Google

Definitions. The following capitalized terms will have the associated meanings for purposes of these Service Terms. Any definitions included in these Service Terms will have the same meaning throughout these Service Terms and the Agreement.

“Ad(s)” means advertising content.
“Affiliate” means, with respect to a party, an entity that directly or indirectly controls, is controlled by or is under common control with such party.
“Beta Feature” means any Service feature that is identified by Google, including via the applicable Service user interface or via other communications to Company, as “Beta”, “Alpha”, “Experimental”, “Limited Release” or “Pre-Release” or that is otherwise identified by Google as unsupported.
“Brand Features” means each party’s trade names, trademarks, logos and other distinctive brand features.
“Client” means an advertiser, network publisher or other third party, if any, on whose behalf Company utilizes a Service or any organization as detailed under the applicable Analytics Order Form. Such Client should be organized/incorporated in India only.
“Company Content” means any content served to End Users through the Target Properties that is not provided by Google (including the content of all Ads served via the Services).
“Company Partner” means for Target Properties, (i) the owner (if not Company) of a Target Property, (ii) the third party co-branding Target Properties with Company, or (iii) the third party for whom Company is white labeling Target Properties.
“Confidential Information” means information that one party (or an Affiliate) discloses to the other party by virtue of the Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. It does not include information that is independently developed by the recipient, is lawfully given to the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient.
“Data” means data derived from Company’s use of the Services.
“Effective Date” has the meaning set forth in the Order Form.
“End Users” means individual human end users of a Target Property.
“Intellectual Property Rights” means all copyrights, moral rights, patent rights, trademarks, rights in or relating to Confidential Information and any other intellectual property or similar rights (registered or unregistered) throughout the world.
“Order Form” means an order form, schedule or other agreement that is executed by Google India Private Limited (“Google India”) and you and issued under the Service specific Sale Terms and supplemented by these Service Terms and sets forth pricing and other terms with respect to a particular Service. All Order Forms incorporate and are governed by and under the terms and conditions contained in the Service specific Sale Terms, Service Specific Terms (as defined below) and Service Terms.
“Policies” means the (i) Google Platforms Program Policies available at https://support.google.com/platformspolicy?hl=en; (ii) the Google Ad Manager Partner Guidelines available at https://support.google.com/admanager/answer/9059370?hl=en (if applicable); (iii) the EU user consent policy available at https://www.google.com/about/company/user-consent-policy.html; and (iv) any other policy and implementation guidelines identified in an applicable Order Form or provided by Google to Company (in each case, as modified from time to time).
“Service Specific Terms” means, for each Service, the additional terms and conditions that apply to such Service that are available at the link provided in the applicable Order Form for the Service.
“Subcontractor” means a subcontractor, consultant, third-party service provider or agent engaged by Google in connection with provision of Services.
“Tag” means code (e.g., HTML) or a web beacon (e.g., pixel tag, clear GIF) that requests the delivery of an Ad or tracks an Ad impression or click.
“Target Property” means a property on which an Ad is served via the Services (i.e., web sites, consent-based e-mail publications, approved software applications or other properties as approved by Google).

Changes to the Services or these Service Terms. Google may modify these Service Terms (including applicable URLs referenced in these Service Terms and the content within such URLs) from time to time. Any modifications to these Service Terms will be available at the relevant URL (or a different URL that Google may provide from time to time). Changes to the content of these Service Terms (including changes to the content within URLs) will not apply retroactively and will become effective at least 30 days after they are posted, tounless otherwise specified by Google for Policies where in Google’s reasonable opinion more immediate application of a change to Policies (“Policy Change”) is 1) required to meet legal, regulatory, or industry standards/requirements; 2) required to maintain the integrity of Services; 3) required to address matters of public interest; or 4) reasonable to provide access to the Services for categories of Ads not previously permitted. Google will use commercially reasonable efforts to inform Company of immediate Policy Changes by alerting Company via the user interface, posting changes to the applicable change log relating to the Services, or by other suitable means (e.g. via email) where in Google’s reasonable opinion, Company is impacted by such Policy Change. For clarity, changes to the URL references in these Service Terms and in an Order Form will be effective immediately.

The Parties’ Obligations; Prohibited Acts.

a. Google will:
1. provide the applicable Services described in the Order Form(s) entered into by Company and Google’s authorised reseller in India, Google India, and obtain all rights necessary to provide such Services described in the respective Order Form;
2. use current industry-standard security measures in connection with its provision of Services;
3. promptly notify Company of any breach of Google security resulting in unauthorized third party access to the Data; and
4. provide the Services in compliance with all applicable privacy and export laws, rules, regulations and sanctions programs, including applicable Internet advertising industry guidelines (e.g., the self-regulatory principles/code of conduct of the Network Advertising Initiative, the Interactive Advertising Bureau and the Digital Advertising Alliance).
b. Company will:
1. use the Services in compliance with all applicable Policies (as such Policies may be updated from time to time) and at all times the burden of proof in establishing such compliance remains with Company;
2. be solely responsible for all use of Services (including trafficking Ads, implementing Tags, the acts and omissions of all Company Partners and Clients);
3. obtain all rights necessary to use, and necessary to permit Company or Google and/or its Affiliates, as the case may be, to use the Data under the terms of the Agreement, including from Company Partners, Target Property owners (if not Company), End Users and Clients;
4. use the Services in compliance with all applicable privacy and export laws, rules, regulations and sanctions programs, including applicable Internet advertising industry guidelines (e.g., the self-regulatory principles/code of conduct of the Network Advertising Initiative, the Interactive Advertising Bureau and the Digital Advertising Alliance); and
5. ensure that each Target Property utilizing a Service contains a privacy policy that discloses (i) the usage of third-party technology and (ii) the data collection and usage resulting from the Services, provided that those privacy policies need not expressly identify Google and/or its Affiliates or any Service, unless otherwise required by law, rule or regulation; and advise its Clients and Company Partners in writing that each of their web sites and Target Properties must comply with the foregoing;
c. Prohibited Acts. Company will not, and will not assist or knowingly permit any third party to:
1. pass information to Googler and/or its Affiliates that Google and/or its Affiliates could use or recognize as personally identifiable information;
2. misappropriate, misuse, or abuse any part of a Service or modify, disassemble, decompile, reverse engineer, copy, reproduce or create derivative works from or in respect to Services or any part of a Service;
3. damage or tamper with any part of a Service;
4. knowingly breach any Service security measure; or
5. provide Google any Ad that (x) when viewed or clicked on by an End User’s computer, causes such End User’s computer to download any software application, or (y) is illegal.

Payments.

a. Google Payments to Company [This section will not apply to Google Marketing Platform Advertising Services and Analytics Services. Please refer to the respective Sales Terms for Google Marketing Platform Advertising Services and Google Analytics]
1. For each applicable Service (i.e., if an Order Form requires Google to pay Company a Revenue Share Percentage, as such term is defined in the applicable Service Specific Terms), Google will pay Company an amount equal to the Revenue Share Percentage of Net Ad Revenues (as such term is defined in the applicable Service Specific Terms) attributable to a calendar month, except in instances where Company may receive certain payments directly from a third-party demand source rather than from Google. In such cases, notwithstanding anything to the contrary in this Section 4(a) of the Service Terms, Company agrees that the terms and conditions associated with such payment will be addressed in the agreement entered into between Company and the third-party demand source. For clarity, Google will not pay Company a Revenue Share Percentage or any amount attributed to Ads delivered by the third-party source on Company’s Target Properties (including any revenue share payment) and Google will not owe any such amounts to Company.
2. Google payment to Company will be made in the month following the calendar month in which the applicable Ads were displayed, subject to any minimum payment threshold set forth in the applicable Service Specific Terms.
3. Google payment to Company will be based on Google’s accounting which may be filtered to exclude, as determined by Google: (i) spam, invalid clicks, invalid impressions, invalid queries, invalid conversions, or other invalid events, (ii) Ads served to End Users whose browsers have JavaScript disabled or who are otherwise tampering with ad serving or measurement, (iii) any click, impression, query, conversion, or other event occurring on a Target Property that does not comply with the Policies, and (iv) any amounts refunded to advertisers in connection with Company’s failure to comply with the applicable agreement. If Google detects such invalid activity, either before or after issuing a payment for such activity, Google reserves the right to debit Company’s Google Ad Manager account or adjust future payments accordingly.
4. Google payment to Company will be treated as inclusive of tax (if applicable) and will not be adjusted for tax purposes. If Google is obligated to withhold any taxes from its payments to Company, Google will withhold and provide Company with tax information returns and/or withholding certificates (or other sufficient evidence of tax payments) if required by law. Google may request withholding tax exemption certificates from Company to determine if Company is eligible for a withholding exemption or a reduced rate of tax withholding.
5. In addition to other rights and remedies that Google may have, Google may offset any payment obligations to Company that Google may incur under the applicable agreement against any undisputed, past due product or service fees owed to Google by Company under agreement(s) between Company and Google.
6. Google may withhold and offset against its payment obligations under these Terms, or require Company to pay to Google within 30 days of any invoice, any amounts Google may have overpaid to Company in prior periods.

Intellectual Property. Except to the extent expressly stated otherwise in these Service Terms, neither party nor its Affiliates will acquire any right, title or interest in any Intellectual Property Rights owned or licensed by the other party.

Brand Features.

Brand Features license to Company. Google India’s Affiliate grants to Company a revocable, non-exclusive, non-transferable and non-sublicensable license during the Term of the Agreement to use Google’s Brand Features and Google-provided Analytics Service marketing materials expressly identified as shareable (“Marketing Materials”), in the Territory only, solely to fulfill Company’s obligations under this Agreement in accordance with its terms. Company’s use of Google’s Brand Features will be in accordance with the then-current Google branding guidelines (and any content referenced or included in them) located at the following URL: https://www.google.com/permissions (or such other URL as may be notified by Google India from time to time).
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE TERMS OR THIS ANALYTICS ORDER FORM, GOOGLE INDIA AND/OR ITS AFFILIATES WILL NOT BE LIABLE FOR ANY CLAIM OR LOSS ARISING FROM OR RELATED TO COMPANY’S USE OF MARKETING MATERIALS.
Google India will have the right, in its sole discretion, to terminate the Reseller Arrangement with Company contemplated by this Analytics Order Form at any time upon at least thirty (30) days’ written notice to Company if Company breaches such Google branding guidelines or otherwise misrepresents Google’s Brand Features.
Brand Features license to Google. Company grants to Google India and its Affiliates a non-exclusive, non-transferable, non-sublicensable (except to Google Affiliates) and worldwide royalty free license during the term of the Agreement to include Company’s Brand Features in presentations and marketing materials, including on any web page created by Google India or a Google Affiliate that relates to Company’s resale activities under the Agreement.
Written consent. Company will request and obtain Google India’s written approval before releasing to the public any materials containing Google’s Brand Features under the license set out in Section 6(a) (Brand Features license to Company). Except for the licenses expressly set out in this Agreement, neither party will acquire any right, title or interest in or to the other party's Brand Features under this Agreement. All goodwill arising from the use by Company of Google’s Brand Features will belong to Google India and its Affiliates, as the case may be. All goodwill arising from the use by Google of Company’s Brand Features will belong to Company. Google India may revoke the license granted under Section 6(a) (Brand Features license to Company) at any time on reasonable written notice. Company may revoke the license granted under Section 6(a) (Brand Features license to Google) at any time on reasonable written notice.

Confidentiality. The receiving party will not disclose the Confidential Information of the disclosing party, except to Affiliates, employees, agents or professional advisors of the receiving party who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The receiving party will ensure that those people and entities use the Confidential Information of the disclosing party only to exercise rights and fulfill obligations under these Service Terms for the Services identified under the Agreement, and that they keep it confidential. The receiving party may also disclose Confidential Information when required by law after giving reasonable notice to the disclosing party, if permitted by law. For purposes of clarification, Data and the terms and conditions of these Service Terms are considered Confidential Information.

Disclaimers. Except as expressly provided for in these Service Terms and to the maximum extent permitted by applicable law, EITHER PARTY DISCLAIMS AND EXCLUDES ANY WARRANTY OF ANY KIND, WHETHER IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY DISCLAIMS AND EXCLUDES, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, AND NON INFRINGEMENT (BUT THE FOREGOING WILL NOT LIMIT EITHER PARTY’S IP INFRINGEMENT INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10 OF THESE SERVICE TERMS). Certain laws of the jurisdiction in which Company is located may confer rights and remedies and imply terms into these Service Terms that cannot be excluded. Those rights, remedies, and implied terms are not excluded by these Service Terms. To the extent that the relevant laws permit Google to limit their operation, Google and its Affiliates’ liability under those laws will be limited at its option, to the supply of the services again, or payment of the cost of having the services supplied again.

Beta Features. Google and its Affiliates will have no liability under these Service Terms (including any indemnification obligations) arising out of or related to any use of Beta Features by Company, its Affiliates, or its or their Clients or Company Partners under the Agreement. Any use of Beta Features will be solely at Company’s own risk and may be subject to additional requirements as specified by Google. Google is not obligated to provide support for Beta Features and Google may, at its sole discretion, cease providing Beta Features as part of any Services.

Indemnification

Each party (the “Indemnifying Party”) will defend and indemnify the other party (including Google India so far as it relates to the Company) and its officers, directors, employees and agents (each, an “Indemnified Party”) from all third-party claims or liabilities in relation to a claim filed by an unaffiliated third party before a court or government tribunal (including reimbursement for reasonable outside attorneys’ fees and disbursements) arising out of or related to the Indemnifying Party’s (i) breach or alleged breach of these Service Terms or (ii) infringement of a third party’s patent, trademark, trade secret or copyright in connection with (x) with respect to Google and/or its Affiliates, the software and other technology used by Google and/or its Affiliates to provide the Services under a the Agreement, and (y) with respect to Company, the creative, technology, data or other materials provided by Company to Google and/or its Affiliates or otherwise provided and utilized by Company in connection with the Services under the Agreement (the indemnification obligation of each party described in this clause (ii), the “IP Infringement Obligation”).
In addition (if applicable to the Services), Company will defend and indemnify Google and its Indemnified Parties from all third-party claims or liabilities (including reimbursement for reasonable outside attorneys’ fees and disbursements) arising out of or related to: (i) Company Content, Target Properties or Company’s Brand Features, (ii) any use of Service(s) by a Company Partner, or (iii) any direct claims brought by a Company Partner against Google relating to Google’s provision of the Service(s) for such Company Partner.
Google’s IP Infringement Obligation will not apply to claims to the extent arising from (i) Company’s use of the Service in violation of these Service Terms; or (ii) the combination, operation or use of the Service(s) with any product or service not provided or authorized in writing under a Order Form. Company’s IP Infringement Obligation will not apply to claims to the extent arising from Google’s provision of the Service(s) in violation of these Service Terms. Without affecting either party’s termination rights and to the maximum extent permitted by law, Sections 10(a) and 10(b) (if applicable to the Services) of these Terms state the sole liability of the Indemnifying Party, and the sole remedy of the Indemnified Party, with respect to any third-party claim arising out of the Indemnifying Party’s breach of these Service Terms or intellectual property infringement.
The Indemnified Party must (i) promptly notify the Indemnifying Party in writing of the third-party claims (except that failure of the Indemnified Party to promptly notify the Indemnifying Party will not relieve the Indemnifying Party of its indemnification obligations, except to the extent it has been damaged by the failure); (ii) reasonably cooperate with the Indemnifying Party in the defense of the matter and (iii) give the Indemnifying Party primary control of the defense of the matter and negotiations for its settlement. The Indemnified Party may at its expense join in the defense with counsel of its choice. Any settlement requiring the Indemnified Party to admit liability, pay money, or take (or refrain from taking) any action will require the Indemnified Party's prior written consent,not to be unreasonably withheld, conditioned, or delayed.
If a Service becomes, or in Google’s reasonable opinion is likely to become, the subject of an intellectual property infringement claim, then Google at its sole option and expense and upon notice to Company, may suspend provision of the applicable Service and either: (x) procure the right to continue providing the Service as contemplated by these Service Terms; (y) modify the Service to render it non‑infringing without adversely affecting use of such Service; or (z) replace the Service with a functionally equivalent, non‑infringing service, to be sold via Google India. If the above options are not commercially practicable, then the Order Form(s) for the Services impacted may be terminated as per the Service specific Sale Terms.

Limitation of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT FOR (A) INDEMNIFICATION AMOUNTS PAYABLE TO THIRD PARTIES UNDER THESE SERVICE TERMS AND (B) BREACHES OF SECTION 7 (CONFIDENTIALITY) OF THESE SERVICE TERMS, NEITHER PARTY WILL BE LIABLE UNDER THESE SERVICE TERMS FOR LOST REVENUES, LOSSES, OR EXPENSES RELATED TO SUCH LOST REVENUES, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT FOR (I) INDEMNIFICATION AMOUNTS PAYABLE TO THIRD PARTIES UNDER THESE SERVICE TERMS OR (II) AMOUNTS OWED AND PAYABLE UNDER THE AGREEMENT, NEITHER PARTY WILL BE LIABLE UNDER THESE SERVICE TERMS FOR MORE THAN THE SUM OF (A) SERVICE FEES PAID UNDER THE AGREEMENT AND (B) AD REVENUES (IF APPLICABLE) RECEIVED AND RETAINED BY SUCH PARTY, IN EACH CASE, DURING THE 12 MONTHS BEFORE THE CLAIM ARISES.

Miscellaneous.

Assignment. Neither party may assign any part of this Agreement without the written consent of the other, except to an Affiliate where: (a) the assignee has agreed in writing to be bound by the terms of the Agreement and the Service Terms; (b) the assigning party remains liable for obligations under the Agreement and the Service Terms if the assignee defaults on them; and (c) the assignor has notified the other party of the assignment. Any other attempt to assign is void.
Conflicting Terms. If there is a conflict between Service Terms and the Service Specific Terms, then the following order precedence will apply: (i) the Service Specific Terms; and (ii) the Service Terms. If there is a conflict between these Service Terms and the Agreement, the Agreement will govern.
Force Majeure. Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.
Governing Law. ALL CLAIMS ARISING OUT OF OR RELATING TO THESE SERVICE TERMS OR ANY RELATED GOOGLE PRODUCTS OR SERVICES (INCLUDING ANY DISPUTE REGARDING THE INTERPRETATION OR PERFORMANCE OF THE SERVICE TERMS) ("Dispute") WILL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, USA, EXCLUDING CALIFORNIA’S CONFLICTS OF LAWS RULES. The parties will try in good faith to settle any Dispute within 30 days after the Dispute arises. If the Dispute is not resolved within 30 days, it must be resolved by arbitration by the American Arbitration Association’s International Centre for Dispute Resolution in accordance with its Expedited Commercial Rules in force as of the date of the Order Form Agreement ("Rules"). The parties will mutually select one arbitrator. The arbitration will be conducted in English in Santa Clara County, California, USA. Either party may apply to any competent court for injunctive relief necessary to protect its rights pending resolution of the arbitration. The arbitrator may order equitable or injunctive relief consistent with the remedies and limitations in these Service Terms. Subject to the confidentiality requirements in Section 7, either party may petition any competent court to issue any order necessary to protect that party's rights or property; this petition will not be considered a violation or waiver of this governing law and arbitration section and will not affect the arbitrator’s powers, including the power to review the judicial decision. The parties stipulate that the courts of Santa Clara County, California, USA, are competent to grant any order under this Section 12(d). The arbitral award will be final and binding on the parties and its execution may be presented in any competent court, including any court with jurisdiction over either party or any of its property. Any arbitration proceeding conducted in accordance with this Section 12(d) will be considered Confidential Information under these Service Terms confidentiality section, including (i) the existence of, (ii) any information disclosed during, and (iii) any oral communications or documents related to the arbitration proceedings. The parties may also disclose the information described in this Section 12(d) to a competent court as may be necessary to file any order or execute any arbitral decision, but the parties must request that those judicial proceedings be conducted in camera (in private). The parties will pay the arbitrator’s fees, the arbitrator's appointed experts' fees and expenses, and the arbitration center's administrative expenses in accordance with the Rules. In its final decision, the arbitrator will determine the non-prevailing party's obligation to reimburse the amount paid in advance by the prevailing party for these fees. Each party will bear its own lawyers’ and experts’ fees and expenses, regardless of the arbitrator’s final decision regarding the Dispute.
No Agency. These Service Terms does not create any agency, partnership, franchise or joint venture between the parties.
No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under these Service Terms.
Severability. If any term (or part of a term) of these Service Terms is invalid, illegal or unenforceable, the rest of these Service Terms will remain in effect.
Subcontractors. Google may subcontract any of its obligations under these Services Terms, without the written consent of the other party. Google is liable for the acts and omissions of its Subcontractors.
Approvals. The parties agree that whenever these Service Terms calls for written request or written approval to be provided by either party, unless otherwise expressly stated that e-mail is not acceptable, such request or approval may be provided via e-mail.
Equitable Relief. Nothing in these Service Terms will limit a party’s ability to seek equitable relief; except that Company will not seek, in a proceeding filed during the term or for one year after the term, an injunction or an exclusion order of any of the Services or any portion of the Services based on patent infringement.
Survival. Notwithstanding termination or expiration of a Order Form, any provisions of these Service Terms that by their nature are intended to survive, will survive termination including, but not limited to: 5 (Intellectual Property), 7 (Confidentiality), 8 (Disclaimers), 9 (Beta Features), 10 (Indemnification), 11 (Limitation of Liability), and 12 (Miscellaneous).
Translation. Any local language translation (where applicable) exists for reference purpose only, and only the English version will be legally binding. If there is any inconsistency between the two versions, the English version shall control.

GOOGLE PLATFORM SERVICES TERMS AND CONDITIONS