Software as a Service Attachment
Last modified: September 14, 2023
This Attachment will apply to the extent that Contractor provides any SaaS Services (defined below). To the extent this Attachment and the body of the ISA conflict, this Attachment will govern.
| 1. | Definitions. | ||||||||||||||||||||||||
| 1.1 | “Contractor Materials” means any content, information, reports, documents, or other materials provided or made accessible by Contractor to Google for download or export from the SaaS Services, excluding any Deliverables or Google Data. | ||||||||||||||||||||||||
| 1.2 | “Google Data” means all data (including end user data) collected, received, stored, derived or maintained by Contractor in connection with Google’s use of the SaaS Services or Contractor’s performance of its obligations under this Agreement. | ||||||||||||||||||||||||
| 1.3 | “SaaS Services” means the software as a service, cloud, or other hosted software services specified or provided under this Agreement, including all of Contractor’s software, APIs, documentation, and other systems necessary for access to and use of those services. The SaaS Services include the provision of any Contractor Materials. The term “Services” as used in the Agreement includes SaaS Services. | ||||||||||||||||||||||||
| 2. | SaaS Services. | ||||||||||||||||||||||||
| 2.1 | Ordering. Contractor will provide SaaS Services according to the applicable SOW, including any configuration and implementation requirements. | ||||||||||||||||||||||||
| 2.2 | Applicable Terms. Any “click-through”, “click-wrap”, or other online terms or conditions that Google or its users are required to accept will not be binding and will have no legal effect or validity as to the Services, this ISA, or the applicable SOW. | ||||||||||||||||||||||||
| 3. | Intellectual Property; Usage Rights; Licenses. | ||||||||||||||||||||||||
| 3.1 | SaaS Services Usage Rights. Contractor grants to Google and its affiliates during the term of the applicable SOW, a non-exclusive, worldwide, royalty-free, fully paid-up, unlimited, enterprise-wide license to access and use the SaaS Services, with the right to grant sublicenses to any third party for such third party to provide services for Google. | ||||||||||||||||||||||||
| 3.2 | Contractor Materials Usage Rights. Contractor grants to Google and its affiliates a non-exclusive, worldwide, royalty-free, fully paid-up, enterprise-wide, perpetual, irrevocable license to use the Contractor Materials, with the right to grant sublicenses to any third party for such third party to perform services for Google. | ||||||||||||||||||||||||
| 3.3 | Reservation of Rights. | ||||||||||||||||||||||||
| (A) | Google Data and IP. Google owns and reserves all right, title and interest (including Intellectual Property Rights) to the Google Data. Except as expressly specified in this Agreement, no right, title, or interest to any Google Intellectual Property is transferred or licensed to Contractor. | ||||||||||||||||||||||||
| (B) | SaaS Services. As between Google and Contractor, except as expressly specified in this Agreement, Contractor owns and reserves all right, title and interest (including Intellectual Property Rights) in and to the SaaS Services and any modifications to, upgrades, or enhancements of the SaaS Services. | ||||||||||||||||||||||||
| (C) | Restrictions. Google will not decompile, disassemble, reverse engineer, or otherwise attempt to extract the source code of the SaaS Services, except as expressly permitted under a SOW or by applicable law. Google will not remove any proprietary marks or confidentiality notices contained in the SaaS Services. | ||||||||||||||||||||||||
| 4. | Google Data Security. As part of Contractor’s rights and obligations under ISA Section 6 (Confidentiality; Publicity; Privacy and Security), Contractor may collect, use, store, and retain only Google Data that is expressly authorized under the applicable SOW, only by means expressly authorized under this Agreement, only as necessary for Contractor to perform the Services in accordance with this Agreement. Google retains the right to review and retain, upon reasonable prior notice, any and all Google Data contained in or used by the SaaS Services or otherwise held or controlled by Contractor. | ||||||||||||||||||||||||
| 5. | Representations and Warranties. Contractor represents and warrants that: | ||||||||||||||||||||||||
| 5.1 | SaaS Services. The SaaS Services (A) do not violate or infringe any third party’s Intellectual Property Rights, (B) will be free from any viruses or other malicious code, and (C) do not contain any copy protection, automatic shut-down, lockout, “time bomb” or similar mechanisms that could interfere with Google’s rights under this Agreement. | ||||||||||||||||||||||||
| 5.2 | Open Source and Other Materials. Contractor (A) will not incorporate or use any third party’s Intellectual Property or open source materials in the SaaS Services that are governed by any version of the Affero General Public License (AGPL) and (B) may incorporate or use other third party Intellectual Property or open source materials only as expressly described in the applicable SOW. | ||||||||||||||||||||||||
| 5.3 | Legal Proceedings. No legal proceedings have been threatened or brought against Contractor that could threaten the provision of the Services, and Contractor will promptly notify Google in writing if such legal proceedings are brought against Contractor during the Term. | ||||||||||||||||||||||||
| 5.4 | Accessibility. The SaaS Services will meet all applicable Web Content Accessibility Guidelines (WCAG) 2.1 Level AA (or successor standard) accessibility standards. | ||||||||||||||||||||||||
| 6. | Remedies. In addition to the obligations in ISA Section 9 (Indemnity), if the use of the SaaS Services infringes or misappropriates any third party rights, including Intellectual Property Rights, Contractor will do the following at its sole expense: (A) procure the right for Google and its users to continue using the SaaS Services; (B) modify the SaaS Services to make them non-infringing without materially reducing functionality; or (C) replace the SaaS Services with a non-infringing, functionally-equivalent alternative. | ||||||||||||||||||||||||
| 7. | Termination or Expiration of SaaS Services. | ||||||||||||||||||||||||
| 7.1 | Transition Assistance. Notwithstanding ISA Section 11.4 (Effects of Termination), on termination or expiration of any SOW for SaaS Services, Contractor will provide reasonably requested assistance to Google to facilitate a timely and orderly transition of SaaS Services and Google Data to Google or its designee. As requested by Google, Contractor will continue to provide the SaaS Services (and the applicable terms of the Agreement, including payment and access and use rights, will continue to apply) until such transition is complete. | ||||||||||||||||||||||||
| 7.2 | Return of Data. On termination or expiration of any SOW for SaaS Services (after completion of any transition assistance), Contractor will provide Google with all Google Data contained in the SaaS Services or otherwise in the possession or control of Contractor in a format and media reasonably acceptable to Google, and will destroy all such Google Data in accordance with ISA Section 6.6 (Privacy and Security). | ||||||||||||||||||||||||
| 8. | Maintenance and Support. Contractor will maintain and support the SaaS Services to ensure connectivity and access by Google, its affiliates and its users. Contractor will promptly repair or replace, without any additional charge, the SaaS Services, to fix any bugs, defects or errors (collectively, “Errors”). Contractor will provide such support on a 24x7 basis, 365 days per year. Contractor will provide the maintenance and support described below: | ||||||||||||||||||||||||
| 8.1 | Updates and Upgrades. | ||||||||||||||||||||||||
| (A) | Contractor will update the SaaS Services and make available to Google any and all patches, enhancements, updates, upgrades, and new versions of the SaaS Services that Contractor makes generally commercially available (“Updates”) and any such Updates will be deemed part of the SaaS Services. If Contractor becomes aware of an Error impairing the performance or use of the SaaS Services, Contractor will promptly disclose such Error to Google and will deliver an Update correcting or mitigating such Error to Google as soon as it is available to any other customer. | ||||||||||||||||||||||||
| (B) | Contractor represents and warrants that no Update (1) will impair the operation or disable or inhibit any functions or features of the SaaS Services or cause performance of the SaaS Services to degrade; or (2) adversely affect the form, fit, function, reliability, safety, or serviceability of the SaaS Services. | ||||||||||||||||||||||||
| 8.2 | Availability and Contacts. Contractor will make technical support available to Google by freephone number and e-mail, 24 hours per day, 7 days per week. Contractor’s support Personnel will provide Google with remote assistance for help in using and operating the SaaS Services and to accept reports of Errors in the SaaS Services. Contractor will ensure that Personnel performing any maintenance and support services are experienced, knowledgeable and qualified in the use, maintenance and support of the SaaS Services. | ||||||||||||||||||||||||
| 8.3 | Error Correction. If Google reports to Contractor any Error in the SaaS Services (the Severity Level to be reasonably determined by Google), Contractor will respond to such reports as described in Section 8.4 (Response Times) below: | ||||||||||||||||||||||||
| (A) | “Severity Level 1” is an emergency condition which makes the use or continued use of any one or more functions of the SaaS Services impossible or significantly impaired. | ||||||||||||||||||||||||
| (B) | “Severity Level 2” is, other than any Severity Level 1 Error, any condition which makes the use or continued use of any one or more functions of the SaaS Services difficult and which Google cannot reasonably circumvent or avoid on a temporary basis without the expenditure of significant time or effort. | ||||||||||||||||||||||||
| (C) | “Severity Level 3” is, other than any Severity Level 1 or Severity Level 2 Error, any limited problem condition which is not critical in that no loss of Google Data occurs and which Google can reasonably circumvent or avoid on a temporary basis without the expenditure of significant time or effort. | ||||||||||||||||||||||||
| (D) | “Severity Level 4” is, other than any Severity Level 1, Severity Level 2 or Severity Level 3 Error, a minor problem condition or documentation error which Google can easily circumvent or avoid. Additional requests for new feature suggestions are classified as Severity Level 4. | ||||||||||||||||||||||||
| 8.4 |
Response Times. Contractor will respond to an Error, depending on the Severity Level, within the timeframes indicated in the chart below, starting from the time Contractor becomes aware of the Error (including as a result of notification by Google):
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| 8.5 | No Additional Charges. Except as otherwise stated in a SOW, Contractor will provide maintenance and support services at no additional charge. | ||||||||||||||||||||||||
| 9. | Performance Standards. | ||||||||||||||||||||||||
| 9.1 | Definitions. | ||||||||||||||||||||||||
| (A) | "Actual Availability” means Total Scheduled Availability minus Downtime. | ||||||||||||||||||||||||
| (B) | “Downtime” means the time that users of the SaaS Services are not able to (1) access the SaaS Services, (2) perform ordinary functions to use or receive SaaS Services in accordance with specifications, or (3) use the SaaS Services for normal business operations due to failure, malfunction or delay. Downtime does not include any unavailability of the SaaS Services due to System Maintenance. | ||||||||||||||||||||||||
| (C) | “System Availability” will be calculated on a monthly basis using the following formula: [(Actual Availability divided by Total Scheduled Availability) multiplied by 100%]. | ||||||||||||||||||||||||
| (D) | “System Maintenance” means time that the SaaS Services are not accessible to Google due to maintenance, including for maintenance and upgrading of the software and hardware used by Contractor to provide the SaaS Services. System Maintenance includes scheduled maintenance and unscheduled, emergency maintenance. | ||||||||||||||||||||||||
| (E) | “Total Scheduled Availability” means 7 days per week, 24 hours per day, excluding System Maintenance. | ||||||||||||||||||||||||
| 9.2 | Service Level Standards. Contractor will provide 100% System Availability over one-month periods, excluding any System Maintenance that result in the SaaS Services not being available to any Google user (collectively with any additional service level requirements in the applicable SOW, the “Service Levels”). | ||||||||||||||||||||||||
| 9.3 | System Maintenance Notice. Contractor will provide Google with at least 10 business days’ prior written notice of any scheduled maintenance or sixty minutes’ advance written notice for unscheduled, emergency maintenance. Contractor will provide such notices to Google by email to an address provided by Google. System Maintenance in any given month will not exceed ten minutes per month, and will only be performed on Friday or Saturday between the hours of 1:00 a.m. and 3:00 a.m. GMT. Any time during which the SaaS Services is unavailable to Google due to maintenance or other activity by Contractor for which Contractor fails to give notice, which exceeds the permitted time allotment, or which occurs outside of the foregoing permitted hours will be included in the calculation of Downtime. | ||||||||||||||||||||||||
| 9.4 | Business Continuity and Backups. | ||||||||||||||||||||||||
| (A) | Business Continuity Plan. Contractor will maintain an appropriate disaster recovery and business continuity system in place in accordance with good industry practice that, in the event of emergency or failure (including in connection with a force majeure event), ensures the continued performance of the SaaS Services in accordance with this Agreement. The procedures will be provided to Google upon written request. Google may request reasonable amendments to the procedures, which Contractor will implement without unreasonable delay. | ||||||||||||||||||||||||
| (B) | Data Backups. On at least a daily basis, Contractor will back up all Google Data entered into the SaaS Services since the last backup to Contractor’s backup location. Contractor will create a full backup (complete data copy) at least once per week at such backup location. Contractor will maintain all backup files for at least 180 days. Upon Google’s request, Contractor will restore data from backup files. Contractor will ensure that backups do not cause Downtime. Contractor will ensure that daily incremental backups in combination with weekly full backups are complete so that no more than 24 hours-worth of data will be lost from a data loss event. Contractor will restore Data as requested by Google within 24 hours of Google’s written request. | ||||||||||||||||||||||||
| 9.5 | Data Backups. On at least a daily basis, Contractor will back up all Google Data entered into the SaaS Services since the last backup to Contractor’s backup location. Contractor will create a full backup (complete data copy) at least once per week at such backup location. Contractor will maintain all backup files for at least 180 days. Upon Google’s request, Contractor will restore data from backup files. Contractor will ensure that backups do not cause Downtime. Contractor will ensure that daily incremental backups in combination with weekly full backups are complete so that no more than 24 hours-worth of data will be lost from a data loss event. Contractor will restore Data as requested by Google within 24 hours of Google’s written request. | ||||||||||||||||||||||||
| 9.6 |
SLA Credits. If Contractor fails to meet any of the Service Levels, Contractor will issue credits to Google, calculated as follows (the “SLA Credit”): If the System Availability during any given month falls below 100%, Contractor will provide Google with a SLA Credit equal to the percentage of the total monthly fee (calculated on a pro rata basis if fees are invoiced other than monthly) applicable to the month in which the Service Level failure occurred corresponding to the System Availability Level in the chart below.
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| 9.7 | SLA Credit Procedures. Contractor will credit all SLA Credits accrued to Google in the month in which the SLA Credits accrue, provided that if no further invoices will be submitted to Google under the Agreement, Contractor will pay such SLA Credits to Google within 30 days of the end of the month in which such SLA Credits accrue. | ||||||||||||||||||||||||
| 9.8 | Chronic SLA Failure. In addition to the SLA Credits in Section 9.6 (SLA Credits) above, if Contractor fails to meet any Service Level in any 2 months in a rolling 6-month period during the Term, Google may terminate the Services immediately upon written notice to Contractor. | ||||||||||||||||||||||||
| 10. | Survival. Sections 1 (Definitions), 3.2 (Contractor Materials Usage Rights), 3.3 (Reservation of Rights), 4 (Google Data Security), 5 (Representations and Warranties), and 7 (Termination or Expiration of SaaS Services) of this Attachment will survive any termination of the Agreement. | ||||||||||||||||||||||||