EXHIBIT 10.8.1.3
AMENDED AND RESTATED ADVERTISING SERVICES AGREEMENT
This Amended and Restated Advertising Services Agreement (the
"Agreement") is entered into by and between Ask Jeeves, Inc., a Delaware
corporation with principal place of business at 0000 Xxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxxx, XX 00000 ("Customer"), and Google Inc., a Delaware corporation with
its principal place of business at 0000 Xxxxxxxxxxxx Xxxxxxx, Xxxxxxxx Xxxx,
Xxxxxxxxxx 00000 ("Google") regarding Customer's use of the Services (defined
below). This Agreement, dated July 26, 2004 (the "Amended and Restated Effective
Date" or "Effective Date"), sets forth the terms and conditions under which
Google makes the Services available to Customer. The Advertising Services
Agreement between the parties dated July 17, 2002, as amended by Amendment
Number One to the Advertising Services Agreement between the parties dated
October 23, 2002 (the "Prior Agreement") is hereby terminated, and is superseded
by this Agreement. In addition to those sections set forth in Section 10.4 of
the Prior Agreement providing for survival of certain provisions of the Prior
Agreement for purposes of claims that arise under the Prior Agreement (provided
that the parties agree that the last sentence of Section 1.8, the third sentence
of Section 2.1.1 and Section 6.3 of the Prior Agreement shall not survive),
Section 3 shall also survive with respect to any payments due and payable by
Google under the terms of the Prior Agreement.
1. Definitions.
For purposes of this Agreement, the following terms will have the indicated
meanings:
1.1 "Brand Features" means the names, trade names, trademarks, service
marks, logos, URLs and other distinctive brand features of each party
respectively.
1.2 "Client Name" means any alphanumeric code or codes or other
tracking identifier assigned to Customer by Google that identifies [*] (or
section or pages thereof), [*] (or section or pages thereof) or a Client
Application of Customer or [*].
1.3 "Content" means all editorial, text, graphic, audiovisual, and
other content that is served to End Users of the Site and that is not provided
by Google, including without limitation a search box, instruction pages,
frequently asked questions pages and any Site End User terms and guidelines. For
avoidance of doubt, any content to which an End User links by clicking on a
Google Sponsored Link shall not be considered Content.
1.4 "Customer Application" or "Client Application" means any
application, plug-in, helper, component or other code that is downloaded or
installed on a user's computer, examples of which include those that provide
browser helper objects, instant messaging, chat, email, data, file viewing,
media playing, file sharing, games, internet navigation, search and other
services.
1.5 "End User" means a user of the Site or Customer Application.
1.6 "Google Administrative Console" means a password protected area of
Google's web site which allows Customer to update contact information and
permitted IP addresses for each valid Customer ID or Client Name.
1.7 "Google Data Protocol" means the written specification on how the
Customer's Site communicates and interacts with the Services.
1.8 "Google Sponsored Links" means Sponsored Links sold by Google
pursuant to the AdSense for Search program or any other program by which
Sponsored Links are sold by Google.
1.9 "Intellectual Property Rights" means any and all rights existing
from time to time under patent law, copyright law, semiconductor chip protection
law, moral rights law, trade secret law, trademark law, unfair competition law,
publicity rights law, privacy rights law, and any and all other proprietary
rights, and any and all applications, renewals, extensions and restorations
thereof, now or hereafter in force and effect worldwide.
[*] 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.
1.10 "Sponsored Links Program" or "AdSense for Search Program" or
"Services" means the program by which Google Sponsored Links are provided by
Google to Customer and, [*], according to the terms of this Agreement.
1.11 "Query" means a search query that [*].
1.12 "Results Pages" means any Web pages displayed by or on behalf of
the Customer [*], with respect to which Customer's servers have made a request
to Google's servers to receive a Results Set for display of Google Sponsored
Links on the Site [*].
1.13 "Result Set(s)" means the data set provided to Customer by Google
in response to a Query, consisting of Google Sponsored Links and any data
provided by Google pursuant to the parties' mutual agreement to include such
data, and which shall be displayed by Customer on the Site or a Syndicated Site
pursuant to the terms of this Agreement.
1.14 "Site" means the Web site domains Xxx.xxx, XX.xxx, XxxXxxxxx.xxx,
Xxxxx.xxx, and such other Web site domains as the Customer and Google may
mutually agree in writing to include within the definition of the Site during
the Term of this Agreement. For the avoidance of doubt, [*].
1.15 "Spam Pages" means the Results Pages from Spam Queries or Clicks.
1.16 "Spam Queries or Clicks" means those queries or clicks on
Sponsored Links for which: (i) Google does not receive payment from an
advertiser because such queries or clicks have been reasonably determined to be
fraudulent; or (ii) Google is required to [*] to an [*] following receipt of
payment from such advertiser due to the reasonable determination that the
queries or clicks for which Google has received payment are fraudulent.
1.17 "Sponsored Link" means a compensated advertising listing that is
generated in response to a Query.
1.18 "Syndicated Sites" means [*]
1.19 "Term" shall have the meaning indicated in Section 10.
1.20 "URL" means a uniform resource locator for documents or other
resources on the Web.
1.21 "Valid IP Addresses" means any and all valid Internet protocol
addresses, or range of valid Internet protocol addresses, that will be used by
or on behalf of Customer to access the Services.
1.22 "Web" means the World Wide Web, containing among other things
pages written in the hypertext markup language and/or any similar successor
technology.
2. Provision of Services.
2.1 General/Implementation. Google will provide Customer [*] with
the Google Sponsored Links Program, whereby Google shall
provide the Google Sponsored Links to Customer [*] for display
by or on behalf of Customer and Syndicated Sites on Results
Pages of the Site [*] according to the terms of this
Agreement. The parties agree to work in good faith to ensure
implementation of the Services on future domains mutually
agreed to be included in the Site pursuant to Section 1.14,
[*].
2.2 Query Delivery; Display of Google Sponsored Links by Customer.
Subject to Section 2.18 of this Agreement and the
Non-Exclusivity provision of Schedule B.I.2 hereto, Customer
shall deliver to Google [*] Queries from the Site [*] other
than [*] and shall, subject to Section 2.2.5, 2.2.7, and 2.3,
display on the Site [*] at least [*] Google Sponsored Links
(or more, at Customer's discretion) and in accordance with
Section
[*] 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.
2
2.15. Google Sponsored Links shall be provided to Customer by Google
in response to each Query submitted to Google as described in this
Section 2.2. For purposes hereof, the Queries from the Site [*]
other than [*] shall be known as the "MANDATED QUERIES".
2.2.1 Except as expressly provided in this Agreement, Customer shall
not commingle, reorder or alter in any way the Google
Sponsored Links without Google's prior written consent;
provided that Customer may [*] to the Google Sponsored Links.
For avoidance of doubt, as used in this Agreement, "[*]" [*].
Subject to the first sentence of this Section 2.2.1, Customer
may collect and use data collected through such [*] in its
normal business operations, as long as Customer's access of
Google Sponsored Links remains in compliance with the Google
Data Protocol and such [*] does not otherwise interfere with
Google's ability to provide the AdSense for Search Program to
Customer, or to calculate, count or xxxx for advertising
clicks performed on the Site [*].
2.2.2 With respect to Customer's obligation to display at least [*]
Google Sponsored Links, unless otherwise agreed by the parties
in writing and subject to Section 2.3 and Section 2.2.5 below,
Customer shall display the [*] Google Sponsored Links
delivered to Customer pursuant to each Query delivered by
Customer.
2.2.3 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 this Agreement);
provided however, that Customer shall have the right to
display Google Sponsored Links only on [*], and [*]. For
avoidance of doubt, Customer shall not have the right to
display any Google Sponsored Links on properties other than
Web site domains as described in this Agreement (it being
understood that Customer [*] may display Google Sponsored
Links on Web site pages that are [*].
2.2.4 Customer may, at its sole discretion, display the Google
Sponsored Links in accordance with its own look and feel;
provided that: (a) Customer's display of Google Sponsored
Links shall comply at all times with the requirements of
Section 2.15; (b) Customer shall unambiguously xxxx each
cluster or grouping of Google Sponsored Links or each Google
Sponsored Link as "Sponsored Link(s)" or other equivalent
designation as mutually agreed by the parties; and (c)
Customer shall not [*] the Google Sponsored Links, or [*]
Google Sponsored Links. For avoidance of doubt, Customer shall
be permitted to display Google Sponsored Links in [*].
2.2.5 [*]. (a) [*], and (b) Google and Customer shall engage in good
faith discussions to explore methods for [*]. Notwithstanding
anything to the contrary in this Agreement, upon Google's
prior written consent (which consent shall not be unreasonably
delayed), Customer may elect not to display [*] Customer shall
not [*] any Google Sponsored Links unless Google has provided
such consent, and Google shall not withhold such consent
unless Google has made a good faith determination after
reasonable diligence that Customer's [*] are having a [*] on
Google's AdSense for Search program.
2.2.6 Notwithstanding anything to the contrary in this Agreement,
Customer may display anywhere on the Results Page any or all
Sponsored Links or Content which are owned by Customer or
included within any product or service owned or operated
Customer at its sole discretion.
2.2.7 For the avoidance of doubt, Customer's obligation is to
display, in accordance with this Agreement, Google Sponsored
Links that are [*]; provided, however, that Google shall
provide Customer with [*] to the [*], and Customer shall have
the [*]; provided further, however, that any [*] by Customer
of [*] shall not relieve Customer of its obligations under
[*]. Notwithstanding the foregoing: (i) this Section 2.2.7
shall not in any way [*], including the [*]; and (ii) Customer
agrees to make commercially reasonable efforts to [*], it
being understood that "[*]" and "[*]" are intended to refer to
[*] which do not result in the [*] (e.g., [*]).
2.3 Query Processing.
[*] 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.
3
2.3.1 Customer shall send Queries to Google via the standard "Google
Data Protocol." [*]. For each Query received by Google from
Customer, Google shall process such Query using Google's
proprietary technology and transmit the applicable Results
Set, consisting of as many Google Sponsored Links as Customer
requests and as are available for such Query; provided that,
except when Google has provided its prior written consent as
set forth in Section 2.2.5 or during any period during which
the [*] set forth in Section 2.3.3 is not properly
functioning, Customer shall display, in accordance with
Section 2.15, all of the Google Sponsored Links provided to
Customer [*]. For any [*] as to which Google shall [*],
subject to [*], Google shall provide Customer with [*]. Google
agrees that it will make commercially reasonable efforts to
[*]. To the extent that any [*] Google's disclosure as
described in the preceding sentence then Google shall
otherwise provide Customer with [*].
2.3.2 Subject to Section 2.15.4 and the Non-Exclusivity provision of
Schedule B, Google will make good faith efforts to apply the
[*] to be provided by Google to Customer. Subject to the final
sentence of this paragraph, the [*] used by Google in the [*]
as of the Effective Date is the [*] that a Google Sponsored
Link must achieve to be displayed. With respect to any [*],
the parties agree that Google shall have the right to [*] as
determined in Google's good faith belief based on the exercise
of reasonable judgment. Customer shall provide Google with
reasonable advance notice of any changes Customer makes to the
[*], provided that Google agrees to make requested changes
within [*] of Customer's request on a per [*] basis (e.g.,
[*]). In addition, Google shall not be obligated to implement
[*] during any [*] (e.g., [*]) or during any Google [*]
(provided that Google will provide Customer with reasonable
advance notice of, and a reasonable timeframe for implementing
such [*]). Customer acknowledges that Google may alter its
implementation of [*], but such alterations shall not provide
Customer with [*] than the [*] exists as of the Amended and
Restated Effective Date.
2.3.3 As soon as reasonably practicable following the Effective
Date, Google will develop a [*] (the "[*]") which shall permit
Customer, for a [*] (at Customer's discretion), [*] (e.g.,
[*]). As soon as reasonably practicable following the
development of the [*], Google will develop [*] and the
parties will work together in good faith to determine how to
allow such changes to occur as often as reasonably
practicable. Google will attempt to implement such changes in
as short a timeframe as is reasonably practicable.
2.4 Prohibited Conduct. Customer will not, and will use commercially
reasonable efforts not to allow any third party to, (a) [*], including without
limitation through the [*]; (b) directly or indirectly [*]; (c) [*] ("Advertiser
Page") or provide a [*].
2.5 [*]. Unless Customer otherwise elects, Customer shall provide Google
with a list of [*] that promote: (i) [*], (ii) [*]; and (iii) [*], as described
in Section 2.2.5 (such three (3) categories of [*] collectively referred to
herein as "[*]"). With respect to the foregoing clause (i), the parties agree to
discuss in good faith any disagreement regarding whether a [*] is appropriately
categorized as a [*] to be included in the [*]. Google shall make commercially
reasonable efforts to [*], from any Results Sets delivered to Customer; provided
that in all cases, the parties acknowledge and agree that there will be
occasions where Google Sponsored Links are [*] in accordance with this Section
2.5 despite the commercially reasonable efforts of Google, and in such event,
the parties will cooperate to remedy the situation as quickly as possible in a
mutually agreed manner. Customer may request that Google update the [*] no more
than [*]. Google will exclude each [*] of Google's receipt of such update
request (i.e., [*]). Notwithstanding anything in the Agreement to the contrary,
the Service Levels described in Schedule E shall not apply for any period of
time during which Google is [*] more than [*]; provided that Google shall
discuss with Customer, in good faith, revised Service Levels requirements that
are reasonable considering the number of [*]. If Customer discovers the
existence of a [*] in Result Set(s) that should have been [*] pursuant to this
Section 2.5, then Customer
[*] 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.
4
may provide written notice to Google with such [*], and Google shall [*] from
Results Sets such [*] within [*] of such notice.
2.6 Mechanics. Google will receive Queries from or on behalf of Customer
at Google's network interface, process the Queries and return a Result Set to
Customer via Google's network interface, using the Google Data Protocol, or
other means as Google may implement from time to time. Google shall not be
responsible for receiving search Queries directly from Customer's End Users, for
transmission of data between Customer and Google's network interface or for
displaying the Result Set to Customer's End Users or any Syndicated Site's end
users, nor shall Google be responsible for providing search results to End Users
conducting searches to locate information on the Web. Customer, at its own
expense, shall be responsible for providing customer support services to its End
Users.
2.7 Data. The parties agree that, as between Customer and Google, (1) any
data or information sent by Customer to Google prior to or during the Term,
including without limitation data or information submitted as Queries to Google,
shall remain the sole and exclusive property of Customer, and [*], Google shall
only use such data and information in connection with the fulfillment of
Google's obligations hereunder, and (2) any data or information collected by
Google from [*] shall remain the sole and exclusive property of Google; provided
that Google may only disclose such data in accordance with [*]. Any data or
information collected by Customer from [*] shall remain the sole and exclusive
property of Customer. Customer considers click-stream data (meaning data from
clicks by End Users on the Site [*] and Google agrees it shall not utilize such
click-stream data for [*], provided that Google may use any such data [*]. All
Queries sent by Customer to Google shall include the following: (a) [*], (b) [*]
as required by Google, consisting of a [*], which may be [*], or such other
information as the parties may agree upon, and (c) [*], each of which
corresponds to the [*], none of which shall include [*], which information will
be used by Google solely to [*]. Google may retain such information during the
time it maintains logs containing such information in the ordinary course of its
business so long as it [*] in a manner that can be [*]. Customer's collection
and use of data in connection with [*] as described in Section 2.2 shall [*];
provided Customer shall not use such data to determine any [*] in a manner that
would [*].
2.8 Google Data Protocol. Google shall provide to Customer the Google Data
Protocol and information and resources, as determined solely by Google in its
discretion, to enable Customer to use the Services, and which may include,
without limitation, valid Client Names, a valid IP address and access to
Google's Administrative Console. Google grants to Customer a nontransferable,
nonexclusive license during the Term to use the Google Data Protocol solely for
the purpose of communicating information between the Site and the Services. The
Google Data Protocol shall be deemed Confidential Information pursuant to the
terms of Section 5.
2.9 IP Security Process. Customer shall provide Google with its list of
Valid IP Addresses, and Google shall provide Customer with [*] or Client Names,
as required under this Agreement and as reasonably requested by Customer from
time to time. In addition, Customer will deploy such number of [*] or Client
Names as Google may reasonably request [*]. All search queries sent to Google by
or on behalf of Customer must contain the Client Name and must use a valid IP
address. Google shall have the right to immediately discontinue providing the
Services to IP addresses that are not valid IP addresses. [*].
2.10 End-User Support. Customer, at its own expense, shall provide first
level customer support services to its End Users. Google, at its own expense,
shall provide second level technical support services to Customer regarding the
Services. Such support services will be provided as set forth in Schedule C.
2.11 AdSense for Search Program Testing. During the Term, Google shall
have the right to send uncompensated Queries using automated processes to the
Sites, and Customer will use commercially reasonable efforts to procure rights
for Google to test on [*], in order to verify that Google Sponsored Links are
being served in compliance with the terms of this Agreement, to optimize the
Services, [*]. During each month during the Term, Google shall not be permitted
to send an amount of uncompensated Queries greater than [*] during such month.
Google agrees to use commercially reasonable efforts to only conduct automated
testing of the Sites [*].
[*] 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.
5
2.12 [*] Content. Google shall provide Customer with Google Sponsored
Links and Results Sets that are [*]; provided, however, that Google shall not be
in breach of this Section 2.12 if the Google Sponsored Links are [*] Customer
pursuant to: (i) the requirements of this Agreement, a separate written
agreement of the parties, or Customer's request or election for the Google
Sponsored Links on the Site to be [*]; (ii) [*]; (iii) [*], it being understood
that Customer will work within Google's [*]; (iv) [*]; (v) [*]. Customer must
notify Google within [*] after it becomes aware of any breach by Google of its
obligations under this Section 2.12. If Google fails to cure such breach within
[*] of receiving written notification from Customer of the breach, then Customer
may, at any time thereafter during the Term, [*].
THE FOREGOING STATES GOOGLE'S SOLE AND EXCLUSIVE LIABILITY AND CUSTOMER'S SOLE
AND EXCLUSIVE REMEDY WITH RESPECT TO A BREACH OF THIS SECTION 2.12.
2.13 Service Level Agreement. The parties hereby incorporate by reference
herein the Service Level Agreement attached hereto as Schedule E.
2.14 Marketing and Promotion. Google agrees to actively sell, market and
develop the Google Sponsored Links during the Term.
2.15 Exclusivity.
2.15.1 Customer agrees that, during the Term of this Agreement:
(a) Customer shall not [*]; and
(b) With respect to [*]:
(i) [*]
(ii) [*]
(ii) [*].
(c) For purposes of this Section 2.15, if after the Amended and
Restated Effective Date any entity providing Sponsored Links to
Customer that is not a [*] or [*] as of the Effective Date of this
Agreement, becomes a [*] or [*], Customer shall not be in breach of
this Section 2.15 and shall be entitled to continue to perform its
obligations and exercise its rights under the applicable agreement with
such entity until the expiration of the then-current term thereof and
Customer agrees that it shall not extend or renew any such agreement
during the Term.
(d) Nothing in Section 2.15 shall be deemed to preclude Customer from
allowing [*]) to (i) display on the [*] any number of Sponsored Links
sold as part of [*] or (ii) display on the [*]; provided that all such
[*] must be sold by [*], and are displayed pursuant to agreements
between [*].
2.15.2 [*]. [*]
2.15.3 Restricted Pages. The exclusivity provisions of this Section
2.15 are limited to Results Pages on the Site [*], as defined in
Section 2.2 ("RESTRICTED PAGES") and shall not apply to: (i) [*], and
(ii) [*].
2.15.4 Non-Exclusivity. In the event Customer elects to [*] pursuant
to: (a) Deductions (as defined in Schedule B) exceeding [*] in an
applicable month as described in the Non-Exclusivity Section of
Schedule B, or (b) an Uncured Violation associated with a [*], then [*]
shall be deemed [*]. Upon the [*] of this [*] due to the occurrence of
either (a) or (b) in the foregoing sentence, (i) Customer shall only be
required to [*], and (ii) the [*] if Customer provides Google with less
than [*], as described in the [*]. Notwithstanding the [*] or anything
in the Agreement to the contrary, Google's obligations under each of
Section [*] and [*], Section [*], Section [*], Section [*] and Section
[*] shall be deemed [*], effective as of the same date Customer elects
to [*]; provided that in the case of any [*] of Sections [*], Google
agrees to provide Customer with any [*].
[*] 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.
6
2.15.5 Notwithstanding the exclusivity requirements set forth in this
Section 2.15, Customer may [*]; provided, however, that Customer shall
not (subject to Section [*]) display on any Restricted Pages [*].
2.15.6 Customer understands that Google will provide the Services on a
nonexclusive basis, and that Google will continue to customize and
provide its services to other parties for use in connection with a
variety of applications, including search engine applications.
2.16 Management Committee. Google and Customer will act in good faith and
use commercially reasonable efforts to promptly resolve any claim, dispute,
controversy or disagreement (each a "Dispute") between the parties related to
this Agreement. If the parties cannot promptly resolve the Dispute within ten
(10) days after written notice is provided from one party to another of the
existence of the Dispute, the Dispute will be submitted to the Management
Committee (defined below) for resolution. For ten (10) days following submission
of the Dispute to the Management Committee, the Management Committee will have
the exclusive right to resolve such Dispute. If the Management Committee is
unable to amicably resolve the Dispute during the ten-day period, then the
Management Committee will consider in good faith the possibility of retaining a
third party mediator to facilitate resolution of the Dispute. In the event the
Management Committee elects not to retain a mediator, then either party shall be
free to pursue other courses of action as it deems necessary. "Management
Committee" will mean a committee made up of a senior executive from each of the
Parties for the purpose of resolving Disputes under this Section 2.16 and
generally overseeing the relationship between the Parties contemplated by this
Agreement. Notwithstanding the foregoing, with respect to Disputes involving [*]
to be made hereunder or [*] determinations, if mediation of the Dispute fails to
resolve the Dispute (or if the Management Committee elects not to mediate the
Dispute), such Dispute shall be finally settled by binding arbitration in Santa
Xxxxx County, California under the Commercial Rules of the American Arbitration
Association by one arbitrator appointed in accordance with the rules. The
arbitrators' decision award may be entered in any court of competent
jurisdiction. Neither Party will seek, nor will be entitled to seek, binding
outside resolution of the Dispute unless and until the Parties have been unable
to resolve the Dispute as set forth in this Section 2.16.
2.17 Client Applications. Customer agrees to comply with THE POLICY
GUIDELINES FOR ACCESS OF GOOGLE SERVICES THROUGH CLIENT APPLICATIONS, attached
hereto as Exhibit A (the "Guidelines"). The Guidelines may be updated [*].
Notwithstanding anything in the Agreement to the contrary, all Queries entered
into any search box on a Client Application of Customer must resolve to a
Results Page of the Site [*].
2.18 [*] of Guidelines.
2.18.1 [*] Obligation. Google shall (a) comply with the Guidelines [*], and
(b) ensure that each [*] (a "[*]") is obligated to comply with the Guidelines
[*] that (i) [*] or (ii) [*] (the foregoing (a) and (b), the "[*] OBLIGATIONS");
provided, however, that the [*] Obligations shall not apply to (1) [*], or (2)
[*].
2.18.2 Notice of [*] by Customer. In the event that Customer, [*], becomes
aware that Google or a Google Customer [*] that would [*] of the [*] Obligations
(a "[*]") and Customer has [*] that the Reciprocity Breach Amount, as defined
below, associated with such [*] is [*] or greater, then for the [*] period
following the date on which [*], Customer shall have the right to [*] and any
other information reasonably necessary to [*], including without limitation, the
manner in which [*], and the reasons Customer [*] (provided, however, that in no
event shall Customer be required to provide or disclose any information that
would [*]) (a "[*]"); [*]. The date on which Customer provides Google a [*] is
referred to herein as the "[*]."
2.18.3 [*]. "[*]" means the [*], or the estimated [*], as determined by
[*], in the event such activity constituting [*] has occurred for a period of
[*] prior to [*]. For the avoidance of doubt, the entire value of [*] shall not
be used in the determination of the [*], unless the amount [*].
2.18.4 Response by Google to [*].
2.18.4.1 [*]. Immediately following Google's receipt of the [*], the
parties shall [*] following [*] (the "[*]") to [*], including without
limitation, the [*], and the [*], and to provide [*] that such [*]. Customer
shall provide such information [*] as is reasonably available to [*] during the
[*] (provided, however, that in no event shall Customer be required to provide
or disclose any information that would [*]). If Google [*] that the [*]
identified in a [*] constitutes a [*], then Google and Customer will [*] and [*]
to [*] using the [*] of the Agreement.
[*] 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.
7
2.18.4.2 [*] and [*]. If the [*] identified in a [*] constitutes a [*], as
determined in accordance with Section 2.18.4.1, then within [*] following the
[*], Google shall provide Customer with written notice (the "[*]") setting
forth:
(1) whether or not the [*] corresponding to the [*] specified in the [*],
as determined by Google [*] either (x) [*] ([*]) with respect to a [*]"),
or (y) [*] with respect to [*], where the [*] associated with each such
[*] is at least [*] ("[*]"); or
(2) Google's [*] that (x) the [*] corresponding to the [*] specified in
the [*] has not [*] either the [*] or the [*] and (y) that the [*]
corresponding to such [*] will or will not [*] (as determined in
accordance with Section 2.18.3) assuming a [*] (the "[*]"). In addition,
Google shall provide Customer with such information [*]; provided,
however, that in no event shall Google be required to provide or disclose
any information that [*]. For the avoidance of doubt, Google shall not be
obligated to take any action (e.g., [*]) with respect to a [*] described
in this Section 2.18.4.2(2) until such time as the [*].
In the event Customer [*], then Google and Customer will [*] using the [*] of
the Agreement. In the event Google [*] to provide the [*] within the
aforementioned timeframe, then Customer may notify Google in writing of [*] in
which case Google shall provide the [*].
2.18.5 [*]. For the purposes of this Section 2.18, "[*]" with respect to a
[*] means any of the following: (A) [*], (B) [*] such that the [*] no longer
[*], or (C) [*] such that subsection [*]. For purposes of this Section 2.18,
Google will not be deemed to have [*] unless: (1) in the case of a [*] where the
[*], Google does not [*]; or (2) in the case of a [*] but, the [*] is estimated
in accordance with Section 2.18.3 to [*], Google does not [*]: (x) [*]; or (y)
[*]. A [*] described in the foregoing clauses (1) and (2) that is not [*] as set
forth herein is an "[*]". Google shall provide written notice to Customer within
[*] of any [*] becoming an [*].
2.18.6 Remedy for [*]. In the event the [*], Customer shall have the right,
for a period of [*] from the date Customer receives Google's notice that a [*]
associated with a [*] has become [*], to [*] upon [*] prior written notice. For
the avoidance of doubt, for [*], the determination of a [*] shall be made on a
[*].
2.18.7 Remedy for [*]. In the event the [*] then (i) Customer shall have the
right, for a period of [*] from the date Customer receives Google's notice that
a [*] associated with a [*] has become [*], to [*] upon [*] prior written notice
to Google, (ii) Customer shall only be obligated to [*], (iii) the [*] of the
[*] shall be [*] to [*] if Customer provides Google with [*] of the [*], and
(iv) subject to the terms of Section [*], Sections of this Amended and Restated
Agreement listed in Sections [*], [*], Section [*] (other than [*]), Section [*]
and Section [*] shall be deemed [*], effective as of the same date Customer [*];
provided that in the case of any [*] of Sections [*], Google agrees to provide
Customer with [*]. Google shall provide Customer with written notice within [*].
2.18.8 CUSTOMER AGREES THAT [*] SHALL HAVE [*] FOR SUCH [*].
2.18.9 THE FOREGOING STATES CUSTOMER'S [*], AND GOOGLE'S [*], WITH RESPECT TO
A [*].
2.19 [*]
2.20 [*]
2.21 [*]. Notwithstanding anything to the contrary in this Agreement,
Google may [*]. In addition, Google may share the results of any such [*];
provided, however, that Google shall ensure that prior to any [*] has signed an
agreement with Google with confidentiality obligations that are not materially
less protective of Customer's confidentiality rights than the confidentiality
terms of this Agreement, and which shall prohibit disclosure of confidential
information to any third parties.
2.22 Restriction against Relationships with Certain Entities. Google
agrees that, for a period of [*] from the Amended and Restated Effective Date,
Google (including any of its affiliates and subsidiaries) shall not enter into
any arrangement or agreement for the provision of Google's AdSense for Search
services with [*].
[*] 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.
8
3. Payments.
3.1 Payment. Google shall pay the fees in the amounts and on the terms
specified in Schedule B attached hereto. All fees quoted and payments made
hereunder shall be made in U.S. Dollars. Customer shall be responsible for all
sales taxes and other similar taxes imposed by any federal, state or local
governmental entity on the transactions contemplated by this Agreement,
excluding taxes based upon Google's net income.
3.2 Reports. Google will provide Customer with up-to-date [*] status
reports [*]. All reports shall be treated as Confidential Information of each
party under the terms of this Agreement, based on the underlying information
contained therein. The status reports shall include, [*]. Upon mutual agreement
between the parties, Google may provide Customer additional reports from time to
time; provided that Google agrees to provide Customer with the [*].
4. Audit Rights; Officer's Certificate.
4.1 Customer Audit Rights. Customer, at its own expense, may retain a nationally
recognized independent auditor to review and audit Google's relevant records to
confirm the fees due under this Agreement upon [*] prior written notice,
including without limitation [*] Such audit shall: (a) be subject to Google's
reasonable security and confidentiality requirements; (b) occur no more than
once every [*] and not during the last three (3) weeks of a calendar quarter,
provided that if two (2) successive audits show that Google is within [*] of
fees owed to Customer, then the frequency of audits shall occur no more than
every [*], and (c) transpire during Google's normal business hours. If the audit
results in a [*] or more adjustment in the payments for the audited period, then
Google shall pay Customer any amounts owed, and pay for the reasonable costs
associated with such audit.
4.2 Google Audit Rights. Google may retain, at its own expense [*], a nationally
recognized independent auditor to review and audit Customer's relevant records
to verify: (i) Customer's compliance with the requirement to deliver to Google
all of the Mandated Queries pursuant to Section 2.2 or if applicable, (ii)
Customer's compliance with the requirement to deliver a minimum percentage of
the Mandated Queries pursuant to the Non-Exclusivity Section of Exhibit B. Such
audit shall: (a) be subject to Customer's reasonable security and
confidentiality requirements; (b) occur no more than once every [*] and not
during the last three (3) weeks of a calendar quarter; provided, however, that
if two (2) successive audits show that Customer has complied with such
obligations by providing the applicable number of Mandated Queries required by
the Agreement, then the frequency of audits shall occur no more than every [*];
and (c) transpire during Customer's normal business hours. In the event such
audit reveals that, for any month(s) of Term, Customer failed to provide Google
the minimum number of Mandated Queries Customer is required to provide pursuant
to the Agreement: (i) in the event the audit reveals Customer has failed to
deliver to Google all of the Mandated Queries in a month pursuant to Section
2.2, then Customer shall have [*] to cure such discrepancy by increasing the
number of Mandated Queries Customer sends to Google to meet or exceed the
contractually required minimum; (ii) in the event the audit reveals, if
applicable, that Customer has failed to deliver to Google at least [*] of the
Mandated Queries in a month pursuant to the Non-Exclusivity provision of
Schedule B, such that there would otherwise have been a [*] by Google to
Customer, then Google shall be entitled to deduct any overpayments from
subsequent payments to Customer; and (iii) in the event the audit reveals, if
applicable, that Customer has failed to deliver to Google at least [*] of the
Mandated Queries in a month pursuant to the Non-Exclusivity provision of
Schedule B, then Google shall have the right to terminate the Agreement upon [*]
written notice, unless Customer reasonably demonstrates that such failure was
due to circumstances beyond Customer's reasonable control or which could not
have been reasonably anticipated by Customer through the exercise of reasonable
diligence (e.g. network failures, router malfunction, computer virus or other
disabling technology), in which case Customer shall have [*] to cure such
discrepancy by increasing the number of Mandated Queries Customer sends to
Google to meet or exceed the contractually required minimum; provided that with
respect to this clause (iii) Customer shall not have the right to cure any [*]
breach by Customer of its obligation to provide at least [*] of the Mandated
Queries to Google, when the applicable breaches have been the result of
circumstances beyond Customer's reasonable control or which could not have been
reasonably anticipated by Customer through the exercise of reasonable diligence
such that Google shall have the right to terminate this Agreement as described
in this Section 4.2.
[*] 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.
9
4.3 Officer's Certificate. At Google's written request, [*], Customer shall
provide Google with a [*] that [*]: (i) [*]; or if applicable (ii) [*]. In the
event Section [*] of this Agreement is [*] by Customer, Customer agrees to
provide to Google a [*] report [*] within [*] after the [*] stating: (i) that
[*], and (ii) [*].
5. Confidentiality.
5.1 Confidential Information. Each party (the "Receiving Party")
understands that the other party (the "Disclosing Party") has disclosed or may
disclose information of a confidential nature including, without limitation,
know-how, formulas, processes, ideas, inventions, schematics and other
technical, business, financial and product development plans, forecasts,
strategies and information ("Confidential Information"). All Confidential
Information disclosed in tangible form by the Disclosing Party shall be marked
"confidential" or "proprietary" and all Confidential Information disclosed
orally or otherwise in intangible form by the Disclosing Party shall be
designated as confidential or proprietary at the time of disclosure.
Notwithstanding the foregoing, information that is disclosed in a manner in
which the Disclosing Party reasonably communicated, or the Receiving Party
should reasonably have understood under the circumstances that the disclosure
should be treated as confidential, whether or not the specific designation
"confidential" or any similar designation is used, shall be Confidential
Information for purposes of this Section 5.
5.2 Disclosure and Use. The Receiving Party agrees (i) to hold the
Disclosing Party's Confidential Information in confidence and to take all
necessary precautions to protect such Confidential Information (including,
without limitation, all precautions the Receiving Party employs with respect to
its own confidential materials), (ii) not to divulge any such Confidential
Information or any information derived therefrom to any third person, except
independent contractors under an obligation of confidentiality and with a need
to know for purposes authorized under this Agreement, (iii) not to make any use
whatsoever at any time of such Confidential Information except as authorized
under this Agreement, and (iv) not to remove or export any such Confidential
Information from the country of the Receiving Party except as may be allowed by
applicable export laws. The Receiving Party shall limit the use of and access to
the Disclosing Party's Confidential Information to the Receiving Party's
employees, attorneys and independent contractors under an obligation of
confidentiality and restricted use who need to know such Confidential
Information for the purposes authorized under this Agreement. The Receiving
Party shall treat the Confidential Information with at least the same degree of
care and protection as it would use with respect to its own Confidential
Information, but in no event less than a reasonable standard of care. The
foregoing obligations shall survive for a period of five (5) years from the date
of disclosure of the Confidential Information, except in the case of source
code, in which case the foregoing obligations shall be perpetual. Without
granting any right or license, the Disclosing Party agrees that the foregoing
shall not apply with respect to information that the Receiving Party can
establish (i) is in the public domain and is available at the time of disclosure
or which thereafter enters the public domain and is available, through no
improper action or inaction by the Receiving Party or any affiliate, agent or
employee, or (ii) was in its possession or known by it prior to receipt from the
Disclosing Party without restriction, or (iii) was rightfully disclosed to it by
another person without restriction, or (iv) is independently developed by the
Receiving Party without use of such Confidential Information, or (v) is required
to be disclosed pursuant to any statutory or regulatory authority, provided the
Disclosing Party is given prompt notice of such requirement and the scope of
such disclosure is limited to the extent possible, or (vi) is required to be
disclosed by a court order, provided the Disclosing Party is given prompt notice
of such order and provided the opportunity to contest it.
5.3 Return of Confidential Information. Upon any termination or expiration
of this Agreement each party will destroy, or return to the other party, all
tangible copies of the other party's Confidential Information and erase all
copies in electronic form.
5.4 Confidentiality of Agreement. Each party agrees that the existence of
this Agreement and the terms of this Agreement shall be deemed Confidential
Information of the other party, provided that in addition to the permitted
disclosures under section 5.2, either party may disclose the terms of this
Agreement (i) if required to do so by law or generally accepted accounting
principles, (ii) as required to assert its rights hereunder, and (iii) to its
own directors, employees, attorneys, accountants, and other advisors on a "need
to know" basis and under an obligation of confidentiality no less stringent than
set forth herein. Each party agrees that the Disclosing Party will be given
prompt notice of any disclosure made pursuant to clause (i) or (ii) above, and
that any such disclosure shall be limited to the extent possible.
[*] 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
6. Intellectual Property
6.1 Google Rights. As between Customer and Google, Customer agrees that it
will not claim ownership, based on this Agreement or its use of Services
hereunder, in any right, title and interest, including without limitation
Intellectual Property Rights associated with the Services (including, but not
limited to, the AdSense for Search program, the Google Data Protocol, and Google
Brand Features, whether used by Google and/or Customer, but excluding items
licensed by Google from third parties). Customer shall not acquire any right,
title, or interest in or to the Intellectual Property Rights associated with the
Services (including the AdSense for Search program, the Google Data Protocol,
and Google Brand Features), except for the limited use rights expressly set
forth in this Agreement. Customer shall not modify, adapt, translate, prepare
derivative works from, decompile, reverse engineer, disassemble or otherwise
attempt to derive source code of the AdSense for Search service, the Google Data
Protocol, Google Brand Features, or any other software, or documentation
associated with the Services. Customer will not remove, obscure, or alter
Google's copyright notice, trademarks, or other proprietary rights notices
affixed to or contained within any Google Services, software, or documentation.
Notwithstanding anything to the contrary in this section, to the extent that
Customer owns Intellectual Property Rights, this Agreement is not a grant of
license to Google of any of those rights, nor does anything in this Agreement
serve as a waiver of those rights. Furthermore, except as expressly provided for
in this Agreement, Customer shall not crawl, index or in any non-transitory
manner store or cache information obtained from the Services. Any rights not
expressly granted herein are deemed withheld.
6.2 Customer Rights. As between Google and Customer, Google agrees that it
will not claim ownership, based on this Agreement or provision of the Services
hereunder, in any right, title and interest, including without limitation
Intellectual Property Rights associated with the Content. Google shall not
acquire any right, title or interest in or to such Content, except for the
limited use rights expressly set forth in this Agreement. Notwithstanding
anything to the contrary in this section, to the extent that Google owns
Intellectual Property Rights, this Agreement is not a grant of license to
Customer of any of those rights except as expressly provided for herein, nor
does anything in this Agreement serve as a waiver of those rights.
6.3 Brand Feature License. Subject to the limitations set forth herein,
Google hereby grants Customer [*] a nontransferable, nonexclusive license during
the term to: (a) use Google's name on a landing page of the Site in connection
with Customer's disclosure to End Users that Google provides the Google
Sponsored Links to Customer if (i) the primary purpose of such landing page is
to provide End Users a text explanation of Google Sponsored Links and their
source, which explanation shall not include any Google logo, other Google Brand
Feature or active/referral link to any page on the Google Web site; (ii) such
landing page is accessed by End Users directly from a link on a Results Page or
other page on the Site which is intended to provide End Users with information
about Sponsored Links (e.g., FAQs or "About" pages); and (iii) the link on the
Results Page does not include any Google Brand Features and is placed near
Google Sponsored Links in a manner that does not cause confusion as to the item
being explained; (b) use Google's name in securities filings and documents that
are required by law; (c) use Google's name in press releases; and (d) include
Google's Brand Features in presentations and marketing materials; provided that
in each instance described in Sections 6.3(a), 6.3(c), and 6.3(d) of Customer's
use and/or display of any Google Brand Feature, Google provides its advance
written approval of all such advertising and messaging activities, such approval
not to be unreasonably withheld or delayed. Unless otherwise permitted in
advance by Google in writing, Customer shall not use or display any Google Brand
Features, and unless otherwise permitted in advance by Customer in writing,
Google shall not include any Google Brand Features in any Result Set or any
Google Sponsored Link. Subject to the limitations set forth herein, Customer
hereby grants to Google a nontransferable, nonexclusive license during the Term
to use Customer's Brand Features to: (i) advertise that Customer is using the
Services and (ii) include Customer's logo in presentations, marketing materials,
customer lists, and website listing of partners; provided that Customer provides
its advance written approval of all such advertising and messaging activities,
including without limitation press releases. For purposes of clarification,
except for the right to include the Ask Jeeves and Xxx.xxx names on a list of
customers who use the Services, Google shall not reference or use the Ask
Jeeves, Xxx.xxx or Teoma name in any manner whatsoever unless Customer has
provided its prior written approval. For avoidance of doubt, Google shall not
post any Customer name on the Google web site without Customer's prior written
approval. Customer's license to Google shall be expressly limited to Google
specifically referencing Customer as a customer only of the Google Sponsored
Links Program and shall not include any reference that Customer utilizes any
other Google product (including without limitation any Google search product) or
any reference that is ambiguous enough to cause confusion as to whether Customer
uses any other Google product other than pursuant to this Agreement. Each party
will submit all materials of any kind containing the other party's Brand
Features to
[*] 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
the other party before release to the public for inspection, and such other
party will have the right to approve such material prior to each distribution.
Except as set forth in this Section, nothing in this Agreement shall grant or
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's Brand Features
(including any goodwill associated therewith) shall inure to the benefit of
Customer and all use by Customer of Google's Brand Features (including any
goodwill associated therewith) shall inure to the benefit of Google. At no time
during or after the Term of this Agreement shall one party assert rights in 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 attempt to register any Brand Features or domain names
that are confusingly similar to those of the other party.
Notwithstanding anything to the contrary herein, but subject to the prior
written approval of each party's General Counsel not to be unreasonably withheld
or delayed, the parties will work together to either unilaterally or jointly
issue a press release regarding the existence of this Agreement, provided that
any press release that includes the name or any other Brand Feature of the other
party has been reviewed and approved in advance by both parties. Neither party
shall issue any additional press release in connection with this Agreement
without the other party's prior review and approval of such press releases.
7. Warranties and Disclaimer.
7.1 Google. Google warrants that it has full power and authority to enter
into this Agreement and perform its obligations hereunder. GOOGLE MAKES NO OTHER
WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE,
INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR USE, AND NONINFRINGEMENT.
7.2 Customer. Customer warrants that: (i) it has full power and authority
to enter into this Agreement and perform its obligations hereunder; and (ii) it
shall use information provided by Google (including Results Sets) in a manner
that complies with applicable laws. CUSTOMER MAKES NO OTHER WARRANTY OF ANY
KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT
LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, AND
NONINFRINGEMENT.
8. Indemnification.
Google will defend (or at its option settle), indemnify and hold harmless
Customer and its affiliates and their respective officers, directors, employees
and agents from and against any action, loss, cost, claim, demand, liability or
expense, including reasonable attorney's fees, from a third party lawsuit or
proceeding brought against Customer based upon a claim that (a) the Services or
any Google Brand Feature infringes any U.S. [*], copyright, trade secret or [*]
of such third party (an "IP Claim"), (b) Google's use of information provided by
Customer violates applicable data protection laws, and/or (c) [*]. For purposes
of this Section 8, [*] means [*] to the extent the [*] at the time of the event
giving rise to the claim [*]. Notwithstanding the foregoing, in no event shall
Google have any obligations or liability under this Section 8 arising from: (i)
use of the Services or Google Brand Features in a modified form, unless such
modification is expressly approved by Google, or in combination with materials
not furnished by Google if such infringement would have been avoided but for
such combination unless such combination is expressly approved by Google, (ii)
any content, information or data provided to Google by Customer, End Users or
any other third parties, and (iii) any pages of third party websites [*]. In
addition to the Customer's indemnification obligations in Section 1(h) of
Schedule G, Customer will defend (or at its option settle), indemnify and hold
harmless Google and its affiliates and their respective officers, directors,
employees and agents from and against any action, loss, cost, claim, demand,
liability, or expense, including reasonable attorney's fees, from any third
party lawsuit or proceeding brought against Google based upon a claim that: (x)
the Content, Site and/or Customer Brand Features infringe any U.S. [*],
copyright, trade secret or [*] of such third party; (y) Customer's use of the
Services in any manner inconsistent with or in breach of the Agreement; and/or
(z) Customer's use of information provided by Google violates applicable data
protection laws. Indemnification shall be provided for any claim covered under
this Section 8 and shall be limited to (i) payment by the indemnifying party
("INDEMNITOR") of all damages and costs reasonably incurred (including
reasonable attorney's fees) 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
[*] 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
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. Each party shall not agree to any settlement that admits
wrongdoing by the other party or that imposes any non-monetary obligations, or
any monetary obligations not indemnified by the other party, on the other party.
The Indemnitor shall only reimburse the Indemnitee for expenses incurred by the
Indemnitee with the Indemnitor's prior written approval.
Without limiting the foregoing indemnity obligation, following notice of an IP
Claim related to the Services or any facts which may give rise to an IP Claim
related to the Services, Google may, in its sole discretion and at its option
(a) procure for Customer the right to continue to use the Services or (b) modify
the Services to make them non-infringing with the same level of functionality
and quality as prior to the IP Claim. If Google determines that it is not
commercially reasonable to perform either of these alternatives, Google shall
have the option to terminate this Agreement, subject to Section 10.6 herein.
THE FOREGOING STATES THE PARTIES' ENTIRE LIABILITY AND EXCLUSIVE REMEDY WITH
RESPECT TO INFRINGEMENT OF A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS AND
GOOGLE'S TERMINATION OF THE AGREEMENT IN CONNECTION WITH AN IP CLAIM AS SET
FORTH ABOVE.
9. Limitation of Liability.
EXCEPT FOR: (A) AMOUNTS PAYABLE PURSUANT TO INDEMNIFICATION UNDER SECTION 8 AND
SECTION 1 OF SCHEDULE G [*], A VIOLATION OF EITHER PARTY'S INTELLECTUAL PROPERTY
RIGHTS, OR BREACHES OF CONFIDENTIALITY UNDER SECTION 5, AND (B) LIABILITY
DESCRIBED IN SECTION 10.6, 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 PROFITS, 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. EXCEPT FOR (A) AMOUNTS PAYABLE PURSUANT TO INDEMNIFICATION
UNDER SECTION 8 AND SECTION 1 OF SCHEDULE G, A VIOLATION OF EITHER PARTY'S
INTELLECTUAL PROPERTY RIGHTS, OR BREACHES OF CONFIDENTIALITY UNDER SECTION 5,
AND (B) LIABILITY DESCRIBED IN SECTION 10.6, IN NO EVENT SHALL EITHER PARTY'S
LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED [*]. THE PARTIES AGREE THAT THIS
SECTION 9 REPRESENTS A REASONABLE ALLOCATION OF RISK.
10. Term and Termination.
10.1 Term. The term of this Agreement (the "Term") shall commence on the
Amended and Restated Effective Date and shall continue in force until December
31, 2007, unless earlier terminated as provided herein.
10.2 Termination.
10.2.1 General. Either party may terminate the Agreement: (a) if the
other party materially breaches any material term or condition of the Agreement
and fails to cure such breach within thirty (30) calendar days after receiving
written notice of such breach; provided that, subject to Customer's obligation
to enforce the terms of Schedule G and Google's rights under Section 6 thereof,
[*] for purposes of termination of this Agreement; (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 or receiver appointed for its
business or assets or any party thereof; or (c) if Customer merges with,
acquires or is acquired (e.g., via a Change of Control) by [*], provided that
(i) in the case of Google's exercise of this termination right, Google delivers
to Customer written notice not more than [*] the earlier of (a) any public
announcement by Customer of such a
[*] 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
transaction or (b) Google's receipt of written notice from Customer that
Customer has entered into a definitive agreement contemplating such a
transaction giving rise to this termination right, such termination being
effective upon the closing date of such transaction, and (ii) in the case of
Customer's exercise of this termination right, Customer delivers to Google
written notice not more than [*] the date Customer enters into a definitive
agreement contemplating such a transaction giving rise to this right, such
termination being effective upon closing date of such transaction. For the
avoidance of doubt, in the event of any termination under Section 10.2.1(c),
Customer shall strictly comply with the requirements of Section 5 prior to,
during and after any discussions or activities relating to such transaction, and
unless Customer has materially breached a material term or condition of the
Agreement as described in Section 10.2.1(a), Google may not suspend performance
until the close of such transaction. With respect to Customer's written notice
to Google that Customer has entered into a definitive agreement contemplating a
Change of Control, Customer agrees to include in such notice information that
Google would reasonably need to evaluate such transaction, including the name of
the party involved in the applicable transaction, subject to applicable
confidentiality or contractual obligations. For the avoidance of doubt, under no
circumstances shall a termination right exercised pursuant to a Change of
Control be effective if the applicable Change of Control transaction is not
consummated. Customer will provide Google written notice in the event a Change
of Control transaction is terminated.
10.2.2 Google Termination Rights. Notwithstanding the foregoing, in
addition to the termination rights granted above in Section 10.2.1, Google may
terminate the Agreement, upon [*] written notice to Customer if Customer (i)
attempts to modify, adapt, translate, prepare derivative works from, decompile,
reverse engineer, disassemble or otherwise attempt to derive source code of the
AdSense for Search, the Google Data Protocol, Google Brand Features, or any
other software, or documentation associated with the Services, or (ii) otherwise
intentionally and materially breaches Google's Intellectual Property Rights, and
Customer fails to cure such breach within such [*]. In addition, Google may
terminate the Agreement in accordance with the termination rights granted in
Section 4.2 (Google Audit).
10.2.3 Customer Termination Rights. Notwithstanding the foregoing, in
addition to the termination rights granted above in Section 10.2.1, Customer may
terminate the Agreement in accordance with the termination rights granted in
Section 2.12 ([*] Content) and Section 2.18.6 ([*]), and if Google fails to cure
any material breach of the Service Level Agreement within [*] after receipt of
written notice from Customer of such breach. In addition, Customer may terminate
the Agreement, upon [*] written notice to Google if Google [*] breaches
Customer's Intellectual Property Rights, and Google fails to cure such breach
within such [*] period.
10.2.4 Definitions. As used in this Section 10, "CONTROL" means the power
to direct the management and policies of an entity, whether through the
ownership of voting securities, by contract, management agreement or otherwise.
"CHANGE OF CONTROL" with respect to a party means (i) the 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 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.
10.2.5 Notice. Customer agrees to provide written notice of a transaction
that would give rise to any termination right granted by Section 10.2.1(c) in a
timely manner, but in any event in no less than twenty (20) days prior to the
closing date of such a transaction, and further agrees to provide any
information that Google reasonably requires to evaluate such transaction,
including its acquirer, subject to applicable confidentiality or contractual
obligations. Customer will provide Google notice in the event such a transaction
is terminated."
[*] 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
10.3 Effect of Termination. Upon the termination of this Agreement for any
reason (i) all license rights granted herein shall terminate, and (ii) each
party shall return to the other party, or destroy and certify the destruction
of, all Confidential Information of the other party. The provisions of Section
10.6 shall apply to any termination of the Agreement as described therein.
10.4 Survival. In the event of any termination or expiration of this
Agreement for any reason, Sections 1, 2.7, 3, 4.1 and 4.2 (each, for a period of
one year after the date of termination or expiration), 5, 6.1, 6.2, 8, 9, 10.3,
10.4, 10.5, 10.6, 11, and 12 shall survive termination. Neither party shall be
liable to the other party for damages of any sort resulting solely from
terminating this Agreement in accordance with its terms.
10.5 Injunctive Relief. Notwithstanding the provisions of Section 2.16 of
this Agreement, each party agrees that, in addition to any other remedies to
which the other party may be legally entitled, such party shall have the right
to seek immediate injunctive relief in the event of a breach of this Agreement
by the other party or any of its officers, employees, consultants or other
agents.
10.6 [*]. Notwithstanding anything to the contrary in this Agreement, (a)
in the event Customer [*], which [*] is the result of a [*] to Customer and/or
to [*] such that, in either case, [*], Google shall be required to [*] Customer
[*] as described in this Section 10.6(a) [*], multiplied by the [*]; provided
that in no event will the [*] pursuant to this Section 10.6 [*]; and (b) in the
event [*]), then for each of [*]) following [*] as described herein, Google
shall [*]; provided that each of the [*] shall be [*]. For the avoidance of
doubt, the [*] pursuant to 10.6(b) shall not [*]. The parties agree that
Customer's [*] in the event of [*] pursuant to 10.6(a) or 10.6(b) above [*] and
that the [*] set forth herein are [*]. If [*], the foregoing [*] described in
Section 10.6(a) and 10.6(b) as [*], respectively, shall be Customer's [*] and
Google's [*] in the case of a [*] for the reasons set forth in these Sections
10.6(a) and (b), respectively. Notwithstanding the foregoing, such [*] shall be
[*].
11. Addresses.
All payments, correspondence, and notices shall be sent to the following
addresses:
Google Inc. Ask Jeeves, Inc.
0000 Xxxxxxxxxxxx Xxxxxxx 0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000 Xxxxxxxxxx, XX 00000
Unless specified otherwise by the receiving party in writing, all invoices
or payments shall be sent to the attention of Finance, all legal notices shall
be sent to the attention of the General Counsel, and all other correspondence
shall be sent, in the case of Customer to the attention of CEO, and in the case
of Google to the representative indicated in the signature block below.
12. Miscellaneous.
Any notice required for or permitted by this Agreement shall be in writing and
shall be delivered as follows with notice deemed given as indicated: (i) by
personal delivery when delivered personally, (ii) by overnight courier upon
written verification of receipt, (iii) by telecopy or facsimile transmission
when confirmed by telecopier or facsimile transmission report, or (iv) by
certified or registered mail, return receipt requested, upon verification of
receipt. All notices must be sent to the addresses first described above or to
such other address that the receiving party may have provided in writing for the
purpose of notice in accordance with this Section. 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, except to person(s)
or entity(s) that acquire, through merger or otherwise, (i) ownership of a
majority of such parties' securities or voting securities or an amount of such
party's securities that provide such acquiring person(s) or entity(s) with the
power to elect a majority of the members of such party's board of directors (in
all cases, other than any such acquisition of Google securities in connection
with a private or public securities offering) or (ii) all or substantially all
of such party's assets. This Agreement is not intended to benefit, nor shall it
be deemed to give rise to, any rights in any third party. This Agreement will be
governed by and construed in accordance with the laws of the State of
California, without regard to conflict of law principles. Any dispute or claim
arising out of or in connection with this Agreement shall be brought in the
state or federal courts located in Santa Xxxxx County, California. The parties
are independent contractors. Neither party shall be deemed to be an employee,
agent, partner or
[*] 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
legal representative of the other for any purpose and neither shall have any
right, power or authority to create any obligation or responsibility on behalf
of the other. Neither party shall be liable hereunder for the failure or delay
in the performance of its obligations hereunder resulting from any condition
beyond its reasonable control, including but not limited to (except for any
failure in the payment of money) acts of terrorism, power failures, strikes,
shortages, riots, insurrection, fires, flood, storm, explosions, earthquakes,
acts of God, war or governmental action and Internet disturbances. Each party
shall comply with all applicable laws, rules and regulations, if any, related to
the performance of its obligations under this Agreement. The failure of either
party to require performance by the other party of any provision shall not
affect the full right to require such performance at any time thereafter; nor
shall the waiver by either party of a breach of any provision hereof be taken or
held to be a waiver of the provision itself. If any provision of this Agreement
is held by a court of competent jurisdiction to be contrary to law, such
provision shall be changed and interpreted so as to best accomplish the
objectives of the original provision to the fullest extent allowed by law and
the remaining provisions of this Agreement shall remain in full force and
effect. THIS AGREEMENT, AND SCHEDULES HERETO, CONSTITUTE THE ENTIRE AGREEMENT
BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF. THIS AGREEMENT
SUPERSEDES, AND THE TERMS OF THIS AGREEMENT GOVERN, ANY OTHER PRIOR OR
COLLATERAL AGREEMENTS WITH RESPECT TO THE SUBJECT MATTER HEREOF. ANY AMENDMENTS
TO THIS AGREEMENT MUST BE IN WRITING AND EXECUTED BY AN OFFICER OF THE PARTIES.
[*] 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 WITNESS WHEREOF, the parties have caused this Agreement to be signed by
their duly authorized representatives.
ASK JEEVES, INC. GOOGLE INC.
By: /s/ Xxxxx Xxxxxxxxx By: /s/ Xxxx Xxxxxx
----------------------- --------------------------
Name: Xxxxx Xxxxxxxxx Name: Xxxx Xxxxxx
Title: General Counsel Title: VP Search Services
Date:______________________ Date:_________________________
Fax: [*] Fax: [*]
[*] 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
SCHEDULE A
[*] 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
SCHEDULE B - SERVICE FEES
I. PAYMENT FOR GOOGLE SPONSORED LINKS:
Payment: Customer and Google agree that Google shall pay to Customer the amounts
described below.
1) Each calendar month during the Term, Google shall pay Customer: (i) [*] of
the Net Ad Revenue (defined below) generated from Google Sponsored Links
displayed on the Sites [*]; and (ii) [*]. Notwithstanding any of the foregoing,
Google shall not be liable for payment in connection with any amounts which
result from [*] or [*], as reasonably determined by Google. If there is a
discrepancy of [*] or more between Customer's calculation of [*] or [*], the
parties agree to resolve any such discrepancy in accordance with the Dispute
resolution procedure set forth in Section 2.16.
"Net Ad Revenue" means, with respect to a calendar month during the Term, the
Gross Revenue generated during a calendar month minus the total amount of
Deductions for the [*] for such month, where for purposes of this Agreement such
total amount of Deductions is deemed to equal [*] of the total Gross Revenue
generated during such month.
"Deductions" shall mean the aggregate amount of [*] each calendar month during
the Term with respect to the Services provided herein.
"Additional Deductions" shall mean additional costs that [*] as described in
Section I(2) of this Schedule B. For the avoidance of doubt, the total aggregate
amount of deductions that Google may subtract from Gross Revenue is the sum of
Deductions and Additional Deductions, as applicable.
"[*]" shall mean [*]
"Gross Revenue" shall mean the revenue generated by the [*], minus [*] fees and
[*] fees; provided that, for purposes of clarification, these fees shall only
include fees paid by [*] and shall exclude all other fees or expenses including,
without limitation, those [*].
2) Commencing as of the first complete calendar month following notice to
Customer of a "[*]" (as defined below), [*], Google shall [*], and [*] as
follows:
Definitions: For purposes of this Schedule B, the following terms shall have the
following meanings:
"[*]" shall mean the [*].
"[*]" means, for any applicable calendar month, the [*] on the [*] during such
calendar month.
"[*]" or "[*]" shall, for any applicable calendar month, equal the [*]
difference between the [*] in each of the four preceding complete calendar
months as compared to the [*] for each respective calendar month in the prior
year, calculated as follows:
[*]
"[*] shall mean for any applicable calendar month, the [*] for the corresponding
calendar month in the prior year multiplied by the [*], calculated as follows:
[*]
[*]. In order to [*] above [*] by [*], Google must provide Customer with [*]
stating that there has been an [*], [*] or [*] to the [*] after the [*] such
that the [*] in connection therewith will be [*] (such [*], [*] or [*] being a
"[*]," and such [*] being a "[*]"). Google shall have the right to [*] to
Customer at any time following a [*] and any [*] shall be effective (A) in the
[*] that is immediately [*], if Customer receives such [*] on or before the [*]
of a [*], or (B) in the [*] that is immediately [*], if Customer receives such
[*] after the [*] of a [*] (a [*] during which [*] become effective, an "[*]").
The [*] shall include a [*], and shall specify [*]. Google shall thereafter be
[*], provided that (i) in no event shall a [*], [*] or [*] to the [*], and (ii)
Google may not [*] that Google [*], and did
[*] 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
not include in [*] to its [*]. Beginning the [*] that Google [*], Google will
provide Customer a [*] not later than [*].
[*] to Customer. With respect to each [*], "[*]" means such [*] by the [*] for
the [*] by the [*] for the [*].
[*]. Beginning with the [*] and continuing for [*], Google
shall be permitted to [*] (as calculated above), provided that the
[*]") shall not [*] the following [*] (the "[*]"): [*] an amount
determined by [*] for the calendar month immediately preceding the
[*]; provided that in no event shall the [*] determined by [*] for
any [*] be less than [*]. Following the [*], in the event that
Customer has a [*] that that the [*] for any [*] is less than the
[*] used in the calculation of the [*] then upon [*] Google shall
[*]") the following [*] (an "[*]"): [*]by an amount determined by
[*] for such [*]. In the event that an [*] is less than (a) the [*],
if there has been [*]"), or (b) the [*], then the [*] shall be [*],
if necessary, such that the [*] are [*]. In the event that an [*] is
greater than (c) the [*], if there has been no [*], or (b) the [*],
then Google shall have the right to [*] such that the [*] are [*];
provided that Google shall provide Customer with information, [*].
For the avoidance of doubt, Google shall have the right, [*], to [*]
without [*] and, if applicable, [*] in accordance with the
foregoing; provided that Google shall provide Customer with
information, [*]. Notwithstanding anything to the contrary in this
Agreement, in no event shall any [*] apply in [*] and further, an
[*] shall only apply if [*] (in accordance with the requirements set
forth above in this paragraph) on or prior to the [*].
For illustrative purposes, assume that the [*] in which Google
is permitted to [*] and assume the following facts:
[*] (the [*] prior to the [*]):
[*]
[*] (the [*] of the [*]):
[*]
[*]
Non-Exclusivity: In the event the [*]in any [*] (the date that [*], the "[*]"),
then Customer may elect to [*] of this Agreement by providing written notice to
Google within [*] of the [*], and Section [*] shall be deemed [*] as of the date
[*] from Customer's notice, and Customer shall only be required to [*] of [*];
provided that Customer's failure to elect to [*] within the [*] notice period
pursuant to this paragraph with respect to any [*] following a [*] in which [*]
shall constitute a waiver of Customer's rights under this provision only until
the [*], after which such [*] Customer shall again have the right to make the
election to [*] in accordance with the procedures set forth in this
Non-Exclusivity Section. If (a) the event in the foregoing sentence occurs, or
(b) the event described in Section [*] of this Agreement occurs, and, in any [*]
following such event(s) (a) and/or (b), Customer [*], then Google shall [*] of
the [*] with respect to such [*]; provided however, that if either of the
foregoing events occurs such that Customer's [*] of the Agreement are deemed
[*], then each of Section [*]) and Section [*]) shall be deemed [*]; provided
that in the case of any [*] of Sections [*], Google agrees to provide Customer
with any [*].
II. TIMING OF PAYMENTS:
1) Subject to the second sentence of this section, Google shall [*], no later
than the [*], an amount equal to [*]. In the event that the [*] that Google owes
to Customer with respect to any month is [*], Google will pay the [*]. In the
event that the payment amount that Google owes to Customer with respect to any
month is [*], Google shall be entitled to [*], provided that, if this Agreement
terminates or expires and Google has [*] to which Customer is entitled, then [*]
within [*] of this Agreement. Notwithstanding anything to the contrary contained
herein, if at any time during the Term, Customer's exclusivity obligations
pursuant to Section 2.15 are deemed null and void, then this Section II(1) of
Schedule B shall be deemed null and void.
[*] 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.
20
2) All payments shall be made by wire transfer to an account(s) (or addresses)
designated by Customer from time to time.
[*] 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.
21
SCHEDULE C - SUPPORT GUIDELINES
1. Definitions.
(a) "Customer Contacts" means the employees designated by Customer in
writing who are qualified to contact Google for technical support.
(b) "Consulting Requests" means any request made by Customer to Google
Technical Support Personnel that is unique to Customer and is
unrelated to a Fix, Minor Problem, or Severe Problem. This includes
requests by Customer to incorporate a new feature or enhance an
existing feature of the Services.
(c) "Fix" means a correction, fix, alteration or workaround that solves
a Minor Problem or a Severe Problem.
(d) "Google Technical Support Personnel" means the employees at Google
responsible for handling technical support calls. Google will
provide Customer with a web interface or an email address (the
"Support Address"), as well as an email pager address (the "Support
Pager") for contacting the Google technical support personnel, and
an escalation telephone support number. Google will provide Customer
with technical contacts. Google may change its designated technical
support personnel at its discretion with reasonable notice to
Customer.
(e) "Hours of Operation" means 24/7 for Severe Problems and Monday to
Friday 9:00 a.m. - - 7:00 p.m. Pacific Time for Minor Problems.
Google may, at its reasonable discretion, change or expand the hours
of operation with reasonable notice to Customer.
(f) "Minor Problem" means any error, bug, or malfunction that makes any
feature of the Services perform unpredictably or to otherwise become
intermittently unavailable.
(g) "Severe Problem" means any error, bug, or malfunction that causes
the Services to become inaccessible to Customer and its Site end
users, or that causes any feature of the Services become
continuously unavailable, or that causes the Services to have a
material degradation in accuracy or response time performance.
2. Support procedures. Customer will use reasonable efforts to fix any Minor
Problems without escalation to Google. All Minor and Severe Problems and
Consulting Requests must be submitted to Google via the Support Address.
(a) If Customer believes it is reporting a Severe Problem, Customer will
accompany its request with a page via the Support Pager.
(b) Upon receiving a request from Customer, Google will determine in its
reasonable discretion whether the request is a Minor Problem, a
Severe Problem, or a Consulting Request.
(c) If the request is a Severe Problem, Google will attempt to respond
to the request within one hour. Google will then use commercially
reasonable efforts to fix the Severe Problem and will provide daily
status reports to Customer (upon request by Customer). On resolution
of the problem and at Customer's request, Google will provide
Customer a problem summary including the nature of the problem and
steps taken to resolve the problem.
(d) If the request is a Minor Problem, Google will attempt to respond to
the request within one business day. Google will then use
commercially reasonable efforts to fix the Minor Problem and will
provide weekly status reports to Customer (upon request by
Customer).
If the request is a Consulting Request, Google will attempt to respond to
the request within ten business days.
Should Customer and Google agree to have Google take further action pursuant to
the Consulting Request, Customer and Google will negotiate a separate agreement
setting forth the terms and conditions for Google's performance of such further
action. All time spent by Google in responding to a Consulting Request will be
billed to the Customer at Google's then applicable consulting rates and charges.
3. Enhancements and Updates. Google will use commercially reasonable efforts to
provide Customer with advance notice of any generally available enhancements and
updates to the Google Data Protocol that Google may develop. Upon receipt of
such notice, Customer will use commercially reasonable efforts to implement such
latest generally available enhancements and/or updates (and Google shall use
commercially reasonable efforts to assist Customer in any such implementation).
[*] 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.
22
SCHEDULE D - [*]
The [*] as of the Amended and Restated Effective Date are:
[*]
[*] 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
SCHEDULE E - SERVICE LEVEL AGREEMENT
Google shall comply with the service levels set forth below ("Service
Levels") for the Google AdSense for Search Program provided to Customer under
the Agreement, [*]. Upon any [*] in which Google has [*] the Service Levels, the
Service Levels shall remain [*] until such time as Customer's [*]. As used in
this Schedule E, [*].
Google will support an average of [*] from Customer (plus an additional number
of search queries of which Customer has given Google not less than [*] advance
written notice) [*] ("PROJECTED QUERY VOLUME"). If Customer's actual usage is
[*] of Projected Query Volume during [*], Google shall have the right to [*] the
Projected Query Volume to a capacity that is [*] of Customer's actual average
daily usage during that same period (or such [*] amount as is reasonable given
the seasonality of Customer's query load). In order to receive any additional
capacity above the Projected Query Volume, Customer must provide Google with [*]
advance written notice.
[*]
So long as Customer does not exceed its Projected Query Volume, Google
will maintain the following performance characteristics; provided that, [*], but
in no event longer than [*] from Customer's notice to increase Customer's
Projected Query Volume:
Service Levels:
"Fully Processed and Served Queries" shall mean Queries that are fully
processed, from the time sent by Customer to Google to the time [*] (including a
complete [*], with a complete [*] or a [*] format).
Technical Requirements (with respect to Customer domestic US properties)
1. Speed of Results. Google shall maintain the following two latency guarantees
(hereafter "Query/Response Speed Performance Requirement"):
(a) [*] - The [*] and initiated transmission of the Sponsored Links. Google
shall not [*]. Google and Customer will work together in good faith to [*].
(b) [*] - The [*] shall not [*] (i) [*] or (ii) [*]. Customer may send queries
to Google to test [*] as measured between [*] to [*] and that any such [*] takes
place at a [*] as determined by Google.
2. Availability. Google will provide [*] "Service Availability", defined as the
percentage of Queries that are Fully Processed and Served within [*], over a [*]
(excluding any time of outage caused by equipment or software that is not under
the direct control of Google). Google and Customer will work together in good
faith to find ways to continuously improve Service Availability.
3. Implementation of Technical Specifications. The [*] in this Schedule E shall
only apply if: (a) Customer correctly implements the technical specifications
concerning correct use of XML protocol arguments and correct handling of
optional or new result fields set forth in the Google Data Protocol, (b)
Customer's DNS client implementation correctly handles standard DNS protocol,
which includes strict observation of DNS TTL values returned by Google's DNS
servers, and (c) Customer sends Queries to the host name provided to Customer by
Google (e.g. XXX.xxxxxx.xxx) and Customer's client implementation repeats the
DNS lookups as specified by Google's DNS servers.
4. Remedy - Subject to Customer's compliance with Sections 2.2.5, 2.3 and 2.5 of
the Agreement, if the Services do not comply with the service levels set for
Service Availability, or if the Services do not substantially comply with the
service levels set for [*] and [*], each as set forth in this Schedule such that
Results Sets are not sent back to Customer in response to a Query in accordance
therewith during any given [*] period, then Google shall [*] herein during such
[*] period ([*]). For purposes of this subsection, the "AVERAGE NET AD REVENUE
PER QUERY" shall mean the average Net Ad Revenue per Query on the affected Site
[*]. In order for Customer to be entitled to [*] as set forth in this Schedule,
Customer shall include with every Query sent to Google a unique Query identifier
which shall be encoded to the Query URL and comply with Google's specifications
but shall not, without Google's approval, [*]. Upon written request, Customer
will
[*] 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
make available to Google a complete list of Queries (including failed Queries)
for each day for which a [*]. The list of Queries shall include, for each Query,
[*]. For avoidance of doubt, any Queries for which Customer does not provide the
foregoing Query information will be deemed to have succeeded.
If Customer intends to [*], Customer shall notify Google in writing within [*]
following a suspected non-compliance with the Service Levels; provided, however,
that if Customer reasonably believes there has been an "outage" of the Service
for longer than [*], Customer shall contact Google to notify Google of such
event promptly upon Customer's discovery of such event. Within [*] of Google's
receipt of Customer's notice, Google will provide Customer with written notice
of whether Google agrees or disagrees with Customer's [*]. In the event Google
disagrees, the parties agree to work together in good faith to resolve any
disagreement. To the extent any [*] at the end of the calendar month following
the calendar month in which the [*] or, if later, the calendar month in which
any disagreement regarding [*] is resolved.
Customer acknowledges that, if Customer [*] with respect to a non-compliance
hereunder, Customer shall not be permitted to [*] with respect to such
non-compliance.
[*] 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.
25
SCHEDULE F - [*]
[*]
[*] 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.
26
i. "SCHEDULE G -- [*]
[*]
[*] 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
SCHEDULE H - [*]
[*]
[*] 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.
28
