Exhibit 10.28
CONFIDENTIAL
TREATMENT REQUESTED UNDER
17 C.F.R. SECTIONS 200.80(b)(4), 200.83 AND 230.24b-2.
[*****] INDICATES OMITTED MATERIAL THAT IS THE
SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST
FILED SEPARATELY WITH THE COMMISSION.
THE OMITTED MATERIAL HAS BEEN FILED
SEPARATELY WITH THE COMMISSION.
Google Products and Services
Agreement
This Google
Products and Services Agreement, including the “ Master
Agreement ” immediately below and all “
Riders ” and Exhibits to the Riders (collectively
referred to as the “ Agreement ”), is entered
into by and between Google Inc., a Delaware corporation (“
Google ”), and Clearwire Communications LLC, a limited
liability company formed under the laws of Delaware (“
Customer ”), and is effective as of November 28,
2008 (“ Effective Date ”).
Table of
Contents :
Master Agreement
Rider A – [*****]
Rider B – Desktop Device – Google Desktop
Applications
Rider C – Desktop Portal and Phone Portal – Google
Hosted Communications Services
Rider D — Desktop Device and Phone Device – Other
Google Hosted Services
Rider E – Desktop Portal – Google Maps
Rider F – Desktop Portal — Google Gadgets
Rider G – Phone Portal and Phone Device – Search,
Advertising and Google Phone Applications
Rider H – [*****]
Rider I – Network Provisions
Rider J – Development and Cooperation
Rider K – Privacy and Data Protection
1. Defined
Terms . The following capitalized terms shall have the meanings
set forth below. Capitalized terms used but not defined in this
Master Agreement shall have the meanings stated in the
Riders.
1.1. “
Beta Features ” are those features of Google’s
products or services which are identified by Google as beta or
unsupported in Google’s then current technical documentation.
Beta Features are provided “as is” and any use thereof
shall be undertaken solely at Customer’s own risk. Google
reserves the right, in its sole discretion, to include or cease
providing Beta Features as part of any products or services at any
time. Beta Features shall be designated as such and use of Beta
Features by Customer shall be optional. Google shall not apply Beta
status to any product or features after such product or features
have been made commercially available on a non-Beta basis under
this Agreement. Google acknowledges and agrees that each of the
Hosted Communication Services (as defined herein) are not deemed to
be Beta Features as a whole; provided, that certain optional
elements of the Hosted Communication Services may be designated as
Beta Features if Customer is otherwise able to offer the Hosted
Communication Services minus such optional elements without causing
a material degradation of the functionality of the Hosted
Communication Services. Notwithstanding the above, Google shall not
implement any Beta Features on the Hosted Communications Services
without Customer’s written approval. Notwithstanding anything
to the contrary, Google agrees to use commercially reasonable
efforts to inform Customer prior to the removal of any Beta
Features which Customer has implemented.
1.2. “
Brand Features ” means the trade names, trademarks,
service marks, logos, domain names, and other distinctive brand
features of each party, respectively, as secured by such party from
time to time.
1.3. “
Customer Content ” means any editorial, text, graphic,
audiovisual, and other content that is provided to Subscribers (or
other end users of Customer’s services or applications) that
is not provided by Google.
1.4. “
Customer Network ” means the high speed 4G wireless
communications network that Customer plans to build in the
Territory.
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1.5. “
Device(s) ” means a device used by a Subscriber to
access the Customer Network. A Device is either a Desktop
Experience Device or a Phone Device. (a) “ Desktop
Experience Device(s) ” (or “ Desktop
Device(s) ”) is not a Phone Device and means fixed and
mobile computing devices (such as WiMAX enabled PCs, mobile
internet devices, and UMPs) that have a browser or a form-factor
that allows Google to deliver an uncompromised Google product,
service and/or advertising experience such that Google chooses to
deliver a Google product, service and/or advertising experience
that is similar to those of desktop and laptop computers. (b)
“ Phone Experience Device(s) ” (or “
Phone Device(s) ”) means devices that have a browser
or a form-factor that constrains the display and/or input of
information such that Google deems it necessary to deliver a Google
interface, content, or application (native or network) that is
similar to those delivered to phone devices with the intent of
delivering a better experience. For the avoidance of doubt, Google
may choose to create client-side applications (including versions
of Google Phone Applications) for, and/or choose to deliver
client-side applications (including Google Phone Applications) to,
devices that have been classified as Desktop Experience Device(s);
provided, however, that doing so will not allow Google to change
the classification of a Device that has previously been classified
as a “Desktop Experience Device” to a Device classified
as a “Phone Experience Device” without Customer’s
consent.
1.6. “
Google Application(s) ” means the machine-readable
binary code versions of the applications defined as “Google
Application(s)” hereunder which are provided to Customer in
connection with this Agreement, and any modifications or updates
thereto that Google may make available hereunder from time to time
in its sole discretion.
1.7. “
Google Protocol ” means Google’s then current
protocol for accessing and implementing the Google products or
services provided hereunder.
1.8. “
Google Service(s) ” means the services defined as
“Google Service(s)” hereunder which are provided in
connection with this Agreement.
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, as
well as, any and all applications, renewals, extensions,
restorations and re-instatements thereof, now or hereafter in force
and effect worldwide.
1.10. “
Portal(s) ” means either the “ Desktop
Portal ” (the Customer-hosted website that loads by
default when the default browser of a Desktop Device is opened
(together with any alternative default start page operated by or on
behalf of Customer for access to the Internet by Subscribers)) or
the “ Phone Portal ” (the Customer-hosted
website that loads by default when the default browser of a Phone
Device is opened (together with any alternative default start page
operated by or on behalf of Customer for access to the Internet by
Subscribers)).
1.11. “
Subscriber(s) ” means individual human end users of
the Customer Network accessing the Customer Network or Google
products or services (as provided under this Agreement) via a
Device by non-automated means, but excluding any users that have
only an indirect relationship with Customer where Customer is
acting as a wholesaler, reseller, agency, MVNO enabler, or other
intermediary with a third party network provider.
1.12. “
Territory ” means the United States.
1.13. “
Technically Feasible ” means that a particular
implementation does not (a) violate Customer’s generally
applicable acceptable use policies, (b) result in significant
complexity for use by Subscribers, (c) contradict
Customer’s publicly stated commitment to simplicity for
Subscribers, (d) cause material degradation to the Customer
Network (other than degradation caused by bandwidth usage in the
normal usage of the applicable Google product or service), or
(e) require unreasonable support of Subscribers by
Customer.
2. Term,
Termination, Existing Agreements .
2.1.
Term . The term of this Agreement begins on the Effective
Date and ends on the [*****] of the Effective Date (the “
Term ”), unless earlier terminated as provided
herein.
(a)
General . Either party may suspend performance and/or
terminate this Agreement, in whole or in part: (i) if the
other party materially breaches any material term or condition of
this Agreement and fails to cure such breach within thirty
(30) days after receiving written notice thereof; or
(ii) if the other party becomes insolvent or makes any
assignment for the
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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. Except as otherwise
set forth in the Agreement, all Riders shall immediately terminate
upon any termination of this Master Agreement, however termination
of any Rider shall not impact any other Rider or this Master
Agreement.
(b) Google
Termination Rights . Google may terminate this Agreement, or
the provision of any Google products and services hereunder, upon
written notice: (i) immediately if Customer breaches
Section 3.2 (Duty of Confidentiality) of the Master Agreement;
(ii) if Customer breaches Section 4.3 (Brand Features;
License Grant) of this Master Agreement and fails to cure such
breach within [*****] business days of written notice;
(iii) if Customer breaches the exclusivity provisions
contained in the Riders and fails to cure such breach within
[*****] business days of written notice;
(iv) immediately if Customer is in material breach of the same
provision of this Agreement more than [*****] times
notwithstanding any cure of such breaches; (v) immediately if
Google reasonably determines that it is commercially impractical to
continue providing the Google products and services in light of a
change in applicable laws and such change causes a material
financial hardship to Google to continue providing the Google
products and services, provided that Google may not use the
termination rights in this clause unless Google no longer makes the
relevant Google products and services available to similarly
situated partners; or (vi) as otherwise provided in the
Riders.
(c)
Customer Termination Rights . Customer may terminate this
Agreement, or the use of any Google products and services
hereunder, upon written notice: (i) immediately if Google
breaches Section 3.2 (Duty of Confidentiality) of the Master
Agreement; (ii) if Google breaches Section 4.3 (Brand
Features; License Grant) of this Master Agreement and fails to cure
such breach within [*****] business days of written notice;
(iii) immediately if Google is in material breach of the same
provision of this Agreement more than [*****] times
notwithstanding any cure of such breaches [*****] ; or
(iv) as otherwise provided in the Riders.
(d)
Suspension and Termination in the Event of an Injunction . A
party may suspend performance under this Agreement in whole or in
part with immediate effect if, (i) as a result of a claim
alleging facts that would constitute a breach of the other
party’s representations and warranties made in Section 5
or (ii) due to the other party’s failure to comply with
applicable laws, such party is obliged by final or temporary court
order or magisterial decision to temporarily or permanently refrain
from continuing to perform its obligations under this Agreement.
The suspending party’s rights under clause (ii) of this
provision shall become effective on the date of the court order or
magisterial decision or on the date of the service of the order
irrespective of the possibility of appeal. The suspending party
shall use commercially reasonable efforts to notify other party of
any suspension under this paragraph. If any suspension under this
paragraph continues for more than ninety (90) days, either
party may terminate this Agreement with immediate
effect.
2.3. Rights
upon Termination .
(a)
Generally . Upon the expiration or termination of the
Agreement for any reason: (i) all rights and licenses granted
by each party to the other shall cease immediately, except for
rights and licenses that survive pursuant to Section 6 of
Rider C during the Wind-Down Period, (ii) each party shall
promptly return to the other party, or destroy and certify the
destruction of, all Confidential Information of the other party,
provided however: (A) each party may retain Confidential
Information of the other party for any period required by law or
regulation and (B) each party is excused from returning or
destroying Confidential Information if, after using commercially
reasonable efforts, it is not be able to do so because such
Confidential Information is not easily accessible or separable for
return or deletion; provided that no right to the continued use of
such Confidential Information shall be implied and (iii) each
party’s rights to use the other party’s Brand Features,
as permitted under the Agreement, shall cease
immediately.
(b)
Preloaded Google Application(s) Sell-Off Right .
Notwithstanding the provisions of Section 2.3(a) above, for a
period of [*****] following expiration or termination of this
Agreement (“ Sell-Off Period ”), Customer shall
have the right to distribute in accordance with the terms and
conditions of this Agreement all Google Application(s) actually
preloaded on the Customer’s Device inventory (as permitted in
Rider B and Rider G) as of the date of expiration or termination of
this Agreement (“ Inventory ”), and Customer
shall have the right to use the Google Brand Features in accordance
with this Agreement in connection with such Inventory (“
Sell-Off Right ”). Notwithstanding anything to the
contrary, the Sell-Off Right shall not apply in the event that this
Agreement (or any right granted hereunder) is suspended or
terminated by Google pursuant to Section 2.2(b) of this Master
Agreement.
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2.4.
Non-exclusive Remedy . Termination or expiration of this
Agreement, in part or in whole, shall not limit either party from
pursuing other remedies available to it, nor shall either party be
relieved of its obligation to pay all fees that are due and owing
under this Agreement through the effective date of termination.
Neither party shall be liable to the other for any damages
resulting solely from termination as permitted herein.
2.5.
Existing Agreements . The Google Services Agreement and
Order Form between Google and Clearmedia, Inc. (with an effective
date of January 1, 2008), Google Apps Partner Edition
Agreement between Google and Clearwire US LLC (with an effective
date of January 1, 2008), and the Google Services Agreement
and Order Form between Google and Sprint/United Management Company
(with an effective date of July 25, 2007) are, as of the
Effective Date of this Agreement, hereby terminated and replaced by
this Agreement. The Order Form (Google Maps for Enterprise Products
and Services) and accompanying Google Maps for Enterprise Purchase
Agreement between Clearwire Corporation and Google (with an
effective date of March 27, 2007) is, as of the Effective Date
of this Agreement, hereby terminated. The parties agree to execute
(or obtain the cooperation of the relevant other parties to
execute) any addition documentation necessary to formally effect
the termination of these other agreements as contemplated by this
paragraph. The parties agree to use commercially reasonable efforts
to assist Clearwire US LLC, Sprint/United Management Company, and
Customer in transitioning the end user accounts of the Google
Hosted Communication Services under the prior agreements over to
the Hosted Communication Services under this Agreement.
3.1.
Confidentiality . “ Confidential Information
” is information disclosed by one party (“disclosing
party”) to the other party (“receiving party”)
under this Agreement that is marked as confidential or would
normally under the circumstances be considered confidential
information of the disclosing party. This Agreement imposes no
obligation upon a receiving party with respect to Confidential
Information that: (i) is known at the time of the disclosing
party’s disclosure thereof to the receiving party;
(ii) is, or becomes, publicly known, through no fault of the
receiving party subsequent to the time of the disclosing
party’s disclosure thereof to the receiving party;
(iii) is developed by the receiving party independently of,
and without use of, the Confidential Information; (iv) is
rightfully obtained by the receiving party from third parties
authorized to make such disclosure without restriction; (v) is
identified in writing by the disclosing party as no longer
proprietary or confidential; or (vi) is required to be
disclosed by law, regulation, or court order after giving
reasonable notice to the disclosing party.
3.2. Duty of
Confidentiality . The receiving party shall not disclose the
disclosing party’s Confidential Information to any third
party other than to the receiving party’s employees, agents,
professional services advisors, and affiliates who need to know it
and who have agreed in writing to keep it confidential. Those
people and entities may use Confidential Information only to
exercise rights and fulfill obligations under this Agreement. A
receiving party will use the same degree of care, but no less than
a reasonable degree of care, as the receiving party uses with
respect to its own information of a similar nature to protect the
Confidential Information and to prevent: (a) any use of
Confidential Information in violation of this Agreement and (b)
communication of Confidential Information to any unauthorized third
parties. Both parties shall also comply with Rider K (Privacy and
Data Protection).
3.3. PR
. Neither party will issue any public announcement regarding the
existence or content of this Agreement without the other
party’s prior written approval.
4.
Ownership; License Grants .
4.1. Google
Rights . As between Customer and Google, Google shall retain
all right, title and interest, including without limitation all
Intellectual Property Rights, relating to the Google products and
services (and any derivative works or enhancements thereof
developed by Google or on behalf of Google by a third party),
including but not limited to, all software, technology,
information, content, materials, guidelines, documentation, and the
Google Applications, Google Services and the Google Protocol.
Title, ownership rights, and Intellectual Property Rights in and to
the content accessed through the Google products and services are
the property of the applicable content owner and may be protected
by applicable copyright or other law. Customer shall not acquire
any right, title, or interest therein, except for the limited use
rights expressly set forth in the Agreement. Any rights not
expressly granted herein are deemed withheld.
4.2.
Customer Rights . As between Customer and Google, Customer
shall retain all right, title and interest, including without
limitation all Intellectual Property Rights, relating to the
Customer Content, the Customer Network, the Portals and to any Site
applications and features developed by Customer or on behalf of
Customer by third parties, including but not limited to all
software, technology, information, content, materials, guidelines,
and documentation. Google shall not acquire
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any right,
title or interest in or to such Customer Content, Customer Network,
the Portals, any Sites or applications or features. Notwithstanding
anything to the contrary in the Agreement, Customer and/or its
licensors shall retain all right, title and interest, including
without limitation all Intellectual Property Rights related to any
and all enhancements, features, applications, add-ons, gadgets, and
other developments which are developed by Customer and/or its
licensors or contracted third party developers using the Hosted
Services APIs; provided that this sentence shall not be interpreted
to grant any rights to Customer in the Google products or services
or the Hosted Services APIs. Any rights not expressly granted
herein are deemed withheld.
4.3. Brand
Features; License Grant .
(a)
Brand Features . Each party shall own all right, title and
interest, including without limitation all Intellectual Property
Rights, relating to its Brand Features. Some, but not all examples
of Google Brand Features are located at:
http://www.google.com/permissions/trademarks.html (or such other
URLs Google may provide from time to time). Except to the limited
extent expressly provided in this Agreement, neither party grants,
and the other party shall not acquire, any right, title or interest
(including, without limitation, any implied license) in or to any
Brand Features of the first party; and all rights not expressly
granted herein are deemed withheld. 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. During the Term, no party shall
challenge or assist others to challenge the Brand Features of the
other party (except to protect such party’s rights with
respect to its own Brand Features) or the registration thereof by
the other party, nor shall either party attempt to register any
Brand Features or domain names that are confusingly similar to
those of the other party.
(b)
License to Google Brand Features . Subject to the terms and
conditions of this Agreement and Google’s prior written
approval, Google grants to Customer a limited, nonexclusive and
nonsublicensable license during the Term to display those Google
Brand Features (i) expressly authorized for use in this
Agreement solely for the purposes expressly set forth herein or
(ii) as otherwise approved by Google. Notwithstanding anything
to the contrary, Google may reasonably revoke the license granted
herein to use Google’s Brand Features upon providing Customer
with written notice thereof and a reasonable period of time to
cease such usage. Furthermore, in its use of any Google Brand
Feature, Customer agrees to adhere to Google’s then current
Brand Feature use guidelines, which may be found at the following
URL: http://www.google.com/permissions/guidelines.html and Google
Mobile Branding Guidelines at
http://www.google.com/wssynd/mobile_guidelines.html (or such other
URLs Google may provide from time to time).
(c)
License to Customer Brand Features . Subject to the terms
and conditions of this Agreement, Customer grants to Google a
limited, nonexclusive and nonsublicensable license during the Term
to display those Customer Brand Features (i) expressly
authorized for use in this Agreement solely for the purposes
expressly set forth herein or (ii) or as otherwise approved by
Customer. Furthermore, in its use of any Customer Brand Feature,
Google agrees to adhere to Customer’s then current Brand
Feature use guidelines, if Google is notified of the existence of
such Brand Feature use guidelines in writing. Notwithstanding
anything to the contrary, in the event Google materially fails to
comply with Customer’s Brand Feature use guidelines and
Google fails to correct such improper usage within three
(3) days after Customer provides written notice of the
improper usage, Customer may revoke the license granted herein to
use Customer’s Brand Features upon providing Google with
written notice thereof.
5.
Representations, Warranties and Disclaimer . Each party
represents and warrants that it has full power and authority to
enter into the Agreement and that the execution and delivery of
this Agreement, and the performance of its obligations hereunder,
shall not constitute a breach or default of or otherwise violate
any agreement to which either party is a party on the Effective
Date. Except for the covenants in any of the applicable Riders,
Google does not warrant that the Google products and services shall
meet all of Customer’s requirements or that performance of
the Google products and services shall 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.
6.1. Google
Indemnity . (a) Google will indemnify, defend, and hold
harmless Customer and its respective directors, officers, agents,
employees (collectively, “ Customer Indemnitees
”) from any third party lawsuit or proceeding brought against
a Customer Indemnitee based upon or otherwise arising out of
[*****] . (b) Notwithstanding the foregoing, in no
event shall Google have any obligations or liability under this
Section to the extent arising from: [*****] . (c) To
the extent that Google reasonably believes that any of the Google
Applications and Google Services infringe the Intellectual
Property
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Rights of any
third party, Google will use commercially reasonable efforts to
(i) replace the Google Applications and Google Services with
substantially equivalent services; (ii) modify the Google
Applications and Google Services so that they become
non-infringing; or (iii) obtain all necessary licenses to
permit Customer to continue using the Google Applications and
Google Services as contemplated hereunder at no additional cost to
Customer. If Google can not accomplish the foregoing after using
commercially reasonable efforts, Google reserves the right to
terminate, upon written notice to Customer, Customer’s
continued use of any Google Applications and Google Services which
are alleged or reasonably believed by Google to infringe but only
to the extent necessary to avoid any applicable infringement.
[*****] .
6.2.
Customer Indemnity . (a) Customer will indemnify,
defend and hold harmless, Google and its respective directors,
officers, agents, employees (collectively, “ Google
Indemnitees ”) from any third party lawsuit or proceeding
brought against a Google Indemnitee based upon or otherwise arising
out of [*****] . (b) Notwithstanding the foregoing, in
no event shall Customer have any obligations or liability under
this Section to the extent arising from: [*****] .
(c) To the extent that Customer reasonably believes that any
of the Sites or Portals infringe the Intellectual Property Rights
of any third party, Customer shall use commercially reasonable
efforts to (i) modify the Sites and Portals so that they become
non-infringing or (ii) obtain all necessary licenses to permit
Customer to continue using the Google products and services as
contemplated hereunder at no additional cost to Google. If Customer
can not accomplish the foregoing after using commercially
reasonable efforts, nothing in this Agreement shall be interpreted
to prevent Customer from suspending or ceasing to provide the Sites
or Portals or a portion of the Sites or Portals to Subscribers as
necessary to mitigate such infringement (which would have a
secondary effect on the provision of Google products and services).
Notwithstanding anything to the contrary, any such suspension or
cessation shall not be deemed a breach of any provision of this
Agreement. For avoidance of doubt, the previous two sentences shall
not be interpreted to modify or narrow the Customer’s
exclusivity obligations in the Riders.
6.3.
General . (a) Indemnification provided under
Sections 6.1 and 6.2 shall be limited to (i) payment by
the indemnifying party (“ Indemnitor ”) of all
damages and costs finally awarded for such claim, (ii) all
interim damages and costs that a court may require Indemnitee to
pay for such claim, (iii) settlement costs approved in writing
by the Indemnitor, and (iv) costs incurred by the Indemnitor
(including attorney fees) in the defense of the claim. (b) The
foregoing obligations shall exist only to the extent not prejudiced
by any failure of the party seeking indemnification (“
Indemnitee ”) to: (i) promptly notify the
Indemnitor of such claim, (ii) provide the Indemnitor with
reasonable information, assistance and cooperation in defending the
lawsuit or proceeding, and (iii) give the Indemnitor full
control and sole authority over the defense and settlement of such
claim; provided, however, that Indemnitor may not settle any claim
to the extent there is any acknowledgement of fault of Indemnitee
without Indemnitee’s written consent, such written consent
not to be unreasonably withheld or delayed. (c) As part of
providing the reasonable information, assistance and cooperation
described in (ii), the Indemnitee shall not be required to incur
costs to an outside vendor, unless the Indemnitor agrees to
reimburse Indemnitee for such costs. 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. Notwithstanding the foregoing, if the Indemnitor
declines to assume full control over the defense and settlement of
such claim, then Indemnitor shall also be responsible for
reasonable attorney fees incurred by the Indemnitee in the defense
and settlement of the claim. SECTION 6 STATES THE PARTIES’
ENTIRE LIABILITY AND EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT
OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS AS SET FORTH
ABOVE.
7.
Limitation of Liability .
7.1.
Limitation . SUBJECT TO SECTION 7.2, NEITHER PARTY SHALL BE
LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL,
EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES
FOR LOST PROFITS, LOST REVENUE OR COSTS OF PROCUREMENT OF
SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED AND UNDER ANY THEORY
OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT
(INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE),
AND WHETHER OR NOT SUCH PARTY WAS OR SHOULD HAVE BEEN AWARE OR
ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE
FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN.
SUBJECT TO SECTION 7.2, IN NO EVENT SHALL EITHER PARTY’S
LIABILITY FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT (WHEN
AGGREGATED WITH THAT PARTY’S LIABILITY FOR ALL OTHER CLAIMS
ARISING OUT OF THIS AGREEMENT) EXCEED [*****] .
7.2.
Exclusions from Limitations . Unless and then only to the
extent this Agreement expressly states otherwise, nothing in this
Agreement shall exclude or limit either party’s liability
for: (a) breaches of the exclusivity obligations contained in
Section 16 of Rider A, Section 5.3 of Rider C,
Section 3 of Rider D, Section 3 of Rider E, and
Section 6.1 of Rider G, provided that in no event will
Customer’s liability for breaches of these exclusivity
obligations collectively exceed [*****] ; (b)
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breaches of any
confidentiality obligations contained in this Agreement;
(c) infringement or misappropriation of the other
party’s Intellectual Property Rights;
(d) Customer’s breach of Section 3.5 (Subscriber
License Agreement) of Rider C or Section 4.5(d) of Rider G);
and (e) any amounts payable to third parties pursuant to the
parties’ indemnification obligations hereunder; provided,
however, [*****] ; provided further, [*****]
.
7.3.
Allocation of Risk . The parties agree that the mutual
agreements made in this Section 7 reflect a reasonable allocation
of risk, and that each party would not enter into the Agreement
without these limitations on liability.
8.
Taxes and Other Charges . All payments under the Agreement
are exclusive of taxes imposed by any governmental entity. Each
party 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
entities of whatever kind and imposed with respect to the
transactions for services provided under the Agreement, including
penalties and interest, but specifically excluding taxes based upon
the other party’s net income. When either party has the legal
obligation to collect any applicable taxes, the appropriate amount
shall be invoiced to and paid by the other party “net thirty
(30) days” from the date of invoice or other
notification. Each party shall promptly provide the other party
with such documentation as may be required by the applicable
governmental entity in order for the other party to process
payments hereunder (including, without limitation, a valid
certificate of Customer’s or Google’s (as applicable)
exemption from obligation to pay taxes as authorized by the
appropriate governmental entity), and either party may withhold any
payments required to be made hereunder until the other party has
provided such documentation. Each party shall promptly provide the
other party with original or certified copies of all tax payments
or other sufficient evidence of tax payments at the time such
payments are made by Customer or Google, as applicable, pursuant to
the Agreement. [*****] .
9.1.
Compliance with Laws . Each party shall comply with all
laws, rules and regulations, if any, applicable to it in connection
with the performance of its obligations under the
Agreement.
9.2.
Notices . All notices shall be in English and in writing and
(a) if sent to Customer to the address of Customer’s
corporate headquarters and (b) if sent to Google at 1600
Amphitheatre Parkway, Mountain View, CA 94043 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, or (ii) upon written verification of receipt from
overnight courier, (iii) upon verification of receipt of
registered or certified mail.
(a)
Generally . Neither party shall assign or otherwise transfer
its rights or delegate its obligations under the Agreement, in
whole or in part. Any attempted assignment, delegation or transfer
in derogation hereof shall be null and void. For purposes of this
sentence, an assignment shall be deemed to include, without
limitation, any transaction or series of transactions in which
another party or parties acquire the direct or indirect power to
direct the management and policies of a party or its assets,
whether by way of merger, consolidation, change of control, sale of
all or substantially all of a party’s securities or assets,
contract, management agreement or otherwise.
(b) Google
Permitted Assignment . Notwithstanding Section 9.3(a),
Google may assign its rights or delegate its obligations under this
Agreement, in whole or in part, without the consent of Customer, to
a subsidiary of Google. Following an assignment by Google to a
subsidiary of Google, Google shall not be relieved of and shall
continue to be liable for all the obligations applicable to it
hereunder, unless Customer provides written approval for the
release of Google’s obligations, such approval not to be
unreasonably withheld; provided, that the only basis for Customer
to withhold such written approval shall be Customer’s
reasonable belief that the subsidiary of Google is not sufficiently
capitalized or does not have sufficient operational resources to
fulfill the financial, indemnification, and other obligations under
this Agreement.
(c) Customer
Permitted Assignment . Notwithstanding Section 9.3(a),
Customer may assign this Agreement (in whole, but not in part) as
part of a change of control (including by way of merger,
reverse-triangular merger, consolidation, sale of stock, or sale of
all or substantially all of its assets) without the consent of
Google; provided, the assignee must deliver to Google a written
instrument agreeing to be bound by all of the terms and conditions
applicable to Customer; provided further, that if (i) the
change of control involves a competitor of Google (as
Page 7 of 9
reasonably
determined by Google), (ii) Google has a reasonable belief
that the assignee is not sufficiently capitalized, or
(iii) Google has a reasonable belief that the assignee does
not have sufficient operational resources to fulfill the financial,
indemnification, and other obligations under this Agreement, then
Google may elect to terminate this Agreement without recourse or
liability therefor.
9.4.
Consultations . Before a party initiates legal action
against the other arising from the Agreement (except to seek
injunctive or equitable relief or to otherwise protect its
Intellectual Property Rights), the matter in controversy shall
first be referred to an officer of each party, who shall make good
faith and reasonable efforts to resolve the matter.
9.5.
Governing Law . The laws of New York, excluding New
York’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 state and federal courts
located in the Southern District of New York. 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.
9.6.
Equitable Relief . Either party may seek equitable relief,
including temporary restraining orders or injunctions, in addition
to all other remedies, available at law or under this
Agreement.
9.7. Entire
Agreement . The Agreement supersedes any other prior or
collateral agreements, whether oral or written, with respect to the
subject matter hereof. This Master Agreement and the Riders (and
exhibits thereto), and any terms located at URLs referenced
pursuant to the Agreement (which are all incorporated herein by
reference), constitute the entire agreement with respect to the
subject matter hereof, and any terms contained in any related
purchase order(s) or other documents pertaining to the subject
matter of the Agreement shall be null and void. In the event of
conflict between the terms of this Agreement and the terms
contained in any URLs referenced in this Agreement, this Agreement
shall govern with respect to such conflict. In the event of
conflict between the terms of this Master Agreement and the terms
of the Riders, the Riders shall govern with respect to such
conflict.
9.8.
Amendments . Any amendments or modifications to the
Agreement must be in writing, refer to the Agreement,; and be
executed by an authorized representative of each party.
9.9. No
Waiver . 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.
9.10.
Severability . 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.
9.11.
Survival . The following sections of this Master Agreement
and the Riders shall survive any expiration or termination of this
Agreement: Master Agreement – Sections 2.3, 2.4, 3, 4.1,
4.2, 4.3(a), 5 through 9; Rider B – Sections 3.2, Rider
C – Section 6 (but only for the period described
therein); Rider G – Section 4.2, and Rider K (to the
extent described in Section 6 therein).
9.12.
Independent Contractors . The parties hereto are and shall
remain independent contractors and nothing herein shall be deemed
to create any agency, partnership, or joint venture relationship
between the parties. Neither party shall be deemed to be an
employee or legal representative of the other nor shall either
party have any right or authority to create any obligation on
behalf of the other party.
9.13. No
Third Party Beneficiaries or Obligors . The Agreement is not
intended to benefit, nor shall it be deemed to give rise to, any
rights in any third party. This Agreement is not intended to create
any obligations on any third party, including, without limitation,
(i) any third party for whom Customer is acting as a
wholesaler, reseller, agency, MVNO enabler, or other intermediary
with a third party network provider or (ii) any Customer
equityholder or investor.
9.14. Force
Majeure; Transmissions . 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, power failures, and Internet disturbances; provided that such
excusal from performance shall last only so long as such condition
exists or so long as the excused party has had a reasonable
opportunity to mitigate and/or eliminate the effect of such
condition, whichever period is shorter. Except for the Hosted
Communication Services or as otherwise provided in the Riders,
Google shall not be responsible for receiving data, queries or
requests directly from Subscribers or any other third party, for
transmission of
Page 8 of 9
data between
Customer’s (or any Subscriber’s) and Google’s
network interface, or for displaying any applicable Results Set(s)
to Subscribers.
9.15.
Successors; Counterparts; Drafting; General . The Agreement
(a) shall be binding on and inure to the benefit of each of
the parties and their respective successors and assigns; (b) may be
executed in counterparts, including facsimile counterparts, each of
which shall be deemed an original and all of which when taken
together shall constitute one and the same instrument; and (c)
shall be construed as if both parties jointly wrote it.
Page 9 of 9
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CLEARWIRE
COMMUNICATIONS LLC
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GOOGLE
INC.
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/s/ Hope
Cochran
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By:
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/s/ Jeff
Shardell
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Name: Hope
Cochran
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Name: Jeff
Shardell
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Title: Senior
Vice President, Finance and Treasurer
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Title:
Director, Websearch & Syndication
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Date:
November 28, 2008
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Date:
November 19, 2008
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[Signature page to the Google
Products and Services Agreement]
GENERAL For the purposes of this Rider:
1.1. “
Above-the-fold ” means that portion of an Internet
browser that is visible to any Subscriber at a minimum resolution
of 800 by 600 pixels without scrolling within the applicable Web
page, as viewed through an Internet browser application considered
among the top two (2) most widely used from time to
time.
1.2. “
Ads ” or “ Advertising Results ”
means advertisements served by Google hereunder.
1.3. “
Client ID ” means a unique alphanumeric code provided
to and used by Customer as specified by Google for purposes of
identifying each query or request. Google may assign and modify the
number of Client IDs for each Google Service provided under this
Rider from time to time. Customer shall use Client IDs as
instructed by Google, and shall provide such information to Google
as Google may reasonably request with respect to the use and
application of any Client IDs.
1.4. “
Customer Desktop Application ” means any application,
widget, plug-in, helper, component or other executable code that
runs on user’s Desktop Device; examples of Customer Desktop
Applications include those that provide instant messaging, chat,
email, data, file viewing, media playing, file sharing, games,
internet navigation, search and other services.
1.5. “
Customer’s Technical Contact ” means the
technical employee of Customer designated by Customer
1.6. “
Destination Page ” means any Web page which may be
accessed by clicking on any portion of an Advertising Result and/or
Search Result.
1.7. “
Maps Terms of Use ” means the Terms of Service for
Google Maps as updated by Google from time to time, the current
version of which is located at
http://www.google.com/intl/en_us/help/terms_maps.html.
1.8. “
Results Page ” means a Web page on which Google search
and/or advertising results provided under this Rider are
displayed.
1.9. “
Search Results ” means the search results provided by
Google through any search Service ordered by Customer, if any,
under this Rider.
1.10. “
Site(s) ” means the “ WebSearch Site(s)
,” “ Local Search Site(s) ”, “
AFS Site(s) ,” “ AdSense for Local Search
Site(s) ,” and “ AFC Site(s) ”
collectively, which are those Web sites located at the URLs
identified as such on the Cover Page(s) of this Rider, as the same
may be amended from time to time as permitted herein. The list of
Site(s) may be updated from time to time subject to Google’s
prior written consent.
1.11. “
Valid IP Addresses ” means those Internet protocol
addresses provided by Customer and approved by Google prior to
implementation of the applicable Services. The list of Valid IP
Addresses may be modified by Customer upon forty-eight
(48) hours notice to Google via the online Google
Administration Console located at http://console.google.com, or
such other URL as may be updated by Google from time to
time.
1.12. “
WebSearch Box ” means a search box into which
Subscribers may enter queries to search the Web. WebSearch Boxes
must be approved by Google and located on a WebSearch Site or a
Customer Desktop Application that is approved by Google to access
the WebSearch Service.
1.13. “
WebSearch Query ” means a query sent to Google by
Customer to be processed by Google’s WebSearch
Service.
A-1
1.14. “
WebSearch Protocol ” means the protocol provided by
Google for accessing the WebSearch Services, as such protocol may
be updated by Google from time to time.
1.15. “
WebSearch Results ” means WebSearch search results
provided by Google through its WebSearch Service.
1.16. “
WebSearch Results Set ” means the set of WebSearch
Results (not to exceed ten (10) individual results)
transmitted by Google to Customer in response to a WebSearch
Query.
1.17. “
WebSearch Service ” means the Google Service known as
Google’s WebSearch Service.
1.18. “
Local Content ” means content provided by Google to
Customer as part of the Local Search Services, which Google either
owns, controls or otherwise has the right to license. Google may
update the Local Content from time to time in its sole
discretion.
1.19. “
Local Search Box ” means a search box into which
Subscribers may enter Local Search Queries. Local Search Boxes must
be approved by Google and located on a Local Search Site or a
Customer Desktop Application that is approved by Google to access
the Local Search Service.
1.20. “
Local Search Query ” means a query sent to Google by
Customer to be processed by Google’s Local Search
Services.
1.21. “
Local Search Protocol ” means the protocol provided by
Google for accessing the Local Search Services, as such protocol
may be updated by Google from time to time.
1.22. “
Local Search Results ” means the results of any Local
Search Query processed by Google through its Local Search Services
which may include local search results and, if available,
instruction data to enable Customer to construct a map displaying
the location of the business(es) and/or point(s) of interest to
which a Local Search Query relates.
1.23. “
Local Search Results Set ” means the set of Local
Search Results (which may include up to ten (10) individual
results) transmitted by Google to Customer in response to a Local
Search Query.
1.24. “
Local Search Service ” means the Google Service known
as Google’s local search Service, which provides
geographically-based online search and mapping
functionalities.
1.25. “
AFS Ads ” means the advertisements provided by Google
to Customer under this Agreement through Google’s AFS
Service.
1.27. “
AFS Percentage ” means the percentage set forth under
the title “Customer’s AFS Revenue Share
Percentage” in the AdSense for Search Table on the Cover
Page(s) of this Rider.
1.28. “
AFS Protocol ” means the protocol provided by Google
for accessing the AFS Services, as such protocol may be updated by
Google from time to time.
1.29. “
AFS Query ” means a query sent to Google by Customer
to be processed by Google’s AFS Service.
1.30. “
AFS Results Set ” means the set of AFS Ads transmitted
by Google to Customer in response to an AFS Query.
1.31. “
AFS Revenues ” for any period during the Term means ad
revenues that are recognized by Google in such period and
attributed to AFS Ads displayed on the AFS Site in such period in
accordance with the requirements of this Agreement.
1.32. “
AFS Service ” means the Google Service known as
Google’s AdSense for Search Service.
A-2
1.33. “
Net AFS Revenues ” for any period means AFS Revenues
for such period MINUS the AFS Deduction for such
period.
1.34. “
AdSense for Local Search Ads ” means the
advertisements provided by Google to Customer under this Agreement
through Google’s AdSense for Local Search Service.
1.36. “
AdSense for Local Search Percentage ” means the
percentage set forth under the title “Customer’s
AdSense for Local Search Revenue Share Percentage” in the
AdSense for Local Search Table on the Cover Page(s) of this
Rider.
1.37. “
AdSense for Local Search Protocol ” means the protocol
provided by Google for accessing the AdSense for Local Search
Services, as such protocol may be updated by Google from time to
time.
1.38. “
AdSense for Local Search Query ” means a query sent to
Google by Customer to be processed by Google’s AdSense for
Local Search Service.
1.39. “
AdSense for Local Search Results Set ” means the set
of AdSense for Local Search Ads transmitted by Google to Customer
in response to an AdSense for Local Search Query.
1.40. “
AdSense for Local Search Revenues ” for any period
during the Term means ad revenues that are recognized by Google in
such period and attributed to AdSense for Local Search Ads
displayed on the AdSense for Local Search Site in such period in
accordance with the requirements of this Agreement.
1.41. “
AdSense for Local Search Service ” means the Google
Service known as Google’s AdSense for Local Search
Service.
1.42. “
Net AdSense for Local Search Revenues ” for any period
means AdSense for Local Search Revenues for such period
MINUS the AdSense for Local Search Deduction for such
period.
1.43. “
AFC Ads ” means the advertisements provided by Google
to Customer under this Agreement through Google’s AFC
Service.
1.45. “
AFC Percentage ” means the percentage set forth under
the title “Customer’s AFC Revenue Share
Percentage” in the AdSense for Content Table on the Cover
Page(s) of this Rider.
1.46. “
AFC Protocol ” means the protocol provided by Google
for accessing the AFC Services, as such protocol may be updated by
Google from time to time.
1.47. “
AFC Request ” means a request for AFC Ads in
connection with a pageview of a page on which AFC Ads are to be
displayed.
1.48. “
AFC Results Set ” means the set of AFC Ads transmitted
by Google in response to an AFC Request.
1.49. “
AFC Revenues ” for any period during the Term means ad
revenues that are recognized by Google in such period and
attributed to AFC Ads displayed on the AFC Site in such period in
accordance with the requirements of this Agreement.
1.50. “
AFC Service ” means Google’s AdSense for Content
Service.
1.51. “
Link Units ” means link units provided by Google to
Customer through Google’s AFC Service.
A-3
EXECUTION COPY
1.52. “
Net AFC Revenues ” for any period means AFC Revenues
for such period MINUS the AFC Deduction for such
period..
2.
Customer Obligations .
2.1.
Prohibited Actions . Customer shall not, and shall not allow
any third party to:
(a) edit,
modify, truncate, filter or change the order of the information
contained in any Search Results and/or Advertising Results (either
individually or collectively), including, without limitation, by
way of commingling Search Results and/or Advertising Results with
non-Google provided search results or advertising except as
permitted in this Rider;
(b) frame
any Results Page or Destination Page;
(c) redirect a Subscriber away from the
Destination Page, provide a version of the Destination Page
different from the page a Subscriber would access by going directly
to the Destination Page, intersperse any content between an
Advertising Result or Search Result and the corresponding
Destination Page or implement any click tracking or other
monitoring of Advertising Results or Search Results;
(d) display any Search Results and/or
Advertising Results in pop-up, pop-under, exit windows, expanding
buttons, or animation;
(e) knowingly display any Search Results
and/or Advertising Results to any third parties other than
Subscribers of the services provided in this Rider;
(f) knowingly minimize, remove or otherwise
inhibit the full and complete display of any Results Page
(including any Search Results and/or Advertising Results), and the
corresponding Destination Pages;
(g) [intentionally left blank]
(h) knowingly access, launch and/or
activate the Google services through or from, or otherwise
incorporate the Google services in, any software application, Web
site or other means other than the Site(s), and then only to the
extent expressly permitted herein;
(i) transfer, sell, lease, syndicate,
sub-syndicate, lend, or use for co-branding, timesharing, service
bureau or other unauthorized purposes any Google services or access
thereto (including, but not limited to Search Results and/or
Advertising Results, or any part, copy or derivative thereof),
except as permitted by this Rider;
(j) enter
into any arrangement or agreement under which any third party pays
Customer fees, Customer pays any third party fees, or either shares
in any revenue payments and/or royalties for any Search Results
and/or Advertising Results;
(k) knowingly (whether directly or
indirectly) generate queries, or impressions of or clicks on Search
or Advertising Results, through any automated, deceptive,
fraudulent or other unnatural means (including, but not limited to,
click spam, robots, macro programs, and Internet
agents);
(l) knowingly encourage or require
Subscriber or any other persons, either with or without their
knowledge, to click on Advertising Results through offering
incentives or any other methods that are manipulative, deceptive,
malicious or fraudulent (each of the foregoing in subsections
(k) and (l) a “ Fraudulent Act
”);
(m) modify, adapt, translate, prepare
derivative works from, decompile, reverse engineer, disassemble or
otherwise attempt to derive source code from any Google services,
the Google Protocol, content, data, routines, algorithms, software,
materials, and documentation that Google provides to Customer in
connection with the Google services;
(n) remove, deface, obscure, or alter
Google’s copyright notice, trademarks or other proprietary
rights notices on any of the Sites or any attribution affixed to or
provided as a part of any Google services, the Google Protocol, or
any other Google technology, software, materials and documentation;
or
(o) “crawl”,
“spider”, index or in any non-transitory manner store
or cache information obtained from the Google services (including,
but not limited to, Search Results, Advertising Results, Local
Content, or any part, copy or derivative thereof).
Further, except
for specific portions of the Site(s) over which Customer does not
exert editorial control, no Site or approved Customer Desktop
Application shall contain any pornographic, hate-related or violent
content or contain any other material, products or services that
violate or encourage conduct that would violate any criminal laws
or any other applicable laws. Notwithstanding the foregoing, the
restrictions in the previous sentence do not apply to third party
Web sites or content to which the Sites or approved Customer
Desktop Applications link or any other content, information or data
provided by Google, Subscribers or other third parties.
Notwithstanding the above, if Google reasonably believes that that
specific portions of the Site(s) or approved Customer Desktop
Application(s) contain the improper matter (whether Customer exerts
editorial control or not) as identified in this paragraph or links
to a substantial amount of improper matter of the nature identified
in this paragraph, then Google may notify Customer (with reasonable
specificity of the problematic portions of the Site(s) or Customer
Desktop Application(s)) and Customer agrees to use commercially
reasonable efforts to either (i)
A-4
promptly remove
the Google services from those specific portions of the Site(s) or
Customer Desktop Application(s) after receiving such notice or
(ii) remove the improper matter or links to improper matter
from those specific portions of the Site(s) or Customer Desktop
Application(s) after receiving such notice.
Customer agrees
not to knowingly produce or distribute any software, or permit any
of its software to be distributed with software, that prevents the
display of ads provided by Google (such as by way of blocking or
replacing ads); provided that Customer may offer advertising and
pop-up blocking software to Subscribers; provided, that if any such
software functions to block ads served by Google, then upon notice
from Google, Customer agrees to use commercially reasonable efforts
to promptly remove or modify such software such that it does not
block Google served ads.
2.2.
Implementation . Customer shall use commercially reasonable
efforts to ensure that there is no use of or access to any Google
Services provided under this Rider through Customer’s
properties which are not in compliance with the terms of the
Agreement or not otherwise approved by Google, and Customer shall
use commercially reasonable efforts to monitor and disable any such
access or use by unauthorized parties (including, but not limited
to, spammers or any third party sites). Furthermore, prior to
Customer’s initial launch of the Google Services on each
Site, Google shall have the right to review and approve the means
used by Customer to deploy the Google Services on each Site with
such approval not to be unreasonably withheld or delayed. Following
the initial launch of the Google Services on each Site, to the
extent that Customer substantially changes the way in which the
Google Services are rendered or displayed on the Site, Google
(i) may review and approve such changes with such approval not
to be unreasonably withheld or delayed and (ii) may (in the
event Google disapproves of such changes) upon
(48) forty-eight hours written notice to Customer, suspend any
continued use of the applicable Google Services until such time as
Customer implements adequate corrective modifications as reasonably
required and determined by Google. Google may send a reasonable
number of uncompensated test queries to the Site(s) or Customer
Desktop Application(s) at any time to verify Customer’s
compliance with the requirements of this Agreement.
2.3. Google
Restrictions . Google agrees that the Google Services provided
under this Rider shall not (a) facilitate or promote illegal
activity or contain content that is illegal, (b) contain content,
material, or information that is defamatory, obscene, distasteful,
racially or ethnically offensive, harassing, or that is
discriminatory based upon race, gender, color, creed, age, sexual
orientation, or disability, or (c) contain sexually suggestive
or explicit content (collectively, the “ Content
Standards ”). Notwithstanding the foregoing, the Content
Standards do not apply to Search Results, Advertising Results,
Local Content, third party Web sites or content to which such
Search Results, Advertising Results or Local Content may link, or
any other content, information, or data provided by Customer,
Subscribers, or other third parties.
2.4.
Additional Restrictions . Each party also agrees that it
shall use commercially reasonable efforts so as to not introduce
into the other party’s hardware, software, or network any
software virus, worm, “back door,” “Trojan
Horse,” or similar harmful code. For avoidance of doubt, the
parties acknowledge and agree that this paragraph does not impose
on either party the obligation to control the activities of
Subscribers or other third parties.
3.1. Scope
of WebSearch Services . During the Term and subject to the
terms and conditions of this Agreement, Google shall provide
Customer with WebSearch Results through its WebSearch Service for
display on the WebSearch Sites as permitted herein. Customer agrees
to implement the WebSearch Service as provided herein on the
WebSearch Sites upon launch of the Desktop Portal, and to maintain
such implementation thereafter during the Term. Customer agrees to
implement the WebSearch Service on any WebSearch Site added
thereafter to the extent permitted herein. Customer may elect to
implement the WebSearch Service as provided herein on Customer
Desktop Applications that are approved by Google to access the
WebSearch Service, and Customer agrees to maintain such
implementation thereafter during the Term.
3.2.
Implementation of WebSearch Services . Unless otherwise
agreed to by Google in writing, Customer shall implement the
WebSearch Services in a manner that: (a) conforms to the
WebSearch Specifications set forth in the Cover Page(s) of this
Rider, if any; (b) conforms to Google’s brand treatment
guidelines for WebSearch as updated by Google from time to time,
the current version of which is located at
http://www.google.com/wssynd/02brand.html ; (c) conforms to
the screenshots and specifications to be mutually agreed upon by
the parties; and (d) otherwise complies with the technical and
implementation requirements provided by Google from time to time,
including those instructions contained in the documentation setting
forth the WebSearch Protocol. Without limiting the foregoing,
Customer acknowledges and agrees to the following:
A-5
3.2.1.
Search Boxes and Queries . Customer shall implement on each
WebSearch Site a WebSearch Box for Subscribers to enter WebSearch
Queries. Customer may implement on approved Customer Desktop
Applications a WebSearch Box for Subscribers to enter WebSearch
Queries. WebSearch Boxes may only be located on a WebSearch Site
and approved Customer Desktop Applications, and on no other Web
site, application or other property. The format and location of
each WebSearch Box on each WebSearch Site and approved Customer
Desktop Application is subject to the written consent of Google,
such consent not to be unreasonably withheld, conditioned or
delayed. Unless (and then only to the extent) otherwise approved by
Google in writing, Customer understands and agrees that:
(a) queries sent to Google for processing under its WebSearch
Service may be initiated only by Subscribers entering text into
WebSearch Boxes on the WebSearch Site and approved Customer Desktop
Applications as provided herein; and (b) Customer shall send
any and all queries generated on the WebSearch Sites and approved
Customer Desktop Applications as provided in subsection
(a) above to Google for processing under its WebSearch
Services in accordance with the requirements provided by Google,
without editing, filtering, truncating, appending terms to or
otherwise modifying such WebSearch Queries, either individually or
in the aggregate. Notwithstanding anything to the contrary, Google
shall have no obligation to process WebSearch Queries that are not
sent in compliance with the requirements of this
Agreement.
3.2.2.
Operation of WebSearch Services . Customer shall ensure that
each WebSearch Query shall (a) be from a list of Valid IP
Addresses approved by Google for the WebSearch Services;
(b) contain a Client ID approved by Google for the WebSearch
Services; and (c) include Subscriber IP address and user agent
information. Upon Google’s receipt of a WebSearch Query,
Google shall transmit a WebSearch Results Set, to the extent
available, via Google’s network interface in accordance with
the WebSearch Protocol. Customer shall then display, in each
instance, the entire WebSearch Results Set that corresponds to such
WebSearch Query on the applicable WebSearch Site in the manner
contemplated by this Agreement, without editing, filtering,
reordering, truncating, adding content to or otherwise modifying
such WebSearch Results Set.
3.2.3.
Labeling, Branding and Attribution . Each WebSearch Box
located on a WebSearch Site and each Results Page containing a
WebSearch Results Set shall conspicuously display a graphic module,
in the form as provided by Google from time to time, that
unambiguously indicates that the WebSearch Results Sets are
provided by Google. Customer agrees that it shall not place
anything on the Site that in any way implies that information other
than the WebSearch Results Sets are provided by Google, unless
otherwise expressly provided herein. The Google graphic module
shall be, at minimum, 75 x 32 pixels in size and shall be located
Above-the-fold, unless otherwise directed by Google.
3.3. License
to WebSearch Protocol . Google grants to Customer a limited,
nonexclusive and non-sublicensable license during the Term to use
the WebSearch Protocol solely for the purpose of transmitting
WebSearch Queries and other required information and receiving
WebSearch Results Sets solely to the extent permitted hereunder.
Except to the limited extent expressly provided in this Agreement,
Google does not grant, and Customer shall not acquire, any right,
title or interest (including, without limitation, any implied
license) in or to any Google Intellectual Property Rights; and all
rights not expressly granted herein are reserved to
Google.
4.1. Scope
of Local Search Services . During the Term and subject to the
terms and conditions of this Agreement, Google shall provide
Customer with Local Search Results through its Local Search
Services for display on the Local Search Sites as permitted herein.
Customer agrees to implement the Local Search Services as provided
herein on the Local Search Sites upon launch of the Desktop Portal,
and to maintain such implementation thereafter during the Term.
Customer agrees to implement the Local Search Services on any Local
Search Site added thereafter to the extent permitted herein.
Customer may elect to implement the Local Search Service as
provided herein on Customer Desktop Applications that are approved
by Google to access the Local Search Service, and Customer agrees
to maintain such implementation thereafter during the
Term.
4.2.
Implementation of Local Search Services . Unless otherwise
agreed to by Google in writing, Customer shall implement the Local
Search Services in a manner that: (a) conforms to the Local
Search Specifications set forth in the Cover Page(s) of this Rider,
if any; (b) conforms to Google’s brand treatment
guidelines for Local Search as updated by Google from time to time,
the current version of which is located at
http://www.google.com/wssynd/local_guidelines.html; (c) conforms to
the screenshots and specifications to be mutually agreed upon by
the parties; (d) conforms with the Maps Terms of Use; and
(d) otherwise complies with the technical and implementation
requirements provided by Google from time to time. Without limiting
the foregoing, Customer acknowledges and agrees to the
following:
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4.2.1.
Search Boxes and Queries . Customer shall implement on each
Local Search Site a Local Search Box for Subscribers to enter Local
Search Queries. Customer may implement on approved Customer Desktop
Applications a Local Search Box for Subscribers to enter Local
Search Queries. Local Search Boxes may only be located on a Local
Search Site and approved Customer Desktop Applications, and on no
other Web site, application or other property. The format and
location of each Local Search Box on each Local Search Site and
approved Customer Desktop Applications is subject to the written
consent of Google. Unless (and then only to the extent) otherwise
approved by Google in writing, Customer understands and agrees
that: (a) queries sent to Google for processing under its
Local Search Services may be initiated only by Subscribers entering
text into Local Search Boxes on the Local Search Site and approved
Customer Desktop Applications as provided herein; and
(b) Customer shall send any and all queries generated on the
Local Search Sites and approved Customer Desktop Applications as
provided in subsection (a) above to Google for processing
under its Local Search Services in accordance with the requirements
provided by Google, without editing, filtering, truncating,
appending terms to or otherwise modifying such Local Search
Queries, either individually or in the aggregate. Notwithstanding
the foregoing, Google (at its discretion) may permit Customer to
append location based data to Local Search Queries, in which case
Google may use such location based data in processing such Local
Search Results. Notwithstanding anything to the contrary, Google
shall have no obligation to process Local Search Queries that are
not sent in compliance with the requirements of this
Agreement.
4.2.2.
Operation of Local Search Services . Customer shall ensure
that each Local Search Query shall (a) be from a list of Valid
IP Addresses approved by Google for the Local Search Services;
(b) contain a Client ID approved by Google for the Local
Search Services; (c) include Subscriber IP address and user
agent information; and (d) include geographic data as provided
by the Subscriber in the Local Search Boxes. Upon Google’s
receipt of a Local Search Query, Google shall transmit a Local
Search Results Set, to the extent available, via Google’s
network interface in accordance with the Local Search Protocol.
Customer shall then display, in each instance, the entire Local
Search Results Set that corresponds to such Local Search Query on
the applicable Local Search Site in the manner contemplated by this
Agreement, without editing, filtering, reordering, truncating,
adding content to or otherwise modifying such Local Search Results
Set.
4.3.
Labeling, Branding and Attribution . Each Local Search Box
located on a Local Search Site and each Results Page containing a
Local Search Results Set shall conspicuously display a graphic
module, in the form as provided by Google from time to time, that
unambiguously indicates that the Local Search Results Sets are
provided by Google. Customer agrees that it shall not place
anything on the Local Search Site that in any way implies that
information other than the Local Search Results Sets are provided
by Google, unless otherwise expressly provided herein. The Google
graphic module shall be, at minimum, 75 x 32 pixels in size and
shall be located Above-the-fold, unless otherwise directed by
Google.
4.3.1.
Intellectual Property Notices. Customer shall display on
each Results Page containing a Local Search Results Set:
(a) the intellectual property notices (e.g., copyright
notices), legends or other proprietary notices as instructed by
Google, and (b) a hyperlink from the mapping functionality of
the Local Search Services to Maps Terms of Use (which include
additional intellectual property notices required to be displayed)
as further described in Section 4.3 herein.
4.3.2. Terms
of Service . Customer shall ensure that each Subscriber’s
use of the Local Search Results is subject to Google’s
Subscriber terms of service by displaying on each Results Page
containing a Local Search Results Set a hyperlink, in the manner
specified by Google to the Maps Terms of Use. In addition, Customer
agrees to provide each Subscriber with any instruction, warning,
disclaimer, and/or safety information that may be required by
Google and/or its licensors and suppliers from time to
time.
4.3.3. Legal
Notices . Any link or notices appearing on or in any Local
Search Result shall be maintained and shall not be removed,
modified, obscured, or altered. Customer acknowledges and agrees
that the Maps Terms of Use (a) supplement the terms and
conditions of this Agreement, and are binding on Customer, and
(b) shall be set forth in or incorporated by a notice, link,
or similar reference in any Subscriber license agreement and/or
terms of service applicable to Subscribers of the Local Search
Site.
4.4. License
to Local Search Protocol . Google grants to Customer a limited,
nonexclusive, non-transferable and non-sublicensable license during
the Term to use the Local Search Protocol solely for the purpose of
transmitting Local Search Queries and other required information
and receiving Local Search Results Sets solely to the extent
permitted hereunder. Except to the limited extent expressly
provided in this Agreement, Google does not grant, and Customer
shall not acquire,
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any right,
title or interest (including, without limitation, any implied
license) in or to any Google Intellectual Property Rights, and all
rights not expressly granted herein are reserved to
Google.
4.5. License
to Local Content . (a) Subject to the terms and conditions
of this Agreement, Google grants to Customer a limited,
nonexclusive, non-transferable and non-sublicensable license during
the Term to display the Local Content only as part of the Local
Search Services solely to the extent permitted hereunder.
(b) Customer shall not (i) modify, adapt, translate,
prepare derivative works from, decompile, reverse engineer,
disassemble or otherwise attempt to derive source code from any the
Google services, or any other Google (or third party licensor
and/or supplier) technology, protocol, content, data, routines,
algorithms, methods, ideas design, user interface techniques,
software, materials, and documentation, including, without
limitation, the Local Content, or (ii) remove, deface,
obscure, or alter Google’s (or any of Google’s
licensors’ or suppliers’) copyright notice, trademarks
or other proprietary rights notices affixed to or provided as a
part of any Google services, the Local Content, or any other Google
(or third party licensor and/or supplier) technology, content,
software, materials and documentation.
5.
AdSense for Search Services .
5.1. Scope
of AdSense for Search Services . During the Term and subject to
the terms and conditions of this Agreement, Google shall provide
Customer with AFS Ads through its AFS Service for display on the
AFS Sites as permitted herein. Customer agrees to implement the AFS
Service as provided herein on the AFS Sites upon the launch of the
Desktop Portal, and to maintain such implementation thereafter
during the Term. Customer agrees to implement the AFS Service on
any AFS Site added thereafter as permitted herein. Customer may
elect to implement the AFS Service as provided herein on Customer
Desktop Applications that are approved by Google to access the AFS
Service, and Customer agrees to maintain such implementation
thereafter during the Term.
5.2.
Implementation of AFS Services . Unless otherwise agreed to
by Google in writing, Customer shall implement the AFS Services in
a manner that: (a) conforms to the AFS Specifications set
forth in the Cover Page(s) of this Rider, if any; (b) conforms
to Google’s brand treatment guidelines for AFS Services as
updated by Google from time to time, the current version of which
is located at http://www.google.com/wssynd/02brand.html ;
(c) conforms to the screenshots and specifications to be
mutually agreed upon by the parties; and (d) otherwise
complies with the technical and implementation requirements
provided by Google from time to time, including those instructions
contained in the documentation setting forth the AFS Protocol.
Without limiting the foregoing, Customer acknowledges and agrees to
the following:
5.2.1. AFS
Queries . Unless (and then only to the extent) otherwise
approved by Google in writing, Customer understands and agrees
that: (a) queries sent to Google for processing under its AFS
Service may be initiated only by Subscrib
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