GOOGLE DOUBLECLICK AD EXCHANGE ("AdX") via EXMARKETPLACE FZ LLC
This Google Services Agreement ("Agreement") is entered into by Google Ireland Limited whose principal place of business is at Gordon House, Barrow Street, Dublin 4 ("Google") though its syndication partner ExMarketPlace FZ LLC with registred office in 328-2-3 DMC Dubai UAE PO BOX 212278 Dubai and the entity agreeing to the terms below ("Company") and is effective on the first day of the calendar month that the Company accepts this Agreement by clicking the "Accepted and Agreed" button below ("Effective Date").
1. Definitions in this Agreement:
1.1 "Ad" means an individual advertisement provided through the Services.
1.2 "Ad Revenues" means, for any period during the Term and for each AdX transaction type, the sum of the AdX Transaction Prices in that period. Ad Revenues do not include Client-Managed Revenues.
1.3 "Ad Set" means a set of one or more Ads.
1.4 "AdX" or "Services" means Google DoubleClick AdX service and includes any successor service.
1.5 "AdX Guidelines" means the guidelines applicable to AdX and located at the following URL: https://www.google.com/doubleclick/adxseller/guidelines.html (or a different URL Google may provide to Company from time to time).
1.6 "AdX Transaction Price" means, in any AdX transaction, the final price for the provision of the Ad.
1.7 "Affiliate" means any entity that directly or indirectly controls, is controlled by or is under common control with a party.
1.8 "Brand Features" means trade names, trade and service marks, logos and other distinctive brand features or the applicable party.
1.9 "Client" means Company.
1.10 "Client-Managed Accounts" means Company's accounts with Client-Managed Buyers that are related to AdX.
1.11 "Client-Managed Buyer" means a purchaser of advertising inventory on the Sites from whom the Company (i) is responsible for collection of payment and with whom Company(ii) has a separate contractual relationship, as indicated by Company through the AdX user interface (including, if applicable, Google acting as purchaser, for example via an AdSense service).
1.12 "Client-Managed Revenues" means, for any period during the Term, the total amount payable to Company by Client-Managed Buyers for the sale of advertising inventory on the Sites, as calculated by Google from data retrieved from Client-Managed Accounts in that period.
1.13 "Company Content" means any content served to End Users that is not provided by Google.
1.14 "Company Partner" means for Sites participating in AdX, (i) the owner (if not Company) of those Sites, (ii) the third party co-branding the Sites with Company, or (iii) the third party for whom Company is white labeling the Sites.
1.15 "Confidential Information" means information disclosed by (or on behalf of) one party (or an Affiliate) to the other party under this Agreement that is marked as confidential or would normally be considered confidential under the circumstances in which it is presented. It does not include information that the recipient already knew, that becomes public through no fault of the recipient, that was independently developed by the recipient, or that was lawfully given to the recipient by a third party.
1.16 "End Users" means individual human end users of a Site.
1.17 "Intellectual Property Rights" means all copyrights, moral rights, patent rights, trade and service marks, design right, rights in or relating to databases, rights in or relating to Confidential Information, rights in relation to domain names and any other intellectual property or similar rights (registered or unregistered) throughout the world.
1.18 "Results" means Ad Sets or Ads.
1.19 "Results Page" means any Site page that contains any Results.
1.20 "Request" means a request from Company to Google for an Ad Set.
1.21 "Site(s)" means the web site(s) or other property(ies) registered with Google in writing or through the AdX user interface, together with the additional property(ies) registered with Google from time to time under subsection 5.3(a) of the Agreement.
1.22 "Term" means the period commencing on the Effective Date and continuing until terminated in accordance with this Agreement.
1.23 "Year" means a period of one calendar year starting on the Effective Date or the relevant anniversary of the Effective Date (as appropriate). The words "include" and "including" as used in the Agreement will not limit the generality of any words preceding them. References to any statute or other legislative enactment include references to that statute or legislative enactments as amended or re-enacted from time to time.
2. Implementation and Maintenance of Services.
2.1. For the remainder of the Term, Google will make available through ExMarketPlace and Company may implement and maintain the Services on each of the Sites. For purposes of clarity, Company may not implement the Services on a property that is not a Site.
2.2. Company will ensure that Company, or Company Partner: (a) is the technical and editorial decision maker in relation to each page, including Results Pages, on which the Services are implemented; and (b) has control over the way in which the Services are implemented on each of those pages.
2.3. Company will ensure that the Services are implemented and maintained in accordance with: (a) the AdX Guidelines; and (b) Google technical protocols (if any) and any other technical requirements and specifications applicable to the Services that are provided to Company by Google from time to time.
2.4. Google will, upon receiving a Request sent in compliance with this Agreement, provide an Ad Set when available. Company will then display the Ad Set on the applicable Site.
2.6. Company will take reasonable steps to ensure that an End User gives consent to the storing and accessing of cookies and other information on the End User's device in connection with the Services where such consent is required by law.
2.7. In each case solely for the purpose of providing AdX, Company authorises Google to access, manage, retrieve data from, and analyse data from: (a) Client-Managed Accounts (including by automated means); and (b) Company's AdX account.
3. Policy and Compliance Obligations.
3.1 Policy Obligations. Company will not, and will not knowingly or negligently allow any third party to: (a) modify, obscure or prevent the display of all, or any part of, any Results; (b) implement any click tracking or other monitoring of Results; (c) display any Results in pop-ups, pop-unders or other similar methods; (d) interfere with the display of or frame any Results Page or any page accessed by clicking on any Results; (e) display any content between any Results and any page accessed by clicking on those Results; (f) directly or indirectly, (i) offer incentives to End Users to generate impressions, Requests or clicks on Results, (ii) fraudulently generate impressions, Requests or clicks on Results or (iii) modify impressions, Requests or clicks on Results; (g) "crawl", "spider", index or in any non-transitory manner store or cache information obtained from the Services (including Results); or (h) display on any Site, any content that violates or encourages conduct that would violate the AdX Guidelines, Google technical protocols and any other technical requirements and specifications applicable to the Services that are provided to Company by Google from time to time.
3.2 Compliance Obligations. Company will not knowingly or negligently allow any use of or access to the Services through any Site that is not in compliance with the terms of this Agreement. Company will take reasonable steps to monitor for any such access or use and will, if any such access or use is detected, take all reasonable steps requested by Google to disable this access or use. If Company is not in compliance with this Agreement at any time, Google may suspend provision of all (or any part of) the Services.
4. Company Partners.
Company is responsible for any use of, or access to, the Services, including Results, by any Company Partner. Company will not provide Company Partner or any other third party with access to the AdX user interface. If the conduct of a Company Partner would be a breach of this Agreement had the conduct been performed by Company, this Company Partner conduct will be treated as Company's breach of this Agreement. If a Company Partner or Company Partner Site is in violation (or if Google reasonably suspects a violation) of this Agreement, then Google may immediately suspend or deactivate that Company Partner Site.
5. Changes and Modifications.
5.1. By Google. If Google modifies the AdX Guidelines, or the Google technical protocols and the modification requires action by Company, Company will take the necessary action no later than 30 days from receipt of notice from Google. Any modifications to the AdX Guidelines will be generally applied to Google's similarly situated customers in the same region who are using the specific Service impacted by the modification.
5.2. By Company. Company will provide Google through ExMarketPlace with at least 15 days prior notice of any change in code or serving technology that could reasonably be expected to affect the delivery or display of any Results.
5.3. Site List Changes. (a) Company may notify Google via ExMarketPlace from time to time that it wishes to add or remove property(ies) to or from those comprising the Site(s) by either sending notice to Google via ExMarketPlace or adding or removing the property(ies) through the AdX user interface. (b) If there is a change in control of any Site (such that the conditions set out in Section 2.2(a) or (b) are not met): (i) Company will provide notice to Google at least 30 days before the change; and (ii) unless the entire Agreement is assigned to the third party controlling the Site in compliance with Section 14.3 below, from the date of that change in control of the Site, that Site will be treated as removed from this Agreement. Company will ensure that from that date, the Services are no longer implemented on that Site.
6. Intellectual Property. Except to the extent expressly stated otherwise in this Agreement, neither party will acquire any right, title or interest in any Intellectual Property Rights belonging to the other party, or to the other party's licensors.
7. Brand Features. Google and ExMarketPlace may include Company's Brand Features in customer lists with Company's prior consent. Approval will not be required for subsequent uses of a previously approved Brand Feature.
8.1. Google Payments through ExMarketPlace. (a) In consideration for the provision of Services, Google through ExMarketPlace will pay Company an amount equal to the Revenue Share Percentage (listed on the front page of this Agreement) of Ad Revenues attributable to a calendar month. This payment will be made in the month following the calendar month in which the applicable Ads were displayed provided that the amount owed to Company in a given month is above the minimum set forth in the AdX Guidelines. (b) Google's payments for the Services under this Agreement will be based on Google's accounting which may be filtered to exclude (i) invalid queries, impressions, conversions, or clicks, and (ii) any amounts refunded to advertisers in connection with Company's failure to comply with this Agreement, as reasonably determined by Google.
8.3. Additional Payment Terms. (a) As between Google and ExMarketPlace, Google is responsible for all taxes (if any) associated with the transactions between Google and advertisers in connection with Ads displayed on the Sites. Company is responsible for all taxes (if any) associated with the Services, other than taxes based on Google's net income. All payments to Company from Google through ExMarketPlace in relation to the Services will be treated as inclusive of tax (if applicable) and will not be adjusted. If Google is obligated to withhold any taxes from its payments to Company, Google will notify Company through ExMarketPlace of this and will make the payments net of the withheld amounts. Google will provide Company through ExMarketPlace with original or certified copies of tax payments (or other sufficient evidence of tax payments) if any of these payments are made by Google. (b) All payments due to Company will be in US$. Company will be responsible for any bank charges assessed by Company's bank. (c) In addition to other rights and remedies Google may have, Google may offset any payment obligations to Company that Google may incur under this Agreement against any product or service fees owed to Google and not yet paid by Company under this Agreement or any other agreement between Company and Google. Google may also withhold and offset against its payment obligations under this Agreement, or require Company to pay to Google within 30 days of any invoice, any amounts Google may have overpaid to Company in prior periods.
9. Warranties; Disclaimers.
9.1. Each party warrants that (a) it has full power and authority to enter into this Agreement; and (b) it will use reasonable care and skill in complying with its obligations under this Agreement.
9.2 No conditions, warranties or other terms apply to the Services or to any other goods or services supplied by Google under this Agreement unless expressly set out in this Agreement. Subject to clause 11.1, all implied conditions, warranties or other terms (including any implied terms as to satisfactory quality, fitness for purpose or conformance with description) are excluded.
10.1 If either: (a) Company receives a claim from a third party that either Google's or any Google Affiliate's technology used to provide the Service infringes or misappropriates any copyright, trade secret, trademark or US patent of that third party; or (b) Google or a Google Affiliate receives a claim from a third party: (a) arising from any Company Content, Sites or Company Brand Features; (b) relating to any use of, or access to, the Services, including Results, by any Company Partner; or (c) brought by any Company Partner against Google relating to the implementation or display of Ads on a Company Partner Site, (in each case, a "Claim") then the party which received such Claim ("Recipient") will: (i) promptly notify the other party; (ii) provide the other party with reasonable information, assistance and cooperation in responding to and, where applicable, defending such Claim; and (iii) give the other party full control and sole authority over the defence and settlement of such Claim. The Recipient may appoint its own supervising counsel of its choice at its own expense.
10.2. Provided the Recipient complies with clause 10.1(i) to (iii) and subject to clause 10.3 (if applicable), the party notified in accordance with clause 10.1(i) ("Indemnifying Party") will accept full control and sole authority over the defence and settlement of such Claim and will indemnify the Recipient (and Google Affiliate where the Recipient is Google) against all damages and costs awarded for such Claim, settlement costs approved in writing by the Indemnifying Party in relation to such Claim, reasonable legal fees necessarily incurred by the Recipient in relation to such Claim and reasonable costs necessarily incurred by the Recipient in complying with clause 10.1(i) to (iii).
10.3 Google will not have any obligations or liability under this clause 10 in relation to any Claim arising from any: (a) use of the Services in a modified form or in combination with materials not furnished by Google; (b) content, information or data provided to Google by Company, Company Partners, End Users or any other third parties; (c) Ads or any third party websites or content to which such Ads may link; (d) acts or omissions by Company Partner.
10.4 Google may (at its sole discretion) suspend Company's use of the Services which are alleged, or believed by Google, to infringe any third party's Intellectual Property Rights, or to modify the Services to make it non-infringing.
10.5 This clause 10 states the parties' entire liability and exclusive remedy with respect to infringement of a third party's Intellectual Property Rights.
11. Limitation of Liability.
11.1 Nothing in this Agreement will exclude or limit either party's liability for: (a) death or personal injury resulting from the negligence (as defined by section 1 of the Unfair Contracts Terms Act 1977) of either party or their servants, agents or employees; (b) fraud or fraudulent misrepresentation; (c) misuse of Confidential Information; or (d) payment of sums properly due and owing to the other in the course of normal performance of this Agreement.
11.2 Nothing in this Agreement will exclude or limit either party's liability under clause 10 (Indemnities).
11.3 Subject to clauses 11.1 and 11.2 neither party shall be liable under this Agreement (whether in contract, tort (including negligence) or otherwise) for any special, indirect or consequential losses (whether or not such losses were within the contemplation of the parties at the date of this Agreement) suffered or incurred by the other party.
11.4 Subject to clauses 11.1 and 11.2, Google will not have any obligations or liability under or in connection with this Agreement (whether in contract, tort (including negligence) or otherwise and including under the indemnities in clause 10 in relation to any: (a) content, information or data provided to Google by Company, Company Partners, End Users or any other third parties; (b) Ads or any third party websites or content to which such Ads may link.
11.5 Subject to clauses 11.1 and 11.2, each party's liability under this Agreement (whether in contract, tort or otherwise) arising from any given event or series of connected events arising in any Year is limited to: (a) in the case of Google, 125% of: (i) Ad Revenues accrued under this Agreement during the relevant Year minus the Revenue Share Percentage paid or payable by Google to Company through ExMarketPlace during the relevant Year; and (ii) Transaction Fees for Company Managed Buyers paid or payable by Company to Google during the relevant Year. (b) in the case of Company, 125% of: (i) the total amount paid or payable by Google to Company under this Agreement during the relevant Year; and (ii) the total amount of Client-Managed Revenues paid or payable by Company Managed Buyers to Company during the relevant Year minus the Transaction Fees for Company Managed Buyers paid or payable by Company to Google during the relevant Year. 11.6 If the amounts referred to above in sub-clauses 11.5 (a) and (b) cannot be calculated accurately on the date the relevant liability is to be assessed (the "Applicable Date"), they shall be calculated on a pro-rata basis, as 125% of X/Y x Z, where: (i) in the case of Google: X = (i) + (ii) as calculated in accordance with clause 11.5(a) except that the words "during the relevant Year" are replaced with "during the then-current Year up to and including the Applicable Date" in each case; Y = the number of days that have elapsed in the then-current Year up to and including the Applicable Date; and Z = 365. (ii) in the case of Company: X = (i) + (ii) as calculated in accordance with clause 11.5(b) except that the words "during the relevant Year" are replaced by "during the then-current Year up to and including the Applicable Date" in each case; Y = the number of days that have elapsed in the then-current Year up to and including the Applicable Date; and Z = 365.
12. Confidentiality; PR.
12.1. Confidentiality. The recipient of any Confidential Information will not disclose that Confidential Information, except to Affiliates, employees, and/or agents who need to know it and who have agreed in writing to keep it confidential. The recipient will ensure that those people and entities use Confidential Information only to exercise rights and fulfill obligations under this Agreement and keep the Confidential Information confidential. The recipient may also disclose Confidential Information when required by law after giving the discloser reasonable notice and the opportunity to seek confidential treatment, a protective order or similar remedies or relief prior to disclosure (if permitted by law). 12.2. Exceptions. (a) Notwithstanding Section
12.3. PR. Neither party will make any public statement regarding this Agreement without the other party's prior written approval.
13. Term and Termination.
13.1. Term. This Agreement shall commence on the Effective Date and shall continue until terminated in accordance with these terms.
13.2. Termination. (a) Either party may terminate this Agreement with notice if the other party is in material breach of this Agreement: (i) where the breach is incapable of remedy; (ii) where the breach is capable of remedy and the party in breach fails to remedy that breach within 30 days after receiving notice from the other party; or (iii) more than twice even if the previous breaches were remedied. (b) Either party may terminate this Agreement for any or no reason upon 30 days prior notice to the other party. (c) Google reserves the right to suspend or terminate Company's use of any Services that are alleged or reasonably believed by Google to infringe or violate a third party right. If any suspension of a Service under this subsection 13.2(c) continues for more than 60 days, Company may immediately terminate this Agreement upon notice to Google though ExMarketPlace. (d) Google may terminate this Agreement immediately with notice if child sexual abuse imagery is displayed on any Site. (e) Upon the expiration or termination of this Agreement for any reason: (i) all rights and licenses granted by each party will cease immediately; and (ii) if requested, each party will take reasonable steps to promptly return to the other party, or destroy and certify the destruction of, all Confidential Information disclosed to it by the other party.
14.1. Compliance with Laws. Each party will comply with all applicable laws, rules, and regulations in fulfilling its obligations under this Agreement.
14.2. Notices. All notices of termination or breach must be in writing and addressed to the other party's Legal Department. The address for notices being sent to Google's Legal Department is firstname.lastname@example.org. All other notices must be in English, in writing and addressed to the other primary point of contact. Notice will be treated as given on receipt, as verified by written or automated receipt or by electronic log (as applicable).
14.3. Assignment. Neither party may assign or transfer any part of this Agreement without the written consent of the other party, except to an Affiliate but only if (a) the assignee agrees in writing to be bound by the terms of this Agreement and (b) the assigning party remains liable for obligations under this Agreement and (c) the assigning party has notified the other party of the assignment. Any other attempt to transfer or assign is void.
14.4. Change of Control. If a party experiences a change of control (for example, through a stock purchase or sale, merger, or other form of corporate transaction): (a) that party will give written notice to the other party within 30 days after the change of control, and (b) the other party may immediately terminate this Agreement any time between the change of control and 30 days after it receives that written notice.
14.5. Subcontracting. Either party may subcontract any of its obligations under this Agreement, but will remain liable for all subcontracted obligations and its subcontractors' acts or omissions.
14.6. Conflicting Languages. If this Agreement is translated into any other language, and there is a discrepancy between the English text and the text of the other language, the English text will govern.
14.7. Entire Agreement. Subject to clause 11.1(b), this Agreement sets out all terms agreed between the parties and cancels and replaces all other agreements between the parties relating to its subject matter. Save as expressly set out in this Agreement, no statement, representation, or warranty shall be taken to have been made or implied in the course of any negotiations between the parties prior to this Agreement. Neither party will have any right or remedy in respect of any statement, representation or warranty (whether made negligently or innocently) not expressly set out in this Agreement.
14.8. No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
14.9. Severability. If any term (or part of a term) of this Agreement is invalid, illegal or unenforceable, the rest of the Agreement will remain in effect.
14.10. Survival. The rights and obligations of clauses: 6 (Intellectual Property), 10 (Indemnification), 11 (Limitation of Liability), 12 (Confidentiality; PR) and 14 (Miscellaneous), and of any other clauses which under their terms or by implication ought to survive, shall survive the expiration or termination of this Agreement.
14.11. Independent Contractors. This Agreement does not create any agency, partnership or joint venture between the parties.
14.12. No Third Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.
14.13. Force Majeure. Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.
14.14. Counterparts. The parties may execute this Agreement in counterparts, including facsimile, PDF or other electronic copies, which taken together will constitute one instrument. 14.15. Governing Law: This Agreement is governed by English law and the parties submit to the exclusive jurisdiction of the English courts in relation to any dispute (contractual or non-contractual) concerning this Agreement, but either party may apply to any court for an injunction or other relief to protect its intellectual property rights.