Google Services Agreement
Confidential
treatment has been requested for portions of this exhibit. The copy filed
herewith omits the information subject to the confidentiality request.
Omissions are designated as *. A complete version of this exhibit has been
filed
separately with the Securities and Exchange Commission.
Exhibit
10.19
This
Google Services Agreement (“GSA”) is entered into by and between Google Inc.
(“Google”) and GuruNet Corporation, a corporation formed under the laws of
Delaware (“Customer”). This GSA shall be effective as of the GSA Effective Date
Set forth in the signature block below. Each Order Form (as defined below)
shall
be governed by this GSA and shall become effective on the data stated in such
Order Form (“Order Form Effective Date”). This GSA and the corresponding
individual Order Form into which this GSA is incorporated together constitute
the “Agreement”.
1
DEFINED
TERMS.
The
following capitalized terms shall have the meanings set forth below. Capitalized
terms used but not defined in this GSA, shall have the meanings stated in the
Order Form.
1.1
“Ads”
or “Advertising Results” means advertisements served by Google under the
Agreement.
1.2
“Beta
Features” are those features of the Services which are identified by Google as
beta or unsupported in Google’s then current technical
documentation.
1.3
“Brand Features” means the trade names, trademarks, service marks, logos, domain
names, and other distinctive brand features of each party, respectively, as
secured by such party from time to time.
1.4
“Customer Client Application” means the Client Application(s), if any, approved
for purposes of accessing one or more of the Services as provided in the Order
Form.
1.5
“Customer Content” means any editorial, text, graphic, audiovisual, and other
content that is serviced to End Users of the Site(s) or Customer Client
Application (s) and that it not provided by Google.
1.6
“Destination Page” means any Web page which may be accessed by clicking on any
portion of an Advertising Result and/or Search Result.
1.7
“End
Users” of a particular Site or Customer Client Application means individual,
human end users who visit or use the applicable Site or Customer Client
Application.
1.8
“Google Protocol” means Google’s then current protocol for accessing and
implementing the Services.
1.9
“Intellectual Property Rights” means any and all rights existing from time to
time under patent law, copyright law, semiconductor chip protection law, moral
rights law, trade secret law, trademark law, unfair competition law, publicity
rights law, privacy right laws, and any an all other proprietary rights, as
well
as any and all application, renewals, extensions, restorations and
re-instatements thereof, now or hereafter in force and effect
worldwide.
1.10
“Order Form” means the individual Google Services Agreement Order Form executed
by both Customer and Google and into which this GSA has been incorporated by
references as provided therein. Each Order Form (as it may be amended from
time
to time) into which this GSA may be incorporated will be considered a separate
agreement from any other Order Form. Accordingly, for purposes of interpretation
of any specific order form, “Order Form” shall refer only to that Order Form
into which this GSA has been incorporated and which is the subject of
interpretation, and not to be any other order form into which this GSA may
otherwise be incorporated (unless and then only to the extent the parties have
expressly provided otherwise).
1.11
“Results Page” means a Web page on which Google Search and/or Advertising
Results are displayed.
1.12
“Search Results” means search results served by Google under the
Agreement.
1.13
“Services” means the services ordered by Customer and to be provided by Google
pursuant to the Order Form.
2
SERVICES.
2.1
Services.
Subject
to the terms and conditions of this Agreement, Google will provide Customer,
and
Customer will procure from Google, the Services for the fees set forth in the
Order Form executed by Customer and Google. This GSA may be incorporated into
more than one Order Form, provided that each such Order Form (together with
all
documents incorporated therein) shall be considered a separate agreement from
any other Order Form. In the event of any conflict between the provisions of
the
Order Form and the provisions of this GSA, the provisions of the Order Form
shall control.
2.2
Beta
or Unsupported Features.
Certain
Services may include Beta Features, Customer understands and agrees that Beat
Features are provided “as is” and any use thereof shall be undertaken solely at
Customer’s own risk. Google reserves the right, in its sole discretion, to
include or cease providing Beta Features as part of any Services at any
time.
3
CUSTOMER
OBLIGATIONS.
3.1
Prohibited
Actions.
Customer shall not, and shall not allow any third party to:
(a)
edit,
modify, truncate, filter or change the order of the information contained in
any
Search Results and/or Advertising Results (either individually or collectively),
including, without limitation, by way of commingling Search Results an/or
Advertising Results with non-Google provided search results or
advertising;
(b)
frame
any Results Page or Destination Page;
(c)
redirect an End User away from the Destination Page, provide a version of the
Destination Page different from the page an End User would access by going
directly to the Destination Page, intersperse any content between an Advertising
Result or Search Result and the corresponding Destination Page or implement
any
click tracking or other monitoring of Advertising Results or Search
Results;
(d)
display any Search Results and/or Advertising Results in pop-up, pop-under,
exit
windows, expanding buttons, or animation;
(e)
display any Search Results and/or Advertising Results to any third parties
other
than End Users;
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(f)
minimize, remove or otherwise inhibit the full and complete display of any
Results Page (including any Search Results and/or Advertising Results), and
the
corresponding Destination Page;
(g)
produce or distribute any software, or permit any of its software to be
distributed with software, that prevents the display of ads provided by Google
(such as by way of blocking or replacing ads);
(h)
directly or indirectly access, launch and/or activate the Services through
or
from, or otherwise incorporate the Services in, any software application, Web
site or other means other than the Site(s), and then only to the extent
expressly permitted herein;
(i)
transfer, sell, lease, syndicate, sub-syndicate, lend, or use for co-branding,
timesharing, service bureau or other unauthorized purposes any Services or
access thereto (including, but not limited to Search Results and/or Advertising
Results, or any part, copy or derivative thereof);
(j)
enter
into any arrangement or agreement under which any third party pays Customer
fees, Customer pays any third party fees, or either shares in any revenue
payments and/or royalties for any Search Results and/or Advertising
Results.
(k)
directly or indirectly generate queries, or impressions of or clicks on Search
or Advertising Results, through any automated, descriptive, fraudulent or other
invalid means (including, but not limited to, click spam, robots, macro
programs, and Internet agents); or
(l)
encourage or require End Users or any other persons, either with or without
their knowledge, to click on Advertising Results through offering incentives
or
any other methods that are manipulative, deceptive, malicious or fraudulent
(each of the foregoing in subsections (k) and (l) a “Fraudulent
Act”).
(m)
modify, adapt, translate, prepare derivative works from, decompile, reverse
engineer, disassemble or otherwise attempt to source code from any Services,
the
Google Protocol, or any other Google technology, content, date, routines,
software, materials, and documentation;
(n)
remove, deface, obscure, or alter Google’s copyright notice, trademarks or other
proprietary rights notices affixed to or Provided as a part of any
Services, the Google Protocol, or any other Google technology, software,
materials and documentation;
(o)
“crawl”, “spider”, index or in any non-transitory manner stores or cache
information obtained by Services (including, but not limited to, Search Results
and/or Advertising Results, or any part, copy or derivative
thereof);
(p)
create or attempt to create a substitute or similar services or product through
use of or access to any of the Services or proprietary information related
thereto ; or
(q)
engage in any action or practice that reflects poorly on Google or otherwise
disparages or devalues Google’s reputation or goodwill.
Further,
no Site or Customer Client Application shall contain any pornographic,
hate-related or violent content or contain any other material, products or
services that violate or encourage conduct that would violate any criminal
laws,
any other applicable laws, or any third party rights.
3.2
Implementation.
Customer shall ensure that there is no use of or access to any Services through
Customer’s properties which are not in compliance with the terms of the
Agreement or not otherwise approved by Google, and Customer shall monitor and
disable any such access or use by unauthorized parties (including, but not
limited to, spammers or any third party sites). Furthermore, at all times during
the Services Term, Google reserves final approval authority with respect to
the
means used by Customer to deploy the Services, and in the event Google
disapproves of such deployment, Google shall have the right, upon, written
notice to Customer, to suspend any continued use of the applicable services
until such time Customer implements adequate corrective modifications as
reasonably required and determined by Google. Google may send uncompensated
test
queries to the Site(s) or Customer Client Application(s) at any time to verify
Customer’s compliance with the requirements of this Agreement.
4.
Ownership
License Grants.
4.1
Google
Rights.
Google
shall own all right, title and interest, including without limitation all
intellectual Property Rights (as defined below), relating to the Services (and
any derivative works or enhancements thereof), including but not limited to,
all
software, technology, information, content, materials, guidelines,
documentation, and the Google Protocol. Customer shall not acquire any right,
title or interest therein, except for the limited use rights expressly set
forth
in the Agreement. Any rights not expressly granted herein are deemed
withheld.
4.2
Customer
Rights.
Customers, its licensors, or other applicable third party providers own all
intellectual Property Rights in and to the Customer Content. Google shall not
acquire any right, title or interest in or to such Customer Content, except,
as
expressly provided herein. Any rights not expressly granted herein are deemed
withheld.
4.3
Brand
Features: License Grant.
4.3.1
Brand
Features.
Each
party shall own all right, title and interest, including without limitation
all
intellectual Property Rights, relating to its Brand Features. Some, but not
all
examples of Google Brand Features are located at xxxx://xxx.xxxxxx.xxx/xxxxxxxxxxx/xxxxxxxxxx.xxxx
(or such
other URLs Google may provide from time to time). Except to the limited extent
expressly provided in this Agreement, neither party grants, and the other party
shall not acquire, any right, title or interest (including, without limitations,
any implied license) in or to any Brand Features of the first party; and all
rights not expressly granted herein are deemed withheld. All use by Google
of
Customer Brand Features (including any goodwill associated therewith) shall
inure to the benefit of Google. No party shall challenge or assist others to
challenge the Brand Features of the other party (except to protect such party’s
rights with respect to its own Brand Features) or the registration thereof
by
the other party, nor shall either party attempt to register any Brand Features
or domain names that are confusingly similar to those of the other
party.
4.3.2
License
to Google Brand Features.
Subject
to the terms and conditions of this Agreement, Google grants to Customer a
limited, nonexclusive and nonsublicensable license during the Services Term
to
display those Google Brand Features expressly authorized for use in this
Agreement, solely for the purposes expressly set forth herein. Notwithstanding
anything to the contrary, Google may revoke the license granted herein to use
Google’s Brand Features upon providing Customer with written notice thereof and
a reasonable period of time to access such usage. Furthermore, in its use of
any
Google Brand Features, Customer agrees to adhere to Google’s then current Brand
Features use guidelines, and any content contained or reference therein, which
maybe be found at the following URL: xxxx://xxx.xxxxxx.xxx/xxxxxxxxxxx/xxxxxxxxxx.xxxx
(or such
other URL Google may provide from time to time.)
4.3.3
License
to Customer Brand Features.
Subject
to the terms and conditions of this Agreement, Customer grants to Google a
limited, nonexclusive and nonsublicensable license during the Services Term
to
display those Customer Brand Features expressly authorized for use in this
Agreement, solely for the purposes expressly set forth herein. Notwithstanding
anything to the contrary, Customer may revoke the license granted herein to
use
Customer’s Brand Features upon providing Google with written notice thereof and
a reasonable period of time to cease such usage.
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5.
Payment
5.1
Fees.
The
fees and payment terms for the Services shall be set forth in the applicable
Order Form.
5.2
Taxes
and Other Charges.
All
payments under the Agreement are exclusive of taxes imposed by any governmental
entity. Customer shall pay any applicable taxes, including sales, use personal
property, value-added, exercise, customs fees, import duties or stamp duties
or
other taxes and duties imposed by governmental entities or whatever kind and
imposed with respect to the transactions for services provided under the
Agreement, including penalties and interest, but specifically excluding taxes
based upon Google’s net income. When Google has the legal obligation to collect
any applicable taxes, the appropriate amount shall be invoiced to and paid
by
Customer “net thirty (30) days” from the date of invoice or other notification.
Customer shall promptly provide Google with such documentation as may be
required by the applicable governmental entity in order for Google to process
payments hereunder (including, without limitation, a valid certification of
Customer’s exemption from obligation to pay taxes as authorized by the
appropriate governmental entity), and Google may withhold any payments required
to be made hereunder until Customer has provided such documentation. Customer
shall promptly provide Google with original or certified copies of all tax
payments or other sufficient evidence of tax payments at the time such payments
are made by Customer pursuant to the Agreement.
6.
Representations,
Warranties and Disclaimers.
Each
party represents and warrants that it has full power and authority to enter
into
the Agreement. Customer represents and warrants that: (a) Customer owns and
controls one hundred percent (100%) of the Site(s) and Customer Client
Application(s) and otherwise has and will maintain throughout the Services
Term
all rights, authorizations and licenses that are required with respect to the
Site(s) and Customer Application(s) to permit Google to perform the Services
contemplated under this Agreement; (b) the execution and delivery of this
Agreement, and the performance by Customer of its obligations hereunder, will
not constitute a breach or default of or otherwise violate any agreement to
which such party, or any of its affiliates are a party or violate any rights
of
any third parties arising therefrom; (c) Customer shall use information provided
by Google (including, but not limited to, Search Results and/or Advertising
Results) in a manner that complies with applicable laws; and (d) Customer has
and will maintain all rights as shall be required to send the information it
provides to Google pursuant to this Agreement. Google does not warrant that
the
Services will meet all of the Customer’s requirements or that performances of
the Services will be uninterrupted, virus free, secure or error-free. Except
as
expressly provided for herein, NEITHER PARTY MAKES ANY OTHER WARRANTY OF ANY
KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT
LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND
NONINFRINGEMENT.
7.
Indemnification.
7.1
Google
Indemnity.
Google
will defend, or at its option settle, any third party lawsuit or proceeding
brought against Customer based upon or otherwise arising out of a claim that
Google’s technology used to provide the Services or any Google Brand Feature
infringe(s) or misappropriate(s) any copyright, trade secret or trademark of
such third party. Notwithstanding the foregoing, in no event shall Google have
any obligations or liability under this Section arising from: (i) use of any
Beta Features, the News Search Services or Image Search Services, (ii) use
of
any Services or Google Brand Features in a modified form or in combination
with
materials not furnished by Google, (iii) any content, information or data
provided by Customer, End Users or any other third parties, and (iv) any Search
Results or Advertising Results or third party Web sites or content to which
such
Search Results or Advertising Results may link. Google, in its sole and
reasonable discretion, reserves the right to terminate Customer’s continued use
of any Services or Google Brand Features which are alleged or believed by Google
to infringe.
7.2
Customer
Indemnity.
Customer will defend, or at its option settle, any third party lawsuit or
proceeding brought against Google based upon or otherwise arising out of :
(a)
Customer Content, the Site(s), Customer Client Application(s) and/or Customer
Brand Features; (b) Customer’s use of the News Search Services or the Image
Search Services; (c) Customer’s use of the Services in any manner inconsistent
with or in breach of the Agreement; and/or (d) any claim alleging facts that
would constitute a breach of Customer’s representations and warranties made in
subsection (b) of the second sentence of Section 6.
7.3
General.
Indemnification provided under Sections 7.1 and 7.2 shall be limited to (a)
payment by the indemnifying party (“Indemnitor”) of all damages and costs
finally awarded for such claim, or (b) settlement costs approved in writing
by
the Indemnitor. The foregoing obligations shall exist only if the party seeking
indemnification (“Indemnitee”); (i) promptly notifies the indemnitor of such
claim, (ii) provides the indemnitor with reasonable information, assistance
and
cooperation in defending the lawsuit or proceeding, and (iii) gives the
indemnitor full control and sole authority over the defense and settlement
of
such claim. The indemnitee may join in defense with counsel if its choice at
its
own expense. The Indemnitor shall only reimburse for expenses incurred by the
Indemnitee with the Indemnitor’s prior written approval. SECTION 7 STATES THE
PARTIES’ ENTIRE LIABILITY AND EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT OF A
THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS AS SET FORTH ABOVE.
8.
Limitation
of Liability.
8.1
Limitation.
SUBJECT
TO SECTION 8.2, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL,
INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT
LIMITED TO DAMAGES FOR LOST DATA, LOST PROFITS, LOST REVENUE OR COSTS OF
PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED AND UNDER ANY THEORY
OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT (INCLUDING PRODUCTS
LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT SUCH PARTY
WAS
OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND
NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED
HEREIN. SUBJECT TO SECTION 8.2, IN NO EVENT SHALL GOOGLE’S LIABILITY FOR ANY
CLAIM ARISING OUT OF THIS AGREEMENT (WHEN AGGREGATED WITH GOOGLE’S LIABILITY FOR
ALL OTHER CLAIMS ARISING OUT OF THIS AGREEMENT) EXCEED THE NET AMOUNT GOOGLE
HAS
ACTUALLY RECEIVED AND RETAINED (AFTER ACCOUNTING FOR ALL DEDUCTIONS, PAYMENTS
TO
CUSTOMER AND OTHER OFFSETS PROVIDED FOR UNDER THE AGREEMENT) DURING THE SIX
(6)
MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ARISES.
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8.2
Exclusions
from Limitations.
Unless
and then only to the extent this Agreement expressly states otherwise, nothing
in this Agreement shall exclude or limit either party’s liability for: (a)
breaches of the exclusivity obligations contained in this Agreement; (b)
breaches of any confidentiality obligations contained in this Agreement; (c)
infringement or misappropriation of the other party’s Intellectual Property
Rights or Customer’s breach of any license granted in this Agreement to use the
applicable Google Data Protocol(s); or (d) any amounts payable to third parties
pursuant to the parties’ indemnification obligations hereunder.
8.3
Allocation
of Risk.
The
parties agree that (i) the mutual agreements made in this Section 8 reflect
a
reasonable allocation of risk, and (ii) that each party would not enter into
the
Agreement without these limitations on liability.
9
Confidentiality;
PR.
9.1
Confidentiality.
Disclosure of confidential and/or proprietary information disclosed hereunder,
including the existence and content of the Agreement and any information
provided pursuant to the Agreement, shall be governed by the confidentiality
provisions of the Google Standard Mutual Non-Disclosure Agreement, which has
been executed by the parties prior to or concurrently with this GSA, as of
the
date provided in the Order Form (the “NDA”). The confidentiality provisions of
the NDA are hereby incorporated by reference into this GSA.
9.2
PR.
Neither
party will issue any public announcement regarding the existence or content
of
this Agreement without the other party’s prior written approval. Notwithstanding
the foregoing, Google may include Customer’s Brand Features in Presentations,
marketing materials, and customer lists (which includes, without limitation,
customer lists posted on Google’s web sites and screen shots of Customer’s
Implementation of the Services). Upon Customer’s request, Google will furnish
Customer with a sample of such usage.
10
Term
and Termination
10.1
Term.
The
term of an Order Form under which Services may be used by Customer shall
commence on the applicable Order Form Effective Date (except as otherwise
specified in such Order Form) and shall continue for the period of time set
forth on such Order Form for the applicable Services (“Services Term”), unless
earlier terminated as provided herein or therein.
10.2
Termination.
10.2.1
General.
Either
party may suspend performance and/or terminate this Agreement, in whole or
in
part: (i) if the other party materially breaches any material term or condition
of this Agreement and fails to cure such breach within thirty (30) days after
receiving written notice thereof; or (ii) if the other party becomes insolvent
of makes any assignment for the benefit of creditors or similar transfer
evidencing insolvency, or suffers or permits the commencement of any form of
insolvency or receivership proceeding, or has any petition under bankruptcy
law
filed against it, which petition is not dismissed within sixty (60) days of
such
filing, or has a trustee, administrator or receiver appointed for its business
or assets or any part thereof.
10.2.2
Google
Termination Rights.
Google
may terminate this Agreement, or the provision of any Service hereunder,
immediately upon written notice: (i) if Customer breaches Section 3.1
(Prohibited Actions) of this GSA, Section 4.3 (License Grants; Brand Features)
of this GSA or, Section 9.1 (Confidentiality) of this GSA or the exclusivity
provisions contained in the Order Form; (ii) if Customer is in material breach
of this Agreement more than two (2) times notwithstanding any cure of such
breaches; (iii) if Google reasonably determines that it is commercially
impractical to continue providing the Services in light of applicable laws;
or
(iv) as otherwise provided in the Order Form.
10.2.3
Suspension
and Termination in the Event of an Injunction.
Google
may suspend performance under this Agreement in whole or in part with immediate
effect if, as a result of a claim alleging facts that would constitute a breach
of Customer’s representations and warranties made in subsections (b) and (c) of
the second sentence of Section 6, Google is obliged by final or temporary court
order or magisterial decision to temporarily or permanently refrain from
continuing to perform its obligations under this Agreement. Google’s rights
under this provision shall become effective on the date of the court order
or
magisterial decision or on the date of the service of the order irrespective
of
the possibility of appeal. If any suspension under this paragraph continues
for
more than six (6) months, Google may terminate this Agreement in whole or in
part with immediate effect.
10.3
Rights
upon Termination.
Upon
the expiration or termination of the Agreement for any reason: (i) all rights
and licenses granted by Google shall cease immediately; (ii) each party shall
promptly return to the other party, or destroy and certify the destruction
of,
all Confidential Information of the other party; and (iii) Customer’s rights to
use any Google Brand Features, as permitted under the Agreement, shall cease
immediately.
10.4
Effect
of Termination of an Order Form.
The
termination or expiration of an Individual Order Form or this Agreement shall
not have the effect of terminating any other Individual Order Form or this
GSA
with respect to such other Individual Order Form, unless expressly agreed to
by
the parties in writing. Either party may terminate this GSA upon thirty (30)
days’ prior written notice to the other, provided that in no event may this GSA
be terminated with respect to any Order Form that remains
outstanding.
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10.5
Non-exclusive
Remedy.
Termination or expiration of this Agreement, in part or in whole, shall not
limit either party from pursuing other remedies available to it, nor shall
either party be relieved of its obligation to pay all fees that are due and
owing under this Agreement through the effective date of termination. Neither
party shall be liable to the other for any damages resulting solely from
termination as permitted herein.
11.
Miscellaneous
11.1
Compliance
with Laws.
Each
party shall comply with all laws, rules and regulations, if any, applicable
to
it in connection with the performance of its obligations under the
Agreement.
11.2
Notices.
All
notices shall be in English and in writing and (a) if sent to Customer to the
address identified on the Order Form and (b) If sent to Google to such address
as provided at: xxx.xxxxxx.xxx/xxxxxxxxx/xxxxxxx.xxxx
or as
otherwise provided in writing for such notice purposes; provided, however,
that
all invoices and payments shall be sent to the attention of Google Finance,
all
legal notices shall be sent to the attention of the Google Legal Department,
and
all other correspondence shall be sent to the attention of the account manager
specified by Google. Notice shall be deemed given (1) upon receipt when
delivered personally, (II) upon written verification of receipt from overnight
courier, (III) upon verification of receipt of registered or certified mail
or
(IV) upon verification of receipt via facsimile, provided that such notice
is
also sent simultaneously via first class mail.
11.3
Assignment.
Customer
shall not assign or otherwise transfer its rights or delegate its obligations
under the Agreement, in whole or in part, without the prior written consent
of
Google; and any attempt to do so will be null and void. For purposes of this
sentence, an assignment will be deemed to include any transaction in which
another party or parties acquire the direct or indirect power to direct the
management and policies of a party or its assets, whether by way of merger,
consolidation, change of control, sale of all or substantially all of a party’s
securities or assets, contract, management agreement or otherwise.
11.4
Consultations.
Before a
party initiates legal action against the other arising from the Agreement
(except to seek injunctive or equitable relief or to otherwise protect its
intellectual Property Rights), the matter in controversy will first be referred
to an officer of each party, who shall make good faith and reasonable efforts
to
resolve the matter within four (4) weeks of the date of referral.
11.5
Governing
Law.
The laws
of California, excluding California’s choice of law rules, and applicable
federal U.S. laws shall govern the Agreement. Each party agrees to submit to
the
personal and exclusive jurisdiction of the courts located in Santa Xxxxx County,
California. The parties specially exclude from application to the Agreement
the
United Nations Convention of Contracts for the International Sale of Goods
and
the Uniform Computer Information Transactions Act.
11.6
Equitable
Relief.
Either
party may seek equitable relief, including temporary restraining orders or
injunctions, in addition to all other remedies, for breach or threatened breach
of Customer’s exclusitivity obligations contained in this Agreement, either
party’s license grant set forth in this Agreement, or either party’s obligations
contained in Sections 4 (Ownership; License Grant) or Section 9.1
(Confidentiality) of this GSA.
11.7
Entire
Agreement.
The
Agreement supersedes any other prior or collateral agreements, whether oral
or
written, with respect to the subject matter hereof. This GSA and related Order
Form(s) (Including any exhibits thereto), and any terms located at Google URLs
referenced pursuant to the Agreement (which are all incorporated herein by
reference), constitute the entire agreement with respect to the subject matter
hereof, and any terms contained in any related purchase order(s) or other
documents pertaining to the subject matter of the Agreement shall be null and
void.
11.8
Amendments.
Any
amendments or modifications to the Agreement must (I) be in writing; (II) refer
to the Agreement; and (III) be executed by an authorized representative of
each
party. Any changes to the Agreement not approved in writing by the Google Legal
Department shall not be binding on Google.
11.9
No
Waiver.
The
failure to require performance of any provision shall not affect a party’s right
to require performance at any time thereafter; nor shall waiver of a breach
of
any provision constitute a waiver of the provision itself.
11.10
Severability.
If any
provision is adjudged by a court of competent jurisdiction to be unenforceable,
invalid or otherwise contrary to law, such provision shall be interpreted so
as
to best accomplish its intended objectives and the remaining provisions shall
remain in full force and effect.
11.11
Survival.
The
following sections of this GSA will survive any expiration or termination of
this Agreement: 4.1, 4.2, 4.3.1 (except for the last sentence thereof), 5.2,
6,
7, 8, 9 (including the NDA), 10.3, 10.4, 10.5 and 11.
11.12
Independent
Contractors.
The
parties hereto are and shall remain independent contractors and nothing herein
shall be deemed to create any agency, partnership, or joint venture relationship
between the parties. Neither party shall be deemed to be an employee or legal
representative of the other nor shall either party have any right or authority
to create any obligation on behalf of the other party.
11.13
No
Third Party Beneficiaries.
The
Agreement is not intended to benefit, nor shall it be deemed to give rise to,
any rights in any third party.
11.14
Force
Majeure: Transmissions.
Neither
party shall be liable for failing or delaying performance of its obligations
(except for the payment of money) resulting from any condition beyond its
reasonable control, including but not limited to, governmental action, acts
of
terrorism, earthquake, fire, flood or other acts of God, labor conditions,
power
failure, and Internet disturbances. Google will not be responsible for receiving
data, queries or requests directly from End Users or any other third party,
for
transmission of data between Customer’s (or any End User’s) and Google’s network
interface, or for displaying any applicable Results Set(s) to End
Users.
11.15
Successors;
Counterparts; Drafting; General.
This
Agreement (a) shall be binding on and inure to
the
benefit of each of the parties and their respective successor and assigns;
(b)
may be executed in counterparts, including facsimile counterparts, each of
which
will be deemed an original and all of which when taken together will constitute
one and the same instrument; and (c) shall be construed as if both parties
jointly wrote it. In the event of conflict between the terms of this GSA and
the
terms of the Order Form, the Order Form shall govern with respect to such
conflict.
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V4.4
GSA 1104
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IN
WITNESS WHEROF, the parties have executed this GSA by persons duly authorized
as
of the “GSA Effective Date”, which shall be the date written by Google
below.
|
Google:
GOOGLE INC,
|
Customer:
GuruNet Corporation
|
|
By:
/s/ Xxxx Xxxxxx
|
By:
/s/ Xxxxxx X. Xxxxxxxxxxx
|
|
Print
Name: Xxxx Xxxxxx
|
Print
Name: Xxxxxx X. Xxxxxxxxxxx
|
|
Title:
VP Search Services
|
Title:
CEO
|
|
Date:
Jan 28, 2005
|
Date:
Jan 27, 2005
|
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V4.4
GSA 1104
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|
CUSTOMER
(FULL LEGAL NAME): GuruNet Corporation
|
GSA
Effective Date: 1/28/05
|
NDA
Effective Date: 10/12/04
|
|
|
Corporate
Contact Information:
|
Billing
Contact Information:
|
Legal
Notices to:
|
|
|
Attention:
|
Xxx
Xxxxx
|
Xxxxx
Xxxxxxxxx
|
Xxxxx
Xxxxxxxxx
|
|
Title:
|
Director,
Product Management
|
CFO
|
CFO
|
|
Address,
City, State,
Postal
Code, Country:
|
XxxxXxx,
XXX 00000, Xxxxxxxxx Tech. Park, Xxxx. 00 Xxxxxxxxx,
Xxxxxx
|
000
Xxxxx 000, Xxxxxx Xxxxx, XX, 00000-0000, XXX
|
000
Xxxxx 000, Xxxxxx Xxxxx, XX, 00000-0000, XXX
|
|
Phone:
|
x000-0-000-0000
|
(000)000-0000
|
(000)000-0000
|
|
Fax:
|
x000-0-000-0000
|
(000)000-0000
|
(000)000-0000
|
|
Email:
|
xxx@xxxxxxx.xxx
|
xxxxxx@xxxxxxx.xxx
|
xxxxxx@xxxxxxx.xxx
|
|
Technical
Contact:
|
Name:
Xxxx Xxxxxxxxxxxx
|
Email:
xxxx@xxxxxxx.xxx
|
Tel:
(000)000-0000
|
|
Customer
Wire Transfer Info (if applicable):
|
D&B
DUNS Number:
|
VAT/Tax
Number:
|
|
|
Order
Form Effective Date: 1/28/05
|
Initial
Services Term: 1/28/05 -
1/31/06
|
||
|
SEARCH
SERVICES
|
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GSA
Order Form v4.4 1104
|
|
ADSENSE
SERVICES
|
|
ADSENSE
FOR SEARCH (“AFS”)
|
Customer’s
AFS Revenue Share Percentage (%)
|
AFS
Deduction Percentage (%)
|
Specifications
|
|
x AdSense
for Search
AFS
Site: xxx.xxxxxxx.xxx; xxx.xxxxxxx.xxx
Approved
Client Application: GuruNet 5.1
|
*%
|
*%
|
Sponsored
Links/Results Page Min. # (See Exhibit A)
Wide
Format # 2; Narrow Format # 5
Above-the-fold:
Yes
See
Exhibit A for other AFS Specifications
AdWords
Link Location: All Results Pages
AdWords
Link Size:
|
|
Optional
AdSense for Search Features:
(check
the applicable boxes)
|
o AdSafe
Level: oHigh
x Medium
o Low
o Off
o Adult
Only
|
||
|
ADSENSE
FOR SEARCH (“AFS”)
|
Customer’s
AFS Revenue Share Percentage (%)
|
AFS
Deduction Percentage (%)
|
Specifications
|
|
x AdSense
for Search
AFS
Site: xxx.xxxxxxx.xxx; xxx.xxxxxxx.xxx
Approved
Client Application: GuruNet 5.1
|
*%
|
*%
|
See
Exhibit A for AFC
Specifications
|
|
Optional
AdSense for Content Features:
(check
the applicable boxes)
|
o AdSafe
Level:
o High
x Medium
|
o Related
Ad
Links
|
||
|
To
Be Completed By Google Finance
|
|
|
Customer
PO #: ______
o Credit
Check
Complete
|
Currency:
x US
Dollar
o Japanese
Yen
o Other:
|
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GSA
Order Form v4.4 0000
|
XXX
Order Form Terms and Conditions
1. Incorporation
of Google Services Agreement.
This
Order Form, including the terms and conditions hereunder, shall be governed
by
and incorporates by reference the Google Services Agreement between Google
and
Customer with the GSA Effective Date set forth in the Cover Page of this Order
Form (the “GSA”).
If
any terms of this Order Form conflict with the terms of the GSA, the terms
of
this Order Form shall control. The GSA and this Order Form together comprise
the
“Agreement.”
2. Services
Term.
The
term
of this Order Form shall commence on the Order Form Effective Date and shall
continue for the period of the Initial Services Term stated above, unless
earlier terminated as provided in this Agreement. Thereafter, this Order Form
may be renewed only upon a definitive written agreement signed by the parties.
For purposes of this Agreement, the term of any renewal hereunder is referred
to
as the “Renewal
Term,”
and
the
Initial Services Term, together with the Renewal Term, if any, may also be
referred to as the “Services
Term.”
3. Defined
Terms.
The
following capitalized terms shall have the meanings set forth below. Capitalized
terms used but not defined in this Order Form shall have the meanings stated
in
the GSA.
GENERAL
3.1. “Above-the-fold”
means
that portion of an Internet browser that is visible to any End User at a minimum
resolution of 800 by 600 pixels without scrolling within the applicable Web
page, as viewed through an Internet browser application considered among the
top
two (2) most widely used from time to time.
3.2. “Ads”
or
“Advertising
Results”
means
advertisements served by Google hereunder.
3.3. “Client
Application”
means
any application, plug-in, helper, component or other executable code that runs
on user’s computer; examples of Client Applications include those that provide
instant messaging, chat, email, data, file viewing, media playing, file sharing,
games, internet navigation, search and other services. A “WebSearch
Client Application,”
or
“AFS
Client Application,”
means
those Customer Client Applications that have been approved by Google to access
the WebSearch or AFS Services, respectively, either as reflected on the Cover
Page(s) of this Order Form or as otherwise approved by Google in writing from
time to time during the Services Term.
3.4. “Client
ID”
means
a
unique alphanumeric code provided to and used by Customer as specified by Google
for purposes of identifying each query or request. Google may assign and modify
the number of Client IDs for each Service from time to time. Customer will
use
Client IDs as instructed by Google, and will provide such information to Google
as Google may reasonably request with respect to the use and application of
any
Client IDs.
3.5. “Customer’s
Technical Contact”
means
the technical employee of Customer designated on the Cover Page of this Order
Form.
3.6. “End
Users”
of
a
particular Site or Client Application means individual, human end users who
visit or use the applicable Site or Client Application.
3.7. “Order
Form Effective Date”
means
the date designated as such on the Cover Page of this Order Form.
3.8. “Results
Page”
means
a
Web page on which Google search and/or advertising results provided under this
Agreement are displayed.
3.9. “Search
Results”
means
the search results provided by Google through any search Service ordered by
Customer, if any, under this Order Form.
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3.10. “Site(s)”
means
the WebSearch Site(s), and AFS Site(s) collectively. The “WebSearch
Site(s),”
and
“AFS
Site(s)”
are
those Web sites located at the URLs identified as such on the Cover Page(s)
of
this Order Form, as the same may be amended from time to time as permitted
herein. The list of Sites may be updated from time to time subject to Google’s
prior written consent.
3.11. “Valid
IP Addresses”
means
those Internet protocol addresses provided by Customer and approved by Google
prior to implementation of the applicable Services. The list of Valid IP
Addresses may be modified by Customer upon forty-eight (48) hours notice to
Google via the online Google Administration Console located at
xxxx://xxxxxxx.xxxxxx.xxx, or such other URL as may be updated by Google from
time to time.
ADSENSE
FOR CONTENT
3.12. “AFC
Ads”
means
the advertisements provided by Google to Customer under this Agreement through
Google’s AFC Service.
3.13. “AFC
Deduction”
for
any
period during the Services Term means the sum of (a)
the
percentage set forth under “AFC Deduction Percentage” under the AFC Table on the
Cover Page of this Order Form of AFC Revenues for such period PLUS
(b)
agency,
referral and third party advertising service provider fees incurred by Google
and attributed to AFC Ads provided hereunder in such period.
3.14. “AFC
Percentage”
means
the percentage set forth under the title “Customer’s
AFC
Revenue Share Percentage” in the AdSense for Content Table on the Cover Page(s)
of this Order Form.
3.15. “AFC
Protocol”
means
the protocol provided by Google for accessing the AFC Services, as such protocol
may be updated by Google from time to time.
3.16. “AFC
Request”
means
a
request for AFC Ads in connection with a pageview of a page on which AFC Ads
are
to be displayed.
3.17. “AFC
Results Set”
means
the set of AFC Ads transmitted by Google in response to an AFC Request.
3.18. “AFC
Revenues”
for
any
period during the Services Term means ad revenues that are recognized by Google
in such period and attributed to AFC Ads displayed
on the AFC Site in such period in accordance with the requirements of this
Agreement.
3.19. “AFC
Service”
means
Google’s AdSense for Content Service.
3.20. “Net
AFC Revenues”
for
any
period means
AFC
Revenues for such period MINUS
the
AFC
Deduction for such period.
3.21. “Related
Ad Links”
means
related advertising links provided by Google to Customer through Google’s AFC
Service.
ADSENSE
FOR SEARCH
3.22. “AFS
Ads”
means
the advertisements provided by Google to Customer under this Agreement through
Google’s AFS Service.
3.23. “AFS
Deduction”
for
any
period during the Services Term means the sum of (a)
the
percentage set forth under “AFS Deduction Percentage” under the AFS Table on the
Cover Page of this Order Form of AFS Revenues for such period PLUS
(b) agency,
referral and third party advertising service provider fees incurred by Google
and attributed to AFS Ads provided hereunder in such period.
3.24. “AFS
Percentage”
means
the percentage set forth under the title “Customer’s AFS Revenue Share
Percentage” in the AdSense for Search Table on the Cover Page(s) of this Order
Form.
3.25. “AFS
Protocol”
means
the protocol provided by Google for accessing the AFS Services, as such protocol
may be updated by Google from time to time.
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3.26. “AFS
Query”
means
a
query sent to Google by Customer to be processed by Google’s AFS Service.
3.27. “AFS
Results Set”
means
the set of AFS Ads transmitted by Google to Customer in response to an AFS
Query.
3.28. “AFS
Revenues”
for
any
period during the Services Term means ad revenues that are recognized by Google
in such period and attributed to AFS Ads displayed
on the AFS Site in such period in accordance with the requirements of this
Agreement.
3.29. “AFS
Service”
means
Google’s AdSense for Search Service.
3.30. “Net
AFS Revenues”
for
any
period means
AFS
Revenues for such
period MINUS
the AFS
Deduction for such period.
WEBSEARCH
3.31. “WebSearch
Box”
means
a
search box into which End Users may enter queries to search the Web. WebSearch
Boxes must be approved by Google and located on a WebSearch Site or in a
WebSearch Client Application.
3.32. “WebSearch
Query”
means
a
query sent to Google by Customer to be processed by Google’s WebSearch Service.
3.33. “WebSearch
Protocol”
means
the protocol provided by Google for accessing the WebSearch Services, as such
protocol may be updated by Google from time to time.
3.34. “WebSearch
Results”
means
WebSearch search results provided by Google through its WebSearch
Service.
3.35. “WebSearch
Results Set”
means
the set of WebSearch Results (not to exceed ten (10) individual results)
transmitted by Google to Customer in response to a WebSearch Query.
3.36. “WebSearch
Service”
means
Google’s WebSearch Service.
4. WebSearch
Services.
4.1. Scope
of WebSearch Services.
If
selected on the Cover Page(s) of this Order Form, during the Services Term
and
subject to the terms and conditions of this Agreement, Google will provide
Customer with WebSearch Results through its WebSearch Service for display on
the
WebSearch Sites and WebSearch Client Application as permitted herein. Customer
agrees to implement the WebSearch Service as provided herein on the WebSearch
Sites and WebSearch Client Applications in existence as of the date hereof
within thirty (30) days of the Order Form Effective Date, and to maintain such
implementation thereafter during the Services Term. Customer agrees to implement
the WebSearch Service on any WebSearch Site or WebSearch Client Application
added thereafter to the extent permitted herein.
4.2. Implementation
of WebSearch Services.
Unless
otherwise agreed to by Google in writing, Customer shall implement the WebSearch
Services in a manner that: (a) conforms to the WebSearch Specifications set
forth in the Cover Page(s) of this Order Form, if any; (b) conforms to Google’s
brand treatment guidelines for WebSearch as updated by Google from time to
time,
the current version of which is located at xxxx://xxx.xxxxxx.xxx/xxxxxx/00xxxxx.xxxx;
(c)
conforms to the screenshots and specifications set forth in Exhibit
A
attached
hereto; and (d) otherwise complies with the technical and implementation
requirements provided by Google from time to time, including those instructions
contained in the documentation setting forth the WebSearch Protocol. Without
limiting the foregoing, Customer acknowledges and agrees to the
following:
4.2.1. Search
Boxes and Queries. Customer
will implement the WebSearch Services and execute WebSearch Queries as described
in Exhibit
E,
which
shall be subject to Google’s prior written consent, which shall not be
unreasonably delayed.
Customer
may not implement the WebSearch Services except as permitted hereunder. Unless
(and then only to the extent) otherwise approved by Google in writing, Customer
understands and agrees that: (a) queries
sent to Google for processing under its WebSearch Service may be initiated
only
by End Users entering text on the WebSearch Site and WebSearch Client
Application as provided herein; and (b) Customer shall send any and all queries
generated on the WebSearch Sites and WebSearch Client Application as provided
in
subsection (a) above to Google for processing under its WebSearch Services
in
accordance with the requirements provided by Google, without editing,
filtering, truncating, appending terms to or otherwise modifying such
WebSearch Queries, either individually or in the aggregate. Notwithstanding
anything to the contrary, Google will have no obligation to process WebSearch
Queries that are not sent in compliance with the requirements of this
Agreement..
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4.2.2. Operation
of WebSearch Services.
Customer
will ensure that each WebSearch Query will (a)
be
from a list of Valid IP Addresses approved by Google for the WebSearch Services;
(b) contain a Client ID approved by Google for the WebSearch Services; and
(c)
include End User IP address and user agent information. Upon Google’s receipt of
a WebSearch Query, Google will transmit a WebSearch Results Set, to the extent
available, via Google’s network interface in accordance with the WebSearch
Protocol. Customer shall then display, in each instance, the entire WebSearch
Results Set that corresponds to such WebSearch Query on the applicable WebSearch
Site and/or WebSearch Client Application in the manner contemplated by this
Agreement, without editing, filtering, reordering, truncating, adding content
to
or otherwise modifying such WebSearch Results Set.
4.2.3. Labeling,
Branding and Attribution.
Each
Results Page containing a WebSearch Results Set shall conspicuously display
a
graphic module, in the form as provided by Google from time to time, that
unambiguously indicates that the WebSearch Results Sets are provided by Google.
Customer agrees that it shall not place anything on the Site or WebSearch Client
Application that in any way implies that information other than the WebSearch
Results Sets are provided by Google, unless otherwise expressly provided herein.
The Google graphic module shall be, at minimum, 75 x 32 pixels in size and
shall
be located Above-the-fold, unless otherwise directed by Google.
4.3. License
to WebSearch Protocol.
Google
grants to Customer a limited, nonexclusive and non-sublicensable license during
the Services Term to use the WebSearch Protocol solely for the purpose of
transmitting WebSearch Queries and other required information and receiving
WebSearch Results Sets solely to the extent permitted hereunder. Except to
the
limited extent expressly provided in this Agreement, Google does not grant,
and
Customer shall not acquire, any right, title or interest (including, without
limitation, any implied license) in or to any Google Intellectual Property
Rights; and all rights not expressly granted herein are reserved to
Google.
5. AdSense
for Search Services.
5.1. Scope
of AdSense for Search Services.
If
selected on the Cover Page(s) of this Order Form, during the Services Term
and
subject to the terms and conditions of this Agreement, Google will provide
Customer with AFS Ads through its AFS Service for display on the AFS Sites
and
AFS Client Applications as permitted herein. Customer agrees to implement the
AFS Service as provided herein on the AFS Sites and AFS Client Applications
in
existence as of the date hereof within thirty (30) days of the Order Form
Effective Date, and to maintain such implementation thereafter during the
Services Term. Customer agrees to implement the AFS Service on any AFS Site
or
AFS Client Application added thereafter as permitted herein.
5.2. Implementation
of AFS Services.
Unless
otherwise agreed to by Google in writing, Customer shall implement the AFS
Services in a manner that: (a) conforms to the AFS Specifications set forth
in
the Cover Page(s) of this Order Form, if any; (b) conforms to Google’s brand
treatment guidelines for AFS Services as updated by Google from time to time,
the current version of which is located at xxxx://xxx.xxxxxx.xxx/xxxxxx/00xxxxx.xxxx;
(c)
conforms to the screenshots and specifications set forth in Exhibit
A
attached
hereto; and (d) otherwise complies with the technical and implementation
requirements provided by Google from time to time, including those instructions
contained in the documentation setting forth the AFS Protocol. Without limiting
the foregoing, Customer acknowledges and agrees to the following:
5.2.1. AFS
Queries.
Unless
(and then only to the extent) otherwise approved by Google in writing, Customer
understands and agrees that: (a) queries
sent to Google for processing under its AFS Service may be initiated only by
End
Users (i) entering text on the AFS Site and AFS Client Application as provided
and permitted herein; and (b) Customer shall send any and all queries generated
on the AFS Sites and AFS Client Application as provided in subsection (a) above
to Google for processing under its AFS Services in
accordance with the requirements provided by Google, without editing,
filtering, truncating, appending terms to or otherwise modifying such
AFS
Queries, either individually or in the aggregate. Notwithstanding
anything to the contrary, Google will have no obligation to process AFS Queries
that are not sent in compliance with the requirements of this
Agreement.
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5.2.2. Operation
of AFS Services.
Customer
will ensure that each AFS Query will (a)
be
from a list of Valid IP Addresses approved by Google for the AFS Services;
(b)
contain a Client ID approved by Google for the AFS Services; (c) include End
User IP address and user agent information; and (d) request no fewer than the
minimum number of AFS Ads per AFS Results Page stated in the Cover Page(s)
of
this Order Form. Upon Google’s receipt of an AFS Query, Google will transmit an
AFS Results Set, to the extent available, via Google’s network interface in
accordance with the AFS Protocol. Customer shall then display, in each instance,
the entire AFS Results Set that corresponds to such AFS Query on the applicable
AFS Site in the manner contemplated by this Agreement, without editing,
filtering, reordering, truncating, adding content to or otherwise modifying
such
AFS Results Set.
5.2.3. Labeling,
Branding and Attribution.
Customer
shall unambiguously xxxx each AFS Ad, or each cluster or grouping of AFS Ads,
as
a “Sponsored Link” or “Sponsored Links,” as the case may be, unless otherwise
instructed or agreed by Google. In any event, Google reserves approval authority
to ensure that AFS Ads are labeled in a manner so as to sufficiently distinguish
them from search results.
5.3. License
to AFS Protocol.
Google
grants to Customer a limited, nonexclusive and non-sublicensable license during
the Services Term to use the AFS Protocol solely for the purpose of transmitting
AFS Queries and other required information and receiving AFS Result Sets, as
applicable, solely to the extent permitted hereunder. Except to the limited
extent expressly provided in this Agreement, Google does not grant, and Customer
shall not acquire, any right, title or interest (including, without limitation,
any implied license) in or to any Google Intellectual Property Rights; and
all
rights not expressly granted herein are reserved to Google.
6. AdSense
for Content.
6.1. Scope
of AdSense for Content Services.
If
selected on the Cover Page(s) of this Order Form, during the Services Term
and
subject to the terms and conditions of this Agreement, Google will provide
Customer with AFC Ads and Related Advertising Links through its AFC Service
for
display as permitted herein on the AFC Site(s). Customer agrees to implement
such AFC Service on the AFC Sites as provided herein within thirty (30) days
of
the Order Form Effective Date, and thereafter during the Services Term. Customer
agrees to implement the AFC Service on any AFC Site added thereafter as
permitted herein. AFC Ads may not appear on search results, registration, “thank
you,” error, email or chat pages, pages comprised primarily of other advertising
or pages that contain any of the following types of content: pornographic,
obscene or excessively profane content or content intended to advocate or
advance computer hacking or cracking, gambling, illegal activity, drug
paraphernalia, hate, violence or racial or ethnic intolerance. Google may update
the list of prohibited pages from time to time during the Services Term upon
written notice.
6.2. Implementation
of AFC Services.
Unless
otherwise agreed to by Google in writing, Customer shall implement AFC Services
in a manner that: (a) conforms to the AFC Specifications set forth in the Cover
Page(s) of this Order Form, if any; (b) conforms to Google’s brand treatment
guidelines for AFC Services as the same may be updated by Google from time
to
time, the current version of which is located at xxxx://xxx.xxxxxx.xxx/xxxxxx/xxxxxxx_xxxxxxxxxx.xxxx
and
xxxx://xxx.xxxxxx.xxx/xxxxxx/xxx_xxx_xxxxxxxxxx.xxxx; (c) conforms to the
screenshots and specifications set forth in Exhibit
A attached
hereto; and (d) otherwise complies with the technical and implementation
requirements provided by Google from time to time, including those instructions
contained in the documentation setting forth the AFC Protocol. Without limiting
the foregoing, Customer acknowledges and agrees to the following:
6.2.1. AFC
Requests.
Customer
shall request AFC Ads for any and all pageviews required to display AFC Ads
as
provided herein. Notwithstanding
anything to the contrary, Google will have no obligation to process AFC Requests
that are not sent in compliance with the requirements of this Agreement.
6.2.2. Server
Side Implementations.
For
server side implementations (e.g.,
XML
implementations), each AFC Request (a)
must
be from a list of Valid IP Addresses approved by Google for the AFC Service;
(b)
must contain a Client ID approved by Google for the AFC Service; and (c) must
include End User IP address and user agent information. Upon Google’s receipt of
an AFC Request as described above, Google will transmit AFC Results Set, to
the
extent available, via Google’s network interface in accordance with the AFC
Protocol. Customer shall then display, in each instance, the entire AFC Results
Set that corresponds to such AFC Request on the applicable AFC Site in the
manner contemplated by this Agreement, without editing, filtering, reordering,
truncating, adding content to or otherwise modifying such AFC Results Set.
Customer will not send more than one (1) AFC Request per pageview unless
otherwise authorized by Google.
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6.2.3. Client
Side Implementations.
For
client side implementations (e.g.,
iFrame
or Javascript data feed implementations), each AFC Request must
contain an AFC Client ID provided and used as specified by Google. Upon Google’s
receipt of an AFC Request as described above, Google will transmit an AFC
Results Set, to the extent available, via Google’s network interface in
accordance with the AFC Protocol. Customer’s code shall, in each instance,
ensure the display of the entire AFC Results Set that corresponds to such AFC
Request in the manner contemplated by this Agreement, without editing,
filtering, reordering, truncating, adding content to or otherwise modifying
such
AFC Results Set. Customer will not send more than one (1) AFC Request per
pageview unless otherwise authorized by Google.
6.2.4. Labeling;
Branding and Attribution.
AFC
Results Set shall be identified with the label “Ads by Google” as reflected in
Exhibit
__
attached
hereto, unless otherwise instructed or agreed by Google.
6.2.5. Related
Ad Links.
If
Customer implements Related Ad Links provided by Google, Customer understands
and agrees to the following additional provisions: (a) if applicable, in no
event will End User clicks on Related Ad Links, or the display of a Related
Ad
Links on a Customer Web page in and of itself, qualify as a click on an Ad,
or
an impression, as the case may be, for purposes of determining Customer’s click
or impression guarantees (if any) or Google’s payment or other obligations under
this Agreement; and (b) notwithstanding anything to the contrary, Related Ad
Links are automatically generated and consequently are provided to Customer
“as
is,” with no representation, warranty or indemnity, express or
implied.
6.3. License
to AFC Protocol.
Google
grants to Customer a limited, nonexclusive and non-sublicensable license during
the Services Term to use the AFC Protocol solely for the purpose of transmitting
AFC Requests and other required information and receiving AFC Results Sets
solely to the extent permitted hereunder. Except to the limited extent expressly
provided in this Agreement, Google does not grant, and Customer shall not
acquire, any right, title or interest (including, without limitation, any
implied license) in or to any Google Intellectual Property Rights; and all
rights not expressly granted herein are reserved to Google.
7. Client
Application.
Customer’s
Client Application set forth in the Cover Page(s) of this Order Form is hereby
approved by Google for purposes of (a) sending WebSearch and AFS Queries to
resolve to approved Results Pages on the Sites; provided that, at all times
during the Services Term, Customer, and Customer’s Client Application(s), will
comply with Google’s Client Application Guidelines, the current form of which is
attached hereto as Exhibit
B,
as such
Guidelines may be updated by Google from time to time. Customer represents
and
warrants that (a) it has read and understands the Client Application Guidelines;
and (b) it does, and at all times during the Services Term it will, own, operate
and control one hundred percent (100%) of the approved Client Application(s)
set
forth in the Cover Page(s) of this Order Form. The list of Approved Client
Applications may be updated from time to time subject to Google’s prior written
consent.
8. Site
Modifications.
Google
acknowledges that Customer may update the design and content of the Sites in
a
manner consistent with its obligations contained herein; provided that Customer
agrees that (a) it shall keep Google informed of all planned material changes
to
such Sites; and (b) no changes may be made to the look and feel, dimension
and/or placement of the WebSearch Results, News Search Results, Image Search
Results, AFS Ads, AFC Ads or AFE Ads without obtaining the prior written consent
of Google. For the avoidance of doubt, Google may, and the foregoing will in
no
event limit Google’s ability to, require changes to the look and feel, content
or targeting methodology of any such Results or Ads provided
herein.
9. Filters.
9.1. General.
Certain
Services may contain filtering capability, such as SafeSearch, Country Restrict,
Language Restrict, AdSafe and other filters. Notwithstanding anything to the
contrary, if Customer elects to enable any such filters, Customer expressly
acknowledges and agrees (a) it is Customer’s responsibility to enable such
features in accordance with the instructions provided by Google in the
applicable Service protocol, and (b) that Google cannot and does not make any
representation, warranty or covenant that all results will be limited to results
elected by enabling such filter(s). For example, but without limiting the
foregoing, if Customer elects SafeSearch, Country Restrict, Language Restrict
and/or AdSafe, Google cannot and does not make any representation, warranty
or
covenant that all results will be limited to the countries or languages selected
or that all objectionable results will be prevented.
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9.2. URL
Blocking.
During
the Services Term, Google will use commercially reasonable efforts to exclude
from Ads served under this Agreement Ads that contain the URLs set forth in
Exhibit
C
attached
hereto. Notwithstanding anything to the contrary, Customer understands that
Google cannot and does not make any representation, warranty or covenant that
no
Ads will contain any of the URLs listed in Exhibit
C.
10. Updates.
If
Google
updates its technical or implementation specifications (including, without
limitation, by way of updating the applicable Service protocol or by way of
requiring changes to the look and feel, content and targeting methodology of
Ads) from time to time as contemplated herein, Customer shall implement such
updates or modifications as soon as reasonably practical, but in any event
within fifteen (15) days of the date it receives notice thereof.
11. Notice
of System Changes.
Customer
will provide Google with fourteen (14) days’ advance notice of any change in the
code or serving technology used to display Google Advertising Results and/or
Search Results (e.g.,
a
change in the advertising serving technology used) that could reasonably be
expected to have the potential to adversely affect the delivery or display
of
Google search or advertising results as required by this Agreement (it being
understood that notice will in no event relieve Customer of its obligations
to
display Search and Advertising Results as required hereunder).
12. Optimization.
The
parties agree to consult in good faith from time to time with the objective
of
optimizing the performance of Ads served under this Agreement.
13. AdWords
Link.
Customer
agrees to promote the Google AdWords Program (including any successor programs
thereto) by placing on the Sites a link in the form as provided by Google from
time to time that contains the Google logo, text and a link to facilitate
registration of advertisers in the Google AdWords Program (“AdWords
Link”).
Customer shall provide to Google the URL for any Site page containing an AdWords
Link (“AdWords
Link Page”)
and
shall promptly notify Google in writing of any change to any AdWords Link Page.
Unless otherwise agreed to by the parties in writing: (a) the specific size
and
location of the AdWords Link within the AdWords Link Page shall conform to
the
specifications provided by Google from time to time, and (b) the AdWords Link
shall be displayed Above-the-fold.
14. Technical
Support. Subject
to the terms and conditions of this Agreement, during the Services Term
Google
shall provide technical support services to Customer in
accordance with Google’s support guidelines then in effect for the Services
ordered herein. Prior to making any support request to Google, Customer shall
first use reasonable efforts to fix any error, bug, malfunction, or network
connectivity defect on its own without any escalation to Google. Thereafter,
Customer’s Technical Contact may submit a written request for technical support
via email to the applicable Google alias set forth below, or such other email
address that Google may provide from time to time. Customer shall provide
support services to End Users at its own expense.
| ● |
xxxxxxxxx-xxxxxxx@xxxxxx.xxx
(for WebSearch, News Search and Image Search Services
requests)
|
|
·
|
xxxxxxxxxxx-xxxxxxx@xxxxxx.xxx
(for AFS, AFE and AFC requests)
|
15. Exclusivity.
15.1. Customer
(which for purposes of this Section 14 shall include all of Customer’s
affiliates, and their respective successors and assigns) agrees that during
the
Services Term Customer: (a) shall not implement on the Sites, Customer Client
Applications approved for accessing the Services hereunder or any other property
owned and/or operated by Customer and, subject to Sections 14.2 and 14.3 below,
any Co-Branded Property (including any successor site or property thereto
for all such sites and properties) any search functionality which is the same
as
or substantially similar in nature to any Services made available by Google
to
Customer hereunder, and (b) shall not display any search results on the Sites,
Customer Client Applications approved for accessing the Services hereunder
or
any other property owned and/or operated by Customer and, subject to Sections
14.2 and 14.3 below, any Co-Branded Property (including any successor
site or property thereto for all such sites and properties) other than those
provided by Google hereunder. Customer also agrees that Google will be the
sole
provider of pay-for-performance advertising on WebSearch Results pages or
Customer Client Applications. *
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15.2. The
parties acknowledge and agree that Customer may launch and implement website(s)
and/or Client Applications(s) substantially similar in nature to the Sites
or
Customer Client Application, respectively, and that are co-branded with a third
party brand and/or logo and previously approved by Google, not to be
unreasonably withheld, (the co-branded site and/or Client Application, a
"Co-branded Property", and the third party whose brand and/or logos appear on
such Co-Branded Property, a "Co-Branded Party "). For those Co-Branded
Parties that are not Google Competitors, if the Co-Branded Party desires and
Customer agrees to include web search and advertising services on the Co-Branded
Properties substantially similar to the Services provided by Google to Customer,
then the exclusitivity provisions of Section 14.1 above shall apply to the
applicable Co-Branded Properties. For the sake of clarity, (i) Customer
and the Co-Branded party are not required to implement WebSearch Services and
AFS Services on the Co-Branded Properties if the parties do not desire to
include search and/or advertising services, and (ii) Customer may not implement
any search and/or advertising services other than those provided by Google
on
Co-Branded Properties that are branded by Co-Branded Parties that are not Google
Competitors. "Google Competitor" means those parties listed on Exhibit D,
which Google may update from time to time but no more frequently than once
per
calendar month.
15.3.
For
Google Competitors, (i) if a Google Competitor desires and Customer agrees
to
include web search and/or advertising services substantially similar in nature
to the Services provided by Google to Customer hereunder on Co-Branded
Properties, then Customer shall notify Google and Google shall have the right
to
decide whether Customer can offer Google services to such Google Competitor,
and
if Google decides that Customer may offer such Google services, then Customer
shall make a good faith offer to include the WebSearch Serivces and/or AFS
Services on the Co-Branded Properties, (ii) if Google decides that Customer
may
not offer such Google Services or if the Google Competitor declines to include
the WebSearch Services and AFS Services on the Co-Branded Properties after
any
offer, then Customer and the Google Competitor may include such Google
Competitor's web search and/or advertising services that are substantially
similar in nature to the WebSearch Service and/or AFS Service, respectively
on
the applicable Co-Branded Properties and the exclusitivity provision of Section
14.1 shall not apply to such Co-Branded Property and (iii) if the Google
Competitor does not have its own web search and/or advertising service that
is
similar in nature to the WebSearch Service and/or AFS Serice, then the
exclusitivity provisions of Section 14.1 shall apply to any Co-Branded Property
that is branded by a Google Competitor.
15.4. Customer
shall receive the AdSense for Content services on a non-exclusive basis.
Notwithstanding the foregoing, Customer may not display AFC Ads on any Results
Pages and/or Customer Client Applications that contain advertisements provided
by a Google Competitor.
|
16.
|
Fees
and Payment Terms.
|
16.1. WebSearch
Services.
On
or
before the Order Form Effective Date, Customer shall submit a completed Google
credit application form. If applicable, Customer shall pay the non-refundable
Annual Service and Support Fee and the first payment of the Monthly WebSearch
Fee Minimum as indicated on the Cover Page(s) of the Order Form, which shall
be
due and payable on the Order Form Effective Date. For all other WebSearch Fees
(including Monthly WebSearch Fee Minimums), Google shall xxxx Customer monthly
at the rates stated on
the
Cover Page(s) of this Order Form and all such fees shall be
due and
payable “net
thirty (30) days” from date of invoice. Within
thirty (30) days of the end of each month during the Services Term, Google
shall
provide Customer with WebSearch Services usage reports in the form generally
made available at that time.
16.2. AdSense
for Search.
Subject
to the terms and conditions of this Agreement, for each month during the
Services Term Customer shall receive the AFS Percentage of Net AFS Revenues
attributable to such month. Google’s obligation to make payments under this
Section shall not commence until Google’s technical personnel provide written
approval of Customer’s implementation of the AFS Service on each AFS Site, which
shall not be unreasonably withheld or delayed. Payments required under this
paragraph shall be made by the last day of the calendar month following the
calendar month in which the applicable AFS Ads were displayed on the AFS
Sites.
16.3. AdSense
for Content.
Subject
to the terms and conditions of this Agreement, for each month during the
Services Term Customer shall receive the AFC Percentage of Net AFC Revenues
attributable to such month.
Google’s
obligation to make payments under this Section shall not commence until Google’s
technical personnel provide written approval of Customer’s implementation of the
AFC Service on each AFC Site, which shall not be unreasonably withheld or
delayed. Payments required under this paragraph shall be made by the last day
of
the calendar month following the calendar month in which the applicable AFC
Ads
were displayed on the AFC Sites.
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16.4. Non-Qualifying
Ads. Notwithstanding any of the foregoing, Google
shall not be liable for payment in connection with (a) any amounts which result
from invalid queries, or invalid impressions of (or clicks on) Ads, generated
by
any person, bot, automated program or similar device, including, without
limitation, through any Fraudulent Act, in each case as reasonably determined
by
Google; or (b) impressions of Ads or clicks on Ads delivered through an
implementation which is not initially approved by Google pursuant to the
Agreement or subsequently fails to meet Google’s implementation requirements and
specifications. The number of queries, and impressions of and clicks on Ads,
as
reported by Google, shall be the number used in calculating payments
hereunder.
16.5. Methods
of Payment.
16.5.1. Payments
to Google.
All
payments due to Google shall be in the currency specified in this Order Form.
Any charges for converting foreign currency shall be the responsibility of
Customer and shall be invoiced accordingly. If paid in US dollars, payments
to
Google shall be made preferably via wire
transfer with the following instructions:
|
Xxxxx
Xxxxx Xxxx
|
XXX
#
|
Xxxxxxx
#
|
|
Xxxx
Xxxx, Xxxxxxxxxx XXX
|
Google
Inc.
|
Federal
Tax I.D. # 00-0000000
|
If
paid
in US dollars and not wired to Google, payment shall be made by check for
receipt by Google at the address specified on the Cover Page of this Order
Form
(or such other address as Google may provide Customer in writing from time
to
time for such purpose) on or before the payment due date. If payment is made
in
any other currency, payment shall be made by wire pursuant to the wire
instructions specified below on this Order Form (or if no applicable wire
instructions are specified, payment shall be made using the US wire transfer
instructions above). Delinquent payments due to Google shall bear interest
at
the rate of one-and-one-half percent (1.5%) per month (or the highest rate
permitted by law, if less) from the payment due date until paid in full.
Customer
will be responsible for all reasonable expenses (including legal fees) incurred
by Google in collecting unpaid or delinquent amounts. In addition, Google may
suspend performance and/or terminate this Order Form upon seven (7) days written
notice if Customer fails to make any required payment when due unless such
payment is made within such seven (7) day notice period. If
Google
reasonably deems itself insecure with respect to Customer’s ability to meet its
financial obligations under the Agreement, Google may, at its sole option,
modify the payment terms or require other reasonable assurances or forms of
security prior to providing or continuing to provide any Services.
16.5.2. Payments
to Customer.
Payments
to Customer (if by wire transfer) shall be made pursuant to the wire transfer
instructions specified on this Order Form. In addition, Customer acknowledges
that Google may, at its option, offset any payment obligations to
Customer that Google may incur hereunder against any product or service
fees (including late fees) owed and not yet paid by Customer under this
Agreement or any other agreement between Customer and Google, in addition to
whatever other rights and remedies Google may have hereunder or thereunder.
In
addition, Google reserves the right to withhold and offset against its payment
obligations hereunder, or require Customer to pay to Google (within thirty
(30)
days of any invoice therefor), any amounts Google may have overpaid to Customer
in prior periods.
17. Authority
to Bind.
Each of
Customer’s and Google’s signatory to this Order Form represents and warrants
that he or she has the power and authority to accept and bind Customer and
Google, as the case may be, to the terms of this Order Form.
This
Order Form may be executed in counterparts, including facsimile counterparts,
each of which shall be deemed an original, and all of which, when taken
together, shall constitute one and the same instrument.
|
Google:
GOOGLE INC.
|
Customer:
GuruNet
Corporation
|
|
By:
/s/
Xxxx Xxxxxx
|
By:
/s/ Xxxxxx
X. Xxxxxxxxxxx
|
|
Print
Name: Xxxx
Xxxxxx
|
Print
Name: Xxxxxx
X. Xxxxxxxxxxx
|
|
Title:
VP Search Services
|
Title:
CEO
|
|
Date:
January 28, 2005
|
Date:
Jan 27, 2005
|
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