Exhibit 10.4
GOOGLE SERVICES AGREEMENT
CONTENT TARGETING
This Google Services Agreement ("GSA") is entered into by and between Google
Inc. ("GOOGLE") and Focus Interactive, Inc., a corporation formed under the laws
of Delaware ("CUSTOMER"). This GSA shall be effective as of the last date
written below ("GSA EFFECTIVE DATE"), and sets forth the terms and conditions
under which Customer may use certain services made generally available by Google
and described further herein and/or in an applicable Order Form (the
"SERVICES"). Such Services may be ordered by Customer and shall be identified on
one or more separately stated standard Google order forms that reference this
GSA and are executed by the parties (individually referred to hereinafter as an
"ORDER FORM"). Each Order Form shall be governed by this GSA and shall become
effective on the date stated in such Order Form ("ORDER FORM EFFECTIVE DATE").
This GSA and the corresponding Order Form(s) together constitute the
"AGREEMENT".
1. Services.
1.1 Content Targeted Advertising Program. Google shall assist Customer with
providing content-targeted compensated linked advertisements ("ADS") for
display on the uniform resource locators ("URL(S)") [*] identified on the
Order Form (each, a "SITE", and collectively, the "SITES"), and on any
Additional Sites and Co-branded Sites approved pursuant to Sections 1.1.1
and 1.1.2, through the Google Content-Targeted Advertising Program
("CTAP") as further set forth herein. Each of Google and Customer shall
use commercially reasonable efforts to implement CTAP on the Sites within
[*] from the Order Form Effective Date.
1.1.1 Additional Sites.
(a) Subject to Section 1.9.1(b), if during the Services Term Customer
[*] launches or acquires a Web site [*] that is not already a Site,
Additional Site or Co-branded Site, then, [*]. [*], such site will
become an "ADDITIONAL SITE" under this Agreement (it being
understood for the avoidance of doubt that the economic terms
concerning revenue share set forth in the Order Form shall be
applicable to impressions of such Additional Site). [*] Customer is
responsible for each Additional Site's use of the Services provided
hereunder and shall ensure that any and all such Additional Sites
comply with the applicable terms and conditions of the Agreement,
including without limitation all terms and conditions regarding use
and prohibited uses of the Services, terms and conditions relating
to the implementation of the Services, and confidentiality
requirements.
(b) The provisions of Section 9.1.1(a) will not apply to Web sites
acquired by Customer from a third party during the Services Term
with a contractual obligation to a third party in existence prior to
such acquisition that would [*], as documented to Google by a
representation to such effect in writing by Customer; provided that
[*].
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[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
1.1.2 Co-branded Sites. If during the Services Term Customer launches a
co-branded version of a Site or Additional Site [*] then, [*]. [*], such
site will become a "Co-branded Site" under this Agreement (it being
understood for the avoidance of doubt that the economic terms concerning
revenue share set forth in the Order Form shall be applicable to
Impressions of such Co-branded Site). [*]. In the event that Google does
not reply to a Co-branded Site Offer within the Co-brand Response Period,
Google shall be deemed to have rejected the Co-branded Site Offer.
Customer is responsible for each Co-branded Site's use of the Services
provided hereunder and shall ensure that any and all such Co-branded Sites
comply with the applicable terms and conditions of the Agreement,
including without limitation all terms and conditions regarding use and
prohibited uses of the Services, terms and conditions relating to the
implementation of the Services, and confidentiality requirements.
1.1.3 Limitations. Google agrees that it will [*]. Notwithstanding anything to
the contrary, [*]. Except as agreed to by Customer, Ads served under this
Agreement will be limited to [*]. Except as provided in the preceding
sentence, [*] will not be [*] unless the parties execute a written
amendment to this Agreement or a separate Order Form.
1.2 CTAP Operations.
1.2.1 Implementation. Customer acknowledges that Google will provide third-party
and/or Google advertisements for display on the Sites, Additional Sites
and Co-branded Sites using Google's advertising serving technology
pursuant to this Agreement, and Customer and Google each will use
commercially reasonable efforts to assist the other in implementing such
technology on the Sites, Additional Sites and Co-branded Sites. Customer
shall comply with Google's technical requirements for the delivery of Ads
as provided by Google to Customer from time to time, it being understood
that any update thereto is subject to the provisions of Section 12.2 (the
"TECHNICAL REQUIREMENTS"), including without limitation specifications for
tracking all advertising impressions that may contain one or more Ads
served under this Agreement (each "AD UNIT") [*]. Without limiting the
foregoing, the Technical Requirements at launch contemplate that Google
will deliver Ads [*], and Customer will have the technical ability
(subject to the provisions of Section 1.3) to [*]. For the avoidance of
doubt, the fact that Customer will have the [*] in no way implies any
waiver of Customer's obligation to [*]. The Technical Requirements may be
updated in accordance with Section 1.2.2. Unless otherwise approved by
Google in writing in advance, Customer shall not modify or edit any [*]
provided by Google, or other elements (or any portion thereof) at any
time. In addition, Customer shall not alter its advertising delivery
system in a manner that Customer anticipates is likely to have an adverse
impact on Google's ability to deliver Ads under this Agreement without
providing at least [*] prior written notice thereof to Google (it being
agreed that Customer will exercise reasonable and good faith judgment in
considering whether such change is likely to have an adverse impact on
Google's ability to deliver Ads under this Agreement). In any event, if
Customer makes a change without providing such notice and such change
adversely impacts Google, Customer will take such action as is required to
cure such impact within [*]. Customer shall not hinder or obstruct in any
way the display of the full text of the Ad Unit as provided by Google
(including without limitation through the use of pop-ups or similar
graphical units) or
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[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
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otherwise minimize or remove any Ad(s) from display unless approved in
writing in advance by Google [*]. Customer shall ensure that Ad Units
appear only on Web pages that contain content only in the [*] languages.
Google will make the CTAP Service available with respect to additional
languages and domains as and when such additional languages and domains
are made generally commercially available as part of the CTAP to customers
(as evidenced by written notice to Customer from Google, which may include
a public release announcing the launch of such services); provided that
(i) Google is given a reasonable period of time to permit a proper
implementation of such Services on the Sites, Additional Sites and
Co-branded Sites; (ii) the availability of the Service in such additional
languages will be subject to Customer's compliance with any technical
specifications applicable thereto; (iii) Service hereunder in such
additional languages may be terminated by Google to the extent Google
ceases to make such service in such additional languages generally
commercially available to customers; and (iv) for the avoidance of doubt,
only impressions of [*] only pages (in the domains specified in the Order
Form) will count toward satisfying Customers Monthly Minimum Number of
Impressions.
1.2.2 Updates to Technical Requirements. Google may update the Technical
Requirements from time to time by giving Customer written notice thereof;
provided that [*]. If such update is as a result of the release by Google
of a major update or version change to the Google API or the release of a
new API (e.g., [*]), Customer will implement such changes within [*] of
the date Customer is notified of such update; [*]. If such update is a
result of a minor update to an existing version of Google's API (as
opposed to a major change or update), Customer will implement such change
within [*] of receiving written notice thereof. [*]
1.2.3 Ad Unavailability. In the event that an Ad is not available through the
CTAP Services, whether as a result of [*] ("AD UNAVAILABILITY"), Google
will return a response indicating that no Ad is available for such
request, in which case Customer may run its own advertisements. If Google
returns a response indicating that no Ad is available as a result of Ad
Unavailability, such instance will be counted as an "IMPRESSION" for the
purposes of determining whether Customer has satisfied its Monthly Minimum
Number of Impressions.
1.2.4 [*]. Customer understands and agrees that the proper tracking of Ads
delivered under this Agreement requires the strict compliance by it with
the technical requirements provided by Google, including without
limitation, [*]. Customer and Google will work in good faith to optimize
the placement and appearance of Ads delivered hereunder with the objective
of improving the performance of Ads delivered hereunder. Accordingly, upon
request of one of the parties, but no more frequently than one time per
month, the parties will review the performance of the Ads delivered under
this Agreement (including by way of reviewing the placement and
appearance, and associated performance, of Ads on the pages), and will
otherwise consult with a view toward optimizing performance under this
Agreement. [*].
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[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
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1.3 Site Layout; Placements: Attribution: Impression Guarantee.
1.3.1 Site Layouts Ad Placements. Customer shall be entitled to design the look,
feel, appearance, features and functionality of each Web page of the
Sites, Additional Sites and Co-branded Sites in its sole discretion;
provided that, except for the adjustments expressly permitted in Exhibit A
or as otherwise agreed to by Google in writing, the layout and format of
Ads and Ad Units shall conform to the specifications contained in this
Agreement, [*]. In addition, Customer will provide such information about
the placements of Ad Units and modifications thereto on all pages as is
reasonably requested by Google from time to time. Notwithstanding anything
to the contrary, [*].
1.3.2 Attribution. Unless otherwise consented to by the parties in writing in
advance (which consent shall not be unreasonably withheld), Customer
agrees that it shall not [*]. Within each Ad Unit, Customer will indicate
that Ads are "Sponsored Links" or other equivalent designation indicating
that the Ads are compensated linked advertisements, and, subject to
obtaining Google's prior written consent, may indicate with a link that
Ads are provided by Google. Google may revoke any authorization or
approval to use its Brand Features under this Agreement or in the Ad Units
at any time during the Services Term by providing Customer with sufficient
prior written notice to permit Customer to cease such usage in a
reasonable period of time. In addition, Customer may request in certain
instances that Google attribution be included as part of certain Ad Units.
Google agrees to consider such requests in good faith, provided that
Google will reserve the right to agree to or reject such attribution on a
case by case basis in its sole discretion. If applicable law requires the
labeling of advertisements in a manner that is inconsistent with the then
current implementation, the parties will consult in good faith to agree on
the display of Ads in a manner that complies with applicable law.
1.3.3 Prohibited Placements. Customer will not display Ads on the pages listed
in Section 1.4.1(k), subject to the next sentence. [*]. In addition, upon
Google's request, Customer will not display Ads on pages or channels that
yield less than [*] in any calendar month during the Services Term. Google
must exercise its right to prohibit the display of Ad Units as set forth
in the preceding sentence within forty-five (45) days following the end of
any month in which such yield was less than [*]. Exclusivity will not
apply to any pages on which Customer may not display Ads pursuant to this
Section 1.3.3.
1.3.4 Minimum Impression Guarantee. Subject to Customer's right to cure set
forth below, Customer agrees to serve no less than the Monthly Minimum
Number of impressions (as defined below) in each calendar month during the
Services Term commencing in the first full calendar month occurring after
the Launch [*]. The "MONTHLY MINIMUM NUMBER OF IMPRESSIONS" is equal to
[*] Impressions; provided that [*]. Notwithstanding the foregoing, Google
shall not be permitted to terminate this Agreement or to receive any make
good impressions with respect to any month in the event that either (i)
Customer would have delivered the Monthly Minimum Number of Impressions in
any given month but for Google's election not to provide Ad Units pursuant
to the fourth sentence of Section 1.3.3; or (ii) Customer shall fail to
deliver the Monthly Minimum Number of Impressions due to Google's breach
of the terms and conditions set forth in Exhibit C.
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[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
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1.4 Prohibited Actions.
1.4.1 General. Customer shall not, and shall not allow any third party that is
an affiliate or agent of Customer, [*] (a "RELATED THIRD PARTY"), and
shall not authorize any other third party to: (a) edit, modify, filter or
change the order of the information contained in any Ad Units) without
Google's prior written consent, or include any content other than Google
provided Ads in any Ad Units; (b) [*]; (c) [*]; (d) [*]; (f) [*]; (g) [*];
(h) generate, directly or indirectly, Impressions of or clicks on any
Ad(s) through any automated or otherwise fraudulent means, including by
not limited to using robots, macro programs. Internet agents or other
automated query tools and/or computer generated requests; (i) encourage or
require End Users, either with or without their knowledge, to click on any
Ads [*] or any other means that are manipulative, deceptive, malicious or
fraudulent (subject to Section 1.4.2 below); (j) [*] (each of the
foregoing in subsections (h), (i) and (j) a "FRAUDULENT ACT"); or (k)
display any Ad(s) on any [*] or any Web site related to pornography,
gambling, firearms, tobacco or alcohol or as otherwise specified in
writing by Google. Further, no Site, Additional Site or Co-branded Site
shall contain any pornographic, hate-related or violent content or contain
any other material, products or services that (i) violate or encourage
conduct that would violate any criminal laws, any other applicable laws,
or any third party rights; or (ii) would otherwise give rise to civil
liability, except in each case for content provided by Google, content
contained in search results or content provided by End Users in bulletin
boards and chat forums.
1.4.2 [*]
1.4.3 Downloadable Applications. Customer agrees that any and all uses of any
Downloadable Application (as defined below) produced by Customer or
branded with the branding of a Site, Additional Site or Co-branded Site
shall comply with the following: (u) [*], (v) [*], (w) [*], (x) [*], (y)
[*]; and (z) [*]. In addition, Google may update these requirements as
such requirements are updated generally for customers from time to time,
[*]. A "DOWNLOADABLE APPLICATION" shall be defined as [*].
1.4.4 Third Party Malicious Acts. If any third party that is not a Related Third
Party engages in any malicious act that would constitute or result in a
breach of this Section 1.4 had such act been undertaken by Customer or a
Related Third Party, Customer will use its best efforts to cure any such
violation as soon as possible, and Google will consult with Customer in an
effort to identify a suitable cure. If, notwithstanding its efforts,
Customer is unable to cure such violation and such violation will
materially and adversely affect Google's business or operations, Google
reserves the right to suspend the Services until such time as the
violation has been cured. If the violation cannot be cured within [*] days
after such suspension, Google will reserve the right to terminate this
Agreement, provided that this termination right will expire with respect
to any violation if such violation has been cured prior to the exercise of
this termination right.
1.5 Support. In consideration of Customer's fulfillment of its obligations set
forth under the Agreement, Google shall provide technical support services
to Customer during the applicable Services Term in accordance with
Google's then current support guidelines [*]. Prior to making any support
request to Google, Customer shall first use reasonable
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[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
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efforts to fix any error, bug, malfunction or network connectivity defect
on its own without any escalation to Google. Customer shall provide
customer support services to End Users at its own expense.
1.6 Service Level Agreement. The parties agree to the service level provisions
set forth in Exhibit C attached hereto and made part hereof.
1.7 Exclusivity.
1.7.1 Exclusivity. "CONTENT TARGETED AD SERVICE" is defined [*]. Subject to
Section 1.7.2, Customer agrees that during the Services Term: (a) Google
will be the exclusive, worldwide provider of Content Targeted Ad Services
to the Sites, Additional Sites and Co-branded Sites (and any additional
and successor sites thereto, as permitted hereunder), (b) Customer shall
not implement, or display ads from, a Content Targeted Ad Service operated
or owned in whole or in part by it or any of its affiliates (including
owned or operated by way of merger, acquisition or consolidation) on any
Site, Additional Site or Co-branded Site (and any additional and successor
sites thereto, as permitted hereunder); and (c) Customer shall not
implement or display on any Site, Additional Site or Co-branded Site any
advertisements from a Content Targeted Ad Service provided by a third
party (other than Google), including without limitation the third parties
listed on Exhibit D attached hereto and made part hereof ("EXCLUSIVITY").
1.7.2 Exclusions. The Exclusivity obligation set forth in Section 1.7.1 shall
not apply in the following circumstances:
(a) Direct Sales to Advertisers using Internal Content Targeted Ad
Service. Notwithstanding anything to the contrary, Customer may
launch its own Content Target Ad Service on the Sites at any time
after the last day of the month in which the [*] anniversary of the
launch of Services under this Agreement occurs, subject to and
contingent on the following provisions:
1) Notice. Customer must provide Google with not less than [*]
advance written notice of its intention to launch such
Customer Content Targeted Ad Service on any Site, Additional
Site or Co-branded Site.
2) Customer Solution. Any Content Targeted Ad Service launched on
a Site, Additional Site or Co-branded Site pursuant to this
subsection (a) must be majority-owned and operated, directly
or indirectly, by Customer at all times during the Services
Term. Customers Content Targeted Ad Service may not sell,
resell, distribute, syndicate, subsyndicate or broker
advertisements obtained, directly or indirectly, from any
third-party ad network, and Customer may not enter into any
agreement intended to frustrate the objective of this
paragraph.
3) Increase of Monthly Minimum Number of Impressions. In any
month in which Customer launches a Content Targeted Ad Service
on any Site, Additional Site or Co-branded Site, and
thereafter during the entirety of
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[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
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the Services Term, the Monthly Minimum Number of Impressions
will be increased to [*] Impressions, subject to the proviso
of subsection 4a. below; [*].
4) Customer Network Solution. In addition to the foregoing, if
the Content Targeted Ad Service that Customer launches on the
Sites, Additional Sites or Co-branded Sites serves ads on such
Sites, Additional Sites or Co-branded Sites which have been
sold generally to appear generally on the Sites, Additional
Sites or Co-branded Sites and any other property(ies) in
addition to the Sites, Additional Sites or Co-branded sites,
then the following provisions will apply:
a. [*]
b. Google may, in its discretion and upon written notice to
Customer, terminate this Agreement; provided that Google
must exercise this right within [*] days of the launch
of Customer's Content Targeted Ad Service.
5) Data. Upon request, Customer will furnish Google with such
data and supporting documentation as Google may reasonably
request from time to time to verify Customer's compliance with
this Section 1.7.2(a).
(b) URLs Not Controlled by Customer. Exclusivity shall not apply to
domains owned and controlled by unaffiliated partners of Customer to
which a Site, Additional Site or Co-branded Site links,
notwithstanding that the page to which the Site, Additional Site or
Co-branded Site links displays Customer's brand.
(c) Rejected Additional Sites and Co-branded Sites. Exclusivity shall
not apply to proposed Additional Sites and proposed Co-branded Sites
that Google rejects pursuant to Sections 1.1.1 and 1.1.2.
(d) Unapproved Websites. Exclusivity shall not apply to Web pages on
which Customer is prohibited from displaying Ads pursuant to Section
1.3.3.
(e) [*]
1.7.3 Third-Party Ad Networks. Customer covenants and agrees that to the extent
it sells ad inventory to third party ad networks, it will include in any
such contract prohibitions on the serving of any advertisements based on
the subject matter of the pages to which such ads are to be served. If,
notwithstanding these provisions, a third party network serves one or more
ads based on the subject matter of the Web pages on which such ads are
served, Customer will be permitted [*] to cure such violation prior to it
being considered a breach under this Agreement; provided this special cure
provision is conditioned on Customer providing Google with prompt written
notice of such violation (together with such detail as is reasonably
requested by Google). Customer will monitor ads served by such third party
networks and will exercise all available rights under its applicable
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[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
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agreements to ensure compliance with the prohibitions described in the
first sentence of this Section.
1.7.4 Google Non-exclusivity. Notwithstanding anything to the contrary contained
in this Agreement, Google will provide the Services on a nonexclusive
basis to Customer, such that Google shall have the right at all times to
provide its services without restriction to third parties.
1.8 Additional Services. In the event that Google makes additional services
(including services provided by companies that have been acquired by
Google) generally commercially available to third parties separately from
then-existing services during the Term then Google shall make such
additional services available to Customer subject to Customer's request
and subject to mutual agreement by the parties in writing on the terms and
conditions under which Google shall make such additional services
available. Notwithstanding anything to the contrary, Google shall not be
obligated to make (or continue to make) such additional services available
to Customer if Google ceases to make such services generally commercially
available to third parties or if the parties do not agree to terms and
conditions for such additional services, as evidenced by a written
instrument signed by the parties.
1.9 Site Modification. In the event that Customer modifies a Site, Additional
Site or Co-branded Site in a manner that effectively changes the
fundamental concept or any line of business of such Site, Additional Site
or Co-branded Site and that modification results in an adverse impact on
Google (including without limitation (for the purposes of illustration
only) a modification that converts a Site, Additional Site or Co-branded
Site, as the case may be, into one that provides sexually explicit content
or services), then, at Google's request, Google and Customer shall work in
good faith to remove the Service from the Site, Additional Site or
Co-branded Site [*]. In the event that Google elects to exercise its
rights hereunder, the Exclusivity shall no longer apply to such Site,
Additional Site or Co-branded Site.
1.10 [*]. Google shall use commercially reasonable efforts to [*] under this
Agreement [*]. Customer may [*]; provided that, in addition to the [*] on
the GSA Effective Date, in no event will [*] without obtaining Google's
prior written consent, which consent will not be unreasonably withheld.
Notwithstanding anything to the contrary, Customer may [*] which Customer
reasonably believes are [*] to the [*] of Customer.
2. Ownership; License Grants.
2.1 Google Rights. Google shall own all right, title and interest, including
without limitation all Intellectual Property Rights (as defined below),
relating to the Services (and any derivative works or enhancements
thereof), including but not limited to, all software, technology,
materials, guidelines, documentation, and any Google Brand Features (as
defined below), some, but not all, examples of which may be found at [*]
(or such other URL as Google may provide from time to time) ("TRADEMARK
GUIDELINES"). Customer shall not acquire any right, title, or interest
therein, except for the limited use rights expressly set forth in the
Agreement. Any rights not expressly granted herein are deemed
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[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
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withheld. Customer shall not, and shall not allow any third party to: (i)
modify, adapt, translate, prepare derivative works from, decompile,
reverse engineer, disassemble or otherwise attempt to derive source code
from Google's technology, any Google Brand Features, or any Google
software, materials, and documentation; (ii) remove, obscure, or alter
Google's copyright notice, trademarks or other proprietary rights notices
affixed to or provided as a part of any Services, software, materials or
documentation; (iii) crawl, index or [*] information obtained from the
Services; (iv) except as expressly permitted under this Agreement with
respect to Co-branded Sites under Section 1.1.2, transfer, sell, lease,
lend, disclose, or use for co-branding, timesharing or service bureau
purposes any Services or access to any services; (v) directly or
indirectly access, launch and/or activate the Services through or from any
software application or means other than a Site, Additional Site or
Co-branded Site; or (vi) engage in any action or practice with respect to
the Services that disparages or devalues Google or the Google Brand
Features.
Customer shall also be responsible for monitoring and disabling any and
all access to and/or use of any Services or other Google technology not
expressly permitted by Google as part of a Site, Additional Site or
Co-branded Site (including, but not limited to, access by spammers or any
sites not approved by Google in writing). In the event of any such
unauthorized access to and/or use of any Services or other Google
technology, Customer shall be legally and financially responsible to
Google for any access and/or use thereof.
Google may send a de minimus number of uncompensated test advertisements
to the Site, Additional Site or Co-branded Site at any time to verify
Customer's compliance with any requirements contained in the Agreement.
For purposes of the Agreement, "INTELLECTUAL PROPERTY RIGHTS" means any
and all rights existing from time to time under patent law, copyright law,
semiconductor chip protection law, moral rights law, trade secret law,
trademark law, unfair competition law, publicity rights law, privacy
rights law, and any and all other proprietary rights, as well as, any and
all applications, renewals, extensions, restorations and reinstatements
thereof, now or hereafter in force and effect worldwide. For purposes of
the Agreement, "BRAND FEATURES" means the trade names, trademarks, service
marks, logos, and other distinctive brand features of each party,
respectively, as secured by such party from time to time.
2.2 Customer Rights. Customer and/or its partners, and/or their respective
third party licensors own all Intellectual Property Rights in and to any
editorial, text, graphic, audiovisual, and other content that is served to
End Users of each Site, Additional Site and Co-branded Site and that is
not provided by Google or its licensors ("CONTENT"). Google shall not
acquire any right, title or interest in or to such Content, except as
provided herein.
2.3 License Grants; Brand Features. Customer grants to Google a nonexclusive
and nonsublicensable license during the Services Term to include Customers
name, logo and screenshots in presentations, marketing materials, customer
lists, and Web site listings of customers, provided that any use which
lists Customer other than in a general list of Customers shall be subject
to the prior written approval of Customer. Each party will submit all
materials of any kind containing the other party's Brand Features (other
than in customer lists) to the other party for approval prior to release
to the public. Furthermore,
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[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
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to the extent Google grants Customer a license to use any of its Brand
Features during the Services Term (as evidenced by a written instrument
signed by Google), Customer agrees to adhere to Google's then current
Trademark Guidelines. Except as set forth in this Section, nothing in this
Agreement shall be deemed to grant to one party any right, title or
interest in or to the other party's Brand Features. All use by Google of
Customer Brand Features (including any goodwill associated therewith)
shall inure to the benefit of Customer and all use by Customer of Google
Brand Features (including any goodwill associated therewith) shall inure
to the benefit of Google. At no time shall one party challenge or assist
others to challenge the Brand Features of the other party (except to the
extent this restriction is prohibited by applicable law) or the
registration thereof by the other party, nor shall either party use or
attempt to register directly or indirectly (including through third
parties) any Brand Features or domain names that are confusingly similar
to those of the other party.
2.4 Data. Google owns all right, title, and interest in and to all information
and data it collects and receives, including but not limited to all data
collected in connection with the CTAP and AdWords Programs. Customer owns
all right, title, and interest in and to all information and data
collected by Customer on the Sites, Additional Sites and Co-branded Sites.
Google and Customer will jointly own all right, title and interest in and
to the information with respect to the Sites, Additional Sites and
Co-branded Sites contained in the reports referred to below.
2.5 Reports. Google will provide Customer with the online reports listed in
Exhibit F attached hereto and made part hereof.
3 Payment.
3.1 Fees. The fees and payment terms for the Services shall be set forth in
the Order Form.
3.2 Taxes and Other Charges. Customer and Google agree that all sums, fees and
payments expressed to be payable by Google to Customer under this
Agreement are exclusive of value added taxes ("VAT"). In the event that
any VAT is payable, Google shall pay Customer the amount of the VAT
forthwith on delivery by Customer of a proper VAT invoice and Customer's
VAT Identification numbers. With respect to any other taxes that may be
applicable to this Agreement, all payments under the Agreement are
exclusive of taxes imposed by any governmental entity. Customer shall pay
any applicable taxes, including sales, use, personal property,
value-added, excise, customs fees, import duties or stamp duties or other
taxes and duties imposed by governmental agencies of whatever kind and
imposed with respect to the transactions for Services provided by Google
under the Agreement. Including penalties and interest, but, except for
withholding taxes, specifically excluding taxes based upon Google's net
income. When Google has the legal obligation to collect any applicable
taxes, the appropriate amount shall be invoiced to and paid by Customer
"net thirty (30) days" from the date of invoice or other notification.
Customer shall promptly provide to Google (i) original or certified copies
of all tax payments or other sufficient evidence of tax payments at the
time such payments are made by Customer pursuant to the Agreement; or (ii)
a valid
SF1:555061.2
[*] 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.
10
certificate of Customer's exemption from obligation to pay such taxes as
authorized by the appropriate taxing authority.
4. Warranties and Disclaimer. Each party represents and warrants that it has
full power and authority to enter into the Agreement and that the
execution of this Agreement by such party, and the performance by such
party of its obligations and duties hereunder, do not and will not violate
any agreement to which such party is a party or by which it is otherwise
bound. Customer represents and warrants that it shall use information
provided by Google (including without limitation Ad Units) in a manner
that complies with applicable laws. Google does not warrant that the
Services will meet all of Customer's requirements or that performance of
the Services will be uninterrupted, virus-free, secure or error-free.
Except as expressly provided for herein, NEITHER PARTY MAKES ANY OTHER
WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE,
INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR USE AND NONINFRINGEMENT.
5. Indemnification. Google will indemnify, defend and hold harmless Customer
and its affiliates and their respective officers, directors, employees and
agents from and against any and all damages, judgments, losses, costs and
expenses (including reasonable fees of counsel) arising out of (x) any
third party lawsuit or proceeding brought against Customer based upon a
claim that the Services or any Google Brand Feature infringes any
copyright, trade secret, [*] of such third party, or (y) any third party
(other than a Related Third Party) lawsuit or proceeding brought against
Customer as a result of a breach of this Agreement by Google.
Notwithstanding the foregoing, in no event shall Google have any
obligations or liability under this Section 5 arising from: (i) use of the
Services or Google Brand Features in a modified form or in combination
with materials not furnished by Google, (ii) any content, information or
data provided to Google by Customer, End Users or any other third parties,
and (iv) any Ads or third party websites to which Ads may link. Google, in
its sole and reasonable discretion, reserves the right to terminate
Customer's continued use of any Services or Google Brand Features that are
alleged or believed by Google to infringe. Customer will indemnify, defend
and hold harmless Google and its affiliates and their respective officers,
directors, employees and agents from and against any and all damages,
judgments, losses, costs and expenses (including reasonable fees of
counsel) arising out of any third party lawsuit or proceeding brought
against Google based upon: (a) a claim that the Content, Sites, Additional
Sites, Co-branded Sites and/or Customer Brand Features or any co-branding
partner's Brand Features infringe any copyright, trade secret, [*] of such
third party; and/or (b) Customer's or any of Customer's third party
counterparty's (including, without limitation, third parties with
Co-branded Sites), or any of the Sites', Additional Sites' or Co-branded
Sites', use of the Services in any manner in breach of the Agreement.
Indemnification shall be provided for any claim covered under this Section
6 and shall be limited to (i) payment by the indemnifying party
("INDEMNITOR") of all damages and costs finally awarded for such claim, or
(ii) settlement costs approved in writing by the Indemnitor. The foregoing
obligations shall exist only if the party seeking indemnification
("INDEMNITEE"): (i) promptly notifies the Indemnitor of such claim, (ii)
SF1:555061.2
[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
11
provides the Indemnitor with reasonable information, assistance and
cooperation in defending the lawsuit or proceeding, and (iii) gives the
Indemnitor full control and sole authority over the defense and settlement
of such claim; provided that the Indemnitor may not, without the
Indemnitee's prior written consent, acquiesce to any judgment or enter
into any settlement that adversely affects the rights and interests of the
Indemnitee or imposes any restriction on the Indemnitee's ability to
operate its business (except for any limitations or adverse effects that
may be imposed on the Services as a result of the claim giving rise to
indemnification). The Indemnitee may join in defense with counsel of its
choice at its own expense. The Indemnitor shall only reimburse the
Indemnitee for expenses incurred by the Indemnitee with the Indemnitor's
prior written approval. THE FOREGOING STATES THE PARTIES' ENTIRE LIABILITY
AND EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT OF A THIRD PARTY'S
INTELLECTUAL PROPERTY RIGHTS AS SET FORTH ABOVE.
6. Limitation of Liability. [*], NEITHER PARTY WILL BE LIABLE FOR ANY
INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE
DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST DATA, OR LOST
REVENUE, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING BUT
NOT LIMITED TO CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT
LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT SUCH PARTY WAS OR SHOULD
HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND
NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY
STATED HEREIN. For the avoidance of doubt, the preceding sentence will not
operate to limit direct damages (including, without limitation, lost
profits under this Agreement, and costs of procurement of substitute
services under this Agreement) either party would be entitled to under
this Agreement, subject in any case to the aggrieved party's obligation to
mitigate. [*], IN NO EVENT SHALL GOOGLE'S TOTAL AGGREGATE LIABILITY FOR
ALL CLAIMS ARISING OUT OF THE AGREEMENT EXCEED THE NET AMOUNT (MINUS ALL
DEDUCTIONS, REVENUE SHARING AND OTHER OFFSETS PROVIDED FOR UNDER THE
AGREEMENT) GOOGLE HAS ACTUALLY RECEIVED AND RECOGNIZED FOR THE SERVICES
GIVING RISE TO SUCH CLAIM DURING THE [*] IMMEDIATELY PRECEDING THE DATE OF
THE APPLICABLE CLAIM. In the event of a claim occurring in the first [*]
of this Agreement, the limitation of liability provided in the immediately
preceding sentence will be equal to [*] (minus all deductions, revenue
sharing and other offsets provided for under the Agreement) Google has
actually received for the Services giving rise to such claim under this
Agreement since the beginning of the Term to the date of the applicable
claim. [*], IN NO EVENT SHALL CUSTOMER'S TOTAL AGGREGATE LIABILITY FOR ALL
CLAIMS ARISING OUT OF THE AGREEMENT EXCEED THE NET AMOUNT CUSTOMER HAS
ACTUALLY RECEIVED OR WOULD OTHERWISE BE DUE UNDER THE AGREEMENT DURING THE
[*] IMMEDIATELY PRECEDING THE DATE OF THE APPLICABLE CLAIM. In the event
of a claim occurring in the first [*] of this Agreement, the limitation of
liability provided in the immediately preceding sentence will be equal to
[*] Customer has actually received or would otherwise be due under this
SF1:555061.2
[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
12
Agreement since the beginning of the Term to the date of the applicable
claim. The parties agree that (i) the mutual agreements made in this
Section reflect a reasonable allocation or risk, and (ii) that each party
would not enter into the Agreement without these limitations on liability.
7. Confidentiality. Use and disclosure of confidential and/or proprietary
information disclosed hereunder, including without limitation the content
of the Agreement and any information provided pursuant to the Agreement or
in connection with a request for approval of any Additional Site or new
layout, shall be governed by the terms of the Google Mutual Non-Disclosure
Agreement, attached hereto as Exhibit G (the "NDA"). The terms of the NDA
are hereby incorporated by reference into this GSA.
8. Term and Termination.
8.1 Term. The term of an Order Form under which Services may be used by
Customer shall commence on the applicable Order Form Effective Date
(except as otherwise specified in 8.2.3 such Order Form) and shall
continue for the period of time set forth on such Order Form ("SERVICES
TERM"), unless earlier terminated as provided herein.
8.2 Termination.
8.2.1 General. Either party may suspend performance and/or terminate the
Agreement, in whole or in part: (a) if the other party materially breaches
any material term or condition of the Agreement and fails to cure such
breach within thirty (30) days after receiving written notice thereof: or
(b) if the other party becomes insolvent or makes any assignment for the
benefit of creditors or similar transfer evidencing insolvency, or suffers
or permits the commencement of any form of insolvency or receivership
proceeding, or has any petition under bankruptcy law filed against it,
which petition is not dismissed within sixty (60) days of such filing, or
has a trustee, administrator or receiver appointed for its business or
assets or any part thereof. [*].
8.2.2 Google Termination Rights. Notwithstanding the foregoing, in addition to
the termination rights granted above, Google may terminate the Agreement,
in whole or in part:
(i) if Customer breaches any provision of Section 1.4 (Prohibited
Actions), Section 2.1 (Google Rights) (other than subsections (i)
and (iii) of the fourth sentence thereof, which are addressed below,
or subsection (vi) of the fourth sentence thereof, which is
addressed in Section 8.2.1(a)), or Section 2.3 (License Grants;
Brand Features), and fails to cure such breach within [*] after
receiving written notice thereof ([*]);
(ii) immediately upon written notice, if (A) Customer breaches subsection
(i) or (iii) of the fourth sentence of Section 2.1 (Google Rights)
or any provision of Section 7 (Confidentiality); (B) Customer has
materially breached the Agreement [*] during the Services Term, in
each case notwithstanding any cure of such breaches [*]; (C)
Customer fails to deliver the Monthly Minimum Number of
SF1:555061.2
[*] 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.
13
Impressions in any calendar month and fails to cure such Shortfall
as permitted by Section 1.3.4; (D) Google reasonably determines that
it is impracticable to continue providing the Services in light of
applicable laws; and
(iii) as expressly permitted in Section 1.7.2(a)(4)b and/or the last
sentence of Section 1.4.4.
8.2.3 Termination for Change of Control.
(a) Prohibited Entity. In the event of a Change of Control involving
Customer to a Prohibited Entity (as defined below), Google shall
have the right, upon written notice delivered to Customer (or its
successor), to terminate this Agreement, effective as of the [*] day
following the consummation of the closing of such Change of Control.
Such notice shall be delivered by Google not more than [*] following
Google's receipt of written notice from Customer that Customer has
entered into a definitive agreement involving a Change of Control.
(b) Competitor. In addition, in the event of a Change of Control
involving Customer to [*], or any of their respective successors or
assigns, or any entities which control, are controlled by or under
common control with the foregoing, either party shall have the right
to terminate this Agreement, effective as of the consummation of
such a transaction provided that (i) in the case of Customer's
exercise of this termination right, Customer delivers to Google
written notice not more than [*] following the date Customer enters
into a definitive agreement contemplating a Change of Control giving
rise to this right, and (ii) in the case of Google's exercise of
this termination right, Google delivers to Customer written notice
not more than [*] following its receipt of written notice from
Customer that Customer has entered into a definitive agreement
contemplating a Change of Control giving rise to this right.
(c) Notice. Customer agrees to provide written notice of a Change of
Control in a timely manner and, upon request, any information that
Google reasonably requires to evaluate the Change of Control
transaction, including its acquirer, subject to applicable
confidentiality or contractual obligations. Customer also agrees to
notify Google of the actual closing date of a Change of Control
transaction no less than [*] prior thereto. For the avoidance of
doubt, under no circumstances shall a termination right exercised
hereunder be effective if the applicable Change of Control
transaction is not consummated. Customer will provide Google notice
in the event a Change of Control transaction is terminated.
(d) Definitions. "CHANGE OF CONTROL" with respect to a party means (i)
the direct or indirect acquisition, whether in one or a series of
transactions, by any person or related persons constituting a group,
of (A) beneficial ownership of issued and outstanding shares of
stock of such party, the result of which is that such person or such
group possesses in excess of fifty percent (50%) of the combined
voting power of all then-issued and outstanding stock of such party,
or (B) the power to elect, appoint, or cause the election or
appointment of at least a majority of the
SF1:555061.2
[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
14
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.
Notwithstanding anything to the contrary, the initial public
offering of either party will not be deemed to be a Change of
Control. "PROHIBITED ENTITY" shall mean [*].
8.2.4 Confidentiality. For the avoidance of doubt, each party reaffirms to the
other its agreement not to disclose to any potential acquiror any
Confidential Information of the other party (including in the case of
Google Confidential Information, any Google metrics, protocols or
guidelines).
8.3 Rights/Actions Upon Termination. Upon the expiration or termination of the
Agreement for any reason: (i) all rights and licenses granted by Google
shall cease immediately; (ii) each party shall return to the other party,
or destroy and certify the destruction of, all Confidential Information of
the other party; and (iii) Customer will promptly remove from the Site,
Additional Site or Co-branded Site any and all Google Brand Features to
the extent Google granted Customer the right to display any such Brand
Features during the Services Term. In addition, if this Agreement is
terminated (a) by Customer pursuant to the last sentence of Section 8.2.1,
or (b) by Google pursuant to Section 8.2.1, Section 8.2.2(i) or Section
8.2.2(ii) (other than subsection (D) thereof), then [*].
8.4 Effect of Termination. The termination or expiration of an individual
Order Form shall not have the effect of terminating any other individual
Order Form or this GSA unless expressly agreed to by the parties in
writing. If an Order Form (but not this GSA) terminates or if the Services
Term set forth in an Order Form expires, all rights and licenses granted
by Google relating to the applicable Services and all other rights and
licenses granted by Google to Customer as set forth in such Order Form, if
any, shall cease immediately. Termination of all Order Forms hereunder
shall result in the expiration of this GSA. Termination or expiration of
this Agreement, in part or in whole, shall not limit either party from
pursuing other remedies available to it.
8.5 Miscellaneous. Each party shall comply with all applicable laws, rules and
regulations, if any, required in performing its obligations under the
Agreement. All notices shall be in English and in writing and (a) if sent
to Customer to the address identified on the Order Form and (b) if sent to
Google to such address as provided at
SF1:555061.2
[*] 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.
15
βββ.ββββββ.βββ/βββββββββ/βββββββ.ββββ or as otherwise provided in writing
for such notice purposes; provided, however, that all invoices and
payments shall be sent to the attention of Google Finance, all legal
notices shall be sent to the attention of the Google Legal Department, and
all other correspondence shall be sent to the attention of the account
manager specified by Google. Notice shall be deemed given (i) upon receipt
when delivered personally, (ii) upon written verification of receipt from
overnight courier, (iii) upon verification of receipt of registered or
certified mail or (iv) upon verification of receipt via facsimile,
provided that such notice is also sent simultaneously via first class
mail. Neither party may assign its rights or delegate its obligations
under this Agreement by operation of law or otherwise without the other
party's prior written consent, provided however that either party may
assign its rights or delegate its obligations under this Agreement without
the consent of the other party in connection with a Change of Control, so
long as the surviving entity or purchaser in such Change of Control
transaction expressly assumes in writing the performance of all of the
terms of this Agreement. In addition, Google may assign its rights under
this Agreement in connection with a change in domicile without obtaining
any consent hereunder. The Agreement is not intended to benefit, nor shall
it be deemed to give rise to, any rights in any third party. Either party
may seek equitable relief, including temporary restraining orders or
injunctions, in addition to all other remedies, for breach or threatened
breach of Section 1.7 (Exclusivity), Section 2 (Ownership; License Grant)
or Section 7 (Confidentiality). Before a party initiates legal action
against the other arising from the Agreement (except to seek injunctive or
equitable relief or to otherwise protect its Intellectual Property
Rights), the Parties shall first make good faith and reasonable efforts to
resolve the matter within four (4) weeks of the date of referral. The laws
of California, excluding California's choice of law rules, and applicable
federal U.S. laws shall govern the Agreement. Each party agrees to submit
to the personal and exclusive jurisdiction of the courts located in Santa
βββββ County, California. The parties specifically exclude from
application to the Agreement the United Nations Convention on Contracts
for the International Sale of Goods and the Uniform Computer Information
Transactions Act. The parties hereto are and shall remain independent
contractors and nothing herein shall be deemed to create any agency,
partnership, or joint venture relationship between the parties. Neither
party shall be deemed to be an employee, agent, partner or legal
representative of the other nor shall either party have any right or
authority to make any representation or create any obligation on behalf of
the other party. Neither party shall be liable for failing or delaying
performance of its obligations (except for the payment of money) resulting
from any condition beyond its reasonable control, including but not
limited to, governmental action, acts of terrorism, earthquake, fire,
flood or other acts of God, labor conditions, power failures, and Internet
disturbances. The failure to require performance of any provision shall
not affect a party's right to require performance at any time thereafter;
nor shall waiver of a breach of any provision constitute a waiver of the
provision itself. If any provision is adjudged by a court of competent
jurisdiction to be unenforceable, invalid or otherwise contrary to law,
such provision shall be interpreted so as to best accomplish its intended
objectives and the remaining provisions shall remain in full force and
effect. In the event of any termination or expiration of the Agreement,
Sections 2.1, 2.2, 2.4, 3.2, 5, 6, 7 (including the NDA), 8.3, 8.4, 9 and
10 shall survive termination. Neither party shall be liable to the other
for damages resulting solely from
SF1:555061.2
[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
16
termination as provided for under the Agreement. This GSA and related
Order Form(s) (including any exhibits thereto), and any terms located at
Google URLs referenced pursuant to the Agreement (which are incorporated
herein by reference), constitute the entire agreement with respect to the
subject matter hereof, and any terms contained in any related purchase
orders) or other documents pertaining to the subject matter of the
Agreement shall be null and void. The Agreement supersedes any other prior
or collateral agreements, whether oral or written, with respect to the
subject matter hereof. Any amendments or addenda to the Agreement must (i)
be in writing; (ii) refer to the Agreement; and (iii) be executed by an
authorized representative of each party. Any changes to the Agreement not
approved in writing by the Google Legal Department shall not be binding on
Google. The Agreement shall be construed as if both parties jointly wrote
and prepared it. The Agreement may be executed in counterparts, including
facsimile counterparts. In the event of conflict between the terms and
conditions under this GSA and any Order Form, the Order Form shall govern
with respect to such conflict. In the event of conflicting Order Forms,
any subsequent Order Form shall take precedence over any prior conflicting
Order Form.
10. Parent Guarantee. Bulldog Holdings, Inc. hereby guarantees the performance
of Customer under this Agreement and will cause its affiliates to comply
with the terms of this Agreement applicable to Customer, including,
without limitation, the provisions of Sections 1.1.1, 1.1.2 and 1.7.
IN WITNESS WHEREOF, the parties have executed this GSA by persons duly
authorized as of the GSA Effective Date, which shall be the last date written
below.
GOOGLE: GOOGLE INC. CUSTOMER: FOCUS INTERACTIVE, INC.
By: /s/ ββββ ββββββ By: /s/ ββββ βββββ
-------------------------------- ----------------------------------
Print Name: ββββ ββββββ Print Name: ββββ βββββ
Title: VP Search Services Title: EVP & GC
Date: September 18, 2003 Date: September 18, 2003
PARENT: BULLDOG HOLDINGS, INC. AS TO SECTION 10
By: /s/ ββββ βββββ
--------------------------------
Print Name: ββββ βββββ
SF1:555061.2
[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
17
Title: Secretary
Date: September 18, 2003
SF1:555061.2
[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
18
EXHIBIT A
[*] OF AD UNITS
Exhibit A (consisting of two succeeding pages, [*]) sets forth the [*] of Ad
Units, as well as, subject to the next sentence, the [*] in each Ad Unit.
Notwithstanding the foregoing, Google agrees that for Ad Unit [*], Customer may
request [*] and [*] and that Customer may [*], including without limitation [*]
remains as is [*] and (ii) Customer [*]. Customer may [*] of this Agreement.
The table below sets forth the [*], subject to Customer's ability to [*] as set
forth in the paragraph above. [*]
[*] [*]
-------- ----------
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
Notwithstanding anything to the contrary, the Ad Unit [*] is [*].
SF1:555061.2
[*] 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.
[IMAGE]
SF1:555061.2
[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
EXHIBIT B
APPROVED [*] IMPLEMENTATION
Customer will cause the following text to appear as displayed in a pop-up window
launched from a "Sponsored Listings" link contained in the Ad Units on the [*]
Site. Customer also will include this text in its FAQ for the [*] Site.
[IMAGE]
SF1:555061.2
[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
EXHIBIT C
SERVICE LEVEL AGREEMENT
For purposes of this Service Level Agreement, Google will support a [*] from
Customer ("PROJECTED REQUEST VOLUME"). Customer must provide Google with thirty
(30) days' advance written notice [*]. If Customer's [*] of Projected Request
Volume [*], Google shall have the right to [*] the projected Request Volume [*].
Google also reserves the right to [*]. Customer agrees that it will not [*]
through [*] without providing [*]. If Customer fails to provide [*] in a manner
that will result in a [*], Google reserves the right to [*], if necessary, and
as mutually agreed upon by the parties. So long as Customer [*], Google will
maintain the following performance characteristics:
1. Google will provide [*]. The foregoing [*] will be measured and
monitored from [*]. "[*]" is defined as the [*]. For the avoidance
of doubt, [*] will be considered [*] for purposes of this paragraph.
2. [*] will not [*]. "[*]" is defined as the time period [*] does not
include any time associated with [*].
The [*] and [*] requirements set forth in this Exhibit C shall only apply
provided that (a) [*], and (b) [*].
SF1:555061.2
[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
EXHIBIT D
EXCLUDED PARTIES
[*]
[*]
[*]
[*]
[*]
[*]
or any of their respective successors or assigns, or any entities which control,
are controlled by or under common control with the foregoing
SF1:555061.2
[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
EXHIBIT E
[*]
[*]
SF1:555061.2
[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
EXHIBIT F
REPORTING
Google will provide the following reporting information [*] (it being understood
that statistics for [*] will be included in the reporting for [*]; provided that
Customer properly identifies [*] in accordance with the [*]. It is understood
that [*] will not be available until [*].
[*]
Subject to the balance of this paragraph, the objective of Google's [*]
reporting system is to include data in reports [*]; provided that Customer
understands and agrees that (a) Google cannot guarantee that all data will be
[*] or that the data in reports will be [*], and (b) all [*] reports are subject
to [*]). Accordingly, notwithstanding anything to the contrary, in no event will
Customer have any rights whatsoever, nor will Google be subject to any liability
whatsoever, arising out of this paragraph.
SF1:555061.2
[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
EXHIBIT G
GOOGLE MUTUAL NON-DISCLOSURE AGREEMENT
Google will assist Customer in providing Customer with content-targeted
compensated linked advertisements for display on the Sites, Additional Sites and
Co-branded Sites through the CTAP (the "PURPOSE"). In connection with this, each
party has or may disclose to the other party certain confidential technical and
business information. The parties agree to maintain the confidentiality of such
information, in accordance with the following terms:
1. The Confidential Information disclosed under the Agreement ("CONFIDENTIAL
INFORMATION") includes all information disclosed at any time on or after May 1,
2003 concerning either party's business including, but not limited to, all
tangible, intangible, visual, electronic, present, or future information such
as: (a) trade secrets; (b) financial information, including pricing; (c)
technical information, including research, development, procedures, algorithms,
data, designs, and know-how; (d) business information, including operations,
planning, marketing interests, and products; and (e) the terms of any agreement
and the discussions, negotiations and proposals related to any agreement. The
Agreement also includes Confidential Information acquired during any facilities
tours.
2. The Parties receiving Confidential Information (each, a "RECIPIENT") will
have a duty to protect Confidential information (a) if it is clearly and
conspicuously marked as "confidential" or the equivalent; or (b) if it is
identified by the Discloser as confidential before, during, or promptly after
presentation or communication.
3. A Recipient will use the Confidential Information only for the Purpose
described above. A Recipient will use the same degree of care, but no less than
a reasonable degree of care, as the Recipient uses with respect to its own
similar information to protect the Confidential Information and to prevent (a)
any use of Confidential Information not authorized in this Agreement, (b)
dissemination of Confidential Information to any employee or third party
contractor of Recipient without a need to know, or (c) communication of
Confidential Information to any third party. Furthermore, Confidential
Information may only be disseminated to an employee or third party contractor of
the Recipient if that employee or third party contractor has signed an agreement
with either of the parties containing confidentiality provisions substantially
similar to those herein.
4. Both parties agree not to issue or release any articles, advertising,
publicity or other matter relating to any Confidential Information (including
the fact that a meeting or discussion has taken place between the parties) or
mentioning or implying the name of the other party, except with the advanced
review and written approval of the other party.
5. This Exhibit G imposes no obligation upon a Recipient with respect to
Confidential Information that (a) was known to the Recipient before receipt from
the Discloser, (b) is or becomes publicly available through no fault of the
Recipient; (c) is rightfully received by the Recipient from a third party
without a duty of confidentiality; (d) is independently developed by the
Recipient without a breach of the Agreement: (e) is disclosed by the Recipient
with the
SF1:555061.2
[*] 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.
Discloser's prior written approval: or (f) is required to be disclosed by
operation of the law, provided that the Recipient immediately notifies the
Discloser of the legal obligation and provides the Discloser a reasonable
opportunity to seek a protective order (or the equivalent) from the court or
other legal or governmental authority issuing the process.
6. EACH DISCLOSER WARRANTS THAT IT HAS THE RIGHT TO DISCLOSE ITS CONFIDENTIAL
INFORMATION. NO OTHER WARRANTIES ARE MADE. ALL CONFIDENTIAL INFORMATION
CONTAINED HEREIN IS PROVIDED "AS IS".
7. The terms and conditions of this Exhibit G shall survive with respect to
Confidential Information that is disclosed before the termination or expiration
of the Agreement.
8. Unless the Parties otherwise agree in writing, a Recipient's duty to protect
Confidential Information ceases when the information is no longer confidential,
as set forth in paragraph 5 of this Exhibit G. A Recipient, upon Discloser's
written request, will promptly return all Confidential Information received from
the Discloser, together with all copies, or certify in writing that all such
Confidential Information and copies thereof have been destroyed. Regardless of
whether the Confidential Information is returned or destroyed, the Recipient may
retain an archival copy of the Discloser's Confidential Information in the
possession of outside counsel of its own choosing for use only in the event that
a dispute arises hereunder and only in connection with that dispute.
9. No Party acquires any intellectual property rights under this Exhibit G
(including but not limited to patent, copyright, and trademark rights) except as
set forth in the Agreement.
10. Each Party acknowledges that damages for improper disclosure of Confidential
information may be irreparable; therefore, the injured Party is, entitled to
seek equitable relief, including injunction and preliminary injunction, in
addition to all other remedies.
This Exhibit G does not create any agency or partnership relationship.
SF1:555061.2
[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
27
[GOOGLE LOGO]
GOOGLE INC. GOOGLE SERVICES AGREEMENT GOOGLE SALES REP: [*]
ββββ ββββββββ βββββββ CONTENT-TARGETED ADVERTISING GOOGLE ACCOUNT MGR. [*]
Mountain View, CA PROGRAM GOOGLE SALES DIR: [*]
94043 ORDER FORM GOOGLE LEGAL CONTACT: [*]
Tel: (βββ) βββ-ββββ
Fax: (βββ) βββ-ββββ
CUSTOMER (FULL LEGAL NAME): FOCUS NDA EFFECTIVE DATE: ORDER FORM #1
INTERACTIVE, INC. INCORPORATED IN GSA
CORPORATE CONTACT INFORMATION: BILLING CONTACT INFORMATION: LEGAL NOTICES TO:
ATTENTION: ββββ βββββ βββ ββββββ ββββ βββββ
TITLE: General Counsel, EVP CFO General βββββββ
βββββββ, ββββ, βββββ, βββ ββββββ ββββββ, βββββ ββ One Bridge Street, βββββ ββ βββ ββββββ ββββββ, βββββ ββ
POSTAL CODE, COUNTRY βββββββββ, ββ βββββ βββββββββ, ββ βββββ βββββββββ, ββ βββββ
PHONE: [*] [*] [*]
FAX: [*] [*] [*]
EMAIL: [*] [*] [*]
TECHNICAL CONTACT: [*] [*] [*]
WIRE TRANSFER TO (IF APPLICABLE): D&B DUNS NUMBER: VAT/TAX NUMBER: [*]
ORDER FORM EFFECTIVE DATE: SEPTEMBER 18, ββββ βββ βββββββββ DATE: SEPTEMBER 18, 2003
INITIAL SERVICES TERM: SEE BELOW SITE: [LIST URLS OF APPROVED WEB SITES] SEE BELOW.
CAMPAIGN START DATE: N/A CAMPAIGN END DATE: N/A
CONTENT-TARGETED ADVERTISING PROGRAM (CTAP)
NET AD REVENUE SHARE
PERCENTAGE (%) TO CUSTOMER LAYOUT SPECIFICATION (SEE GSA, INCLUDING EXHIBITS)
APPLICABLE PERCENTAGE
(See Below) AD UNIT SIZE: _____468X60 _____250X250 _____120X600 ___Other: ______
PERCENTAGE OF
EACH AD UNIT
SIZE: % % % %
LOCATION: [ ] Run of Site [ ] Run of Site [ ] Run of Site [ ] Run of Site
[ ] Other: [ ] Other: [ ] Other: [ ] Other:
_______________ _______________ _______________ ________________
COMMENTS: SEE BELOW ABOVE-THE-FOLD: [ ] Yes [ ] No [ ] Yes [ ] No [ ] Yes [ ] No [ ] Yes [ ] No
TO BE COMPLETED BY GOOGLE FINANCE GOOGLE APPROVALS
CURRENCY: [ ] Finance [ ] Legal
Customer PO #: _______ [ ] US Dollar Initials: _____ Iitials: _____ (Required if non-standard)
[ ] Japanese Yen
[ ] Credit Check Complete [ ] Other: Comments:
Google Confidential
OFTCV2.CT 041503
EXECUTION COPY
[*] 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.
GSA ORDER FORM TERMS AND CONDITIONS
1. INCORPORATION OF GOOGLE SERVICES AGREEMENT. This Order Form, including the
terms and conditions hereunder, shall be governed by and incorporates by
reference the Google Services Agreement between Google and Customer with
the GSA Effective Date set forth above ("GSA" and collectively with this
Order Form, the "AGREEMENT"). All capitalized terms used herein have the
meanings stated in the GSA, unless stated otherwise. Customer's signatory
to this Order Form represents and warrants that he or she has the power
and authority to accept and bind Customer to the terms of this Order Form.
2. SERVICES TERM. The term of this Order Form (the "INITIAL SERVICES TERM" or
"SERVICES TERM") shall commence on the Order Form Effective Date and shall
expire on August 31, 2007, unless earlier terminated as provided in the
GSA. This Order Form may only be renewed by a mutual agreement signed by
the parties.
3. FEES AND PAYMENT TERMS.
3.1. GENERAL; DEFINED TERMS. Google's obligation to pay any fees
hereunder shall commence on the date Google's technical personnel
provides its written approval of Customer's GTAP launch
implementation, which shall not be unreasonably withheld or delayed
(such date referred to herein as the "LAUNCH DATE"). [*]. The number
of clicks delivered for Ads provided by Google under this Agreement
as reported by Google shall be the number used in calculating
payments owed to Customer under this Agreement. In addition, for
purposes of this Agreement, the following capitalized terms will
have the meanings given to them below:
"APPLICABLE PERCENTAGE" with respect to any calendar month means
[*].
"IMPRESSION" is defined as: (a) the display of a page on the Site
[*] which communicates with Google's ad serving technology; and (b)
the End User of such a page actually receiving and viewing Qualified
Ads on such page. For the avoidance of doubt, an "Impression" will
include any instance where Google returns a response indicating that
no Ads are available. Notwithstanding anything to the contrary, in
no event will impressions of the prohibited pages listed in Section
1.4.1 (k) be considered an "Impression."
"CTAP NET AD REVENUES" means gross billed ad revenues (subject to
next sentence) from the Google Content-Targeted Advertising Program
attributable Qualifying Ads minus [*] of gross billed ad revenues
(subject to next sentence) from the CTAP for Qualifying Ads for
Deductions (as defined below). Notwithstanding anything to the
contrary, [*].
"QUALIFYING ADS" means Ads delivered under this Agreement on pages
that are properly implemented in accordance with the requirements of
this Agreement, but does not include Non-Qualifying Ads.
SF1:555061.2
[*] 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.
"DEDUCTIONS" includes [*].
3.2. PAYMENTS. For each calendar month during the Service Term after the
Launch Date occurs, Customer shall receive the Applicable Percentage
of CTAP Net Ad Revenues attributable to clicks on Qualifying Ads in
all Impressions on all Web pages on which Customer displays Ad Units
under and in accordance with this Agreement in such month.
3.3. PAYMENT TIMING AND TERMS. Payments required to be made hereunder
with respect to Impressions or Ad Units shall be made by Google by
the last day of the calendar month following the calendar month in
which such Impressions or Ad Units were displayed.
4. SITES; CO-BRANDED SITES; ADDITIONAL SITES. The Sites are: [*]. The
Co-branded Sites and Additional Sites as of the Effective Date are:
[*] (it being understood that such website may be accessed from
certain other [*] subdomains), and the [*] (it being understood that
such website may be accessed from certain other βββββ.βββ
subdomains).
5. PARENT GUARANTEE. Bulldog Holdings, Inc. hereby guarantees the
performance of Customer under this Order Form and will cause its
affiliates to comply with the terms of this Order Form applicable to
Customer.
This Order Form may be executed in counterparts, including facsimile
counterparts. Original copies shall be sent to the following Customer contact
reference identified above (check one):
|_| CORPORATE |_| BILLING |_| LEGAL
GOOGLE: GOOGLE INC. CUSTOMER: FOCUS INTERACTIVE, INC.
By: /s/ ββββ ββββββ By: /s/ ββββ βββββ
------------------------------- -----------------------------------
Print Name: ββββ ββββββ Print Name: ββββ βββββ
Title: VP Search Services Title: EVP & GC
Date: September 18, 2003 Date: September 19, 2003
PARENT: BULLDOG HOLDINGS, INC. AS TO SECTION 5.1 HEREOF
By: /s/ ββββ βββββ
----------------------------
Print Name: ββββ βββββ
SF1:555061.2
[*] 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.
Title: Secretary
Date: September 19, 2003
SF1:555061.2
[*] 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.