Exhibit 10.3.1
GOOGLE SERVICES AGREEMENT
This Google Services Agreement ("GSA") is entered into by and between Google
Technology Inc. ("GOOGLE") and The Excite Network, Inc., a corporation formed
under the laws of Delaware ("CUSTOMER"). This GSA shall be effective as of the
GSA Effective Date set forth below, and states the terms and conditions under
which Customer may use the WebSearch Services and Google Sponsored Links Program
made generally available by Google and described further herein and/or in an
applicable Order Form (each a "SERVICE" and collectively, the "SERVICES"). Such
Services may be ordered by Customer and shall be identified on the separately
stated standard Google order form executed between the parties (referred to
hereinafter as the "ORDER FORM"). The Order Form shall be governed by this GSA
and shall become effective on the date stated in such Order Form ("ORDER FORM
EFFECTIVE DATE"). This GSA and the Order Form together constitute the
"Agreement."
1. Services.
1.1 WebSearch Services. Google shall assist Customer with providing a
co-branded Internet search service as further set forth herein ("WEBSEARCH
SERVICES"), which shall only be implemented at the uniform resource
locators ("URL(S)") [*] identified on the Order Form (each a "SITE" and
collectively the "SITES"). Internet search queues entered by end users
("END USERS") of a Site, Downloadable Applications (as defined in Section
1.3.6), Additional Site (as defined in Section 1.3.5), Search Box Site (as
defined in Section 1.3.6) and Co-branded Site (as defined in Section
1.3.5) (collectively, "QUERIES") shall be sent by Customer in compliance
with the requirements set forth under the Agreement for processing by
Google. Pursuant to the terms of the Agreement, for each Valid Query (as
defined in Section 1.3.1 below) received, Google shall transmit to
Customer up to [*] corresponding search results, as available ("SEARCH
RESULTS SET"). Unless otherwise specified in the applicable Order Form,
subject to the terms and conditions of this Agreement, Customer shall have
the right to implement (or where applicable, shall have the right to
continue to implement) the WebSearch Services on the websites whose home
pages are located at [*] from the Order Form Effective Date. The WebSearch
Services may also include features that 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 WebSearch Services at any time. Except
as expressly provided in this Agreement and except for Beta Features and
unsupported features, [*].
1.1.1 Image Search. If selected by Customer on the Order Form, Google
shall, in response to a correctly formatted image search query,
return a Search Results Set that contains relevant images, if any,
consisting of a thumbnail version of the image (if available) and
the URL for the image and/or for the Web page on which the image
appears ("REFERRING PAGE"). Customer shall take reasonable steps to
minimize any legal risks, including but not limited to: [*].
1.1.2 Directory Service. Google shall provide to Customer a hierarchical
directory of Web pages, based on the Netscape Communications
Corporation Open Directory
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Project ("ODP"), through which End Users can browse and search, for
display on a Site and/or (subject to the prior written approval of
Google) an Additional Site or Co-branded Site. If and to the extent
any Web page of such Site, Additional Site or Co-branded Site
containing directory search results includes content from the ODP,
the use of such content is subject to the Open Directory License, a
copy of which as of the GSA Effective Date is at
xxxx://xxxx.xxx/xxxxxxx.xxxx. Customer hereby agrees to abide by the
terms of said license and specifically acknowledges the attribution
requirement set forth therein. Customer understands and agrees that
the Services and license provided in this Section 1.1.2 are subject
to termination to the extent such services are no longer available
for third party licensing from Google or Google otherwise ceases to
make such services generally available to customers. For the
purposes of the Agreement, a browse query generated by an End User
in connection with the Directory Service on a Site, Additional Site
or Co-branded Site shall be deemed to be included as part of
"QUERIES."
1.2 Google Sponsored Links Program. Google shall assist Customer with
providing compensated linked advertisements through the Google Sponsored
Links Program ("GOOGLE SPONSORED LINKS") as further set forth herein
("GSLP"), which shall only be implemented on a Site [*]. Under GSLP,
Customer shall request from Google no fewer than the minimum number of
Google Sponsored Links per Results Page (as defined below) stated in the
Order Form. Pursuant to the terms of the Agreement, Google shall transmit
to Customer at least such minimum number of Google Sponsored Links, as
available ("ADVERTISING RESULTS SET"). Customer shall display Advertising
Results Sets in "WIDE FORMAT" and/or "NARROW FORMAT," as specified in the
Order Form and in accordance with Google's then-current brand treatment
guidelines located at [*] or such other URL as Google may provide from
time to time ("GUIDELINES"); [*]. All Google Sponsored Links requests sent
by Customer to Google as part of GSLP shall include [*] to allow Google to
better target advertisements and assist in preventing spam, automated
Queries and other fraudulent activities. In no event shall Google
Sponsored Links requests sent by Customer to Google contain information
that is personally identifiable. [*]. Customer shall implement (or where
applicable, shall continue to use) the GSLP (a) on the [*] Site and the
[*] Site on and after the Order Form Effective Date; and (b) on the [*]
Site on or before August 8, 2003.
1.3 Operation of Services.
1.3.1 Valid Query Processing. For any and all Queries received by Customer
from End Users, Customer shall (without editing, modifying or
filtering such Queries individually or in the aggregate) send such
Queries to Google via the standard "GOOGLE DATA PROTOCOL."
Furthermore, in order to be deemed a "VALID QUERY," each such Query
sent to Google [*]. As used herein, the term "RESULTS SET(S)" shall
mean a Search Results Set and/or Advertising Results Set, as
applicable. Upon Google's receipt of a Valid Query as described
above, Google shall process such Valid Query using its proprietary
technology and transmit the relevant Results Sets to Customer via
[*] using the Google Data Protocol (or other such means as Google
may implement from time to time). Customer shall then
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display, in each instance, [*]. Customer shall have the right to
display such Results Sets solely on the Sites [*]. Google will not
be responsible for receiving any Queries directly from End Users or
any other third party, for transmission of data between Customer and
Google's [*], or for displaying any Results Set(s) to End Users. If
selected on the Order Form, Google will use its proprietary
technology to assist Customer in limiting Search Results Sets to
those Web pages: (a) in the languages) specified on such Order Form
("LANGUAGE RESTRICT"); and/or (b) served from the country(ies)
specified on such Order Form ("COUNTRY RESTRICT"). Furthermore, if
selected on the Order Form, Google will use its proprietary
SafeSearch technology to assist Customer in preventing [*] sexually
explicit search results and/or advertising from appearing in Results
Set(s). Notwithstanding the foregoing, Customer acknowledges and
agrees that Google does not commit that all search results will be
limited to the languages and/or countries specified or that all
objectionable search results will be prevented.
1.3.2 Site Layout and Attribution.
(a) Site Layout. Unless otherwise agreed to by the parties in writing:
(i) the layout and format of each page of each Site, [*] ("RESULTS
PAGE") shall conform to the Guidelines; and (ii) at least [*] Google
Sponsored Links on each Site, [*] shall be visible to any user at a
minimum resolution of 800 by 600 dpi without scrolling within the
Web page as viewed through an Internet browser application (without
any installed toolbars) considered among the top two (2) most widely
used from time to time ("ABOVE-THE-FOLD"). Customer shall be
entitled to design the look, feel and appearance of each Web page
containing a Results Set in its sole discretion (subject to
compliance with the Guidelines); provided, however that, (x) for the
[*] Site, each such page shall display Search Results Sets and/or
Sponsored Links in a manner substantially similar to the current
implementation of Search Results Sets and/or Sponsored Links on the
[*] Site, which implementation is attached hereto as Exhibit B, (y)
for the [*] Site, each such page shall display Search Results Sets
and/or Sponsored Links in a manner substantially similar to the
implementation set forth on Exhibit B hereto; or (z) for any [*],
each such page on such [*] Site shall display Search Results Sets
and/or Sponsored Links in a manner [*] (each an "APPROVED LAYOUT").
For the avoidance of doubt, Google and Customer shall [*]. Google
acknowledges and agrees that Google's rights of approval with
respect to an Approved Layout extend only to the appearance of the
Search Results Sets) and/or Sponsored Links on a results page and
that Customer shall have the right, in its sole and exclusive
discretion (subject to compliance with the Guidelines and the
attribution requirements below), to design the look, feel, features
and functionality of any and all other elements on such pages
(including, without limitation, page headers, page footers, or other
page elements).
(b) Attribution. In connection with the WebSearch Services, Customer
shall implement a search box or other similar means used by End
Users to enter Queries ("SEARCH BOX"). For Search Boxes and Web
pages containing a Search Results Set within each of the [*] and [*]
Site [*], Customer may display a
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graphic module (as provided by Google from time to time, a "GRAPHIC
MODULE") for the [*] Site [*] and a text only module (as provided by
Google from time to time, a "TEXT MODULE") for the [*] Sites, and
the [*] Site if [*], in each case that unambiguously indicates that
the Search Results Set is provided by Google (Graphic Modules and a
Text Modules are referred to herein individually as an "ATTRIBUTION
GRAPHIC"). Except as otherwise expressly provided in the preceding
sentence, Customer may not display any Google attribution, including
a Google Attribution Graphic, without obtaining the prior written
consent of Google, including, without limitation, in any of the
following instances: [*]. If Google approves of a Google Attribution
in connection with any of the foregoing items listed in the
preceding sentence, Customer may use in connection therewith a Text
Module, in the form as provided by Google from time to time, that
unambiguously indicates that the Search Results Sets are provided by
Google. The parties agree that the Google Attribution displayed on
the [*], each as reflected in Exhibit A (as annotated), have been
approved. In addition, Customer may not, and may not permit any
third party to, display any Google attribution, including a Google
Attribution Graphic on any Search Box or Web page within a Search
Box Site. Each implementation of an Attribution Graphic shall
require the prior written approval of Google. Notwithstanding the
foregoing, Customer agrees that it shall not place anything on any
Site, Downloadable Application, Additional Site or Co-branded Site
that in any way implies that information other than the Search
Results Sets are provided by Google. Customer shall also
unambiguously xxxx each cluster or grouping of Sponsored Links as
"Sponsored Links" or other equivalent designation indicating that
the Sponsored Links are compensated linked advertisements, and
distinct from search results. Subject to the restrictions set forth
in Section 1.3.3(a), if a Sponsored Link is presented individually,
such link shall be conspicuously marked as a "SPONSORED LINK."
Furthermore, Customer agrees to adhere at all times to Google's
then-current Brand Feature guidelines, and any content contained
and/or referenced therein [*].
1.3.3 Prohibited Actions. Customer shall not, shall not allow any third
party that is an affiliate or agent of Customer, or a counterparty
of Customer [*] (a "RELATED THIRD PARTY"), and shall not authorize
any other third party to: (a) edit, modify, filter or change the
order of the information contained in any Results Set(s) without
Google's prior written consent, including, but not limited to
commingling (i.e., interspersing Customer content or third party
content within any Results Set(s)), Google Sponsored Links and/or
Google search results with non Google provided sponsored links,
advertising or search results; (b) [*]; (c) [*]; (d) [*]; (e) [*];
(f) [*]; (g) generate clicks, directly or indirectly, on any Results
Sets through any automated means (including, but not limited to,
robots, macro programs, and Internet agents); (h) encourage or
require End Users, either with or without their knowledge, to click
on any Advertising Result Sets by [*] or any other means that are
manipulative, deceptive, malicious or fraudulent (it being
understood that [*] or (i) [*] (each of the foregoing in subsections
(g), (h) and (i) a "FRAUDULENT ACT"). Furthermore, Customer agrees
that any and all uses of any Downloadable Application shall comply
with the following: (u) [*], (v) [*], (w) [*], (x) [*], (y)
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[*]; and (z) [*]. Further, each Site, Downloadable Application,
Additional Site, Co-branded Site and Search Box Site shall not
(with the exception of End User provided content, content that is
contained within search results or third party directories) contain
any pornographic, hate-related or violent content or contain any
other material, products or services that (i) violate or encourage
conduct that would violate any criminal laws, any other applicable
laws, or any third party rights; or (ii) would otherwise reasonably
be deemed to give rise to civil liability. Google may send
uncompensated test queries to each Site, Downloadable Application,
Additional Site, Co-branded Site and Search Box Site at any time to
verify Customer's compliance with any requirements contained in the
Agreement. If any third party that is not a Related Third Party
engages in any malicious act that would constitute or result in a
breach of this Section 1.3.3 had such act been undertaken by
Customer or a Related Third Party, Customer will use its best
efforts to cure any such violation as soon as possible, and Google
will consult with Customer in an effort to identify a suitable
cure. If notwithstanding its efforts, Customer is unable to cure
such violation and such violation will materially and adversely
affect Google's business or operations, Google reserves the right
to suspend the Services until such time as the violation has been
cured. If the violation cannot be cured within [*] days after such
suspension, Google will reserve the right to terminate this
Agreement, provided that this termination right will expire with
respect to any violation if such violation has been cured prior to
the exercise of this termination right.
1.3.4. Support. In consideration of Customer's fulfillment of its
obligations set forth under the Agreement, Google shall provide
second level technical support services to Customer during the
Services Term (as defined below), in accordance with Google's
support guidelines set forth on Exhibit G hereto ("SUPPORT
GUIDELINES"). 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 support request to Google in writing via email to [*].
Customer shall provide customer support services to End Users at
its own expense.
1.3.5 Additional Sites and Co-branded Sites.
1.3.5.1 Additional Sites. Customer may only launch the WebSearch
Services and/or the Google Sponsored Links Program on a new
website that is [*] ("ADDITIONAL SITE"). [*]. Customer is
responsible for each Additional Site's use of the Services
provided hereunder and shall ensure that any and all such
Additional Sites comply with the applicable terms and
conditions of the Agreement, including without limitation
all terms and conditions regarding use and prohibited uses
of the Services, terms and conditions relating to the
implementation of the Services, and confidentiality
requirements.
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treatment has been requested with respect to the omitted portions.
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1.3.5.2 Co-branded Sites.
(1) Co-branded Site [*]. Customer may launch the WebSearch
Services and/or the Google Sponsored Links Program on
co-branded versions of the Sites only if such co-branded
Sites are [*] (a "CO-BRANDED SITE"). [*].
(2) Google Elections. With respect to each [*], Customer
will provide Google with such information and cooperation as
is reasonably necessary to evaluate the request, and
thereafter Google may elect one of the following options:
[*].
(3) Restrictions. If Google makes the election described in
subsection (e) of Section 1.3.5.2(2), (x) Customer may
engage a third party (including without limitation an
Excluded Party) to provide services only to the [*]
co-branded site, and (y) [*]. "PORTAL" is defined as a
destination website that seeks to attract and retain users
by aggregating news, information and entertainment and
providing e-mail, messenger, financial tracking, search,
directory, classified and shopping services. By way of
example, Portal includes websites such as the Sites,
xxx.xxxxx.xxx and xxx.xxx.xxx.
(4) Exclusions from Restrictions. Notwithstanding anything
to the contrary, the restrictions provided in subsections
(y) and (B) of Section 1.3.5.2(3) (I) will not apply to [*].
(5) Miscellaneous. Customer will not resubmit any [*] with
respect to the same property within [*] of the date the
first [*] with respect thereto. Any decision to [*] may be
made on a web property by web property, and/or a proposed
co-branded web site by co-branded web site, basis. In no
event may Customer use any Google attribution on any page in
a Co-branded Site other than the search page and Results
Page in accordance with Google's election above. Customer is
responsible for each Co-branded Site's use of the Services
provided hereunder and shall ensure that any and all such
Co-branded Sites comply with the applicable terms and
conditions of the Agreement, including without limitation
the Guidelines, all terms and conditions regarding use and
prohibited uses of the Services, and all terms and
conditions relating to the implementation of the Services.
[*].
1.3.6 Downloadable Applications and Search Box Sites.
1.3.6.1 Downloadable Applications. A Downloadable Application shall
be defined [*] (collectively, "DOWNLOADABLE APPLICATIONS").
Customer shall have the right to embed in a Downloadable
Application a Search Box that is branded with Customer's
(and not Google's) branding of a Site, provided that with
respect to such Search Box Customer must: (i)
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treatment has been requested with respect to the omitted portions.
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[*] (ii) [*], (iii) [*], and (iv) otherwise comply with the
terms and conditions of this Agreement, including without
limitation the Guidelines and requirements applicable to
Downloadable Applications under this Agreement, as such
requirements may be updated generally for customers from
time to time [*].
1.3.6.2 Search Box Sites. Customer shall have the right to embed in
a third party website or a downloadable application of the
type described in the first sentence of Section 1.3.6.1 (a
"SEARCH BOX SITE") a Search Box that is branded with
Customer's (and not Google's) branding of a Site, provided
that with respect to such Search Box Customer must: (i) [*],
(ii) [*], (iii) otherwise comply with the requirements
applicable to Search Boxes under this Agreement, and (iv)
[*]. Customer is responsible for each Search Box Site's use
of the Search Box and shall ensure that any and all Search
Boxes and Search Box Sites comply with the applicable terms
and conditions of the Agreement, including without
limitation the Guidelines, all terms and conditions
regarding use and prohibited uses of the Services, and all
terms and conditions relating to the implementation of the
Services. Upon written request from Google, Customer will,
in a reasonable period of time (not to exceed [*] from the
date of the request), either (x) remove or cause to be
removed any Search Box on any Search Box Site or (y) cease
using any Services and any Google attribution with respect
to such Search Box, and the Results Page applicable to such
Search Box; [*].
1.3.7 Exclusivity.
1.3.7.1 Definition of Sponsored Links. For purposes of this
Agreement, "SPONSORED LINKS" shall mean [*].
1.3.7.2 Exclusivity. Subject to Section 1.3.7.3, Customer agrees
that during the Services Term, Google shall be the
world-wide, exclusive provider of Sponsored Links within the
Web Search and directory sections of each Site, Additional
Site and Co-branded Site, and any successor and replacement
sites thereto, respectively ("EXCLUSIVITY").
1.3.7.3 Exclusions. The Exclusivity obligation set forth in the
preceding section shall not apply in the following
circumstances.
(a) Pre-existing Contractual Restriction. Exclusivity shall
not apply as to a website, or an applicable portion thereof,
as to which Customer does not possess the contractual or
other legal right to display Sponsored Links on such website
or portion thereof due to a pre-existing contractual
obligation to a third party in existence as of the Effective
Date that would otherwise cause Customer to be in breach of
such contractual obligation, as documented to Google by a
representation to such effect in writing by Customer. [*].
Customer
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represents and warrants that as of the Effective Date with
respect to all Sites other than [*], Customer is not subject
to any restrictions that would prevent or prohibit it from
displaying on an exclusive basis (as provided in this
Section 1.3.7 without giving effect to the exclusion
provided in this subsection (a)) Google Sponsored Links on
any results page displayed as a result of either a query
entered by an end user in a search box or similar means or
generated by a click by an end user on a directory listing.
(b) [*]. Exclusivity shall [*]; provided, however, in the
event that Customer [*] then Exclusivity shall [*].
(c) [*] Section. Exclusivity shall [*], which shall not be
greater than [*], in the format set forth in Exhibit E
attached hereto; provided, however, that Customer shall not
display within any [*] section [*]. Notwithstanding anything
in the Agreement to the contrary, Customer shall not in any
manner be prohibited from displaying within the [*] section
links or advertisements which [*]
(d) Unapproved Additional Sites and Co-branded Sites.
Exclusivity shall not apply to Additional Sites that [*]
pursuant to subsections Section 1.3.5.1 (Additional Sites)
and Co-branded Sites that [*] pursuant to [*] Section
1.3.5.2(2) (Co-branded Sites).
(e) Google Ceases GSLP Services. Exclusivity shall not apply
in the event that Google ceases to provide Sponsored Link
services to third parties generally.
(f) Failed Queries. In the event that Google does not
transmit any Google Sponsored Links in response to a Valid
Query properly transmitted by Customer to Google pursuant to
this Agreement, Customer may display Sponsored Links
provided by a third party that is not an Excluded Party in
response to such Valid Query.
1.3.7.4 Excluded Parties. Notwithstanding anything in this Agreement
to the contrary, including without limitation anything in
this Section 1.3.7 (Exclusivity), Customer shall not at any
time (except as specifically provided for in those instances
where the Exclusivity may be terminated pursuant to Section
1.3.7.3(e), the last sentence of each of Section 1.3.5.2(5),
Section 1.3.6.2 and Section 1.3.9 and pursuant to Section 3
of the Order Form) during the Services Term display on any
Site, Downloadable Application, Co-branded Site or
Additional Site: (i) [*], their respective affiliates,
successors and assigns (each an "EXCLUDED PARTY" and
collectively, the "EXCLUDED PARTIES"); or (ii) any
advertisement or other creative provided by [*]. For the
avoidance of doubt, nothing herein shall prohibit Customer
from displaying on (x) any page other than a Web search or
directory page of a Site,
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Additional Site or Co-branded Site an advertisement provided
by an Excluded Party that is not [*]; or (y) any Site,
Additional Site or Co-branded Site [*].
1.3.7.5 Google Non-exclusivity. Notwithstanding anything to the
contrary contained in this Agreement, Google will provide
the Services on a nonexclusive basis to Customer, such that
Google shall have the right at all times to provide its
services without restriction to third parties.
1.3.8 Additional Services. In the event that Google makes additional
services (including services provided by companies that have been
acquired by Google) generally commercially available to third
parties separately from then-existing services during the Initial
Services Term then Google shall make such additional services
available to Customer subject to mutual agreement by the parties in
writing on the terms and conditions under which Google shall make
such additional services available; provided, however, that Google
shall not be obligated to make (or continue to make) such additional
services available to Customer if Google ceases to make such
services generally commercially available to third parties or if the
parties do not agree to terms and conditions for such additional
services. In addition, [*].
1.3.9 Site Modification. In the event that Customer modifies a Site,
Downloadable Application, Additional Site or Co-branded Site in a
manner that effectively changes the fundamental concept or any line
of business of such Site, Downloadable Application, Additional Site
or Co-branded Site and that modification results in an adverse
impact on Google (including without limitation (for the purposes of
illustration only) a modification that converts a Site, Downloadable
Application, Additional Site or Co-branded Site, as the case may be,
into one that provides sexually explicit content or services), then
Google and Customer shall work in good faith to remove the Websearch
Service and/or GSLP [*]. In the event that Google elects to exercise
its rights hereunder, the Exclusivity shall no longer apply to such
Site, Additional Site or Co-branded Site.
2. Ownership; License Grants.
2.1 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,
materials, guidelines, documentation, the Google Data Protocol, and any
Google Brand Features (as defined below), some, but not all, examples of
which may be found at [*] (or such other URL Google may provide from time
to time). 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: (i) 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, any Google Brand Features, or any
other Google technology, software, materials, and documentation;
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treatment has been requested with respect to the omitted portions.
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(ii) remove, 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, any Google Brand Features, or any
other Google technology, software, materials and documentation; (iii)
crawl, index or [*] information obtained from the Services; (iv) except as
expressly permitted under this agreement with respect to co-branding under
Section 1.3.5.2 or in connection with the distribution of Search Boxes
under Section 1.3.6.2, transfer, sell, lease, lend, disclose, or use for
co-branding, timesharing, service bureau or other unauthorized purposes
any Services or access thereto; (v) directly or indirectly access, launch
and/or activate the Services through or from any software application or
means other than the Site, Downloadable Application permitted hereunder,
Co-branded Sites and Search Box Sites; or (vi) engage in any action or
practice that disparages or devalues Google or the Google Brand Features.
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). For purposes of the Agreement, "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. For purposes of the Agreement, "BRAND FEATURES" means the trade
names, trademarks, service marks, logos, and other distinctive brand
features of each party, respectively, as secured by such party from time
to time.
2.2 Customer Rights. Customer and/or its partners, and/or their respective
third party licensors, own all Intellectual Property Rights in and to any
editorial, text, graphic, audiovisual, and other content that is served to
End Users of each Site, Downloadable Application, Additional Site
Co-branded Site or Search Box Site and that is not provided by Google
("CONTENT"). Google shall not acquire any right, title or interest in or
to such Content, except as provided herein. The Google WebSearch services
are provided to Customer on a non-exclusive basis and Customer is
permitted at all times to use any such competing websearch services as may
be provided by others.
2.3 License Grants: Brand Features. Google grants to Customer a nonexclusive
and nonsublicensable license during the Services Term to: (a) use the
Google Data Protocol [*]; and (b) display Google Brand Features solely as
explicitly provided in the Agreement. Customer grants to Google a
nonexclusive and nonsublicensable 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. Except as set forth in this Section, nothing in the
Agreement shall be deemed to grant to one party 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
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[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
10
goodwill associated therewith) shall inure to the benefit of Google. At no
time shall one party challenge or assist others to challenge the Brand
Features of the other party (except to the extent this restriction is
prohibited by applicable law) or the registration thereof by the other
party, nor shall either party use or attempt to register directly or
indirectly (including through third parties) any Brand Features or domain
names that are confusingly similar to those of the other party.
2.4 Data. Google owns all right, title, and interest in and to all information
and data it collects and receives, including but not limited to all data
collected in connection with the AdWords Program. Customer owns all right,
title, and interest in and to all information and data collected by
Customer on the Sites, Additional Sites and Co-branded Sites.
3 Payment.
3.1 Fees. The fees and payment terms for the Services shall be set forth in
the Order Form.
3.2 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.
4 Warranties and Disclaimer. Each party represents and warrants that it has
full power and authority to enter into the Agreement and that the
execution of this Agreement by such party, and the performance by such
party of its obligations and duties hereunder, do not and will not violate
any agreement to which such party is a party or by which it is otherwise
bound. Customer represents and warrants that it shall use information
provided by Google (including Search Results Sets and Advertising Results
Sets) 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.
5 Indemnification. Google will indemnify, defend and hold harmless Customer
and its affiliates and their respective officers, directors, employees and
agents from and against any and all damages, judgments, losses, costs and
expenses (including reasonable fees of
SF1:555057.2
[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
11
counsel) arising out of (x) any third party lawsuit or proceeding brought
against Customer based upon a claim that the Services or any Google Brand
Feature infringes any copyright, trade secret, [*] of such third party, or
(y) any third party (other than a Related Third Party) lawsuit or
proceeding brought against Customer as a result of a breach of this
Agreement by Google. Notwithstanding the foregoing, in no event shall
Google have any obligations or liability under this Section 5 arising
from: (i) use of any Beta Features, Image Search or Directory Service,
(ii) use of the Services or Google Brand Features in a modified form or in
combination with materials not furnished by Google, (iii) any content,
information or data provided to Google by Customer, End Users or any other
third parties, and (iv) any advertisements, search results or third party
websites to which advertisements or search results may link. Customer will
indemnify, defend and hold harmless Google and its affiliates and their
respective officers, directors, employees and agents from and against any
and all damages, judgments, losses, costs and expenses (including
reasonable fees of counsel) arising out of any third party lawsuit or
proceeding brought against Google based upon: (a) a claim that the
Content, Sites Downloadable Applications, Additional Sites, Search Box
Sites, Co-branded Sites and/or Customer or any co-branding or Search Box
partner's Brand Features infringe any copyright, trade secret, [*] of such
third party; and/or (b) Customer's or any of Customer's third party
counterparty's (including, without limitation, third parties with Search
Box Sites and Co-branded Sites), or any of the Sites', Downloadable
Applications', Additional Sites', Search Box Sites' or Co-branded Sites',
use of the Services in any manner in breach of the Agreement.
Indemnification shall be provided for any claim covered under this Section
5 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; provided that the Indemnitor may not, without the
Indemnitee's prior written consent, acquiesce to any judgment or enter
into any settlement that adversely affects the rights and interests of the
Indemnitee or imposes any restriction on the Indemnitee's ability to
operate its business (except for any limitations or adverse effects that
may be imposed on the Services as a result of the claim giving rise to
indemnification). 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 Indemnitors
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.
6 Limitation of Liability. [*], NEITHER PARTY WILL BE LIABLE FOR ANY
INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE
DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST DATA, OR LOST
REVENUE. HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING BUT
NOT LIMITED TO CONTRACT OR
SF1:555057.2
[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
12
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. For the avoidance of doubt,
the preceding sentence will not operate to limit direct damages
(including, without limitation, lost profits under this Agreement, and
costs of procurement of substitute services under this Agreement) either
party would be entitled to under this Agreement, subject in any case to
the aggrieved party's obligation to mitigate. [*], IN NO EVENT SHALL
GOOGLE'S TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF THE
AGREEMENT EXCEED THE NET AMOUNT (MINUS ALL DEDUCTIONS, REVENUE SHARING AND
OTHER OFFSETS PROVIDED FOR UNDER THE AGREEMENT) GOOGLE HAS ACTUALLY
RECEIVED AND RECOGNIZED FOR THE SERVICES GIVING RISE TO SUCH CLAIM DURING
[*] IMMEDIATELY PRECEDING THE DATE OF THE APPLICABLE CLAIM. In the event
of a claim occurring in the first [*] of this Agreement, the limitation of
liability provided in the immediately preceding sentence will be equal to
[*] (minus all deductions, revenue sharing and other offsets provided for
under the Agreement) Google has actually received for the Services giving
rise to such claim under this Agreement since the beginning of the Term to
the date of the applicable claim. [*], IN NO EVENT SHALL CUSTOMER'S TOTAL
AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF THE AGREEMENT EXCEED THE
NET AMOUNT CUSTOMER HAS ACTUALLY RECEIVED OR WOULD OTHERWISE BE DUE UNDER
THE AGREEMENT DURING [*] IMMEDIATELY PRECEDING THE DATE OF THE APPLICABLE
CLAIM. In the event of a claim occurring in the [*] of this Agreement, the
limitation of liability provided in the immediately preceding sentence
will be equal to [*] Customer has actually received or would otherwise be
due under this Agreement since the beginning of the Term to the date of
the applicable claim. 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.
7 Confidentiality. Use and disclosure of confidential and/or proprietary
information disclosed hereunder, including without limitation the
existence and content of the Agreement and any information provided
pursuant to the Agreement or in connection with a request for approval of
any Additional Site or new layout, shall be governed by the terms of the
Google Mutual Non-Disclosure Agreement, attached hereto as Exhibit F (the
"NDA"). The terms of the NDA are hereby incorporated by reference into
this GSA.
8 Term and Termination.
8.1 Term. The term of the Order Form under which Services may be used by
Customer shall commence on the 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 ("SERVICES TERM"), unless earlier
terminated as provided herein.
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[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
13
8.2 Termination.
8.2.1 General. Either party may suspend performance and/or terminate the
Agreement, in whole or in part: (a) 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 (b) 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.
8.2.2 Google Termination Rights. Notwithstanding the foregoing, in
addition to the termination rights granted above, Google may
terminate the Agreement, in whole or in part:
(i) if Customer breaches (A) any provision of Section 1.3.3
(Prohibited Actions), Section 2.1 (Google Rights) (other than
subsections (i), and (iii) of the fourth sentence thereof,
which are addressed below, or subsection (vi) of the fourth
sentence thereof, which is addressed in Section 8.2.1(a)), or
Section 2.3 (License Grants; Brand Features) or (B) the last
sentence of Section 1.3.6.2 and fails to cure such breach
within [*] after receiving written notice thereof ([*]);
(ii) immediately upon written notice, if (A) Customer breaches
subsection (i) or (iii) of the fourth sentence of Section 2.1
(Google Rights) or any provision of Section 7
(Confidentiality); (B) Customer has materially breached the
Agreement [*] during the Term, in each case notwithstanding
any cure of such breaches [*]; or (C) Google reasonably
determines that it is impracticable to continue providing the
Services in light of applicable laws; and
(iii) as expressly permitted in the last sentence of Section 1.3.3.
8.2.3 Termination for Change of Control:
(a) Prohibited Entity. In the event of a Change of Control
involving Customer to a Prohibited Entity (as defined below),
Google shall have the right, upon written notice delivered to
Customer (or its successor), to terminate this Agreement,
effective as of the [*] day following the consummation of the
closing of such Change of Control. Such notice shall be
delivered by Google not more than [*] following Google's
receipt of written notice from Customer that Customer has
entered into a definitive agreement involving a Change of
Control.
SF1:555057.2
[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
14
(b) Competitor. In addition, in the event of a Change of Control
involving Customer to [*] or any of their respective
successors or assigns, or any entities which control, are
controlled by or under common control with the foregoing,
either party shall have the right to terminate this Agreement,
effective as of the consummation of such a transaction
provided that (i) in the case of Customer's exercise of this
termination right, Customer delivers to Google written notice
not more than [*] following the date Customer enters into a
definitive agreement contemplating a Change of Control giving
rise to this right, and (ii) in the case of Google's exercise
of this termination right, Google delivers to Customer written
notice not more than [*] following its receipt of written
notice from Customer that Customer has entered into a
definitive agreement contemplating a Change of Control giving
rise to this right.
(c) Notice. Customer agrees to provide written notice of a Change
of Control in a timely manner and, upon request, any
information that Google reasonably requires to evaluate the
Change of Control transaction, including its acquirer, subject
to applicable confidentiality or contractual obligations.
Customer also agrees to notify Google of the actual closing
date of a Change of Control transaction no less than [*] prior
thereto. For the avoidance of doubt, under no circumstances
shall a termination right exercised hereunder be effective if
the applicable Change of Control transaction is not
consummated. Customer will provide Google notice in the event
a Change of Control transaction is terminated.
(d) Definitions. "CHANGE OF CONTROL" with respect to a party means
(i) the direct or indirect acquisition, whether in one or a
series of transactions, by any person or related persons
constituting a group, of (A) beneficial ownership of issued
and outstanding shares of stock of such party, the result of
which is that such person or such group possesses in excess of
fifty percent (50%) of the combined voting power of all
then-issued and outstanding stock of such party, or (B) the
power to elect, appoint, or cause the election or appointment
of at least a majority of the members of the board of
directors (or equivalent governing body) of such party; (ii) a
merger or consolidation of a party with a person or a direct
or indirect subsidiary of a person, or a reorganization or
recapitalization of a party, provided that the result of such
transaction, whether in one or a series of related
transactions, is that the holders of the outstanding voting
stock of such party immediately prior to such consummation do
not possess, whether directly or indirectly, immediately after
the consummation of such transaction, in excess of fifty
percent (50%) of the combined voting power of all of the
then-issued and outstanding stock of such party, merged or
consolidated person, its direct or indirect parent, or the
surviving person of such party; or (iii) the sale or
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[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
15
disposition, whether directly or indirectly, in one or a
series of related transactions, of substantially all of the
assets of a party. For purposes of the preceding sentence, the
terms "person," "group" and "beneficial ownership" shall have
the meanings given to such terms under the Securities Exchange
Act of 1934, as amended. Notwithstanding anything to the
contrary, the initial public offering of either party will not
be deemed to be a Change of Control. "PROHIBITED ENTITY" shall
mean [*].
(e) Confidentiality. For the avoidance of doubt, each party
reaffirms to the other its agreement not to disclose to any
potential acquiror any Confidential Information of the other
party (including in the case of Google Confidential
Information, any Google metrics, protocols or guidelines).
8.3 Effect on Rights; Removal. 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 return to the other party,
or destroy and certify the destruction of, all Confidential Information of
the other party; and (iii) Customer will promptly remove from each and
every Site, Downloadable Application, Additional Site, and Co-branded Site
the Attribution Graphic and all Google Brand Features.
8.4 Non-exclusive Remedy. 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 or Google be relieved of its
obligation to pay all fees that have accrued or are otherwise owed under
any portion of the Agreement, which shall be paid within ten (10) business
days from the date of such expiration or termination.
9 Miscellaneous. Each party shall comply with all applicable laws, rules and
regulations, if any, required in performing its obligations under the
Agreement. All requests and 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. Notices and requests 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. Neither party may assign its rights or delegate its
obligations under this Agreement by operation of law or otherwise without
the other party's prior written consent, provided however that either
party may assign its rights or delegate its obligations under this
Agreement without the consent of the other party in connection with a
Change of Control, so long as the surviving entity or purchaser in such
Change of Control transaction expressly assumes in writing the performance
of all of the terms of this Agreement. In addition, Google may assign its
rights under this Agreement
SF1:555057.2
[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
16
in connection with a change in domicile without obtaining any consent
hereunder. 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 1.3.7 (Exclusivity), Section 2 (Ownership; License
Grant) or Section 7 (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
confidentiality, Intellectual Property or Exclusivity 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 dispute or claim arising out of or in connection
with the Agreement (except injunctive relief) shall be brought in the
state or federal courts located in Santa Xxxxx County, California if
brought by Customer or New York, New York if brought by Google; provided,
however, that Google and Customer shall each have the right to bring
claims for injunctive relief in state or federal courts located in Santa
Xxxxx County, California and New York, New York, respectively. 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, agent, partner
or legal representative of the other nor shall either party have any right
or authority to create any obligation or make any representation 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. 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 2.1, 2.2, 2.4, 5, 6, 7 (including the NDA), 8.3, 8.4 and 9 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 and related Order Forms) (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 orders) or other documents pertaining to
the subject matter of the Agreement shall be null and void. The parties
hereby agree that on the Effective Date the Confidentiality Agreement,
dated July 25, 2002 between the parties and the Information Services
Agreement, dated July 25, 2002 between the parties, as amended by the
Amendment dated October 18, 2002 (collectively, the "PRIOR AGREEMENTS")
will terminate. The Agreement supersedes any other prior or collateral
SF1:555057.2
[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
17
agreements, whether oral or written, with respect to the subject matter
hereof, including but not limited to the Prior Agreements. Any amendments
or addenda to the Agreement must (i) be in writing; (ii) refer to the
Agreement; and (iii) be executed by an authorized representative of each
party. The Agreement shall be construed as if both parties jointly wrote
and prepared it. The Agreement may be executed in counterparts, including
facsimile counterparts. In the event of conflict between the terms under
this GSA and any Order Form, the Order Form shall govern with respect to
such conflict. In the event of conflicting Order Forms, any subsequent
Order Form shall take precedence over any prior conflicting Order Form.
SF1:555057.2
[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
18
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: CUSTOMER: THE EXCITE NETWORK, INC.
By: /s/ Xxxx Xxxxxx By: /s/ Xxxx X. Xxxxx
------------------ ------------------
Print Name: Xxxx Xxxxxx Print Name: Xxxx X. Xxxxx
Title: VP Search Services Title: EVP & GC
Date: May 23, 2003 Date: May 23, 2003
FOCUS INTERACTIVE, INC. HEREBY GUARANTEES THE PERFORMANCE OF CUSTOMER UNDER THIS
AGREEMENT AND WILL CAUSE ITS AFFILIATES TO COMPLY WITH THE TERMS OF THIS
AGREEMENT APPLICABLE TO CUSTOMER, INCLUDING, WITHOUT LIMITATION, THE PROVISIONS
OF SECTION 1.3.7.
FOCUS INTERACTIVE, INC.:
By: /s/ Xxxx X. Xxxxx
------------------
Print Name: Xxxx X. Xxxxx
Title: Secretary & GC
Date: May 23, 2003
SF1:555057.2
[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
19
EXHIBIT A
[*]
[[*] IMAGE]
THE [*] GOOGLE SEARCH AREA AS REFLECTED ABOVE IS APPROVED, SUBJECT TO THE
FOLLOWING MODIFICATION (WHICH WILL BE IMPLEMENTED WITHIN 30 DAYS OF THE
EFFECTIVE DATE OF THIS AGREEMENT). THERE ARE THREE OPTIONS FOR MODIFICATION:
1. REPLACE GOOGLE LOGO WITH TEXT ATTRIBUTION ONLY THAT READS: "GOOGLE SEARCH"
2. REPLACE GOOGLE LOGO WITH TEXT ATTRIBUTION THAT READS: "GOOGLE"
3. KEEP GRAPHIC ATTRIBUTION BUT SAY, "ENHANCED BY" NEXT TO OR ABOVE THE
GOOGLE LOGO
[*]
[[*] IMAGE]
[*]
[[*] IMAGE]
[*]
[[*] IMAGE]
SF1:555057.2
[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
EXHIBIT B
SPONSORED LINKS APPROVED LAYOUT
[IMAGE]
[IMAGE]
[IMAGE]
SEARCH RESULTS SETS APPROVED LAYOUT
[IMAGE]
[IMAGE]
[IMAGE]
SF1:555057.2
[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
EXHIBIT C
[[*] WEBPAGE]
SF1:555057.2
[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
[[*] WEBPAGE]
SF1:555057.2
[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
23
[[*] WEBPAGE]
SF1:555057.2
[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
24
EXHIBIT E
[[*] WEBPAGE]
THE [*] IMPLEMENTATION REFLECTED IN THE INDICATED AREA IS APPROVED SUBJECT
TO THE FOLLOWING MODIFICATION (WHICH WILL BE IMPLEMENTED WITHIN 30 DAYS OF THE
EFFECTIVE DATE OF THIS AGREEMENT). [*] AREA WILL UNAMBIGUOUSLY INDICATE THE
NATURE OF THE CONTENT CONTAINED THEREIN (E.G., "SPONSORED CONTENT")
SF1:555057.2
[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
EXHIBIT F
GOOGLE MUTUAL NON-DISCLOSURE AGREEMENT
Google will assist Customer in providing a co-branded web search service to
Customer (the "Purpose"). In connection with this, each party may disclose to
the other party certain confidential technical and business information. The
parties agree to maintain the confidentiality of such information, in accordance
with the following terms:
1. The Confidential Information disclosed under the Agreement ("Confidential
Information") includes all information concerning either party's business
including, but not limited to, all tangible, intangible, visual, electronic,
present, or future information such as: (a) trade secrets; (b) financial
information, including pricing; (c) technical information, including research,
development, procedures, algorithms, data, designs, and know-how; (d) business
information, including operations, planning, marketing interests, and products;
and (e) the terms of any agreement and the discussions, negotiations and
proposals related to any agreement. The Agreement also includes Confidential
Information acquired during any facilities tours.
2. The Parties receiving Confidential Information (each, a "Recipient") will
have a duty to protect Confidential Information (a) if it is clearly and
conspicuously marked as "confidential" or the equivalent; or (b) if it is
identified by the Discloser as confidential before, during, or promptly after
presentation or communication.
3. A Recipient will use the Confidential Information only for the Purpose
described above. A Recipient will use the same degree of care, but no less than
a reasonable degree of care, as the Recipient uses with respect to its own
similar information to protect the Confidential Information and to prevent (a)
any use of Confidential Information not authorized in this Agreement, (b)
dissemination of Confidential Information to any employee or third party
contractor of Recipient without a need to know, or (c) communication of
Confidential Information to any third party. Furthermore, Confidential
Information may only be disseminated to an employee or third party contractor of
the Recipient if that employee or third party contractor has signed an agreement
with either of the parties containing confidentiality provisions substantially
similar to those herein.
4. Both parties agree not to issue or release any articles, advertising,
publicity or other matter relating to any Confidential Information (including
the fact that a meeting or discussion has taken place between the parties) or
mentioning or implying the name of the other party, except with the advanced
review and written approval of the other party.
5. This Exhibit F imposes no obligation upon a Recipient with respect to
Confidential Information that (a) was known to the Recipient before receipt from
the Discloser; (b) is or becomes publicly available through no fault of the
Recipient; (c) is rightfully received by the Recipient from a third party
without a duty of confidentiality; (d) is independently developed by the
Recipient without a breach of the Agreement; (e) is disclosed by the Recipient
with the Discloser's prior written approval; or (f) is required to be disclosed
by operation of the law, provided that the Recipient immediately notifies the
Discloser of the legal obligation and
SF1:555057.2
[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
provides the Discloser a reasonable opportunity to seek a protective order (or
the equivalent) from the court or other legal or governmental authority issuing
the process.
6. EACH DISCLOSER WARRANTS THAT IT HAS THE RIGHT TO DISCLOSE ITS CONFIDENTIAL
INFORMATION. NO OTHER WARRANTIES ARE MADE. ALL CONFIDENTIAL INFORMATION
CONTAINED HEREIN IS PROVIDED "AS IS".
7. The terms and conditions of this Exhibit F shall survive with respect to
Confidential Information that is disclosed before the termination or expiration
of the Agreement.
8. Unless the Parties otherwise agree in writing, a Recipient's duty to protect
Confidential Information ceases when the information is no longer confidential,
as set forth in paragraph 5 of this Exhibit F. A Recipient, upon Discloser's
written request, will promptly return all Confidential Information received from
the Discloser, together with all copies, or certify in writing that all such
Confidential Information and copies thereof have been destroyed. Regardless of
whether the Confidential Information is returned or destroyed, the Recipient may
retain an archival copy of the Discloser's Confidential Information in the
possession of outside counsel of its own choosing for use only in the event that
a dispute arises hereunder and only in connection with that dispute.
9. No Party acquires any intellectual property rights under this Exhibit F
(including but not limited to patent, copyright, and trademark rights) except as
set forth in the Agreement.
10. Each Party acknowledges that damages for improper disclosure of Confidential
Information may be irreparable; therefore, the injured Party is entitled to seek
equitable relief, including injunction and preliminary injunction, in addition
to all other remedies.
11. This Exhibit F does not create any agency or partnership relationship.
SF1:555057.2
[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
27
EXHIBIT G
WEBSEARCH SUPPORT; SUPPORT GUIDELINES
A. WEB SEARCH SUPPORT:
Google will support a [*] from Customer [*] ("Projected Query Volume"). [*]
Customer must provide Google with [*] "). If Customer's [*] of Projected Query
Volume [*], Google shall have the right [*] the Projected Query Volume [*].
Google also reserves the right [*]. Customer agrees that it will not [*] through
[*] without providing [*]. If Customer fails to provide a [*] and Customer's [*]
in a manner that will result in a [*] and/or [*], Google reserves the right to
[*], if necessary and as mutually agreed upon by the parties. So long as
Customer [*], Google will maintain the following performance characteristics:
1. Google will provide [*].
2. [*] will not exceed [*]. "[*]" is defined as any [*].
3. With respect to [*] ordered by Customer under this Agreement, Google will
provide [*]. With respect to the [*] ordered by Customer under this
Agreement, Google will provide [*]. The foregoing [*] will be measured and
monitored from [*]. "[*]" is defined as the [*].
4. [*] will not [*]. "[*]" is defined as the time period [*]. [*] does not
include any time associated with [*].
5. [*] will not exceed [*]. "[*]" is defined as [*].
The [*] and [*] characteristics set forth in this Exhibit G shall only apply
provided that (a) [*], (b) [*], and (c) [*].
B. SUPPORT GUIDELINES
1. Definitions.
(a) "Customer Contacts" means no more than two employees
designated by Customer in writing who are qualified to contact
Google for technical support.
(b) "Fix" means a correction, fix, alteration or workaround that
solves a Minor Problem or a Severe Problem.
(c) "Google Technical Support Personnel" means [*]
(d) "Hours of Operation" means [*]
(e) "Minor Problem" means [*]
SF1:555057.2
[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
(f) "Severe Problem" means [*]
2. Support procedures. Customer will use reasonable efforts to fix any Minor
Problems without escalation to Google. Thereafter, Customer may submit a
support request to Google by submitting such request to the Support
Address during Hours of Operation.
(a) If Customer believes it is reporting a Severe Problem,
Customer may accompany its request [*]
(b) Upon receiving a request from Customer, Google will determine
whether the request is a Minor Problem or a Severe Problem.
(c) If the request is a Severe Problem, Google will respond to the
request [*]. Google will then use commercially reasonable
efforts to fix the Severe Problem and will provide [*] status
reports to Customer (upon request by Customer).
(d) If the request is a Minor Problem, Google will attempt to
respond to the request [*]. Google will then use commercially
reasonable efforts to fix the Minor Problem and will provide
[*] status reports to Customer (upon request by Customer).
SF1:555057.2
[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
29
[GOOGLE LOGO]
GOOGLE TECHNOLOGY INC. GOOGLE SPD REP: [*]
0000 Xxxxxxxx Xxxxxxx GOOGLE SERVICES GOOGLE SPD DIRECTOR: [*]
Xxxxxxxx Xxxx, XX 00000 AGREEMENT GOOGLE SALES ENGINEER: [*]
Tel: (000) 000-0000 ORDER FORM GOOGLE LEGAL CONTACT: [*]
Fax:(000) 000-0000
CUSTOMER (FULL LEGAL NAME): THE EXCITE NETWORK, INC. NDA EFFECTIVE DATE: May 23, 2003 ORDER FORM #1
(Exhibit F hereto, which
supersedes prior NDA dated July
25, 2002)
------------------------------------------------------------------------------------------------------------------------------------
CORPORATE CONTACT INFORMATION: BILLING CONTACT INFORMATION: LEGAL NOTICES TO:
------------------------------------------------------------------------------------------------------------------------------------
ATTENTION: Xxxx Xxxxx Xxx Xxxxxx Xxxx Xxxxx
------------------------------------------------------------------------------------------------------------------------------------
TITLE: General Counsel, EVP CFO General Counsel
------------------------------------------------------------------------------------------------------------------------------------
ADDRESS, CITY, STATE, Xxx Xxxxxx Xxxxxx, Xxxxx 00 Xxx Xxxxxx Xxxxxx, Xxxxx 00 One Bridge Street,
POSTAL CODE, COUNTRY: Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000 Xxxxx 00
Xxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
PHONE: [*] [*] [*]
------------------------------------------------------------------------------------------------------------------------------------
FAX: [*] [*] [*]
------------------------------------------------------------------------------------------------------------------------------------
EMAIL: [*] [*] [*]
------------------------------------------------------------------------------------------------------------------------------------
TECHNICAL CONTACT: [*] [*] [*]
------------------------------------------------------------------------------------------------------------------------------------
WIRE TRANSFER TO (IF APPLICABLE): D&B DUNS NUMBER: VAT/TAX NUMBER: [*]
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
ORDER FORM EFFECTIVE DATE: MAY 23, 0000 XXX XXXXXXXXX DATE: MAY 23, 2003
------------------------------------------------------------------------------------------------------------------------------------
INITIAL SERVICES TERM: 42 MONTHS SITES: [*]
------------------------------------------------------------------------------------------------------------------------------------
SEARCH FEES
NON-REFUNDABLE ANNUAL SERVICE AND (FOR ALL SEARCH RESULT
SEARCH SERVICES ORDERED SUPPORT FEE MONTHLY SEARCH FEE MINIMUM PAYMENT SETS)
------------------------------------------------------------------------------------------------------------------------------------
[X] WEBSEARCH SERVICES
Est. Query Vol./Day [*] [*] $[*]/1000 SEARCH RESULT
SETS
(effective as of May 1,
2003 for the websites
whose home pages are
located at [*] pursuant
to the GSA Order Form
Terms and Conditions)
------------------------------------------------------------------------------------------------------------------------------------
[X] IMAGE SEARCH SERVICES [*] [*] $[*]/1000 SEARCH RESULT
SETS
------------------------------------------------------------------------------------------------------------------------------------
[X] DIRECTORY SEARCH SERVICES [*] [*] $[*]/1000 SEARCH RESULT
SETS
------------------------------------------------------------------------------------------------------------------------------------
[ ] SITE SEARCH SERVICES N/A N/A N/A
------------------------------------------------------------------------------------------------------------------------------------
OPTIONAL WEBSEARCH FEATURES: [ ] SAFESEARCH [ ] LANGUAGE RESTRICT COUNTRY RESTRICT
(check the applicable boxes) LEVEL: [ ] HIGH [ ] MEDIUM LANGUAGE(S).: COUNTRY(IES):
------------------------------------------------------------------------------------------------------------------------------------
GSLP SERVICES ORDERED NET AD REVENUE SHARE PERCENTAGE (%) TO CUSTOMER
------------------------------------------------------------------------------------------------------------------------------------
[X] GOOGLE SPONSORED LINKS PROGRAM (GSLP) [*]%
Min. # of Sponsored Links/Results Page: (effective as of May 1, 2003 for the [*] Site and the [*]
7 # Wide Format 2# Narrow Format *See Section 5 below. Site pursuant to the GSA Order Form Terms and Conditions)
------------------------------------------------------------------------------------------------------------------------------------
OPTIONAL GSLP FEATURES: [ ] SAFESEARCH
(check the applicable boxes) LEVEL: [ ] HIGH [ ] MEDIUM
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
TO BE COMPLETED BY GOOGLE FINANCE GOOGLE APPROVALS
------------------------------------------------------------------------------------------------------------------------------------
CUSTOMER PO #: _____ CURRENCY: [ ] Finance [ ] Legal
[X] US Dollar Initials:____ Initials:____ (Required if non-standard)
[ ] CREDIT CHECK COMPLETE [ ] Japanese Yen
[ ] Other:
------------------------------------------------------------------------------------------------------------------------------------
Google Confidential
GSA OFDSV2.0 11003
[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
1
[GOOGLE LOGO]
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 above ("GSA"). All capitalized terms used
herein have the meanings stated in the GSA, unless stated otherwise.
Customer's signatory to this Order Form represents and warrants that he or
she has the power and authority to accept and bind Customer to the terms
of this Order Form.
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 the
GSA. This Order Form shall automatically renew, [*] unless one party
notifies the other of its intent to terminate no less than [*] prior to
the end of the Initial Services Term or any applicable renewal term
thereto. For purposes of the Agreement, the Initial Services Term
(including renewal term(s) thereto, if any) may also be referred to as the
"SERVICES TERM."
3. FEES AND PAYMENT TERMS.
WEBSEARCH SERVICES. For all Search Fees, Google shall xxxx Customer
monthly at the rates stated on the Order Form and all such fees shall be
due and payable "net thirty (30) days" from date of invoice. All WebSearch
Services invoices shall be sent to Customer by the last day of the
calendar month following the calendar month during which WebSearch
Services are rendered. Delinquent payments due to Google shall bear
interest at the rate of one-and-one-half percent (1.5%) per month (or the
highest rate permitted by law, if less) from the payment due date until
paid in full. Customer will be responsible for all reasonable expenses
(including legal fees) incurred by Google in collecting unpaid or
delinquent amounts. In addition, Google may suspend performance and/or
terminate this Order Form upon seven (7) days written notice if Customer
fails to make any required payment when due unless such payment is made
within such seven (7) day notice period. For the avoidance of doubt, all
Search Fees shall be effective as of the Order Form Effective Date;
provided, however, that the Search Fees for the WebSearch Services shall
be effective as of May 1, 2003 for the websites whose home pages are
located at [*]. Commencing with the third year of the Initial Services
Term, Google shall have the right, at its sole option, to increase Search
Fees to reflect any actual increase in operating expenses; provided,
however, that (a) each such increase shall not exceed [*] per annum on a
cumulative basis; (b) Google shall notify Customer of any such increase
not less than [*] prior to the effective date of such increase; and (c)
any such increase shall be generally consistent with increases in search
fees, if any, charged by Google to customers for similar services.
GOOGLE SPONSORED LINKS PROGRAM. Customer shall receive the percentage of
Net Ad Revenues for Sponsored Links displayed on Sites specified on this
Order Form and on Additional Sites approved by Google in advance in
writing ("NET AD REVENUE PERCENTAGE"), which Google shall pay by the last
day of the calendar month following the calendar month in which the
Advertising Results Sets were displayed. Google's obligation to pay Net Ad
Revenues shall commence on the date Google's technical personnel provides
its written approval of Customer's GSLP launch implementation, which shall
not be unreasonably withheld or delayed. For the avoidance of doubt, the
Net Ad Revenue Percentage shall apply to the Sites, [*] from and after the
Order Form Effective Date; provided, however, that the Net Ad Revenue
Percentage shall be effective as of May 1, 2003 for the [*] Site. "NET AD
REVENUES" means gross billed ad revenues from the Google Sponsored Links
Program minus [*] of gross billed ad revenues from the Google Sponsored
Links Program for Deductions (as defined below). Notwithstanding the
foregoing, commencing with [*] of the Initial Services Term, Google shall
have the right, at its sole option, to increase the percentage of gross
billed ad revenues from the Google Sponsored Links Program subtracted for
Deductions to reflect any actual increase in operating expenses; provided,
however, that Deductions shall not exceed at any time during the Initial
Services Term [*] for any U.S. Site, Additional Site or Co-branded Site
for whom greater than [*] of such website's advertisers is based in the
U.S. ("DOMESTIC PROPERTY") and [*] for any Site or Additional Site for
whom greater than [*] of such website's advertisers is based outside of
the U.S. ("INTERNATIONAL PROPERTY"). Google shall notify Customer of any
such increase not less than [*] prior to the effective date of such
increase. Any such increase shall be generally consistent with increases
in Deductions, if any, charged by Google to customers for similar
services. [*]. For the avoidance of doubt, Net Ad Revenues shall in no
event include any revenues related to Google house ads for its own
products and/or services, revenues associated with spam (as determined in
Google's sole reasonable discretion), or revenues generated from any
Fraudulent Acts (as defined in the GSA). "DEDUCTIONS" [*]. Google may, at
its option, offset its payment obligations to Customer under the Google
Sponsored Links Program against any WebSearch Services fees owed and not
yet paid by Customer under this Order Form. Subject to the provisions of
Section 1.3.1 of the GSA, Google shall provide Customer with access to
online reports describing Customer's monthly performance of the GSLP and
WebSearch Service, where applicable, on the Site(s) and Additional
Site(s). An example of a GSLP report currently available includes [*].
4. METHODS OF PAYMENT. All payments due to Google shall be in U.S. dollars.
Any charges for converting foreign currency shall be the responsibility of
Customer and shall be invoiced accordingly. Payments to Google shall be
made preferably via wire transfer with the following instructions:
[*]
If not wired to Google, payment shall be made by check for receipt by
Google at the address specified on the Order Form on or before the payment
due date. If Google reasonably deems itself insecure with respect to
Customer's ability to meet its financial obligations under the Agreement,
Google may, at its sole option, modify the payment terms or require other
reasonable assurances or forms of security prior to providing or
continuing to provide any Services. Payments to Customer (if by wire
transfer) shall be made pursuant to the wire transfer instructions
specified on this Order Form.
5. MINIMUM NARROW LINKS. In addition to the minimum number of wide format
Sponsored Links that Customer will request and display pursuant to the
Order Form and the Agreement on initial Result Page(s), Customer may
request from Google a minimum of either two (2) narrow format or two (2)
wide format Sponsored Links to display on succeeding Results Pages (after
the initial Results Page) returned with respect to a specific Query;
provided that, in any event, Customer understands that all Sponsored Links
requested must be displayed.
Google Confidential
GSA OFTCV2.1 051103
[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
This Order Form may be executed in counterparts, including facsimile
counterparts. Original copies shall be sent to the following Customer contact
reference identified above (check one): [ ] CORPORATE [ ] BILLING [ ] LEGAL
GOOGLE TECHNOLOGY INC.: CUSTOMER: THE EXCITE NETWORK, INC.
By: /s/ Xxxx Xxxxxx By: /s/ Xxxx X. Xxxxx
--------------------------- ----------------------------------
Print Name: Xxxx Xxxxxx Print Name: Xxxx X. Xxxxx
Title: VP Search Services Title: EVP & GC
Date: May 23, 2003 Date: May 23, 2003
FOCUS INTERACTIVE, INC. HEREBY GUARANTEES THE PERFORMANCE OF CUSTOMER UNDER THIS
AGREEMENT INCLUDING THIS ORDER FORM, AND WILL CAUSE ITS AFFILIATES TO COMPLY
WITH THE TERMS OF THIS AGREEMENT AND ORDER FORM APPLICABLE TO CUSTOMER.
FOCUS INTERACTIVE, INC.:
By: /s/ Xxxx X. Xxxxx
----------------------------------
Print Name: Xxxx X. Xxxxx
Title: Secretary & GC
Date: May 23, 2003
Google Confidential
GSA OFTCV2.1 051103
[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
