Google Services Agreement
EXHIBIT 10.4
CONFIDENTIAL TREATMENT - Portions of this exhibit have been omitted pursuant to a request for confidential
treatment filed with the Commission under Rule 24b-2. The omitted confidential material has been filed separately
with the Commission. The location of the omitted confidential information is indicated herein with asterisks (***).
This Google Services Agreement (“GSA”) is entered into by and between Google Inc.
(“Google”) and Miva, Inc., 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 December ___,
2006 (“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 “Beta Features” are those features of the Services which are identified by Google as beta or
unsupported in Google’s then current technical documentation.
1.2 “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.
1.3 “Customer Content” means any editorial, text, graphic, audiovisual, and other content that is
served to End Users of the Site(s) or Customer Client Application(s) and that is not provided by
Google.
1.4 “Destination Page” means any Web page which may be accessed by clicking on any portion of an
Advertising Result and/or Search Result.
1.5 “Google Protocol” means Google’s then current protocol for accessing and implementing the
Services.
1.6 “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 rights law, and any and all
other proprietary rights, as well as, any and all applications, renewals, extensions, restorations
and re-instatements thereof, now or hereafter in force and effect worldwide.
1.7 “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 reference 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 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).
1.8 “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.
2.2 Beta or Unsupported Features. Certain Services may include Beta Features which
Customer may elect to enable. Customer understands and agrees that Beta 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 and/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;
(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 Pages;
(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);
Google Confidential
(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) or Customer Client Application(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, deceptive, fraudulent or other invalid means
(including, but not limited to, click spam, robots, macro programs, and Internet agents);
(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 derive source code from any Services, the Google Protocol, or
any other Google technology, content, data, routines, algorithms, methods, ideas design, user
interface techniques, 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 store or cache information
obtained from the Services (including, but not limited to, Search Results and/or Advertising
Results, or any part, copy or derivative thereof); or
(p) create or attempt to create a substitute or similar service or product through use of or
access to any of the Services or proprietary information related thereto.
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). 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. At any time during the
Services Term, in the event that Customer’s implementation or use of the Services are not in
compliance with this Agreement, 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.
3.3 Customer’s Subsidiaries. To the extent a Site or Client Application which is owned or
operated by a wholly owned direct or indirect subsidiary of Customer is approved for use of the
Services, Customer shall ensure and be responsible for compliance by such wholly owned direct or
indirect subsidiary with the terms 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. Customer, 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 limitation, 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
Customer and all use by Customer of Google 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, in the event Google modifies a Brand Feature or modifies use of a
Google Brand Feature, Google may revoke the license granted herein to use such Google Brand
Feature upon providing Customer with written notice thereof and a reasonable period of time to
cease such usage, provided in each such instance the change to the modified Brand Feature or
use thereof is generally applied to Google customers generally. Furthermore, in its use of
any Google Brand Feature, Customer agrees to adhere to Google’s then current Brand Feature use
guidelines, and any content contained or referenced therein, which may be found at the
following
Google Confidential
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, in the event Customer modifies a Customer Brand Feature or modifies
use of a Customer Brand Feature, Customer may revoke the license granted herein to use such
Brand Feature upon providing Google with written notice thereof and a reasonable period of
time to cease such usage.
4.4 Independent Development. Neither party shall be prohibited from independently
developing businesses related to the other party’s businesses, provided that such development is
not in violation of this Agreement.
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, excise, customs fees, import duties or stamp duties or other
taxes and duties imposed by governmental entities of 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 certificate
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 Disclaimer. Each party represents and warrants that it
has full power and authority to enter into the Agreement. Customer represents and warrants that:
***. Google does not warrant that the Services will meet all of Customer’s requirements or that
performance 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 ***.
Notwithstanding the foregoing, in no event shall Google have any obligations or liability under
this Section arising from: ***.
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: ***.
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 of its choice at its own expense. The Indemnitor shall only reimburse the Indemnitee
for expenses incurred by the Indemnitee with the Indemnitor’s prior written approval. ***
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 EITHER PARTY’S LIABILITY FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT
(WHEN AGGREGATED WITH SUCH PARTY’S LIABILITY FOR ALL OTHER CLAIMS ARISING OUT OF THIS AGREEMENT)
EXCEED ***.
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 Protocol(s); or (d) ***
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.
| *** | Confidential treatment requested and the redacted material has been separately filed with the Commission. |
Google Confidential
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. The
parties acknowledge and agree that Customer will be required to file a redacted copy of this
Agreement with the Securities and Exchange Commission and all exhibits and appendices hereto as an
exhibit to its next periodic filing and will also be required to file a summary of the material
terms of this Agreement in a Form 8-K to be filed with the Securities and Exchange Commission
within four business days of execution of this Agreement. The parties shall work together to
create a mutually agreeable redacted Agreement for such periodic filing and a mutually agreeable
summary for the Form 8-K.
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 *** days after receiving written notice
thereof; or (ii) if the other party becomes insolvent or 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 *** times
notwithstanding any cure of such breaches; (iii) if Google reasonably determines that it is
commercially impractical to continue providing the Services to its customers generally in
light of applicable laws; or (iv) as otherwise provided in the Order Form. In addition, at
any time during the Services Term, Google may terminate this Agreement with *** days prior
written notice if ***.
10.2.3 Customer Termination Rights. At any time during ***, Customer may terminate this
Agreement with ***prior written notice.
10.2.4 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. ***
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***
| *** | Confidential treatment requested and the redacted material has been separately filed with the Commission. |
Google Confidential
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 (i) 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, which shall not be unreasonably withheld, 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 specifically exclude from application to the Agreement the United Nations Convention on
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 exclusivity 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.
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 failures, 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. The Agreement (a) shall be binding
on and inure to the benefit of each of the parties and their respective successors 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.
IN WITNESS WHEREOF, 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: MIVA, INC. | |||||||
By:
|
/s/ Xxxx Xxxxxxxxxx | By: | /s/ Xxxxx X. Xxxxxx | |||||
| Print Name: Xxxx Xxxxxxxxxx | Print Name: Xxxxx X. Xxxxxx | |||||||
| Title: SVP Global Sales & Business Development | Title: Chief Executive Officer | |||||||
| Date: 12/28/06 | Date: 12/27/06 | |||||||
Google Confidential
| CONFIDENTIAL TREATMENT - Portions of this exhibit have been omitted pursuant to a request for confidential treatment filed with the Commission under Rule 24b-2. The omitted confidential material has been filed separately with the Commission. The location of the omitted confidential information is indicated herein with asterisks (***). |
| 1.1.1 Google Inc. 1.1.1.1.1.1.1 Google Services Agreement Google SPD Rep: *** 0000 Xxxxxxxxxxxx Xxxxxxx ORDER FORM Google SPD Director: *** Xxxxxxxx Xxxx, XX 00000 Google Sales Engineer: *** Tel: (000) 000-0000 Google Legal Contact: *** Fax:(000) 000-0000 1.1.1.1.2 — CUSTOMER (FULL LEGAL NAME): MIVA, Inc. GSA Effective Date: Dec. ___, 2006 NDA Effective Date: Nov. 2, 2006 —— — |
| Corporate Contact Information: Billing Contact Information: Legal Notices to: |
| —— —— — |
| Attention: *** *** Xxxx Xxxxxxx |
| —— -— -— — |
| Title: *** *** General Counsel |
| —— -— -— — |
| Address, City, State, 0000 Xxxxxxxxx Xxxxxxx Xxxx.; Ft. Postal Code, Country: 000 Xxxxxx Xxxxxx; Xxx Xxxx, Xxx Xxxx 00000 0000 Xxxxxxxxx Xxxxxxx Xxxx.; Xx. Xxxxx XX 00000 Xxxxx, XX 00000 |
| —— —— —— — |
| Phone: 000.000.0000 000.000.0000 000.000.0000 |
| —— —— —— — |
| Fax: 000.000.0000 000.000.0000 000.000.0000 |
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| Email: *** *** *** |
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| Technical Contact: *** Email*** Tel: 000.000.0000 |
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| Customer Wire Transfer Info (if applicable): Beneficiary Name: MIVA, Inc. Beneficiary Bank: Fifth Third Bank |
| 00000 Xxxxx Xxxxxxx Xxxx Xxxxx, XX 00000 |
| To the Attention of: Accounts Receivable Department Routing Number: *** Account Number: *** D&B DUNS Number: *** VAT/Tax Number: *** |
| —— — |
| Order Form Effective Date: Dec. ___, 2006 Initial Services Term: Dec. ___, 2006 – Dec. 31, 2008 |
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| SEARCH SERVICES SEARCH SERVICES Search Fees 1.1.1.1.2.1.1.1 Safe 1.1.1.1.2.1.1.2 1.1.1.1.2.1.1.3 |
| —— Search Language Restrict Country/Location (Check if applicable) (Check if applicable) Restrict |
| —— —— (Check if applicable) |
| — |
| WebSearch Services |
| Est. Query Vol./Day 1.1.1.1.2.1.1.7 SafeSearch WebSearch Site(s): 1.1.1.1.2.1.1.4 1.1.1.1.2.1.1.8 1.1.1.1.2.1.1.12 If 1.1.1.1.2.1.1.14 If |
| *** 1.1.1.1.2.1.1.5 *** Search 1.1.1.1.2.1.1.9 High checked, specify checked, specify Client Application(s) for WebSearch Services (pending approval): Result Sets 1.1.1.1.2.1.1.10 Medium languages: country: |
| *** 1.1.1.1.2.1.1.6 1.1.1.1.2.1.1.11 Off 1.1.1.1.2.1.1.13 1.1.1.1.2.1.1.15 |
| —— —— —— — |
| *** Confidential treatment requested and the redacted material has been separately filed with the Commission. |
Google Confidential
Page 1
| ADSENSE SERVICES ADSENSE FOR SEARCH (“AFS”) Customer’s AFS AFS Deduction Specifications |
| Revenue Share Percentage (%) — Percentage (%) — — |
| Sponsored Links/Results Page AdSense for Search Min. # 3 AFS Site: Above-the-fold: Yes *** See Exhibit A for Client Applications (pending approval): See Section 15 other AFS *** of the Order Form *** % Specifications —— —— — Optional AdSense for Search Features: AdSafe (check the applicable boxes) Level: High Medium Low Off Adult Only —— — |
| Customer’s AFE Revenue AFE Deduction ADSENSE FOR ERROR PAGES (“AFE”) Share Percentage (%) Percentage (%) Specifications —— —— —— — AdSense for Error Pages See Exhibit B for AFE Specifications Client Applications (pending approval): See Section 15 of Sponsored Links/Results Page Min. # *** the Order Form *** % 3 —— — Optional AdSense for Error Pages Features: AdSafe (check the applicable boxes) Level: On Off —— — 1.1.1.1.2.1.1.16 To Be Completed By Google Finance — Currency: — US Dollar Customer PO #: Japanese Yen —— Other: Credit Check Complete — *** Confidential treatment requested and the redacted material has been separately filed with the Commission. |
Google Confidential
Page 2
GSA 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. 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,” “AFS Client
Application,” or “AFE Client Application” means those Customer Client Applications that have been
approved by Google to access the WebSearch, AFS or AFE 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. “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.
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.
Google Confidential
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3.10. “Site(s)” means the WebSearch Site(s), AFS Site(s) and AFE 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. “AFE Site” means the collection of Customer’s AFE Results Pages from the Site(s).
3.11. “Successor Site”
means a site which functionality is substantially similar to and can
reasonably be determined to have replaced a Site. Notwithstanding the foregoing, a Successor Site
specifically excludes URLs which were submitted for approval as a Site pursuant to Section 16
hereof, but were not accepted by Google.
3.12.
“Successor Client Application” means a client application which functionality and
subject matter is substantially similar to and can reasonably be determined to have replace a
Client Application. Notwithstanding the foregoing, a Successor Client Application specifically
excludes applications which were submitted for approval as a Client Application pursuant to Section
16 hereof, but were not accepted by Google.
3.13. “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 ERROR PAGES
3.14. “AFE Ads” means the advertisements provided by Google to Customer under this Agreement
through Google’s AFE Service.
3.15. “AFE Deduction” for any period during the Services Term means the percentage set forth
under “AFE Deduction Percentage” under the AFE Table on the Cover Page of this Order Form of AFE
Revenues for such period.
3.16. “AFE Percentage” means the percentage set forth under the title “Customer’s AFE Revenue
Share Percentage” in the AdSense for Error Pages Table on the Cover Page(s) of this Order Form.
3.17. “AFE Protocol” means the protocol provided by Google for accessing the AFE Services, as
such protocol may be updated by Google from time to time.
3.18. “AFE Results Pages” means those Web pages hosted by Customer and served to End Users in
response to an Error Query.
3.19. “AFE Results Set” means the set of AFE Ads transmitted by Google to Customer in response
to an Error Query.
3.20. “AFE Revenues” for any period during the Services Term means ad revenues that are
recognized by Google in accordance with GAAP in such period and attributed to AFE Ads displayed on
the AFE Site pages in such period in accordance with the requirements of this Agreement.
3.21. “AFE Service” means Google’s AdSense for Error Pages Service.
3.22. “Error Queries” means (i) text entered into an Internet browser address bar by an End
User that results in a DNS error (i.e., DNS lookup errors or connection errors), (ii) text
entered into an Internet browser address bar by an End User that the browser determines (without
interference from Customer or Customer’s Client Application) to send to the browser’s default
search engine, or (iii) such other types of text entered into an Internet browser address bar that
Google agrees in writing may be considered an Error Query during the Services Term. Google may
evidence such agreement by updating its Implementation Guidelines (as defined below) as provided
therein.
3.23. “Net AFE Revenues” for any period means AFE Revenues for such period MINUS the AFE Deduction for such period.
Google Confidential
Page 4
ADSENSE FOR SEARCH
3.24. “AFS Ads” means the advertisements provided by Google to Customer under this Agreement through Google’s AFS Service.
3.25. “AFS Deduction” for any period during the Services Term means 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.
3.26. “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.
3.27. “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.
3.28. “AFS Query” means a query sent to Google by Customer to be processed by Google’s AFS
Service.
3.29. “AFS Results Set” means the set of AFS Ads transmitted by Google to Customer in response
to an AFS Query.
3.30. “AFS Revenues” for any period during the Services Term means ad revenues that are
recognized by Google in accordance with GAAP in such period and attributed to AFS Ads displayed on
the AFS Site in such period in accordance with the requirements of this Agreement.
3.31. “AFS Service” means Google’s AdSense for Search Service.
3.32. “Net AFS Revenues” for any period means AFS Revenues for such period MINUS the AFS
Deduction for such period.
WEBSEARCH
3.33. “WebSearch Box” means a search box into which End Users may enter queries to search the
Web on a WebSearch Site or in a WebSearch Client Application as provided in this Agreement.
3.34. “WebSearch Query” means a query sent to Google by Customer to be processed by Google’s
WebSearch Service.
3.35. “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.
3.36. “WebSearch Results” means WebSearch search results provided by Google through its
WebSearch Service.
3.37. “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.
3.38. “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 as permitted herein. Customer agrees to implement the WebSearch Service as
provided herein on the WebSearch Sites and WebSearch Client Applications listed on the Order Form
as of the Order Form Effective Date 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 future WebSearch Site or WebSearch Client Application added to this
Agreement pursuant to Section 16 hereof as provided in this Agreement.
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
Google Confidential
Page 5
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 shall implement on each WebSearch Site and
WebSearch Client Application a WebSearch Box for End Users to enter WebSearch Queries. WebSearch
Boxes may only be located on a WebSearch Site and WebSearch Client Application, and on no other Web
site, application or other property. The format and location of each WebSearch Box on each
WebSearch Site and WebSearch Client Application is subject to the written consent of Google.
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 (i) entering text into WebSearch Boxes on the WebSearch Site and
WebSearch Client Application as provided herein, and (ii) clicking on text links included on the
WebSearch Sites that are identified as search queries (i.e., labeled as “Related Searches”)
and that generate a search results page; 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.
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 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. *** If Customer is in breach of
this Agreement at any time during the Services Term, Google may, at its option, require Customer to
remove all Google labeling, branding or attribution from any or all Sites and Client Applications
in addition to any other remedies Google may have under this Agreement.
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 as
permitted herein. Customer agrees to implement the AFS Service as provided herein on the AFS Sites
and AFS Client Applications listed on the Order Form as of the Order Form Effective Date 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 future AFS Site or
AFS Client Application added to this Agreement pursuant to Section 16 hereof as provided in this
Agreement.
| *** | Confidential treatment requested and the redacted material has been separately filed with the Commission. |
Google Confidential
Page 6
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 into WebSearch Boxes on the
AFS Site and AFS Client Application as provided herein, (ii) clicking on text links included on the
AFS Site that are identified as search queries (i.e., labeled as “Related Searches”) and
that generate a search results page, and (iii) clicking on text links that comprise directory
listings included on the AFS Site and that resolve to a page that displays directory search
results; 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.
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 Error Pages Services. |
6.1. Scope of AdSense for Error Pages 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 AFE Ads through its AFE Service for display on the AFE
Sites as permitted herein. Customer agrees to implement the AFE Service as provided herein within
thirty (30) days of the Order Form Effective Date, and to maintain such implementation thereafter
during the Services Term.
6.2. Implementation of AFE Services. Unless otherwise agreed to by Google in writing,
Customer shall implement the AFE Services in a manner that: (a) conforms to the AFE Specifications
set forth in the Cover Page(s) of this Order Form, if any; (b) conforms to the screenshots and
specifications set forth in Exhibit B attached hereto; and (c) otherwise complies with the
technical and implementation requirements provided by Google from time to time, including those
instructions contained in Google’s implementation guidelines for AFE Services as provided by Google
to Customer and as updated by Google from time to time and in the documentation setting forth the
AFE Protocol. Without limiting the foregoing, Customer acknowledges and agrees to the following:
Google Confidential
Page 7
6.2.1. Error Queries. Customer shall send any and all Error Queries received by
Customer from End Users of AFE Sites to Google in accordance with the requirements provided by
Google, without editing, filtering, truncating, appending terms to or otherwise modifying such
Error Queries, either individually or in the aggregate; and, notwithstanding anything to the
contrary, Google will have no obligation to process requests for AFE Ads that are not sent in
compliance with the requirements of this Agreement. Without limiting the foregoing, (i) Customer
will not submit a request for AFE Ads other than in response to Error Queries; (ii) Customer’s
implementation will not prevent any valid domain name query from being routed to a Domain Name
Server and to its intended destination IP address; (iii) Customer may intercept Error Query traffic
only through a Client Application installed on the End User’s computer and approved by Google in
writing in advance (and not, for example, at the server level).
6.2.2. Operation of AFE Services. Customer will ensure that each Error Query will (a)
be from a Valid IP Addresses approved by Google for the AFE Services; (b) contain a Client ID
approved by Google for the AFE Services; (c) include End User IP address and user agent
information; and (d) request no fewer than the minimum number of AFE Ads per AFE Results Page
stated in the Cover Page(s) of the Order Form. Upon Google’s receipt of an Error Query, in
addition to Google’s obligation to transmit WebSearch Results, Google will transmit an AFE Results
Set, to the extent available, via Google’s network interface in accordance with the AFE Protocol.
Customer shall then display, in each instance, the entire AFE Results Set that corresponds to such
Error Query in the manner contemplated by this Agreement, without editing, filtering, reordering,
truncating, adding content to or otherwise modifying such AFE Results Set.
6.2.3. Labeling, Branding and Attribution. Customer shall unambiguously xxxx each AFE
Ad, or each cluster or grouping of AFE 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 AFE Ads are labeled in a manner so as to sufficiently distinguish them
from search results. In addition, each AFE Results Page will be clearly labeled in accordance with
the AFE Implementation Guidelines.
6.3. License to AFE Protocol. Google grants to Customer a limited, nonexclusive and
non-sublicensable license during the Services Term to use the AFE Protocol solely for the purpose
of transmitting Error Queries and other required information and receiving AFE 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.
7. Client Application. Customer’s Client Applications set forth in the Cover Page(s) of
this Order Form are subject to approval by Google for purposes of (a) sending WebSearch Queries or
AFS Queries to resolve to approved Results Pages on the WebSearch Sites or AFS Sites; or (b)
implementing the interception of Error Queries in connection with the AFE Services as permitted
herein; 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 C ***. Customer represents and warrants that (a) it has read
and understands the Client Application Guidelines; and (b) it or its wholly owned direct or
indirect subsidiary 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.
8. Site and Customer Client Application Modifications. Google acknowledges that Customer
may update the design and content of the Sites and Customer Client Applications 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 Customer Client
Applications; (b) with respect to the Sites, no changes may be made to the look and feel, dimension
and/or placement of the WebSearch Results, AFS Ads, or AFE Ads without obtaining the prior written
consent of Google, and (c) with respect to the Customer Client Applications, no material changes
may be made to the functionality or content of the application 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.
| *** | Confidential treatment requested and the redacted material has been separately filed with the Commission. |
Google Confidential
Page 8
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.
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 D attached hereto (which as of the Order Form Effective Date has no URLs listed).
*** 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 D.
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 *** of the date it receives notice thereof.
11. Notice of System Changes. Customer will provide Google with *** 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. 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.
• *** (for WebSearch Services requests)
• *** (for AFS and AFE requests)
14. Exclusivity. ***
15. Fees and Payment Terms.
15.1. WebSearch Services. On or before the Order Form Effective Date, Customer shall
submit a completed Google credit application form. For all other WebSearch Fees, 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.
| *** | Confidential treatment requested and the redacted material has been separately filed with the Commission. |
Google Confidential
Page 9
15.2. AdSense for Search and AdSense for Error Pages. Subject to the terms and
conditions of this Agreement, for each month during the Services Term, Google shall pay to Customer
the applicable AFS Revenue Share Percentage and AFE Revenue Share Percentage as follows:
***
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 and implementation of the AFE Service on each AFE Site, each such approval not to 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 and AFE Ads
were displayed on the corresponding AFS Sites and AFE Sites.
15.3. 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.
15.4. Methods of Payment.
15.4.1. 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:
***
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 *** percent (%) per month (or the
highest rate permitted by law, if less) starting from thirty (30) days following 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 *** written notice if Customer
fails to make any required payment when due unless such payment is made within such
*** 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 the WebSearch Service. The foregoing provisions regarding
collection expenses, suspension and termination shall not apply to payment amounts that are in
dispute or being researched for accuracy.
15.4.2. Payments to Customer. Payments to Customer (if by wire transfer) shall be
made pursuant to the wire transfer instructions specified on this Order Form. Customer
acknowledges that Google may, at its option, offset any payment obligations to Customer hereunder
against any product or service fees (including late fees) owed and not yet paid by Customer under
this Agreement, in addition to whatever other rights and remedies Google may have hereunder. In
addition, Customer acknowledges that Google may, at its option, offset any payment obligations to
Customer against any product or service fees (including late fees) owed and delinquent by Customer
under any other agreement between Customer and Google, in addition to whatever other rights and
remedies Google may have thereunder. Furthermore, 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.
Delinquent payments due to Customer shall bear interest at the rate of *** percent
(***%) per month (or the highest rate permitted by law, if less) starting from thirty (30)
days
| *** | Confidential treatment requested and the redacted material has been separately filed with the Commission. |
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following the payment due date until paid in full. Google will be responsible for all reasonable
expenses (including legal fees) incurred by Customer in collecting unpaid or delinquent amounts.
In addition, Customer may suspend performance and/or terminate this Order Form upon
*** written notice if Google fails to make any required payment when due unless such payment
is made within such notice period. The foregoing provisions regarding collection expenses,
suspension and termination shall not apply to payment amounts that are in dispute or being
researched for accuracy.
16. Updates to List of Approved Sites and Client Applications. The list of WebSearch
Site(s), AFS Site(s), WebSearch Client Application(s), AFS Client Application(s), and AFE Client
Application(s) may be updated from time to time subject to Google’s prior written consent. From
time to time, Customer may notify Google (which notification may be via email) of any additional
sites or Client Applications on which Customer or its wholly owned direct or indirect subsidiary
desires to implement the Services. If Google accepts the additional sites or Client Applications,
the parties will amend the Agreement in writing to include such additional sites and/or Client
Applications and such additional modifications to the terms hereof, if any, as the parties may
agree with respect to such additional sites or Client Applications. In addition, any Successor
Client Application must be submitted to Google for approval prior to the implementation of the
Services, even if the Client Application to which it is the successor was previously approved by
Google.
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: MIVA, INC. | |||||||
By:
|
/s/ Xxxx Xxxxxxxxxx | By: | /s/ Xxxxx X. Xxxxxx | |||||
| Print Name: Xxxx Xxxxxxxxxx | Print Name: Xxxxx X. Xxxxxx | |||||||
| Title: SVP Global Sales & Business Development | Title: Chief Executive Officer | |||||||
| Date: 12/28/06 | Date: 12/27/06 | |||||||
| *** | Confidential treatment requested and the redacted material has been separately filed with the Commission. |
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