Google Cloud Marketplace Standard EULA

VERSION: 2
DATED: January 27th, 2021

This Google Cloud Marketplace Standard EULA (this “Agreement”) is between the person or entity described as the provider of the Service on the Listing (“Elm Computing”) and the person or entity agreeing to these terms (“You” or “Customer”). This Agreement states the terms under which Vendor will provide the Service to You. By accessing or using the Service, You are agreeing to the terms of this Agreement (the date of such action, the “Effective Date”). If You are entering into this Agreement on behalf of an entity, then You represent and agree that You have the legal authority to bind that entity to this Agreement. If You do not accept the terms of this Agreement, then you cannot use the Service.

Google has made this Agreement available to help facilitate contracting between the Vendor and Customer. The parties acknowledge that (1) Google is not a party to this Agreement, (2) Google is not responsible for any of the parties’ actions, obligations, or liability under this Agreement, (3) the Agreement is made available “as-is” and “as available” without any warranty of any kind from Google, and (4) the parties’ use of this Agreement is at their own risk.

1. Applicability; Provision of the Service

1.1 Access and Use

During the Term and in accordance with this Agreement, Customer may access and use the Service solely for Customer’s internal business purposes.

1.2 Registration and Account

To use the Service, Customer will create an Account. Customer must provide complete and accurate information when creating the Account and keep the information complete and accurate at all times. Customer is responsible for (a) maintaining the security of its Account (for example, any applicable login credentials or security keys), (b) all activities that occur under Customer’s Account, and (c) any other actions taken in connection with Customer’s Account. Vendor and Vendor’s Affiliates are not responsible for unauthorized access to Customer’s Account. Customer will notify Vendor immediately if Customer believes there has been unauthorized access to or use of Customer’s Account.

1.3 Support

Vendor will provide support for the Service as provided in Vendor’s applicable support policy and in accordance with the level of support purchased by Customer (the “Support”).

1.4 Service Level Agreement

If specified for the Service on the Listing, Vendor will provide the Service in accordance with the applicable service level agreement. Not all services listed on the Marketplace include a service level agreement.

2. Customer Obligations

2.1 Restrictions

Customer will not, and will not allow any third party to:

  • (a) use the Service in violation of laws or regulations,
  • (b) use the Service to violate the rights of others,
  • (c) use the Service in high-risk, hazardous environments requiring fail-safe performance, including in the operation of nuclear facilities, aircraft navigation or control systems, air traffic control, or weapons systems, or any other application in which the failure of the Service could lead to severe physical or environmental damages,
  • (d) resell or sublicense the Service,
  • (e) disable or circumvent any aspects of the Service, including security mechanisms used by the Service, or attempt to do the same,
  • (f) use the Service to perform any malicious activity, including to violate the security or integrity of any network, computer or communications system, software application, or network or computing device,
  • (g) generate, distribute, publish or facilitate unsolicited mass email, promotions, advertisements or other solicitations,
  • (h) process or store any Customer Data that is subject to the International Traffic in Arms Regulations maintained by the Department of State,
  • (i) publish or provide any benchmark or comparison test results that pertain to the Service, or
  • (j) modify, adapt, or create a derivative work of the Service.

2.2 Applicable Law

Customer will comply with all laws, rules, and regulations applicable to Customer’s use of and access to the Service. Vendor will comply with all laws, rules, and regulations applicable to Vendor’s provision of the Service.

2.3 Enforcement

Vendor may, but has no obligation to:

  • (a) investigate any violation of this Section 2 (Customer Obligations) or misuse of the Service, and
  • (b) remove or modify any Customer Data, or disable access to any resource, that violates the foregoing.

2.4 Responsibility for Customer Data

Customer is responsible for the Customer Data, including the accuracy and completeness of such Customer Data, and any loss, liabilities or damages resulting from the Customer Data, regardless of the nature of the Customer Data. Customer is responsible for backing up or otherwise making duplicates of Customer Data. Customer is responsible for communicating with the Service through encrypted and authenticated connections, as may be required by Vendor, and for transmitting all Customer Data using appropriate security methods.

2.5 Protected Health Information

Customer will not store or process any Protected Health Information using the Service unless Customer has a Business Associate Agreement with Vendor.

2.6 Representations and Warranties

Customer represents and warrants that:

  • (a) it owns or has the necessary rights and licenses to provide the Customer Data to the Service; and
  • (b) the provision of the Customer Data to, and use of the Customer Data by, the Service as contemplated in this Agreement will not infringe any third party’s rights, including Intellectual Property Rights.

3. Data Processing

3.1 Use and Performance Data

Vendor may collect and analyze data regarding Customer’s use of the Service, excluding any personal data (“Performance Data”). Vendor may use this information for its own business purposes, including to maintain, operate, and improve the Service, monitor and analyze activities in connection with the Service, as well as to create anonymized statistics for Vendor’s own marketing purposes.

3.2 Data Processing Addendum

Unless a separate agreement covering the subject matter of this Agreement is entered into by the parties that specifically references the Data Processing Addendum, each party will comply with the Data Processing Addendum attached to this Agreement as Attachment 1. The Data Processing Addendum is incorporated into this Agreement by reference.

3.3 Security

Vendor will implement reasonable technical and organizational safeguards designed to protect Customer Data against unauthorized loss, destruction, alteration, access, or disclosure.

3.4 Use of Customer Data

Vendor will not access or use Customer Data except as necessary to provide the Service.

5. Payment

The parties agree that Customer’s sole payment obligations for the Service are contained in the GCP Marketplace Agreement. Customer may not use or access the Service if Customer does not comply with all of its payment obligations specified in the GCP Marketplace Agreement.

6. Confidential Information

6.1 Obligations

The recipient will not disclose the Confidential Information, except to Affiliates, employees, agents, or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that those people and entities use the received Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to keep it confidential.

6.2 Required Disclosure

Notwithstanding any provision to the contrary in this Agreement, the recipient may also disclose Confidential Information to the extent required by applicable Legal Process, provided that the recipient uses commercially reasonable efforts to:

  • (i) promptly notify the other party of such disclosure before disclosing, and
  • (ii) comply with the other party's reasonable requests regarding its efforts to oppose the disclosure.

Notwithstanding the foregoing, subsections (i) and (ii) above will not apply if the recipient determines that complying with (i) and (ii) could:

  • (a) result in a violation of Legal Process;
  • (b) obstruct a governmental investigation; or
  • (c) lead to death or serious physical harm to an individual.

As between the parties, Customer is responsible for responding to all third-party requests concerning its use of the Service.

7. Intellectual Property

7.1 Ownership

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 Rights. As between Customer and Vendor, Customer owns all Intellectual Property Rights in the Customer Data, and Vendor owns all Intellectual Property Rights in the Service.

7.2 Feedback

At its option, Customer may provide feedback and suggestions about the Service to Vendor (“Feedback”). If Customer provides Feedback, then Vendor and its Affiliates may use that Feedback without restriction and without obligation to Customer.

7.3 DMCA

Vendor provides information to help copyright holders manage their intellectual property online, but Vendor cannot determine whether something is being used legally without input from the copyright holders. Vendor will respond to notices of alleged copyright infringement and may terminate repeat infringers in appropriate circumstances as required to maintain safe harbor for online service providers under the U.S. Digital Millennium Copyright Act. If Customer believes a person or entity is violating Customer’s copyrights, Customer can notify Vendor at Vendor’s notice address described in Section 12.1 (Notices).

8. Warranties and Disclaimers

8.1 Mutual

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 and regulations applicable to its provision, or use, of the Service, as applicable.

8.2 Vendor Performance Warranty

Vendor warrants that the Service will perform substantially in accordance with the Documentation. If Vendor is providing Support, Vendor warrants that it will perform the Support in a diligent and workmanlike manner consistent with industry standards.

8.3 Remedies

If the Service or Support fails to conform to the warranties in Section 8.2 (Vendor Performance Warranty), Vendor will promptly, at its option and expense, correct the Service and re-perform the Support as necessary to conform to the warranties. If Vendor does not correct the Service or re-perform the Support to conform to the warranties within a reasonable time, not to exceed 30 days, as Customer’s sole remedy and Vendor’s exclusive liability (except as provided in Section 10), Customer may terminate this Agreement without further liability and, if the Service was purchased on a subscription basis, Vendor will issue a refund to Customer of any fees prepaid by Customer, prorated for the unused portion of the subscription.

8.4 Disclaimer

Except as stated in this Section 8 (Warranties and Disclaimers), the Service and, if applicable, Support are provided on an “AS-IS” basis. To the fullest extent permitted by law, Vendor disclaims and this Agreement excludes any implied or statutory warranty, including any warranty of title, non-infringement, merchantability or fitness for a particular purpose. Vendor does not warrant that the Service will operate uninterrupted or error-free, or that all errors will be corrected.