Buy On Google Merchant Terms

Welcome to Buy on Google (“BoG”). These Buy on Google Terms (“BoG Terms”) are entered into by Google LLC (“Google”) and the entity executing these BoG Terms electronically (“Merchant”). The BoG Terms supersedes all other agreements between the parties relating to its subject matter.

Google Merchant Center. Participation in BoG requires the use of Google Merchant Center. The use of Google Merchant Center is governed by the Google Merchant Center Terms of Service, which are incorporated by reference. The information collected by Google through BoG is governed by Google’s Privacy Policy.

Policies. Google maintains rigorous standards for items eligible for listing through BoG. Except as expressly set forth in these BoG Terms, the Shopping Policies, the Merchant Promotions Program Policies, and the Buy on Google Policies (collectively, as modified from time to time, the “BoG Policies”) will apply to all items sold through BoG.

Updates. Google may add to, delete from or modify these BoG Terms at any time. Changes to these BoG Terms will not apply retroactively and will become effective 7 days after posting. However, changes specific to new functionality or changes made for legal reasons will be effective immediately upon notice.

1. Definitions

1.1. “API” means Google’s proprietary application programming interface through which Merchant may communicate with Google in connection with the BoG.

1.2. “Brand Features” means trade names, trademarks, logos, domain names and other distinctive brand features.

 

1.3. “Buy on Google” or “BoG” means all or part of the Google shopping service provided to Merchants that includes item search functionality, order placement and delivery to a U.S. location,order management, and payment processing.

1.4. “BoG Order” means an order by a User from a Merchant for purchase of Merchant items.

1.5. “Payment Instrument Issuer” means a User’s card issuer.

1.6. “Payment Instrument Account” means a User's billing account with a Payment Instrument Issuer.

1.7. “Confidential Information” means information that one party (or an affiliate) discloses to the other party under Terms, and which is marked as confidential or would normally under the circumstances be considered confidential information. Confidential Information does not include information that the recipient already knew, that becomes public through no fault of the recipient, that was independently developed by the recipient, or that was lawfully given to the recipient by a third party.

1.8. “Feed” is the Item Content and availability feeds that Merchant provides to Google via the Google Merchant Center.

1.9. “Google Fees” means any fees Google may charge Merchants for items sold by Merchant via BoG on certain surfaces or properties or its use of certain features of BoG.

 

1.10. “include” or “including” means “including but not limited to.”

 

1.11 “Intellectual Property Rights” means all registered or unregistered intellectual property rights throughout the world, including: rights in patents, copyrights, trademarks, trade secrets, designs, databases, domain names, and moral rights.

1.12. “Item Content” means the images and description data for items sold by Merchant through BoG.

1.13. “Loyalty Number” means a User’s identification number for (if applicable) Merchant’s loyalty program.

 

1.14. “Merchant Payment Processor” means a third-party payment processor arranged for by the Merchant to submit charges to the User’s Payment Instrument Issuer on behalf of the Merchant for processing and payment through the Payment Instrument Account for purchases from Merchant via BoG.

1.15. “Merchant Sales Channels” means the digital channels that Merchant offers Merchant items for sale and where Merchant sets the price of its items. Merchant Sales Channels can include Merchant’s website, other Merchant-operated sales channels, and Merchant’s marketplace presences.

1.16. “Non-U.S. Merchant” means a Merchant that is a business formed and principally based outside the U.S.

1.17. “Order Cap” means a maximum number or value of BoG Orders over a period of time as determined by Google.

1.18. “Other Taxes” means all national, provincial and municipal, income, franchise, business, gross receipts, property, sales, use, excise, value­ added, consumption, goods and services, harmonized sales, stamp, and all other similar taxes or duties (other than tax on Google’s net income), including any related penalties or interest applicable with respect to Google Fees payable by Merchant.

1.19. “RMA” stands for Return Merchandise Authorization.

1.20. “U.S.” means the United States of America.

1.21. “User” means an end user of BoG.

 

2. Item Content; Google Services

2.1. Provision and Use of Item Content. BoG contains programs within which Merchant authorizes Google to use automated tools to format item images and description data for Item Content. Merchant may provide Item Content (a) through its Feed or the API or (b) by providing a list of items to Google for which Google may assist Merchant in the selection and generation of Item Content by retrieving the Item Content from third party sources or Merchant's online properties. All Item Content provided by Merchant is “content” and all URL(s) for Merchant’s online properties are “URL(s)” under the Merchant Center Terms of Service. Merchant grants to Google and its affiliates a royalty-free, perpetual, irrevocable, non-exclusive, worldwide license to use the Item Content for the limited purpose of operating, promoting, and improving BoG and other Google shopping services. For Item Content, Google may annotate associated ads, web search, item listings, and other associated Merchant results or listings on any Google service as available through BoG. Merchant grants to Google and its affiliates a royalty-free, non-exclusive worldwide license to use its Brand Features product reviews, and Item Content in advertisements and other marketing activities. For example, Google may surface and advertise Item Content on Google properties such as YouTube and Google search results pages and on other properties. Merchant may provide Google with Merchant logos of size and quality suitable for use in advertising.

2.2. Merchant Responsible for Items and their Sale. Merchant will (a) be seller of record for all of Merchant’s items sold through BoG, (b) have and maintain appropriate licenses and permits required for its participation in BoG, and (c) only provide items on BoG where Merchant has legal title to such items e.g. as the seller of record. Merchant is solely responsible for the items provided to Users in connection with its sale of items through BoG. Merchant will be responsible for the risk of loss or damages until delivery to the User. Merchant will provide Google with notice of legal or regulatory sale requirements that affect Google’s provision of BoG (examples include safety warnings and quantity restrictions on controlled substances). If required by applicable law, Merchant will submit an invoice for sale of items to the User. For the avoidance of doubt, Google will not be the seller or merchant or record, and will have no responsibility, for items sold to Users through BoG.

2.3. Disclosure of Quantity Data. Google may publicly disclose numerical quantity of merchant’s items from the Feed in connection with BoG programs.

2.4. Google Precautionary Measures. To ensure service quality and the proper use of BoG, Google may audit the Feed to confirm Merchant’s compliance with these BoG Terms and applicable law, including the use of confirmation tools within its internal systems. As between Google and Merchant, any review of the Feed to confirm compliance with these BoG Terms and applicable law does not constitute an assumption of responsibility or liability by Google nor does it override or lessen Merchant’s responsibilities or liability under these BoG Terms or applicable law.

2.5. Order Cap. Google may implement and enforce an Order Cap. The Order Cap will only include Orders that have been passed to Merchant by Google for fulfillment.

2.6. Merchant Sets Prices. Merchant is solely responsible for setting the prices of items listed on BoG. For clarity, any Google funded promotions will not change the prices set by Merchant on BoG.

2.7. Shipping Speeds. Merchant will provide Google with current, complete, and accurate information regarding all available delivery options. Google will determine which items fit the delivery options offered by BoG and will be surfaced on BoG. Merchant will offer at least the same shipping speeds and under the same terms (i.e. parity on free shipping order minimums) that Merchant offers on Merchant Sales Channels.

2.8. Excluded Items. On behalf of a User, due to technical limitations, to ensure compliance with BoG Policies, or for other reasons, Google may, at its sole option, exclude certain items or certain information about items (“Excluded Items”), including online promotions not supported by Google. Merchant will not make Excluded Items available on BoG.

2.9. Restricted Items. Certain items that are currently Excluded Items might later be permitted under these BoG Terms subject to special conditions or requirements, in Google’s sole discretion and may require additional special treatment and handling which will be the responsibility of the Merchant. If such items are permitted in the future, these BoG Terms will be updated accordingly.

2.10. User-Facing Fees. Google is not responsible for collecting any customer-facing fees, such as eWaste or CRV. Google may not support the collection of such fees on behalf of Merchant. If Google does not collect such fees on behalf of Merchant, Merchant is solely responsible for covering these fees or excluding items subject to fees.

2.11. Latency. If a Merchant submits updated Item Content, Merchant understands that there may be a delay of up to 1 day in updating the offers displayed to Users.

3. Payments; Refunds; Taxes

3.1. Merchant Center Account. Merchant will provide current, complete, and accurate registration information with Google including any information provided by Merchant in Merchant Center and including information requested by Google about Merchant Payment Processor(s).

 

3.2 Merchant Payment Processor. Merchant consents to Google entering into an agreement with each Merchant Payment Processor and acknowledges and agrees that a given Merchant Payment Processor’s participation in BoG is conditioned upon Google entering into an agreement with each such Merchant Payment Processor. Google reserves the right to add or change payment processors from time to time.

3.3. Processing for User Payments. Google will provide information about a User purchase to the Merchant Payment Processor that is required for the Merchant Payment Processor to submit charges to the Payment Instrument Issuer on behalf of the Merchant for processing and payment for the purchase through the Payment Instrument Account. Google may also provide information about a reversal, refund or adjustment of a purchase transaction to the Merchant Payment Processor which is required for the Merchant Payment Processor to submit a reversal, refund or adjustment on behalf of the Merchant to the Payment Instrument Issuer of a portion or all of the purchase payment through the Payment Instrument Account. For clarity, the Merchant Payment Processor, and not Google, will provide settlement to the Merchant and will obtain settlement from the Merchant for any reversals, refunds or adjustments, pursuant to Merchant’s agreement with the Merchant Payment Processor. Google determines the timing of the submission by Google to the Merchant Payment Processor of information about purchases, reversals, refunds or adjustments, which will affect the timing of the settlement to or from the Merchant. Merchant will direct any questions or issues related to payment processing or services provided by the Merchant Payment Processor solely to the Merchant Payment Processor.

3.4. Purchase Aggregation. Purchases from multiple Merchants via BoG by a User may be aggregated together to the extent permitted by applicable card association or network rules.

3.5. Refunds and Adjustments. Merchant will promptly accept, calculate, and process cancellations, returns, refunds, and adjustments in accordance with these BoG Terms and the BoG Policies. Without limiting Merchant’s responsibilities, Google in its sole discretion and for the benefit of the User, may determine when a User is due a refund, replacement order, or adjustment and Google may require Merchant to be responsible for any associated applicable costs, including any import duties, taxes or fees collected from the User, as communicated by Google to Merchant or as described in the BoG Policies. Merchant consents to Google issuing the refund amount to the User (“Actual Customer Refund”). Merchant agrees not to accept cash or any other consideration from a User in exchange for issuing a refund to a User. Merchant will not ask or require a User to waive their dispute rights as provided by Google, a card association or network, or applicable law. Merchant will not give a cash refund to a User in connection with a BoG Order unless required by law. If Merchant provides a refund, Merchant remains responsible if the underlying payment transaction results in a chargeback or if Google provides an Actual Customer Refund to the User. Additional information regarding refund standards are included in the BoG Policies.

3.6. Reconciliations and Chargebacks. Even if the Merchant’s return/cancellation policy prohibits returns or cancellations, Merchant acknowledges that (a) Google may still provide Users with Actual Customer Refunds and/or (b) Merchant may still receive chargebacks relating to the transactions and that Users may retain a chargeback right under card association and network rules and/or their agreement with the holder of their payment account. Google is not responsible for investigating any chargebacks and is not responsible for any costs associated with chargebacks.

3.7. Title; Risk to Items. For order fulfillment originating from the U.S., title for such items purchased through BoG will pass directly from Merchant to the User at the point of delivery. For order fulfillment originating from a location other than the U.S., title for such items will pass from Merchant to the User at the international shipping point. For clarity, for all BoG purchases and returns, at no point will title transfer to Google.

3.8. Taxes on Sale of Items. Merchant acts as the seller of items to the User and is responsible for charging and remitting all applicable taxes (including indirect taxes), wherever arising, with respect to the sale of their items to Users in the U.S. Merchant is responsible for calculating and informing Google how much goods and services tax, or any other indirect tax to collect on sale of each BoG Order, either with a tax engine provided by Google or through other means. Google will include the required amount in its instruction to the Merchant Payment Processor about the amount to be charged to the Payment Instrument Account to be remitted to the Merchant and the Merchant or the Merchant Payment Processor will be responsible for remitting such goods and services tax to the appropriate taxing authority. In jurisdictions where Google is required to calculate and remit sales tax directly to the taxing authority (e.g., states with applicable laws imposing sales tax on marketplace facilitators), Google will calculate the tax based on its own tax engine and product information available to it from Merchants and include the required amount in its instruction to the Merchant Payment Processor about the amount to be charged to the Payment Issuer Account to be remitted to Google. The Merchant Payment Processor will remit the required amount to Google, and then Google will remit those amounts to the appropriate taxing authority, such sales tax will also be charged to the User.

3.9. Taxes with Respect to Fees Payable by Merchant. Google Fees are exclusive of Other Taxes. Merchant is responsible for Other Taxes. Merchant will provide Google all relevant details for Google to comply with applicable tax laws. Google will rely on the information provided by the Merchant and Merchant is responsible for any misrepresentation or incorrect information provided to Google. If Google is obligated to collect or pay Other Taxes, the amount of Other Taxes will be paid by Merchant and will be in addition to any Google Fees, if applicable, charged to the Merchant, unless Merchant provides Google with a valid tax exemption certificate authorized by the appropriate taxing authority.

3.10. Compliance with Laws. Merchant is responsible for ensuring that its participation in BoG and provision of items in BoG, and that each of its Merchant Payment Processors, complies with all applicable laws, requirements, rules and regulations including: (a) the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce; (b) trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control; (c) the International Traffic in Arms Regulations (“ITAR”) maintained by the U.S. Department of State; (d) card association or network rules; and (e) hardware certifications, product labeling requirements.

3.11. Google Sets User Service Fees. Google solely determines User-facing service fees, where necessary. In case such fees are charged by Google, then the fees will be added to the purchase price to be recovered from the User. Google may change User-facing fees, membership plans, and shipping plans at any time without notice.

3.12. Temporary Promotions. From time to time, Google may fund, either in full or in partnership with Merchant or a third party, temporary promotions on Merchant items. These promotions may be applied on BoG at the order level, across BoG or on associated fees (including shipping rates). Merchant may opt out of such temporary promotions by using the applicable BoG opt-out feature.

3.13. Payments; Offset Right. Merchant will be responsible for and pay Google for any applicable Google Fees, service credits, Actual Customer Refunds, Other Taxes, reconciliatory amounts or other amounts owed by Merchant under these BoG Terms. Google will offset any such amounts that are payable by Merchant to Google under these BoG Terms against any payments Google may owe Merchant under these BoG Terms. In certain cases, (e.g. refunds) Google may collect amounts payable to Google by Merchant under these BoG Terms directly from Merchant Payment Processor. Google will provide instructions to the Merchant Payment Processor to remit such amounts to Google. If Merchant Payment Processor does not remit any of such amounts to Google, Google may bill the Merchant for any such amounts and the Merchant will be obligated to pay Google for such amounts directly. Any billing disputes by Merchant must be submitted to Google in writing within 30 days of the date of the applicable disbursements made by Google to Merchant Payment Processor.

3.14. Inspection. To ensure compliance with applicable law, rules and regulations in connection with Merchant’s use of BoG, Google, a card association, network or government agency may investigate, review, audit or inspect Merchant, including by inspecting Merchant’s premises and auditing the books, records, and procedures of Merchant.

4. User Personal Information

4.1. Protection of User Personal Information. Google may share certain User Personal Information with Merchant. To the extent that either party receives, has access to, uses or stores Personal Information (as defined in Exhibit A) in connection with these BoG Terms, then it will comply with (or ensure compliance with) the obligations set out in Exhibit A (Partner Information Protection Addendum). Merchant acknowledges and agrees that Google may also share certain Personal Information of a User, information about Users’ transactions with Merchant and information about Merchant with a Carrier, card association or network, as requested by the Carrier, card association or network. Merchant agrees it has all necessary and appropriate rights under its privacy policy, applicable law or regulations and agreements for Google to provide such information to Carriers, card associations or networks.

4.2. Usage Restrictions. Except as otherwise permitted under this Section 4, Merchant will only use Personal Information it receives from Google for order fulfillment in connection with BoG solely as set forth in these BoG Terms. Merchant may use Loyalty Numbers in accordance with Merchant’s privacy policy only if the User to whom that Loyalty Number is assigned has been given legally acceptable notice of, and consented to, Merchant's privacy policy, and any other terms applicable to Merchant’s loyalty program. A Merchant will only use Personal Information for marketing-related communications as set forth below under “User Marketing Choice”. None of the usage restrictions in these BoG Terms are intended to limit Merchant’s ability to use any information lawfully collected by a Merchant independent of BoG.

4.3. User Marketing Choice. Google may offer Users the ability to opt-in via BoG to share their Personal Information with Merchant for e-mail marketing communications (the “Marketing Opt-In”). Merchant may use the Personal Information from those Users who chose the Marketing Opt-In so long as such use is limited to Merchant’s e-mail marketing communications. Merchant will provide any Users to whom it sends marketing emails using an email address provided by Google with information about how it uses the email address and other User data (e.g., in a privacy policy) and the opportunity to opt out of receiving such emails as required by applicable law.

5. Order Management; Data Sharing

5.1. Order Management Systems. Merchants accessing BoG Orders will do so through Google’s order management System (either manually, via Feed, or via an API). Merchant will honor the price, shipping speed and shipping method displayed on a merchant-submitted BoG offer if a User has purchased the item through BoG. Merchant will honor the shipping cost, fees and any other promotional information set by the Merchant for all BoG-eligible items. Within one day of shipment, Merchant must update “Shipped” status in Google's order management System. Within two business days of receiving a qualified item return, Merchant must update item state to “Refunded” status in Merchant Center or via API and initiate the Merchant Authorized Refund.

5.2. Shipping Deadlines. User orders may be canceled if an order is not marked as “shipped” after a period of time after the end of the handling time window as stated in the BoG Policies or otherwise communicated to Merchant. If the order contains items with differing handling times, Google will reference the longest handling time for such cancellations.

5.3. Data Sharing to Support BoG . Merchant must upload tracking numbers to Merchant Center within 24 hours of the order being marked as shipped. To support BoG and enable order fulfillment, Google may share Merchant provided tracking numbers with third parties. To support Merchant’s use of BoG, Google may share certain data from Merchant’s Merchant Center account with Merchant’s e-commerce integration partners. Merchant consents to the sharing of tracking numbers and Merchant Center data as described in this section.

5.4. International Shipping. For any BoG Orders where Merchant ships an item from another country directly to a User located in the U.S., the User will be the importer of record and Merchant will deliver the items to the shipping address specified by the User. For shipments where an entry is required to be filed with local customs authorities, Merchant will appoint a customs broker on the User’s behalf and act as the liaison between the customs broker and User. Merchant will be solely responsible for remitting any applicable customs duties, taxes or fees due at the time of import, on behalf of the Program user. For clarity, Merchant is responsible for any applicable fees payable to a customs broker for shipment of items into the U.S. Where applicable, Merchant will be responsible for obtaining a power of attorney from the User.

6. Customer Service.

6.1. BoG Receipts. Google will on behalf of Merchant provide each User with an electronic receipt for payment received for any BoG Orders. Merchant will not provide User with electronic receipts, except as required by law.

6.2. Customer Service Guidelines. Merchant will be responsible for all customer service obligations; however, if Merchant does not resolve a customer service issue to Google’s satisfaction or fails to meet certain quality standards as stated in the BoG Policies, then Google may provide customer service support to resolve the issue, including issuing a refund or replacement subject to Section 3.5 (Refunds and Adjustments). Merchant acknowledges that it may receive a request for forms of User support from Google. Merchant agrees to provide specific contact channel(s) for Google to escalate issues as needed and to meet a response time of 2 business days or less. To help maintain and improve BoG and for quality assurance purposes, Google may monitor or record customer service related communications between Merchant and User. Merchant consents to such monitoring or recording and will ensure that it will secure all consents from the User to allow for such monitoring where legally required.

6.3. Returns Process. Merchants must provide Google with either their carrier account information for Google to be able to generate labels on the merchants behalf or return labels and shipping tracking numbers to Google. Returns will not be permitted for Users who attempt to make a return outside the standard BoG return policy window from the date of delivery (or later depending on the Merchant’s standard return policy). Google will not be responsible for export or import clearance on any returns. Merchant must provide a valid return address, which conforms to BoG return requirements (or otherwise provided to Merchant in the BoG Policies), for all items sold by Merchant on BoG. All BoG user returns will be sent to the return address provided by the Merchant.

 

6.4 Return Costs. Return shipping costs will be paid by Merchant and charged directly through Merchant’s carrier account. Merchant may only charge a return shipping fee if (a) the return is not due to a defect or other order issue and (b) Merchant includes a return shipping fee in Merchant’s standard returns policy. The return shipping fee specified by the merchant will be automatically deducted from User refunds. Merchants will not charge restocking fees.

 

7. Google Fees. Google may charge Google Fees to the Merchant for providing BoG on certain surfaces or properties. For Google Fees associated with listing items on a particular Google surface or property, such Google Fees will be communicated to Merchant and Merchant will have an opportunity to opt-in to have their items listed on such surfaces. Google Fees will be assessed on the final price charged (including applicable taxes) to the User.

8. Representations and Warranty.

8.1. Each party warrants that it has full power and authority to enter into these BoG Terms.

8.2. Merchant represents and warrants that (a) it is not a franchise, travel agent or high-brand risk merchant as defined in card association or network rules, or other type of merchant prohibited under card association or network rules to participate in BoG; (b) it has and will retain all necessary rights to grant the licenses in these BoG Terms; (c) the use by Google or its Affiliates of anything delivered or licensed to Google by Merchant under these BoG Terms will not infringe or violate any third party’s Intellectual Property Rights or other rights; and (d) it and each of its Merchant Payment Processors complies with all applicable laws, requirements, rules and regulations including card association or network rules.

9. Disclaimers. TO THE FULLEST EXTENT PERMITTED BY LAW, GOOGLE, ON BEHALF OF ITSELF AND AFFILIATES, DISCLAIMS ALL WARRANTIES, WHETHER IMPLIED, STATUTORY OR OTHERWISE, INCLUDING FOR NON-INFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR ANY PURPOSE, AS WELL AS ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. TO THE FULLEST EXTENT PERMITTED BY LAW, BUY ON GOOGLE AND ANY SERVICES OFFERED IN CONNECTION WITH BUY ON GOOGLE ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS,” AND MERCHANT USES THEM AT ITS OWN RISK. GOOGLE AND ITS AFFILIATES DO NOT MAKE ANY GUARANTEE IN CONNECTION WITH BUY ON GOOGLE. GOOGLE MAKES NO PROMISE TO INFORM MERCHANT OR ITS MERCHANT PAYMENT PROCESSOR(S) OF DEFECTS OR ERRORS.

10. Liability.

10.1. Limited Liabilities. To the extent permitted by applicable law and subject to Section 10.2 (Unlimited Liabilities), neither party will have any liability arising out of or relating to the BoG Terms for any: (a) lost profits, revenues, goodwill, or savings; or (b) indirect, consequential, special, incidental, or punitive damages. Each party's total aggregate liability for damages arising out of or relating to the BoG Term is limited to the greater of amounts payable by Merchant under these BoG Terms during the 12 month period before the event giving rise to liability or USD $10,000. For the avoidance of doubt, Google shall have no liability to any Merchant Payment Processor.

10.2. Unlimited Liabilities. These BoG Terms do not exclude or limit either party’s liability for: (a) death, personal injury, or tangible personal property damage resulting from its negligence or the negligence of its employees or agents; (b) fraud or fraudulent misrepresentation; (c) its payment obligations under these BoG Terms; (d) breach of Section 11 (Confidentiality); (e) its obligations under Section 12 (Indemnification); or (f) matters for which liability cannot be excluded or limited under applicable law.

11. Confidentiality; Publicity; Retention of Rights

11.1. Confidentiality. The recipient of Confidential Information will not disclose such 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 these BoG Terms, while using reasonable care to keep it confidential. The recipient may also disclose Confidential Information when required by law after giving reasonable notice to the discloser if legally permissible. Notwithstanding anything in these BoG Terms to the contrary, Google may disclose Merchant Confidential Information to a Merchant Payment Processor to exercise Google’s rights and fulfill its obligations under these BoG Terms.

11.2. Retention of Rights. Other than as set forth in these BoG Terms, Google retains all rights in BoG, including all intellectual property rights relating to BoG. Merchant will not sell, lease, sublease, alter or use any assets provided to Merchant under these BoG Terms for any purpose other than to fulfill orders through BoG. Merchant retains all rights including all intellectual property rights in Item Content and Merchant’s Brand Features.

11.3. Publicity. Merchant may not make any public statement about the relationship contemplated by these BoG Terms without Google’s written approval, except when required by law after giving reasonable notice to Google.

12. Indemnification

12.1. Obligations. Merchant will defend and indemnify Google, directors, officers, and employees against all liabilities, damages, losses, costs, fees (including legal fees), and expenses relating to any allegation or third-party legal proceeding to the extent arising from: (i) Merchant’s or Merchant Payment Processor’s fraud, misrepresentation, willful misconduct, breach of these BoG Terms, or violation of law or (ii) Merchant’s items sold, marketed or promoted through BoG (including claims related to product liability).

12.2. Exclusions and Conditions. This Section 12 (Indemnification) will not apply to the extent the underlying allegation arises from Google’s breach of these BoG Terms or from modifications to Merchant’s Brand Features that were not authorized by Merchant. Any settlement requiring Google to admit liability, pay money, or take (or refrain from taking) any action, will require Google’s prior written consent, not to be unreasonably withheld, conditioned, or delayed.

13. Termination. Google may end or suspend BoG, Merchant’s participation in BoG or any BoG program at any time for any reason, including for violation of any applicable BoG Policies. Merchant may end or suspend its participation in BoG overall or in a specific BoG program by providing written notice to Google. Merchant understands that it may take up to 3 business days after such notice is provided for Google to remove the Merchant’s product offers from the BoG program(s). These BoG Terms will survive any termination or expiration with respect to any BoG Orders placed before any final suspension or termination of Merchant’s participation in BoG, and any other sections that under their terms or by implication ought to survive any termination or expiration of these BoG Terms. Notwithstanding the above, Google may withhold funds (e.g. by instructing Merchant Payment Processor to withhold disbursement) to cover Google’s expectation of any financial obligation or dispute exposure arising under these BoG Terms for up to 180 days. Merchant will remain liable for financial obligations incurred by Merchant after the expiration or termination of these BoG Terms.

 

14. Governing Law.

 

14.1. ALL CLAIMS ARISING OUT OF OR RELATING TO THESE BoG TERMS WILL BE GOVERNED BY CALIFORNIA LAW, EXCLUDING CALIFORNIA'S CONFLICT OF LAWS RULES, AND WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF SANTA CLARA COUNTY, CALIFORNIA, U.S.A; THE PARTIES CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS.

 

14.2. Non-U.S. Merchants organized in China. If a dispute arises out of or relating to the subject matter of these BoG Terms between Google and Merchant, Merchant affiliate or Merchant Payment Processor that are organized in China then Section 14.1 (Governing Law) of these BoG Terms will not apply and this Section 14.2 will apply. ALL CLAIMS ARISING OUT OR RELATING TO THESE BoG Terms ("Dispute") WILL BE GOVERNED BY LAWS OF CALIFORNIA, U.S.A, EXCLUDING CALIFORNIA’S CONFLICT OF LAWS RULES. 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 these BoG Terms ("Rules"). The parties will mutually select one arbitrator. The arbitration will be conducted in English in Santa Clara County, California, U.S.A. Any 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 these BoG Terms. Any 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, U.S.A, are competent to grant any order under these BoG Terms. 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 any party or any of its property. Any arbitration conducted under these BoG Terms will be considered Confidential Information, including the existence of the arbitration, any information disclosed during it, and any oral communications or documents related to it. The parties may also disclose such information to a competent court as may be necessary to file any order or execute any arbitral decision, but the parties must request that those judicial proceedings be conducted in camera (in private). 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. Each party will bear its own lawyers’ and experts’ fees and expenses, regardless of the arbitrator’s final decision regarding the Dispute. BoG Terms.

15. Miscellaneous.

15.1. Notices. All notices of termination or breach must be in English, in writing, and addressed to the other party’s Legal Department. The address for notices to Google’s Legal Department is legal-notices@google.com. All other notices must be in English, in writing and addressed to the other party’s primary contact. Emails are written notices. Notice will be treated as given on receipt, as verified by written or automated receipt or by electronic log (as applicable).

15.2. Assignment. Neither party may assign any part of these BoG Terms without the written consent of the other, except to an affiliate where: (a) the assignee has agreed in writing to be bound by the terms of these BoG Terms; (b) the assigning party remains liable for obligations under these BoG Terms if the assignee defaults on them; and (c) the assigning party has notified the other party of the assignment. Any other attempt to assign is void.

15.3. Change of Control. During the BoG Terms’s term, if a party experiences a change of control (for example, through a stock purchase or sale, merger, or other form of corporate transaction): (a) that party will give written notice to the other party within 30 days after the change of control; and (b) the other party may immediately terminate these BoG Terms any time between the change of control and 30 days after it receives that written notice.

15.4. Subcontracting. Either party may subcontract any of its obligations under these BoG Terms, but will remain liable for all subcontracted obligations and its subcontractors’ acts or omissions.

15.5. Force Majeure. Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.

15.6. No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under these BoG Terms.

14.7. Independent Contractors; No Agency. The parties are independent contractors. These BoG Terms do not create any agency, partnership, joint venture, or employment relationship.

15.8. No Third-Party Beneficiaries. These BoG Terms do not confer any benefits on any third party unless it expressly states that it does.

15.9. Counterparts. The parties may execute these BoG Terms in counterparts, including facsimile, PDF, and other electronic copies, which taken together will constitute one instrument.

15.10. Amendments. Except for modifications to the BoG Terms by Google, any amendment must be in writing, signed by both parties, and expressly state that it is amending these BoG Terms.

15.11. Entire BoG Terms. These BoG Terms state all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. In entering into these BoG Terms neither party has relied on, and neither party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly stated in these BoG Terms.

15.12. Severability. If any part of these BoG Terms is invalid, illegal, or unenforceable, the rest of these BoG Terms will remain in effect.

 

15.13. Language. The parties have requested that these BoG Terms and all communications and documents relating to these BoG Terms be expressed in the English language.

 

 

 

 

 

Exhibit A

 

Buy on Google

 

Partner Information Protection Addendum

Version 7.1

1.     General.

(a)   Agreement. This Partner Information Protection Addendum (the “PIPA” or the “Addendum”) forms part of the BoG Terms between Merchant and Google (collectively the “Agreement”) and incorporates the mandatory terms in this Addendum.

(b)   Order of Precedence. To the extent this Addendum conflicts with the BoG Terms, this Addendum will govern.

(c)   Interpretation. All capitalized terms not defined in the Addendum will have the meanings given to them in the BoG Terms. Any examples in this Addendum are illustrative and not the sole examples of a particular concept.

2.     Defined Terms. In this Addendum:

(a)   “Applicable Data Protection Laws” means privacy, data security, and data protection laws, directives, and regulations in any jurisdiction applicable to the Personal Information Processed for the Services.

(b)   “Applicable Standards” means government standards, industry standards, and best practices applicable to the Personal Information Processed for the Services.

(c)   “CCPA” means, as applicable: (i) the California Consumer Privacy Act of 2018, California Civil Code 1798.100 et seq. (2018), as amended; and (ii) any other applicable U.S. state data protection laws modeled on the CCPA.

(d)   “Data Controller” has the same meaning as “controller” under GDPR-Modeled Data Protection Laws.

(e)   “Disclosing Controller” means the Data Controller party that discloses the Personal Information to the other Data Controller party under this Addendum.

(f)    “GDPR” means the European Union General Data Protection Regulation (EU) 2016/679 on data protection and privacy for all individuals within the European Union (“EU”) and the European Economic Area (“EEA”).

(g)   “GDPR-Modeled Data Protection Laws” means, as applicable: (i) the GDPR; (ii) the GDPR as incorporated into United Kingdom (“UK”) law by the Data Protection Act 2018 and amended by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (each as amended, superseded, or replaced); and (iii) any other applicable data protection laws or regulations modeled on the GDPR.

(h)   “GDPR Personal Information” means Personal Information subject to GDPR-Modeled Data Protection Laws.

(i)     “includes” or “including” means “including but not limited to”.

(j)     “individual” or “individual(s)” include Consumer(s) as defined by the CCPA.

(k)   “Personal Information” means (i) any information about an identified or identifiable individual; or (ii) information that is not specifically about an identifiable individual but, when combined with other information, may identify an individual. Personal Information includes names, email addresses, postal addresses, telephone numbers, government identification numbers, financial account numbers, payment card information, credit report information, biometric information, online identifiers (including IP addresses and cookie identifiers), network and hardware identifiers, and geolocation information, and any information that constitutes “personal data” within the meaning of GDPR-Modeled Data Protection Laws, or “personal information” within the meaning of the CCPA.

(l)     “Privacy Shield” means, as applicable, EU-U.S., Swiss-U.S., UK-U.S. Privacy Shield self-certification approved by the European Commission (Decision 12 July 2016) and operated by the U.S. Department of Commerce, as amended.

(m)  “Process” or “Processing” means to access, create, collect, acquire, receive, record, consult, use, process, alter, store, maintain, retrieve, disclose, or dispose of. Process includes “processing” within the meaning of GDPR-Modeled Data Protection Laws.

(n)   “reasonable“ means reasonable and appropriate to (i) the size, scope, and complexity of the party’s business; (ii) the nature of the Personal Information being processed; and (iii) the need for privacy, confidentiality, and security of the Personal Information.

(o)   “Receiving Controller” means the Data Controller party that receives the Personal Information from the other Data Controller party under this Addendum.

(p)   “Secondary Use” means processing of Personal Information for purposes other than as necessary to fulfill the BoG Terms and comply with the specific instructions stated in the Agreement, or for any purpose that would be considered a “sale” or “disclosure” of Personal Information as defined by the CCPA.

(q)   “Services” means any goods or services that Merchant or a Third-Party Provider provide(s) to or for Google under the Agreement.

(r)    “Third-Party Provider” means any agent or other third party that a party to these BoG Terms authorizes to act on its behalf in connection with the Services. “Third-Party Provider” includes any “sub-processor” within the meaning of GDPR-Modeled Data Protection Laws.

 

3.     Data Controllers’ Mutual Representations and Warranties. The parties represent and warrant that each:

(a)   is an independent controller and third party to the other with respect to the Personal Information and will not Process the Personal Information as joint controllers; and

(b)   will individually determine the purposes and means of its Processing of Personal Information received from the Disclosing Controller as described in the Agreement.

4.     Data Controllers’ Mutual Obligations. In fulfilling its obligations under the Agreement, each party will comply with Applicable Data Protection Laws, including to the extent applicable:

(a)   providing all required notices or obtaining all required consents from individuals before Processing the Personal Information, including before disclosing it to the other party;

(b)   providing individuals with rights in connection with Personal Information in a timely manner, including the ability of individuals to: (i) access or receive their Personal Information in an agreed upon format; and (ii) correct, amend, or delete Personal Information where it is inaccurate, or has been Processed in violation of Applicable Data Protection Laws; and

(c)   responding to enquiries from data subjects or entities with supervisory or regulatory authority over either party concerning its Processing of Personal Information.

 

5. Receiving Controller’s Obligations.

(a)   Limitation on Secondary Use. Where required by Applicable Data Protection Laws, before Processing Personal Information for any Secondary Use, the Receiving Controller will provide explicit notice to individuals in writing of the Secondary Use and maintain a mechanism enabling individuals to opt out of the Secondary Use at any time.

(b)   Safeguards. The Receiving Controller will have in place reasonable technical and organizational measures to protect Personal Information against accidental, unauthorized, or unlawful destruction, loss, alteration, disclosure, or access. The Receiving Controller will ensure that such measures provide a level of security reasonable to the risk represented by the processing and the nature of the data to be protected including:

                       (i)     maintaining reasonable controls to ensure that access to Personal Information will be limited to individuals who have a legitimate need to Process Personal Information under the Agreement;

                      (ii)     promptly terminating an individual’s access to Personal Information when such access is no longer required for performance under the Agreement;

                     (iii)     using reasonable and secure data transfer methods to transfer any Personal Information across any network other than an internal company network owned and managed by that party;

                    (iv)     assuming responsibility for any unauthorized access to Personal Information under the Receiving Controller’s custody or control (or Third-Party Provider(s)’ custody or control); and

                     (v)     providing reasonable ongoing privacy and information protection training and supervision for all personnel (including Third-Party Providers) who Process Personal Information.

(c)   Security Incident Response; Statements.

                       (i)     The Receiving Controller will maintain a reasonable incident response program to respond to security incidents. The Receiving Controller will promptly inform the Disclosing Controller if any security incident requires notice to end users.

                      (ii)     Except as required by law, the Receiving Controller will not make (or permit any Third-Party Provider under its control to make) any statement concerning the security incident that directly or indirectly references the Disclosing Controller unless the Disclosing Controller provides its written authorization.

(d)   Third-Party Providers. The Receiving Controller will contractually require each Third-­Party Provider that Processes Personal Information to protect the privacy, confidentiality, and security of Personal Information using all reasonable measures as required by this Addendum and Applicable Data Protection Laws. The Receiving Controller will regularly assess its Third-­Party Providers’ compliance with these contractual requirements.

(e)   Owned or Managed Systems. To the extent the Receiving Controller accesses the Disclosing Controller’s owned or managed networks, systems, or devices (including APIs, corporate email accounts, equipment, or facilities) to Process the Disclosing Controller’s Personal Information, the Receiving Controller will comply with the Disclosing Controller’s written instructions.

(f)    Assessments of Compliance with this Addendum. Within 15 days of the Disclosing Controller’s written request to assess Receiving Controller’s compliance with the Addendum, the Receiving Controller will, as relevant, provide certification, audit reports, or other reports regarding the Receiving Controller’s compliance with the Safeguards and Applicable Standards as defined by the International Organization for Standardization (ISO), International Electrotechnical Commission (IEC), or Statement on Standards for Attestation Engagements (SSAE) and International Standard on Assurance Engagements (ISAE) as published by the American Institute of Certified Public Accountants (AICPA), Payment Card Industry Data Security Standards, and International Auditing and Assurance Standards Board (IAASB), respectively. Examples of acceptable reports on Safeguards include: (1) SOC 1 Type II (based on SSAE 16, 18 or ISAE 3402); (2) SOC 2 Type II (based on SSAE 16, 18 or ISAE 3402); (3) ISO/IEC 27001:2013 certification; and (4) PCI DSS certification.

6. Legal Process. If a court or other government authority legally compels either party to disclose Personal Information, then to the extent permitted by law, the noticed party will promptly inform the other party of the request and reasonably cooperate with that party’s efforts to challenge the disclosure or seek an appropriate protective order.

7. Cross-Border Transfers.

(a)   Transfers of Data Out of the EEA, Switzerland, and the UK. Either party may transfer GDPR Personal Information outside the EEA, Switzerland, or the UK (as applicable) if it complies with the provisions on the transfer of personal data to third countries in GDPR-Modeled Data Protection Laws.

(b)   Transfers under the Privacy Shield.

                           (i)     To the extent a Receiving Controller Processes GDPR Personal Information that was originally transferred to the Disclosing Controller in reliance on the Privacy Shield, the Receiving Controller will:

(A)   provide at least the same level of protection for the GDPR Personal Information as required by the relevant principles of the Privacy Shield; and

(B)   promptly notify the Disclosing Controller in writing if it determines that it can no longer provide such protection and, upon making such a determination, cease Processing the GDPR Personal Information or take other reasonable remediation steps.

                          (ii)     Google LLC has certified under the Privacy Shield on behalf of itself and certain of its US subsidiaries with respect to the transfer of GDPR Personal Information from the EEA, Switzerland, or the UK (as applicable) to the US. Google’s certification is at https://www.commerce.gov/page/eu-us-privacy-shield.

8. Termination. In addition to the suspension and termination rights in the Agreement, either party may terminate the BoG Terms or an applicable SOW if it reasonably determines that (a) the other party has failed to cure material noncompliance with the Addendum within a reasonable time; or (b) it needs to do so to comply with Applicable Data Protection Laws.

9. Survival. This Addendum will survive expiration or termination of the BoG Terms as long as the parties continue to Process the other party’s Personal Information.