AOPEN Australia & New Zealand
Google End User Terms
Last updated: July 2015
These Terms apply to the provision of any Google Products and/or Google Services (as applicable) by AOPEN to a Customer, including pursuant to an agreement (a) directly between AOPEN and the Customer or (b) between an authorised distributor or reseller of AOPEN and the Customer (in either case, a Supply Agreement) and is applicable where specified in an Order, the Supply Agreement or as otherwise required by AOPEN from time to time.
These Terms form a separate agreement between AOPEN and the Customer in respect of the supply of the applicable Google Products and/or Google Services. The Customer acknowledges and agrees that it is not permitted to use the applicable Google Products and/or Google Services except in accordance with these Terms.
In these Terms, unless the context requires otherwise:
Adobe means Adobe Systems, Inc (a corporation organized and existing under the laws of the State of Delaware, United States of America) and Adobe Software Ireland Limited (a company incorporated in Ireland), collectively;
Adobe Software means any Adobe software code included in Google Products provided by Google under the terms of an agreement between Google and AOPEN;
AOPEN means Great Connections Aust Pty Ltd (ABN 24 166 764 763) trading as AOPEN Australia & New Zealand, of Level 2, 6 Palmer Street, Richmond, Victoria 3121;
Customer means an end customer of the Google Products for all uses except redistribution or resale;
Google means Google, Inc (a corporation organised and existing under the laws of the State of Delaware, United States of America), Google Ireland Limited (a corporation organized and existing under the laws of Ireland) and Google Asia Pacific Pte Ltd (a corporation organized and existing under the laws of Singapore), collectively;
Google Chrome OS means the operating system software of that name provided by Google to AOPEN under the terms of an agreement between Google and AOPEN; and
Google Products means any products or services (including Google Services, as applicable) provided to the Customer under the Supply Agreement, which contains or requires Google Chrome OS or to which AOPEN otherwise specifies that these Terms apply;
Google Services means the Chrome device management services as described in the following URL: https://www.google.com/work/chrome/management-console/index.html?utm_source=search&utm_medium=online&utm_campaign=2015-Chrome-Global-CHR-BIZ-CfW-Search&utm_content=CFW&gclid=CjwKEAjwp_uqBRClvrrXmsbPog4SJACK4gIPCBEQHAlHQ_toP4-s0niZsgt_efZzhhe-S7bgqAaAsBoClljw_wcB (as the content at such URL and the URL itself may be updated or modified by Google from time to time), as provided by AOPEN to the Customer directly or indirectly pursuant to a Supply Agreement;
Google TOS means those terms of service that govern use of the Google Products and that must be entered into directly between Google and Customer, prior to Customer’s use of the Product, either (i) via acceptance by Customer when presented by Google online, or (ii) by written agreement between Google and Customer offline;
Supply Agreement means an agreement (a) directly between AOPEN and the Customer or (b) between an authorised distributor or reseller of AOPEN and the Customer, in respect of the provision of any Google Products and/or Google Services (as applicable) by AOPEN to a Customer, to which these Terms apply; and
Terms means this document.
2.1 Order of precedence
In the event that there is any conflict or ambiguity between these Terms and a Supply Agreement, the provisions of these Terms will prevail to the extent of that inconsistency.
2.2 Amendment of this document
The terms and conditions incorporated in this document may, from time to time, be amended in accordance with AOPEN's arrangements with its hardware or software vendors. Accordingly, AOPEN reserves the right to amend these Terms from time to time, and where practicable will endeavour to provide notice of any material changes to the Customer. The applicable version of these Terms from time to time is the most recently updated document, as specified on the front page of this document.
3.1 Acknowledgement – Google TOS
The Customer acknowledges and agrees that prior to using any of the Google Products, it must accept the end user licence agreement or Google TOS provided or specified by Google (or AOPEN on behalf of Google) in connection with the Google Products from time to time, including any such end user licence agreement or Google TOS applicable to Google Chrome OS. The end user licence agreement or Google TOS must be entered into between Customer and Google directly and cannot be accepted by AOPEN or any distributor or reseller on the Customer's behalf.
3.2 Licence Restrictions
Without limiting any other provisions of these Terms, a Supply Agreement or an end user licence agreement or Google TOS specified at section 3.1 above, and unless otherwise permitted under the provisions of these Terms or the Supply Agreement, to the extent permissible by applicable law, Customer will not, and will not procure, arrange, encourage, facilitate, or enter into any agreement with any third party to:
(a) modify, alter, create derivative works, translate, disassemble, de-compile, reverse engineer, or reconfigure in any manner the Google Products (including Google Chrome OS (including the default settings)) or engage in activities that encourage any third party to modify or reconfigure the Google Products (including Google Chrome OS);
(b) sell or otherwise provide for sale or resale any Google Products to resellers or any other party not authorised by AOPEN and Google to resell or distribute the Google Products;
(c) except as expressly specified in these Terms or the Supply Agreement, sell, license, distribute, lease, lend, or disclose the Google Products (including Google Chrome OS) to any third party; or
(d) ship, divert, tranship, transfer, export or re-export Google Chrome OS, or any component thereof, into any country outside of the territory in which the Customer received the Google Products, or allow any other person to do so.
4. Google End User Terms
4.1 Support Levels
(a) Level 1 Support
AOPEN (or its nominee, which may be the relevant distributor or reseller or another person specified in the Supply Agreement) will provide the following level-1 support services directly to Customer, including:
(i) troubleshooting and advice to Customer on the setup and use of the Google Product; and
(ii) any hardware-related issues.
(b) Level 2 Support
If AOPEN (or its nominee's) level-1 support personnel are unable to resolve a problem related to Google Chrome OS, AOPEN (or the nominee) will escalate the problem to level-2 support personnel that have undergone technical training on Google Chrome OS. AOPEN (or the nominee) will then provide level-2 support services responsibilities including:
(i) evaluating trouble tickets (or the substantial equivalent thereof) generated as part of the level-1 support process;
(ii) performing intermediate and advanced troubleshooting for the:
(A) Google Product; and
(B) Google Chrome OS.
Issues solely with Google Chrome OS that cannot be resolved by AOPEN (or its nominee's) level-2 support will be escalated to Google for further evaluation unless the issues are related to connectivity.
(c) Google Support Obligations
The Customer acknowledges that Google is not obligated to directly interact with the Customer and Google will not be responsible for hardware specific or Internet connectivity specific issues. Customer will not contact Google directly for any support issues.
(d) Additional Support Obligations
AOPEN may, from time to time, provide additional support in respect of the Google Products. The terms of any such support will be specified in a separate document provided by AOPEN, and may be subject to the payment of additional fees, as specified in that separate document.
4.2 Privacy and Security
(a) The Customer acknowledges that, from time to time, AOPEN and/or Google may collect aggregate information about the usage of the Google Product by Customer and other end users, and provide such information to each other, for the purposes of improving end user experiences of the Google Product. AOPEN will use reasonable endeavours to ensure that any such collection will not include any personally identifiable information.
(b) Any collection or use of personal information (as defined in applicable privacy laws and regulations) will be conducted in accordance with all applicable privacy laws and regulations, consistent with each of AOPEN's and Google's privacy policies.
4.3 Limited Warranty
In respect of the Google Products, and without limiting any other provisions of an end user licence agreement or Google TOS specified at section 3.1 above:
(a) Except for the express warranties set out in these Terms, to the extent permitted by the law, AOPEN expressly excludes all conditions and warranties (on its own behalf and on behalf of its licensors), including any warranties that Google Chrome OS and/or any other Google Products provided hereunder will meet any or all of the Customer's requirements or that performance of such services will be uninterrupted, virus-free, secure or error-free.
(b) Where legislation implies any condition or warranty (non-excludable term), and that legislation avoids or prohibits provisions in a contract excluding, or modifying the application or exercise of or liability under such non-excludable term, that non-excludable term is deemed to be included in these Terms. However, AOPEN’s liability for any breach of that non-excludable term is limited, at AOPEN’s option, to:
(i) the repair or replacement of the relevant Deliverable;
(ii) the supply of equivalent goods or services; or
(iii) paying the cost of replacing the Deliverable or of supplying equivalent goods or services.
(c) Neither AOPEN nor Google may be held liable under these Terms for (i) a Customer's lost revenues, (ii) any indirect, special or consequential losses (whether or not foreseeable or contemplated by the parties at the effective date), or (iii) exemplary or punitive damages.
Subject to section 4.3 above, AOPEN’s total liability for all claims under a Supply Agreement in relation to the Google Products shall not exceed in the aggregate the amount actually paid to AOPEN for the Google Products provided under the Supply Agreement over a 12 month period.
AOPEN is acting on behalf of its suppliers (including Google) for the purpose of disclaiming, excluding and/or limiting obligations, warranties and liability as provided in these Terms, but in no other respects and for no other purpose.
5. Adobe End User Terms
5.1 Application of this Clause
This section 5 (Adobe End User Terms) applies to any Adobe Software that is provided to a Customer pursuant to a Supply Agreement (including where incorporated in a Google Product).
The Customer acknowledges and agrees that, unless otherwise specified in these Terms or the Supply Agreement, all software provided by AOPEN pursuant to the Supply Agreement (including the Adobe Software) is owned or licensed by AOPEN or its Affiliates.
5.3 Licence Restrictions
The Customer must not, and must not permit any other person to, in addition to any other terms of the Head Agreement:
(d) copy or distribute the Adobe Software;
(e) modify the Adobe Software or create any derivative works of the Adobe Software; or
(f) decompile, reverse-engineer, disassemble or otherwise reduce the Adobe Software to a human-perceivable form,
except where explicitly permitted under the Supply Agreement or under applicable law.
5.4 Warranties and Liability
The Customer acknowledges that the following clauses each apply in respect of the Adobe Software:
(a) No Warranty. THE ADOBE SOFTWARE IS MADE AVAILABLE TO CUSTOMER FOR USE AND REPRODUCTION "AS IS" AND ADOBE MAKES NO WARRANTY AS TO ITS USE OR PERFORMANCE. ADOBE AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS OBTAINED BY USING THE ADOBE SOFTWARE. EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO AOPEN IN AOPEN'S JURISDICTION, ADOBE AND ITS SUPPLIERS MAKE NO WARRANTIES, CONDITIONS, REPRESENTATIONS, OR TERMS (EXPRESS OR IMPLIED WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER INCLUDING NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, INTEGRATION, SATISFACTORY QUALITY, OR FITNESS FOR ANY PARTICULAR PURPOSE.
(b) Limitation of Liability. IN NO EVENT WILL ADOBE OR ITS SUPPLIERS BE LIABLE TO CUSTOMER FOR ANY DAMAGES, CLAIMS OR COSTS WHATSOEVER OR ANY CONSEQUENTIAL, INDIRECT, OR INCIDENTAL DAMAGES, OR ANY LOST PROFITS OR LOST SAVINGS, EVEN IF AN ADOBE REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS OR FOR ANY CLAIM BY ANY THIRD PARTY. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN CUSTOMER'S JURISDICTION. ADOBE'S AGGREGATE LIABILITY AND THAT OF ITS SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO ONE THOUSAND DOLLARS (US$1,000). Nothing contained in this Agreement limits Adobe's liability to Customer in the event of death or personal injury resulting from Adobe's negligence or for the tort of deceit (fraud).
AOPEN is acting on behalf of its suppliers (including Adobe) for the purpose of disclaiming, excluding and/or limiting obligations, warranties and liability as provided in these Terms, but in no other respects and for no other purpose.