Google Services Agreement
EXHIBIT
10.14.1
CONFIDENTIAL TREATMENT REQUESTED
CONFIDENTIAL TREATMENT REQUESTED
This Google Services Agreement (“GSA”) is entered into by and between Google Inc.
(“Google”) and Synacor, Inc., a corporation formed under the laws of State of Delaware
(“Customer”). This GSA shall be effective as of the GSA Effective Date set forth in the signature
block below.
1 Services.
1.1 Services. Subject to the terms and conditions of this GSA, Google will provide
Customer, and Customer will procure from Google, certain services (the “Services”) for the fees
set forth in each Google Order Form executed by Customer and Google (each, an “Order Form”). Each
Order Form will be pursuant to Google’s then current order form, and will incorporate by reference
the terms of this GSA as of the Order Form Effective Date set forth therein (the “Order Form
Effective Date”). In the event of any conflict between the provisions of any Order Form and the
provisions of this GSA, the provisions of the Order Form shall control. Customer will not be
obligated to purchase from Google, and Google will not be obligated to provide Customer, services
by entering into this GSA unless and until the parties execute and deliver an Order Form
incorporating this GSA. As used herein, “Search Results” means the search results provided by
Google through the search Service ordered by Customer in the applicable Order Form; and
“Advertising Results” means the advertisements provided by Google through the AdSense Service
ordered by Customer in the applicable Order Form.
1.2 Beta Features. Certain Services may include features which are identified by Google as
“Beta” or are otherwise unsupported under Google’s then current technical documentation (“Beta
Features”). Such 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.
1.3 Support. Subject to the terms and conditions of the Agreement, Google shall provide
technical support services to Customer during the Services Term (as defined below), in accordance
with Google’s then current support guidelines in effect (“Technical Support Services” or “TSS”).
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, a single technical employee of Customer designated on the Order Form
(“Technical Contact”) may submit a written request for TSS via email to the applicable Google
alias set forth in the Order Form, or such other email address that Google may provide with
advance notice from time to time. Customer shall provide support services to End Users at its own
expense.
2 Customer Obligations.
2.1 Prohibited Actions. Customer shall not, and shall not allow any third party (including
and third party client to which Customer provides any services) to: (a) edit, modify, truncate,
filter or change the order of the information contained in any Search Results and/or Advertising
Results without Google’s prior written consent, including, but not limited to commingling Search
Results and/or Advertising Results with non-Google provided search results or advertising; (b)
frame any Site page which contain any Search Results and/or Advertising Results (“Results Page”)
or any Web page which may be accessed by clicking on any portion of an Search Result and/or
Advertising Result (in each case, a “Referring Page”); (c) redirect an End User away from the
Referring Page, provide a version of the Referring Page different from the page an End User would access by going directly to the Referring Page or intersperse any
content between a Search Result and/or Advertising Result and the Referring Page; (d) display any
Search Results and/or Advertising Results to any third parties other than End Users; (e) enter into
any arrangement or agreement under which any third party pays Customer fees, Customer pays the
third party fees, or either shares with the other any revenue payments and/or royalties for any
Search Results and/or Advertising Results displayed on the Site; (f) display any Search Results
and/or Advertising Results in pop-up, pop-under, exit windows, expanding buttons, or animation; (h)
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 Referring Pages accessed by
clicking on any portions thereof; (i) directly or indirectly generate queries, or impressions of or
clicks on Search Results and/or Advertising Results, through any automated, deceptive, disingenuous
or other fraudulent means (including, but not limited to, click spam, robots, macro programs, and
Internet agents); or (j) encourage or require End Users or other persons, either with or without
their knowledge, to click on Search Results and/or Advertising Results through offering incentives
or any other methods that are manipulative, deceptive, malicious or fraudulent (each of the
foregoing acts in subsections (i) and (j) a “Fraudulent Act”).
2.2 Site Content. No Site 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.
2.3 Deployment & Access. Customer shall be responsible for use of or access to any
Services which are not in compliance with the terms of the Agreement or not otherwise approved by
Google, and Customer shall monitor and disable any such access or use by unauthorized parties
(including, but not limited to, spammers or any third party sites). Furthermore, at all times
during the Services Term, Google reserves final approval authority with respect to the means used
by Customer to deploy the Services, and in the event Google disapproves of such deployment, Google
shall have the right, upon written notice to Customer, to suspend any continued use of the
applicable Services until such time Customer implements adequate corrective modifications as
reasonably required and determined by Google. Google may send uncompensated test queries to the
Sites at any time to verify Customer’s compliance with any requirements contained in the
Agreement.
3 [*].
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*CERTAIN
INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
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4 Ownership; License Grants.
4.1 Intellectual Property Rights; Brand Features. For purposes of the Agreement: (a)
“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 reinstatements thereof, now or hereafter in force and effect worldwide; and (b) “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.
4.2 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 protocols for implementing the
Services (the “Google Data 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. Customer shall not, and shall not allow any third
party to: (a) modify, adapt, translate, prepare derivative works from, decompile, reverse
engineer, disassemble or otherwise attempt to derive source code from any Services, the Google
Data Protocol, or any other Google technology, content, data, routines, algorithms, methods, ideas
design, user interface techniques, software, materials, and documentation; (b) 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 Data Protocol, or any other Google
technology, software, materials and documentation; (c) “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);
(d) 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);
(e) 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, and then only to the extent expressly permitted herein; (f) engage in any action or
practice that reflects poorly on Google or otherwise disparages or devalues Google’s reputation or
goodwill; or (g) create or attempt to create a substitute service or product through use of any of
the Services or proprietary information related thereto.
4.3 Customer Rights. Customer, its licensors, or other applicable third party providers
own all Intellectual Property Rights in and to any editorial, text, graphic, audiovisual, and
other content that is served to End Users of the Sites and that is not provided by Google
(“Customer Content”). Google shall not acquire any right, title or interest in or to such Customer
Content, except as provided herein.
4.4 License Grants; Brand Features. Each party shall own all right, title and interest,
including without limitation all Intellectual Property Rights, relating to its Brand Features.
Google grants to Customer a nonexclusive and nonsublicensable license during the Services Term to
display Google Brand Features solely for the purposes expressly set forth under the Agreement.
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). Notwithstanding anything to the contrary contained in this Agreement, Google
reserves the right at all times to revoke any rights that may have been granted to Customer to use the
Google Brand Features upon providing Customer with written notice thereof and a reasonable time for
Customer to cease any such usage. Customer grants to Google a nonexclusive and non-sublicensable
license during the Services Term to include Customer’s name and logo in presentations, marketing
materials, customer lists, and Web site listings of customers. Each party will submit all materials
of any kind containing the other party’s Brand Features (other than in customer lists) to the other
party for approval prior to release to the public. Furthermore, 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 URL:
xxxx://xxx.xxxxxx.xxx/xxxxxxxxxxx/xxxxxxxxxx.xxxx (or such other URL Google may provide
from time to time). Except as set forth in the Agreement, neither party acquires any right, title
or interest in or to the other party’s Brand Features. 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.
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 agencies of whatever kind and imposed with respect to the
transactions for Services provided by Google 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 to Google (i) 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; or (ii) a valid certificate of Customer’s exemption from obligation to pay such taxes
as authorized by the appropriate taxing authority. In addition, Customer will promptly provide
Google with such documentation as may be required by the applicable taxation and other authorities
in order for Google to process payments hereunder, and Customer understands that Google reserves
the right to withhold payment until Customer has provided such documentation.
6 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: (a) Customer owns and controls, and will own and control throughout the Services Term, one
hundred percent (100%) of the Sites; (b) the execution and delivery of this Agreement, and the performance by Customer of its obligations
hereunder, will not constitute a breach or default of or otherwise violate any agreement to which such party or any of its affiliates are a
party or violate any rights of any third parties arising therefrom; (c) Customer has and will maintain throughout the Services Term all
rights, authorizations and licenses that are required with respect to the Site to permit Google to perform the Services contemplated under this
Agreement, which rights, authorizations and licenses have been obtained and will be maintained in compliance with all applicable laws,
rules and regulations and without violating any rights or interests of
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any third party; and (d) Customer shall use information provided by Google (including, but not
limited to, Search Results and/or Advertising Results) in a manner that complies with applicable
laws. 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. Google will defend, or at its option settle, any third party lawsuit or
proceeding brought against Customer based upon a claim that Google’s technology used to provide
the Services or any Google Brand Feature infringe(s) any copyright, trade secret or trademark of
such third party. Notwithstanding the foregoing, in no event shall Google have any obligations or
liability under this Section 7 arising from: (a) use of any Beta Features, Google’s related ad
links feature or the News Search Service, (b) use of the Services or Google Brand Features either
(a) in any manner inconsistent with or in breach of this Agreement, or (ii) in a modified form or
in combination with materials not furnished by Google, (c) any content, information or data
provided by Customer, End Users or any other third parties, and/or (d) any search results or third
party Web sites or content to which such search results may link. Google, in its sole and
reasonable discretion, reserves the right to terminate Customer’s continued use of any Services or
Google Brand Features which are alleged or believed by Google to infringe. Customer will defend,
or at its option settle, any third party lawsuit or proceeding brought against Google based upon
or otherwise arising out of: (i) a claim that the Customer Content, any Site and/or Customer Brand
Features infringe any copyright, trade secret or trademark of such third party; (ii) Google’s use
of any Customer Content, provided that such use complies with the requirements of the Agreement;
(iii) Customer’s use of the Services in any manner inconsistent with or in breach of the
Agreement; (iv) any claim that the provision of News Search Services on the Sites violates any
copyright, trade secret, trademark or other third party right; and/or (v) any 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. Indemnification shall be provided for any claim
covered under this Section 7 and shall be limited to (i) payment by the indemnifying party
(“Indemnitor”) of all damages and costs finally awarded for such claim, or (ii) 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. THE FOREGOING STATES THE
PARTIES’ ENTIRE LIABILITY AND EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT OF A THIRD PARTY’S
INTELLECTUAL PROPERTY RIGHTS AS SET FORTH ABOVE.
8 Limitation of Liability. EXCEPT FOR (I) BREACHES OF THE EXCLUSIVITY OBLIGATIONS UNDER
SECTION 3, (II) AMOUNTS PAYABLE TO THIRD PARTIES PURSUANT TO THE PARTIES’ INDEMNIFICATION
OBLIGATIONS UNDER SECTION 7, (III) BREACHES OF ANY INTELLECTUAL PROPERTY RIGHTS AND/OR PROPRIETARY
INTERESTS RELATING TO THE SERVICES, AND (IV) BREACHES OF CONFIDENTIALITY UNDER SECTION 9, 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. IN NO EVENT SHALL GOOGLE’S TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS ARISING
OUT OF THE AGREEMENT EXCEED THE NET AMOUNT (MINUS ALL DEDUCTIONS AND OTHER OFFSETS PROVIDED FOR
UNDER THE AGREEMENT) GOOGLE HAS ACTUALLY RECEIVED AND RECOGNIZED AS REVENUE DURING THE PRECEDING
SIX (6) MONTHS FOR THE SERVICES TO WHICH THE CLAIM RELATES. IN ADDITION, IN NO EVENT WILL GOOGLE BE
LIABLE, DIRECTLY OR INDIRECTLY, UNDER THIS AGREEMENT FOR ANY DAMAGES THAT MAY BE SUFFERED BY ANY
THIRD PARTY EXCEPT PURSUANT TO AND TO THE EXTENT PROVIDED BY ITS INDEMNIFICATION OBLIGATIONS UNDER
SECTION 7. The parties agree that (i) the mutual agreements made in this Section reflect a
reasonable allocation or risk, and (ii) that each party would not enter into the Agreement without
these limitations on liability.
9 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.
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.
10.2 Termination.
10.2.1 General. Either party may suspend performance and/or terminate the Agreement, in
whole or in part: (i) if the other party materially breaches any material term or condition of the
Agreement and fails to cure such breach within thirty (30) 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 the Agreement immediately upon
written notice if: (i) Customer breaches Section 2 (Customer Obligations), Section 4.2 (Google
Rights), Section 4.4 (License Grants; Brand Features), or Section 9 (Confidentiality); (ii)
Customer is in material breach of the Agreement more than twice notwithstanding any cure of such
breaches; or (iii) Google reasonably determines that it is impracticable to continue providing the
Services in light of applicable laws.
10.2.3 Suspension and Termination in the Event of an Injunction. Google may suspend
performance under the Agreement in whole or in
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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 the Agreement or the applicable Order Form in whole or in part with immediate effect.
10.3 Effect of Termination and Expiration. 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 Termination of GSA. Either party may terminate this GSA at any time by giving the
other at least thirty (30) days’ advance written notice, provided, that this GSA may not be
terminated unless and until the all outstanding Orders Forms into which this GSA has been
incorporated shall have been duly completed and performed and are, accordingly, expired or
terminated and no longer of any force and effect. The termination or expiration of an individual
Order Form shall not have the effect of terminating any other individual Order Form or this GSA
unless expressly agreed to by the parties in writing. If an Order Form (but not this GSA)
terminates or if the Services Term set forth in an Order Form expires, all rights and licenses
granted by Google relating to the applicable Services as set forth in such Order Form, if any,
shall cease immediately.
10.5 Remedies Cumulative. Termination or expiration of the Agreement, in part or in whole,
shall not limit either party from pursuing other remedies available to it, nor shall Customer be
relieved of its obligation to pay all fees that have accrued or are otherwise owed under the
Agreement.
11 Miscellaneous. Each party shall comply with all applicable laws, rules and regulations,
if any, required in performing its obligations under the Agreement. All notices shall be in
English and in writing and (a) if sent to Customer to the address identified on the Order Form and (b) if sent to Google to such address as provided at:
xxx.xxxxxx.xxx/xxxxxxxxx/xxxxxxx.xxxx or as otherwise provided in
writing for such notice purposes; provided, however, that all invoices
and payments shall be sent to the attention of Google Finance, all
legal notices shall be sent to the attention of the Google Legal
Department, and all other correspondence shall be sent to the
attention of the account manager specified by Google. Notice shall be
deemed given (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. 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, including as a result of a 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; and any attempt to do so shall be null and void. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective
successors and assignees as if such successors and assigns were an original party to this
Agreement. The Agreement is not intended to benefit, nor shall it be deemed to give rise to, any
rights in any third party. Either party may seek equitable relief, including temporary restraining
orders or injunctions, in addition to all other remedies, for breach or threatened breach of
Section 3 (Exclusivity), Section 4 (Ownership; License Grant), any Google license grant provisions
set forth in an applicable Order Form, or Section 9 (Confidentiality). 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. The laws of California, excluding
California’s choice of law rules, and applicable federal U.S. laws shall govern the Agreement. Any
and all claims arising out of or relating to the subject matter of this Agreement will be resolved
in the federal or state courts located in Manhattan, New York State, and each party agrees to
submit to the personal and exclusive jurisdiction thereof. 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. 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. 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 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. 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. 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. In the event of any termination or expiration of the Agreement, Sections 4.1,
4.2, 4.3, 6, 7, 8, 9 (including the NDA), 10.3, and 11 shall survive termination. Neither party
shall be liable to the other for any damages resulting solely from termination as permitted for
under the Agreement. This GSA, the applicable Order Form into which this GSA is incorporated, any
exhibits thereto, and any terms located in documents or 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. The
Agreement supersedes any other prior or collateral agreements, whether oral or written, with
respect to the subject matter hereof. Any amendments or modifications to the Agreement must (i) be
in writing; (ii) refer to the Agreement; and (iii) be executed by an authorized representative of
each party. Any changes to the Agreement not approved in writing by the Google Legal Department
shall not be binding on Google. The Agreement shall be construed as if both parties jointly wrote
it. The Agreement may be executed in counterparts, including facsimile counterparts.
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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: SYNACOR, INC. | |||||||||
By:
|
/s/ Xxxx Xxxxxx | By: | /s/ M. Xxxx Xxxxxxx | |||||||
| Print Name: XXXX XXXXXX | Print Name: M. XXXX XXXXXXX | |||||||||
| Title: VP SEARCH SERVICES | Title: VICE PRESIDENT, BUSINESS DEVELOPMENT | |||||||||
| Date: 6.30.04 | Date: 6/25/04 | |||||||||
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