code and any other underlying ideas or algorithms of the software forming part of the Product (except to the extent such act cannot be prohibited by law or is expressly permitted under this Addendum).
4.10 Reseller Status. Reseller will not represent itself as an agent of Google for any purpose.
4.11 End User Notifications. Reseller agrees to procure the appropriate consents from End User, and provide relevant End User contact notices, to allow Google to communicate directly with End User only for the following purposes: (i)to conduct customer service and satisfaction surveys; (ii) to the extent required to provide options regarding continuity of the Product(s) (including where Reseller's authorization to continue to resell or provision the Product has been terminated); and (iii)for purposes related to the provisioning of the Product(s) to End User's account, including in relation to any Product updates or security incidents.
4.12 Reseller will disclaim, to the extent permitted by applicable law, all warranties with respect to the Products, including without limitation, warranties for merchantability, fitness for a particular purpose, and non-infringement; and disclaim Google's liability for any damages, whether direct, indirect, incidental or consequential, arising from Reseller's sale of the Product.
5. Termination.
5.1 Parent's Termination Rights. In addition to Parent's termination rights contained in the Reseller Master Agreement, Parent may terminate this Addendum immediately upon written notice to Reseller if as determined in Parent's sole discretion:
(a) Reseller is in material breach of this Addendum and, where that breach is capable of cure, fails to cure the breach;
(b) Reseller is in material breach of this Addendum and that breach is incapable of cure;
(c) Reseller ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days;
(d) Reseller is in material breach of this Addendum more than two times, notwithstanding any cure of such breaches;
(e) Reseller engages in illegal or deceptive trade practices or any other prohibited behavior;
(f) Reseller has violated or caused Parent or Google to violate Anti-Bribery laws, or that such a violation is reasonably likely to occur; or
(g) Reseller would harm or devalue Parent's or Google's business, brand, or name; or violate Parent's or Google's principles or guidelines.
5.2 Effect of Termination. In the event that the Reseller Master Agreement and/or this Addendum are terminated, Reseller grants Parent the right to contact End Users directly or to provide the End Users' information to Google for Google to contact them directly for the purpose of providing the Product without disruption. Reseller hereby represents and warrants that it has obtained the necessary permissions from its End Users to grant the rights contained herein.
6. Confidentiality. Reseller will use, and ensure that its personnel use, Confidential Information (as defined in Section 9) only to exercise rights and fulfil obligations under this Agreement, while using no less than reasonable care to keep it confidential.
7. Modification of the Services. Reseller understands that Google may make commercially reasonable modifications to the Products.
8. Google Intellectual Property Rights; Brand Features.
8.1 Intellectual Property Rights. Google owns all rights, title, and Intellectual Property Rights in and to the Products. All ownership rights, title, and Intellectual Property Rights in and to the content accessed through any Products are the property of the applicable content owner and may be protected by copyright or other applicable laws.
8.2 Google Brand Features. For as long as Reseller is authorized to resell/supply Products, Google grants to Reseller a non-exclusive, non-royalty bearing, sublicensable license to display Google's Brand Features solely for the purpose of Reseller's marketing, resale and/or supply of the Products, subject to, and in accordance with, this Addendum and the Trademark Guidelines (as defined in Section 9).
8.3 Reseller Brand Features. Reseller grants to Google a non-exclusive, non-royalty bearing, and non sublicensable licence during the Term to include Reseller's Brand Features in presentations, materials related to the Google Products.
8.4 Restricted Use. Each party may use the other party's Brand Features only as expressly permitted in this Addendum. A party may revoke the other party's right to use its Brand Features pursuant to this Addendum with written notice to the other and a reasonable period to stop the use.
8.5 Goodwill. All goodwill arising from Reseller's use of Google's Brand Features shall belong to Google. All goodwill arising from Google's use of Reseller's Brand Features shall belong to Reseller.
9. Definitions.
"Affiliate" means, in relation to each of the parties, any entity that directly or indirectly controls, is controlled by, or is under common control with that party.
"Brand Features" means the trade names, trademarks, service marks, logos, domain names, and other distinctive features of an entity, as secured by such entity from time to time.
"Confidential Information" means information exchanged under this Addendum, and that is marked as confidential or would normally be considered confidential information under the circumstances. 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.
"Data Protection Legislation" means legislation implementing the EU Directive and any other applicable data protection and privacy legislation, guidelines and industry standards.
"EU Directive" means Directive 95/46/EC of the European Parliament and of the Council on the Protection of Individuals with regard to the Processing of Personal Data and on the Free Movement of such Data.
"End User(s)" means those parties that have a principal place of business within the Territory and to whom Reseller is permitted to resell the Product(s) in accordance with this Addendum.
"End User Agreement" means an agreement between Reseller and End User pursuant to which Reseller makes the Product(s) available to End User.
"End User Data" means: (a)any data received by Reseller from, or maintained by Reseller on behalf of, an End User in connection with the resale of the Products.
"Export Laws" means all applicable export and re-export control laws and regulations, including trade and economic sanctions maintained by the Treasury Department's Office of Foreign Assets Control and the International Traffic in Arms Regulations ("ITAR") maintained by the Department of State.
"Google" means the third party provider of the Products.
"Google TOS" means those terms of service that govern use of the Product and that must be accepted and agreed to by End User prior to End User's first log in to the Product.
"High Risk Activities" means uses such as the operation of nuclear facilities, air traffic control or life support systems, where the failure of the Product could lead to death, personal injury, or environmental damage.
"Intellectual Property Rights" means current and future worldwide rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and other similar rights.
"Product(s)" means, for the purposes of this Addendum only the Google Apps Core Services, as made available for resale by Parent and as further described at the following URL: http://www.google.com/apps/intl/en/terms/userfeatures.html (as the content at such URL and the URL itself may be updated or modified by Google from time to time).
"Territory” means those regions where resale and/or supply of the relevant Product is permitted. Territory excludes any countries where either party is prohibited from providing the Product due to applicable Export Laws (as defined in Section 9).
"Trademark Guidelines" means Google's guidelines for use of Google Brand Features, located at the following URL: http://www.google.com/permissions/ (as the content at such URL and the URL itself may be updated or modified by Google from time to time).
