GOOGLE SERVICES AGREEMENT
Exhibit 10.1
COMPANY INFORMATION
COMPANY: XXXXX.XXX CORPORATION
| Business Contact: | Legal Contact: | Technical Contact: | ||||
Name:
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Xxxx Xxxxxxxxxx | Xxxxx Xxxxxx | Xxxxxxx Xxxxxxx | |||
Title:
|
SVP & GM, Network Properties | General Counsel | Chief Technology Officer | |||
Address, City, State, Postal Code: |
0000 Xxxxxx Xxxxxx Xxxxx, Xxxxxx, XX 00000 | 0000 Xxxxxx Xxxxxx Xxxxx, Xxxxxx, XX 00000 | 0000 Xxxxxx Xxxxxx Xxxxx, Xxxxxx, XX 00000 | |||
Phone:
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000.000.0000 | 000.000.0000 | 000.000.0000 | |||
Fax:
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000.000.0000 | 949.784.0880 | 949.341.5396 | |||
Email:
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xxxxxxxxxxx@xxxxx.xxx | xxxxxxx@xxxxx.xxx | xxxxxxxx@xxxxx.xxx |
TERM
TERM: Starting on August 1, 2011 (“Effective Date”) and continuing through July 31, 2013 (inclusive)
| AFS Revenue Share | ||||||||
| þ ADSENSE FOR SEARCH (“AFS”) | Percentage | *** | ||||||
Sites approved for AFS: *** |
* | ** | * | ** | ||||
| AFC Revenue Share | ||||||||
| þ ADSENSE FOR CONTENT (“AFC”) | Percentage | *** | ||||||
Sites approved for AFC: *** |
* | ** | * | ** | ||||
CURRENCY
o AUD
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o JPY | |
o CAD
|
o KRW | |
o EUR
|
þ USD | |
o GBP
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o Other |
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This Google Services Agreement (“Agreement”) is entered into by Google Inc. (“Google”)
and Xxxxx.xxx Corporation (“Company”) and is effective as of the Effective Date.
1. Definitions. In this Agreement:
1.1. “Ad” means an individual advertisement provided through the applicable Advertising
Service.
1.2. “***” means, for each of the Advertising Services, for any period during the Term, the
*** (listed on the front pages of this Agreement) of ***.
1.3. “Ad Revenues” means, for each of the Advertising Services, for any period during the
Term, revenues that are *** by Google and attributed to Ads in that period.
1.4. “Ad Set” means a set of one or more Ads.
1.5. “Advertising Services” means the advertising services selected on the front page of this
Agreement.
1.6. “***” means ***.
1.7. “Affiliate” of a party means any corporate entity that directly or indirectly controls,
is controlled by or is under common control with that party.
1.8. “Brand Features” means each party’s trade names, trademarks, logos and other distinctive
brand features.
1.9. “Company Content” means any content served to End Users that is not provided by Google.
1.10. “Confidential Information” means information disclosed by (or on behalf of) one party to
the other party under this Agreement that is marked as confidential or would normally be considered
confidential under the circumstances in which it is presented. It does not include information
that the recipient already knew, that becomes public through no fault of the recipient, that was
independently developed by the recipient, or that was lawfully given to the recipient by a third
party.
1.11. “End Users” means individual human end users of a Site.
1.12. “***” means any *** that are the *** other than those ***. For clarity, any *** in the
first sentence of this Section 1.12 are *** Section 4 below.
1.13. “Google Branding Guidelines” means the brand treatment guidelines applicable to the
Services and located at the following *** (or a different URL Google may provide to Company from
time to time).
1.14. “***” means the *** and as provided by Google to Company from time to time.
1.15. “Intellectual Property Rights” means all copyrights, moral rights, patent rights,
trademarks, rights in or relating to Confidential Information and any other intellectual property
or similar rights (registered or unregistered) throughout the world.
1.16. “***” means, for each of the Advertising Services, for any period during the Term, ***
for that period *** for that period.
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1.17. “Request” means a request from Company or an End User (as applicable) to Google for a
Search Results Set and/or an Ad Set (as applicable).
1.18. “Results” means Search Results Sets, Search Results, Ad Sets or Ads.
1.19. “Results Page” means any Site page which contains any Results.
1.20. “Search Box” means a search box into which End Users enter search queries.
1.21. “***” means a *** on the Site by an End User or, if approved by Google, *** that *** on
the Sites and that *** that displays ***, or other means approved by Google.
1.22. “Search Result” means an individual search result provided through the applicable Search
Service.
1.23. “Search Results Set” means a set of one or more Search Results.
1.24. “Search Services” means the search services selected on the front pages of this
Agreement.
1.25. “Services” means the Advertising Services and/or Search Services (as applicable).
1.26. “Site(s)” means the Web site(s) located at the URL(s) listed on the front pages of this
Agreement, *** from time to time under subsection *** below.
2. Launch, Implementation and Maintenance of Services.
2.1. Launch. The parties will each *** to ***. Company will not launch its implementation of
the Services into live use, and this implementation will not be payable by Google, until Google has
approved the implementation in writing, which approval will not be unreasonably withheld or
delayed.
2.2. Implementation and Maintenance
(a) For the remainder of the Term, Google will make available and Company will implement and
maintain each of the Services on each of the Sites.
(b) Company will ensure that Company:
(i) is the technical and editorial decision maker in relation to each page, including Results
Pages, on which the Services are implemented; and
(ii) has control over the way in which the Services are implemented on each of those pages.
(c) Company will ensure that the Services are implemented and maintained in accordance with:
(i) the applicable Google Branding Guidelines;
(ii) the applicable Google Program Guidelines;
(iii) the mock ups and specifications for the Services included in the exhibits to this
Agreement; and
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(iv) Google technical protocols (if any) and any other technical requirements and
specifications applicable to the Services that are provided to Company by Google from time to time.
(d) Company will *** for each ***.
(e) Company will ensure that every AFS Request is generated by a Search Query and every AFS
Request contains the Search Query that generated that Request.
(f) Google will, upon receiving a Request sent in compliance with this Agreement, provide a
Search Results Set and/or an Ad Set (as applicable) when available. Company will then display the
Search Results Set and/or Ad Set (as applicable) on the applicable Site.
(g) Company will ensure that at all times during the applicable Term, Company has a *** to the
Site(s) and that this ***:
(i) ***; and
(ii) includes ***.
3. Policy and Compliance Obligations.
3.1 Policy Obligations. Company will not, and will not knowingly or negligently allow any
third party to:
(a) modify, obscure or prevent the display of all, or any part of, any Results;
(b) edit, filter, truncate, append terms to or otherwise modify any Search Query;
(c) implement any click tracking or other monitoring of Results;
(d) display any Results in pop-ups, pop-unders, exit windows, expanding buttons, animation or
other similar methods;
(e) interfere with the display of or frame any Results Page or any page accessed by clicking
on any Results;
(f) display any content between any Results and any page accessed by clicking on those Results
or place any interstitial content immediately before any Results Page containing any Results;
(g) *** in connection with any Results or Ad revenue;
(h) directly or indirectly, (i) offer incentives to End Users to generate Requests or clicks
on Results, (ii) fraudulently generate Requests or clicks on Results or (iii) modify Requests or
clicks on Results;
(i) “crawl”, “spider”, index or in any non-transitory manner store or cache information
obtained from the Services (including Results); and
(j) display on any Site, any content that violates or encourages conduct that would violate
the Google Program Guidelines, Google technical protocols and any other technical requirements and
specifications applicable to the Services that are provided to Company by Google from time to time.
3.2 Compliance Obligations. Company will not knowingly or negligently allow any use of or
access to the Services through any Site which is not in compliance with the terms of this
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Agreement. Company will use commercially reasonable efforts to monitor for any such access or use
and will, if any such access or use is detected, take all reasonable steps requested by Google to
disable this access or use. If Company is not in compliance with this Agreement at any time,
Google may, with notice to Company, suspend provision of all (or any part of) the applicable
Services until Company implements adequate corrective modifications as reasonably required and
determined by Google.
4. ***. If for ***, Company *** and will *** on the applicable Results Pages so that ***. For
clarity, this Section 4 does *** provided to Company for display on the Sites *** where such ***
and ***.
5. Changes and Modifications.
5.1. By Google. If Google modifies the Google Branding Guidelines, Google Program Guidelines
or the Google technical protocols and the modification requires action by Company, Company will
take the necessary action *** from receipt of notice from Google. If requested, *** that may arise
as Company implements these modifications. *** the specific Service impacted by the modification.
5.2. By Company
(a) Company will provide Google with *** notice of any change in code or serving technology
that could reasonably be expected to affect the delivery or display of any Results.
5.3. Site List Changes
(a) Company may notify Google from time to time that it wishes to add or remove URL(s) to
those comprising the Site(s) by sending notice to Google *** Company wishes the addition or
deletion to take effect. Google may approve or disapprove the request in its reasonable
discretion, this approval or disapproval to be in writing.
(b) If there is *** any Site (such that the conditions set out in Section *** are not met):
(i) Company will provide notice to Google *** the change; and
(ii) unless the entire Agreement is *** the Site in compliance with Section *** below, from
the ***, that ***. Company will ensure that from that date, the *** on that Site.
6. Intellectual Property.
Except to the extent expressly stated otherwise in this Agreement, neither party will acquire any
right, title or interest in any Intellectual Property Rights belonging to the other party, or to
the other party’s licensors.
7. Brand Features.
7.1. Google grants to Company a non-exclusive and non-sublicensable license during the Term to
use the Google Brand Features solely to fulfill Company’s obligations in connection with the
Services in accordance with this Agreement and the Google Branding Guidelines. Google may revoke
this license at any time upon notice to Company. Any goodwill resulting from the use by Company of
the Google Brand Features will belong to Google.
7.2. *** if requested by Company.
7.3. ***.
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8. Payment.
8.1. Advertising Services
(a) For each applicable Advertising Service, Google will pay Company an amount equal to the
Revenue Share Percentage (listed on the front pages of this Agreement) *** attributable to a
calendar month. This *** following the calendar month in which the applicable Ads were displayed.
(b) *** under this Agreement will be based on *** which may be ***.
8.2. All Services
(a) As between Google and Company, Google is *** (if any) associated with the *** in
connection with Ads displayed on the Sites. Company is *** (if any) ***, other than *** based on
***. *** to Company from Google in relation to the Services will be *** (if applicable) and will
not be ***. If Google is obligated to *** from its *** to Company, Google will notify Company of
this and will make the ***. Google will provide Company with original or certified copies of ***
(or other sufficient evidence of ***) if any of these payments are made by Google.
(b) *** specified in this Agreement and made *** notified to the *** party by the other party
for that purpose. The party *** will be responsible for ***.
(c) In addition to other rights and remedies Google may have, Google may *** any *** to
Company that Google may *** under this Agreement *** to Google and not *** by Company under this
Agreement *** Company and Google, provided that Company’s *** to Google under such other ***.
Google may also *** under this Agreement, or require Company to *** of any ***, any *** Google may
have *** to Company in prior periods.
9. Warranties; Disclaimers.
9.1. Warranties. Each party warrants that (a) it has full power and authority to enter into
this Agreement; and (b) entering into or performing under this Agreement will not violate any
agreement it has with a third party.
9.2. Disclaimers. Except as expressly provided for in this Agreement and to the maximum
extent permitted by applicable law, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER IMPLIED,
STATUTORY, OR OTHERWISE AND DISCLAIMS, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR USE, AND NONINFRINGEMENT.
10. Indemnification.
10.1. By Company. Company will indemnify, defend, and hold harmless Google from and against
all liabilities, damages, and costs (including settlement costs) arising out of a third party
claim: ***.
10.2. By Google. Google will indemnify, defend, and hold harmless Company from and against
all liabilities, damages, and costs (including settlement costs) arising out of a third party
claim: ***.
10.3. General. The party seeking indemnification will promptly notify the other party of the
claim and cooperate with the other party in defending the claim. The indemnifying party has full
control and authority over the defense, except that any settlement requiring the party seeking
indemnification to admit liability or to pay any money will require that party’s prior written
consent, such consent not to be unreasonably withheld or delayed. The other party may join in the
defense
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with its own counsel at its own expense. THE INDEMNITIES IN SUBSECTIONS 10.1(a) and
10.2(a) ARE THE ONLY REMEDY UNDER THIS AGREEMENT FOR ***.
11. Limitation of Liability.
11.1. Limitation
(a) NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL,
INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE
KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
(b) NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR MORE THAN ***.
11.2. Exceptions to Limitations. These limitations of liability do not apply to breaches of
*** contained in this Agreement, *** by the other party *** contained in this Agreement.
12. Confidentiality; PR.
12.1. Confidentiality. The recipient of any Confidential Information will not disclose that
Confidential Information, except to Affiliates, employees, and/or agents who need to know it and
who have agreed in writing to keep it confidential. The recipient will ensure that those people
and entities use Confidential Information only to exercise rights and fulfill obligations under
this Agreement and keep the Confidential Information confidential. The recipient may also disclose
Confidential Information when required by law after giving the discloser reasonable notice and the
opportunity to seek confidential treatment, a protective order or similar remedies or relief prior
to disclosure. ***.
12.2. ***.
(a) ***, Google may *** by Google under this subsection 12.2(a) will be subject to the terms
of the *** located at the following URL: *** (or a different URL Google may provide to
Company from time to time).
12.3. PR. Neither party will issue any public statement regarding this Agreement without the
other party’s prior written approval.
13. Term and Termination.
13.1. Term. The term of this Agreement is the Term stated on the front pages of this
Agreement, unless earlier terminated as provided in this Agreement.
13.2. Termination.
(a) Either party may terminate this Agreement with notice if the other party is in material
breach of this Agreement:
(i) where the breach is incapable of remedy;
(ii) where the breach is capable of remedy and the party in breach fails to remedy that breach
*** receiving notice from the other party; or
(iii) *** if the previous breaches were remedied.
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(b) In addition *** above, each party will have the right *** by providing a *** notice to the
other party.
(c) Google may, *** to Company, *** Company to *** AFC from any Site or set of pages on a Site
on which *** for the previous calendar month.
(d) Google reserves the right to *** of any Services that are ***. If any *** of a Service
under this subsection 13.2(d) ***, Company *** this Agreement upon notice to Google.
(e) Upon the expiration or termination of this Agreement for any reason:
(i) all rights and licenses granted by each party will cease immediately; and
(ii) if requested, each party will use commercially reasonable efforts to promptly return to
the other party, or destroy and certify the destruction of, all Confidential Information disclosed
to it by the other party.
14. Miscellaneous.
14.1. Compliance with Laws. Each party will comply with all applicable laws, rules, and
regulations in fulfilling its obligations under this Agreement.
14.2. Notices. All notices will be in writing and addressed to the attention of the other
party’s Legal Department and primary point of contact. Notice will be deemed given (a) when
verified by written receipt if sent by personal courier, overnight courier, or mail; or (b) when
verified by automated receipt or electronic logs if sent by facsimile or email.
14.3. Assignment. Neither party may assign or transfer any part of this Agreement without the
written consent of the other party, except to an Affiliate but only if (a) the assignee agrees in
writing to be bound by the terms of this Agreement and (b) the assigning party remains liable for
obligations under this Agreement. Any other attempt to transfer or assign is void.
14.4. ***. Upon the earlier of *** the party *** the *** will provide notice to the other
party promptly, but ***, after the *** of the ***. The other party may *** by sending notice to
the party *** the *** and the *** upon the *** delivery of the *** of the ***.
14.5. Governing Law. This Agreement is governed by California law, excluding California’s
choice of law rules. FOR ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PARTIES
CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN SANTA XXXXX COUNTY,
CALIFORNIA.
14.6. Equitable Relief. Nothing in this Agreement will limit either party’s ability to seek
equitable relief.
14.7. Entire Agreement; Amendments. This Agreement is the parties’ entire agreement relating
to its subject and supersedes any prior or contemporaneous agreements on that subject. Any
amendment must be in writing signed by both parties and expressly state that it is amending this
Agreement.
14.8. No Waiver. Failure to enforce any provision will not constitute a waiver.
14.9. Severability. If any provision of this Agreement is found unenforceable, the balance of
this Agreement will remain in full force and effect.
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14.10. Survival. The following sections of this Agreement will survive any expiration or
termination of this Agreement: 6 (Intellectual Property), 10 (Indemnification), 11 (Limitation of
Liability), 12 (Confidentiality; PR) and 14 (Miscellaneous).
14.11. Independent Contractors. The parties are independent contractors and this Agreement
does not create an agency, partnership, or joint venture.
14.12. No Third Party Beneficiaries. There are no third-party beneficiaries to this
Agreement.
14.13. Force Majeure. Neither party will be liable for inadequate performance to the extent
caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor
condition, governmental action, and Internet disturbance) that was beyond the party’s reasonable
control.
14.14. Counterparts. The parties may execute this Agreement in counterparts, including
facsimile, PDF or other electronic copies, which taken together will constitute one instrument.
Signed:
| Company | ||||||||
By:
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/s/ Xxxxxx Xxxxx
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By: | /s/ Xxxxx X. Xxxxxx
|
|||||
| Print Name: Xxxxxx Xxxxx | Print Name: Xxxxx X. Xxxxxx | |||||||
| Title: President, Global Sales and Business Development | Title: CEO | |||||||
| Date: 6/30/2011 | Date: 6/30/2011 | |||||||
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EXHIBIT A
***.
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