Last Updated: 6/27/23

Customer has retained Company to license one or more of the Analytics Services in the Google Marketing Platform (the “Analytics Services”). The Parties hereby agree that in addition to the Order Form and any Schedule(s), Addendum(s), and Amendment(s), these Terms and Conditions (“License Terms”) govern the Customer’s use of the Analytics Services.

DEFINITIONS

In addition to those terms defined on the preceding page and in the Google Terms, the following terms have the following meanings in these License Terms:

a) “Beta Test” means Customer’s use of a Beta Feature(s) for the purpose of testing the usability and functionality of that Beta Feature(s). For purposes of clarification, (i) in no event will Customer be obligated to participate in any Beta Test, and (ii) Customer’s use of a Beta Feature for purposes other than testing the usability and functionality of that Beta Feature will not be deemed a Beta Test with respect to that Beta Feature.

b) “Customer Data” means the following: (i) with respect to Analytics 360, the data collected through use of an OSCI and then processed by Analytics 360; (ii) with respect to Optimize 360, Customer’s creative content or code for creative content that Company inputs into Optimize 360 or has inputted on its behalf; (iii) with respect to Surveys 360, Survey Questions and Survey Response Data, and (iv) with respect to Tag Manager 360, data concerning the volume and frequency of Company’s code (e.g., HTML) or web beacons (e.g., pixel tag, clear GIF) served via a Tag Container. For purposes of the Analytics Order Form, data derived from Customer’s use of the Analytics Service means Customer Data for the applicable service.

c) “Data Protection Laws” means (i) Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector and any implementing legislation (as amended); (ii) the GDPR (as defined in the DPA); (iii) any other relevant and applicable data protection legislation or regulations; and (iv) Google’s privacy policy as in force from time to time (available at http://www.google.com/privacypolicy.html or such other URL as Google may provide from time to time).

d) “Event” means a base unit of measurement that is processed in Google Analytics or the Analytics 360 service through a GA4 Property, which may include but is not limited to a page view, transaction, call to the Google Analytics system by an OSCI, screen view, custom event or other interactions with GA4 Properties capable of supporting multiple data streams.

e) “Export Laws” means all applicable export control and sanctions laws and regulations, including (i) the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, (ii) trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control, and (iii) the International Traffic in Arms Regulations (“ITAR”) maintained by the U.S. Department of State.

f) “GA-OEP Property” or “GA-OEP Properties” means the collection of Google Analytics settings and information associated with the same Google Analytics Property ID to which Hits or Events, as applicable, are sent from a Property or collection of Properties.

g) “Google Analytics 4 Property” or “GA4 Property” means an Analytics 360 Property (formerly known as an ‘App + Web’ property) that uses an OSCI to send Events to the Analytics Service through Company’s account.

h) “Hit” means a base unit of measurement that is sent to the Google Analytics or Analytics 360 service for processing through a UA Property, which may include but is not limited to a page view, a transaction or a call to the Google Analytics system by an OSCI.

i) “OEP” means an “Optimize 360 Enabled Property”, which is a GA-OEP Property that is enabled for linking to the Optimize 360 service.

j) “OSCI” means an “Officially Supported Client Interface”, which is a mechanism made available by or supported by Google that can be used to send Hits or Events, as applicable, to the Analytics 360 service.

k) “Platform Home” means the user interface in Google Marketing Platform through which Company can access certain suite-level services and functionality.

l) “Property” means any web page, application, or other property that (i) with respect to Analytics 360 and Optimize 360, uses an OSCI to send data to the Analytics Service through Company’s account and (ii) with respect to Tag Manager 360, any web page, application, or other property for which Company requests a Tag Container. Properties will be deemed Target Properties for purposes of the Analytics Service. For purposes of clarification, all applicable obligations relating to Target Properties under the Platform Terms will apply to Properties.

m) “Report” means the resulting analysis shown at www.google.com/analytics (or any other URL Google may provide from time to time).

n) “Survey Questions” means all questions submitted by Customer through the Surveys 360 service.

o) “Survey Response Data” means data submitted by end users in response to Survey Questions.

p) “Tag Container” means the code delivered through Tag Manager 360, through which Customer may serve multiple code (e.g., HTML) or web beacons (e.g., pixel tag, clear GIF) on one or more Properties.

q) “Universal Analytics Property” or “UA Property” means an Analytics 360 Property (also known as a ‘Classic’ property) that uses an OSCI to send Hits to the Analytics Service through Customer’s account.

r) “Territory” means, unless separately agreed to by Company in writing, the United States, Canada, and Latin America, excluding any countries where either party is prohibited from providing the Analytics Services due to applicable Export Laws.

s) “TSSG” means the technical support service guidelines for the Analytics Service set out at http://www.google.com/analytics/premium/reseller-tssg.html (or such other URL as may be provided by Google) which Google may update from time to time with at least seven (7) days’ prior written notice.

ANALYTICS LICENSE RIGHTS AND TERMS

During the applicable Term, Company will provide the Analytics Services (as selected in the Order Form) and grant Customer the right to access and use the selected Analytics Service(s) in accordance with the following terms, as applicable. Company will provide, at a minimum, the support and training as described at https://marketingplatform.google.com/about/reseller/MSO/ (or as otherwise provided by Google and together with the TSSG, the “Minimum Support Obligations”), which Google may update from time to time.

 

2.1 GENERAL TERMS.

(a) Customer Obligations. Subject to the terms and conditions of this License Agreement, Customer hereby authorizes the Company to access and use the Analytics Services on its behalf in order for the Company to perform the professional and/or consulting services under this License Agreement. For the avoidance of doubt, Customer acknowledges and accepts that Google will not, and is not required to provide any support services to Customer directly. Without limiting the generality of the foregoing, Customer will (i) allow the Company to access, monitor, use and disclose Customer Data within the Customer’s account in order to perform its obligations to Customer; (ii) be responsible for all use of the Analytics Service(s), including the acts or omissions of Company in connection with its use of the Analytics Service(s); (iii) ensure that the Analytics Service(s) are solely used in the Territory; (iv) obtain and maintain any required consents to permit Company’s access to, monitoring, use and disclosure of data within Customer’s Analytics Service account; (v) ensure that no third party resells, distributes, leases, or in any way allows a fourth party to use the Analytics Service(s); and (vi) ensure that each of its websites using any Analytics Service(s) complies with the GA Policies.

(b) Customer Negative Obligations. Customer will not, and will not assist or knowingly permit any third party to: (i) pass information to Company or Google, as applicable, that Company or Google, as applicable, could use or recognize as personally identifiable information; (ii) misappropriate any part of an Analytics Service(s) or modify, disassemble, decompile, reverse engineer, copy, reproduce or create derivative works from or in respect of any Analytics Service or any part thereof; (iii) damage or tamper with any part of an Analytics Service; (iv) knowingly breach any Company or Google security measure; (v) provide Company with any Ad that (1) when viewed or clicked on by any Visitor, causes such Visitor’s computer to download any software application, or (2) is illegal; (vi) resell, distribute, lease or in any way allow another party to use its subscription to any Analytics Service(s), except as authorized hereunder.

2.2 ANALYTICS 360. Customer will (i) allow Company to provision and provide to Company the right to install, copy and use the OSCIs and Analytics Services solely on Customer’s Properties; (ii) ensure that it does not utilize its Analytics 360 account to process more than (a) 20 billion Hits per month across all of Customer’s Analytics 360 Properties, or (b) 10 billion Hits per month for any individual Analytics 360 Property, unless Company provides Customer with prior written approval to the contrary; (iii) not allow any third party to use data labeled as belonging to a third party in Analytics 360 for purposes other than generating, viewing, and downloading Reports; and; (iv) comply with the applicable GA Policies.

(a) UNIVERSAL ANALYTICS (UA) PROPERTIES DOWNGRADE AND TRANSITION. Customer acknowledges that this License Agreement is for the purchase of GA4 Properties under Analytics 360 and that the Fees for Analytics Services and any Service Level Agreement (SLA) under this License Agreement do not include UA Properties. Notwithstanding the foregoing, Google may continue to make available Analytics 360 under this License Agreement for UA Properties. To the extent Customer maintains UA Properties in connection with this License Agreement only, Customer acknowledges that Google reserves the right to downgrade such UA Properties by July 1, 2024 (the “UA Properties Downgrade”). Google reserves the right to modify the terms of the UA Properties Downgrade, including the date that such downgrade will occur and Company will make its best efforts to notify Customer.

2.3 TAG MANAGER 360. If Customer has licensed Tag Manager 360, Customer will not host the Tag Container on any domain other than the Tag Manager 360 domain without Company and Google’s prior written consent. Customer represents and warrants that it has obtained all necessary rights to upload (or to allow Company to upload) any non-Google tags and will comply with all terms and conditions relating to the use of all tags via Tag Manager 360. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, CUSTOMER ACKNOWLEDGES THAT COMPANY AND GOOGLE WILL NOT BE LIABLE FOR ANY CLAIM OR LOSS ARISING FROM OR RELATED TO CUSTOMER’S USE OF NON-GOOGLE TAGS. Unless Company provides Customer with prior written approval to the contrary, Customer will ensure it does not configure its Tag Manager 360 account to request Tag Containers more than 20 billion times per month across all of Customer’s Tag Manager 360 Properties.

2.4 OPTIMIZE 360. Customer will only link GA-OEP Properties to Customer’s Optimize account if it has allnecessary rights to such GA-OEP Properties and shared Google Analytics data and has all necessary rights to perform such linking. Customer’s use of the free Optimize Service on free Optimize properties will be governed by the standard Optimize Terms of Service available at http://g.co/optimizetos (or other URL as provided by Google). If Customer downgrades an OEP to the free version of Optimize, Customer acknowledges that Google or Company reserves the right to bill Customer in accordance with the rates listed on the Optimize 360 Sales Partner Pricing Page if experiments continue to run on such downgraded OEP.

2.5 SERVICE LEVEL AGREEMENTS. Google will use commercially reasonable efforts to ensure that the Analytics Service (other than Surveys 360, if applicable) meets the service levels indicated at https://marketingplatform.google.com/about/analytics_products/reseller-sla (the “SLA”). In the event of an SLA violation, Company will provide to Customers the remedies specified in the SLA only, in accordance with the terms of the SLA, with no amendments or substitutions.

ADDITIONAL TERMS AND CONDITIONS

Without limiting any of the terms and conditions of these License Terms, Customer acknowledges and agrees that its use of, or access to, the Analytics Services is also subject to compliance with:

3.1 The following Google policies (collectively, “Google Terms”):

(a) The general Google Platform Services Terms and Conditions (as modified from time to time, “Google Platform Terms”) available at https://www.google.com/intl/en_us/doubleclick/platform/terms.html and

(b) The Google Marketing Platform Analytics Service Specific Terms (as modified from time to time, “Google Analytics Service Specific Terms”) available at https://www.google.com/intl/en_us/ads_platforms/gmp/analytics/terms.html

(c) The Google Analytics Policies available at www.google.com/analytics/policies (“GA Policies”)

(d) The Google Surveys Policies (as applicable) available at https://support.google.com/surveys/answer/2375134 (as modified from time to time, “Google Surveys Policies”)

3.2 All applicable law including, but not limited to:

(a) All applicable commercial and public anti-bribery laws, including but not limited to the U.S. Foreign Corrupt Practices Act of 1977 (“Anti-Bribery Laws”), which prohibits corrupt offers of anything of value, either directly or indirectly, to a government official to obtain or keep business or to secure any other improper commercial advantage, and (b) will not make any facilitation payments, which are payments to induce any official to perform routine functions they are otherwise obligated to perform. “Government officials” include any government employee; candidate for public office; and employee of government-owned or controlled companies, public international organizations, and political parties. Any breach of the first sentence of this Section

3.2(a) is deemed incapable of cure;

(b) Data Protection Laws as described in Section 5; and

(c) Export Laws as defined in Section 1 of these License Terms.

CONFIDENTIALITY, DATA, AND PRIVACY

4.1 CONFIDENTIALITY. For purposes of this License Agreement, “Confidential Information” means information disclosed by one party to the other party under this License Agreement that is marked as confidential or would normally be considered confidential (e.g., product or business plans), but does not include information that the recipient already knew, becomes public through no fault of the recipient, or was independently developed by the recipient without reference to the discloser’s confidential information. The recipient may use Confidential Information only to exercise its rights and fulfill its obligations under this License Agreement and must use reasonable care to protect Confidential Information. The recipient will not disclose Confidential Information, except to affiliates, employees and subcontractors, or agents who need to know it and who are obligated to keep it confidential. No party may disclose the terms of this License Agreement (including, for purposes of clarification, the pricing terms under this License Agreement) to a third party without prior written consent of the other party, except (a) to Google by Company, (b) to its professional advisors under a strict duty of confidentiality, (c) for purposes of enforcing its rights under this License Agreement, (d) to Company in the case of the Customer, and (e) if and as required by court order, law or governmental or regulatory agency (after, if permitted, giving reasonable notice to the discloser and using commercially reasonable efforts to provide the discloser with the opportunity to seek a protective order or the equivalent (at the discloser’s expense)).

 

4.2 CUSTOMER DATA. As between Company and Customer, Customer will own all Customer Data. Customer acknowledges that Company and Google may use and disclose such data:

(a) as aggregate Analytics Service(s) statistics, which will not include personally identifiable information or information that identifies or would reasonably be expected to identify Customer or any of its clients or Target Properties;

(b) to provide Analytics Service(s) and enforce any of its rights (it being understood and agreed that Customer’s non-aggregated data will not be used or disclosed to any third party by Google (except as otherwise expressly permitted by this License Agreement) without Customer’s written consent);

(c) In accordance with the settings in Customer’s account and the Platform Home, as applicable;

(d) if and as required by court order, law or governmental or regulatory agency (after, if permitted, giving reasonable notice to Customer and using commercially reasonable efforts to provide Customer with the opportunity to seek a protective order or the equivalent (at Customer’s expense));

(e) with respect to data derived from Company’s participation in a Beta Test, in addition to its rights set forth in the preceding provisos, Google may use and disclose such data, and all results and feedback from the Beta Test, in connection with the Analytics Service(s) as long as Google does not disclose results to third parties in such a manner as would identify or reasonably be expected to identify Customer or any of its clients without Customer’s prior written consent.

(f) If Company’s Analytics Service(s) accounts (including accounts for any free versions of the Analytics Service) are linked to a Google Marketing Platform organization, certain data from Company’s Analytics Service accounts and/or data related to or derived from Company’s use of the Platform Home may be shared within the Google Marketing Platform organization, made accessible to any entity or personnel with access to the Google Marketing Platform organization, and will be subject to applicable settings in the Platform Home. Notwithstanding Company’s data sharing settings within any of the Analytics Service accounts linked to such Google Marketing Platform organization, Google support representatives may have access to the Google Marketing Platform organization and its data for the purpose of troubleshooting or servicing the Google Marketing Platform organization.

4.3 ACCOUNT SECURITY. Customer will protect Customer’s passwords and take full responsibility for Customer’s own, and any third-party use of Customer’s accounts. Customer will notify Company immediately upon learning of any unauthorized use of Customer’s account or any other breach of security.

4.4 COOKIES. Customer will use commercially reasonable efforts to ensure that a Visitor is provided with clear and comprehensive information about, and consents to, the storing and accessing of cookies or other information on the Visitor’s device where such activity occurs in connection with the Analytics Service(s) and where providing such information and obtaining such consent is required by law.

4.5 WEBSITES. Customer will ensure that each of its websites using the Analytics Service(s) contains a privacy policy that:

(a) discloses (i) the usage of third-party technology, and (ii) the data collection and usage resulting from the Analytics Service(s) (it being understood that this clause (a) will not be deemed to require those privacy policies to expressly identify Google, Company or any Analytics Service(s), unless otherwise required by law, rule or regulation); and

(b) complies with all applicable privacy laws, rules and regulations.

4.6 EMAIL PUBLICATIONS Notwithstanding anything to the contrary in this License Agreement, Customer will ensure that each of its Target Sites that is a consent-based email publication contains a conspicuous link to a privacy policy that:

(a) discloses (i) the usage of third-party technology, and (ii) the data collection and usage resulting from the Analytics Service(s) (it being understood that this clause (a) will not be deemed to require those privacy policies to expressly identify Google, Company, Company or any Analytics Service(s), unless otherwise required by law, rule or regulation); and

(b) complies with all applicable laws, rules and regulations.

4.7 GOOGLE DATA PROCESSING TERMS. Customer agrees that its use of the Analytics Service(s) is subject to the Google Ads Data Processing Terms at privacy.google.com/businesses/processorterms (as modified from time to time) (the “DPA”), in connection with the Analytics Service(s) that are “Processor Services” (as such term is defined the DPA) except that the parties agree to amend the DPA by replacing “Google” or “Google Entity” with “Company” unless the context otherwise requires. For greater certainty, any specific security requirements or certifications (e.g., ISO/IEC 27001:2013 certification and Appendix 2) set out in the DPA are made solely by Google and not by Company. Customer acknowledges that Google may engage its affiliates and other third parties as subprocessors in accordance with the DPA.

4.8 DATA PROTECTION LAWS. Customer will (i) comply with the Data Protection Laws and (ii) if Customer requires Company to process data pursuant to this License Agreement, agree to the terms of the Data Protection Addendum located at https://www.napkyn.com/data-processing-agreement/data processing.

PAYMENTS

5.1 Customer will pay Company as stated in the Order Form and as invoiced by Company in accordance with the Invoicing Schedule set out in the Order Form. Payment of invoices will be due net thirty (30) days from the invoice date in U.S. dollars. Customer will pay all taxes and other government charges (except for taxes on Company’s income) in connection with this License Agreement and Services provided hereunder. If Customer has a good faith dispute regarding fees invoiced, Customer must give Company notice of the basis for such dispute within fifteen (15) days after the invoice date or Customer will have waived all rights to dispute its obligation to pay the invoiced amount. In the event that Customer fails to make timely payments in accordance with this License Agreement, interest shall accrue on such due amounts from the date payment is due up until payment is made at the monthly rate equal to 1.5% or the highest rate permitted by law (if less). Any delay in payment shall also result, in addition to the payment of late payment interest and if permitted, in the payment of compensation for recovery costs. Client’s payment of Napkyn’s invoices shall in no way be conditioned upon or delayed pending Client’s receipt of payment from any third party. Unpaid Fees shall accrue interest at the rate of 1.5% per month or the highest rate allowed by law. Additionally, Napkyn shall be entitled to expenses incurred in its efforts to collect unpaid Fees, if necessary, including without limitation, court costs and reasonable attorneys’ fees. At no time may Client withhold payment of Fees that are not subject to a good faith dispute between the parties.

TERM AND TERMINATION

6.1 ANALYTICS SERVICE LICENSE TERM. The Initial Term is the period beginning on the Effective Date and continuing for the Initial Term as set out on the Order Form. If the field for “Auto-Renewal” is marked “Yes” on the Order Form, the Order Form will automatically renew for additional 12-month periods following the end of the Initial Term (each, a “Renewal Term”) unless either party notifies the other of its intent not to renew this License Agreement at least 75 days prior to the end of the Initial Term or then-current Renewal Term (the Initial Term and all Renewal Terms are collectively, the “Term”).

6.2 TERMINATION AND SUSPENSION.

(a) Suspension. Company may immediately suspend the provision and use of any or all Analytics Services with or without notice if (i) Customer breaches any term of the License Agreement or Google Terms, provided, however, that in the event of a suspension pursuant to this clause, if Customer cures the breach pursuant to which the Analytics Service(s) were suspended, then, without limiting any of Company’s rights and remedies with respect to such breach, Company will reinstate the provision and use of the suspended Analytics Service(s) promptly following such cure, (ii) Customer fails to pay fees invoiced by Company (other than fees disputed in good faith) within 10 days following the due date, or (iii) Google instructs Company to do so. Notwithstanding the foregoing, Company may terminate an Analytics Service immediately if Customer has materially breached this License Agreement more than two times, regardless of any cure of such breaches.

(b) Termination for breach. A party may terminate an Analytics Service immediately upon notice to the other party that it is in material breach of this License Agreement with respect to such Analytics Service; provided that (i) if the breach is capable of cure, the breaching party will have 30 days from the notice date to cure the breach to the non-breaching party’s reasonable satisfaction. Notwithstanding termination of this License Agreement, any provisions of this License Agreement that by their nature are intended to survive, will survive termination.

(c) Termination by Company. In addition, Company may immediately terminate this License Agreement on notice to the Customer if (i) Company’s rights to grant the rights for Analytics Service(s) are terminated, suspended, or revoked for any reason, or (ii) Google instructs Company to do so.

 

(d) Effect of Termination. Upon any termination or expiration of an Analytics Service: (a) Company will cause Google to render all Customer Data externally inaccessible within a reasonable time period after receiving a written request from Customer to do so, and (b) continued use of the Analytics Service is subject to the then-standard (i) Google Analytics Terms of Service available at http://www.Google.com/analytics/tos.html (or other URL as provided by Google), (ii) Optimize Terms of Service available at http://g.co/optimizetos (or other URL as provided by Google) and (iii) Google Tag Manager Terms of Service available at https://www.Google.com/analytics/tag-manager/use-policy/ (or other URL as provided by Google), each as applicable, and for purposes of clarification, neither Company nor Customer may export Customer Data (except as the then-standard Google Analytics and Google Tag Manger product, as applicable, permits).

WARRANTIES, DISCLAIMERS, AND LIMITATION OF LIABILITY

7.1 WARRANTIES. Each party represents and warrants to the other party that it has full power, right and authority to enter into this License Agreement, to perform its obligations under this License Agreement, to perform its obligations in compliance with applicable laws, rules and regulations, and to assign and grant the rights assigned and granted to the other party under this License Agreement, and that this License Agreement does not violate or breach any obligation of such party to any third party. Customer represents and warrants that it will comply with all applicable rules and regulations regarding the protection and the processing of personal data, including but not limited to the DPA and any other data processing agreement incorporated in this License Agreement.

7.2 DISCLAIMERS. EACH PARTY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION FOR NON-INFRINGEMENT (IT BEING UNDERSTOOD THAT, FOR PURPOSES OF CLARIFICATION, THE FOREGOING WILL NOT LIMIT EITHER PARTY’S IP INFRINGEMENT OBLIGATION SET FORTH IN SECTION 7 OF THIS AGREEMENT), MERCHANTABILITY AND FITNESS FOR ANY PURPOSE.

7.3 LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, REGARDLESS OF THE THEORY OR TYPE OF CLAIM: (A) EXCEPT FOR INDEMNIFICATION AMOUNTS PAYABLE TO THIRD PARTIES UNDER THIS AGREEMENT AND BREACHES OF CONFIDENTIALITY, NEITHER PARTY WILL BE LIABLE UNDER THE AGREEMENT 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; AND (B) EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, OR EACH PARTY’S INTENTIONAL MISCONDUCT, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY WITH RESPECT TO A PARTICULAR ANALYTICS SERVICE WILL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNT OF FEES PAID OR PAYABLE TO COMPANY UNDER THE AGREEMENT WITH RESPECT TO SUCH ANALYTICS SERVICE DURING THE 12 MONTHS BEFORE THE CLAIM AROSE.

INDEMNIFICATION

8.1 INDEMNIFICATION. Each party (the “Indemnifying Party”) will defend, indemnify and hold harmless the other party and its officers, directors, employees and agents (each, an “Indemnified Party”) from all third-party claims or liabilities (including without limitation reimbursement for reasonable outside attorneys’ fees and disbursements) arising out of or related to the Indemnifying Party’s (i) breach or alleged breach of this License Agreement, or (ii) infringement of a third party’s U.S. patent, trademark, trade secret or copyright in connection with (a) with respect to Company, the software and other technology used by Company to provide the Analytics Service(s) hereunder, and (b) with respect to Customer, the creative, technology, data or other materials provided by Customer to Company or otherwise provided and utilized by Customer in connection with the Analytics Service(s) hereunder (“Customer Materials”) (the indemnification obligation of each party described in this clause (ii), the “IP Infringement Obligation”). The previous sentence states 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 this License Agreement or intellectual property infringement.

(a) The Indemnified Party must (i) promptly notify the Indemnifying Party in writing of the third-party claims (provided 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. The Indemnifying Party may enter into a settlement only if it (A) involves only the payment of money damages by the Indemnifying Party, and (B) includes a complete release of the Indemnified Party; any other settlement will be subject to written consent of the Indemnified Party (not to be unreasonably withheld or delayed). Company’s IP Infringement Obligation will not apply to claims to the extent arising from (i) Customer’s use of the Analytics Service(s) if the use violates this License Agreement; or (ii) the combination, operation or use of the Analytics Suite Service(s) with any product or service not provided or authorized in writing by Company or Google. Customer’s IP Infringement Obligation will not apply to claims to the extent arising from Company’s provision of the Analytics Service(s) in violation of this License Agreement. If an Analytics Service becomes, or in Company’s reasonable opinion is likely to become, the subject of an intellectual property infringement claim, then Company will promptly notify Customer and, at its sole option and expense, may either: (x) procure the right to continue providing the Analytics Service(s) as contemplated by this License Agreement; (y) modify the Analytics Service to render it non infringing (provided that modification does not adversely affect use of the Analytics Service); or (z) replace the Analytics Service with a functionally equivalent, non-infringing service. If none of the foregoing options is commercially practicable, then each party will have the right to terminate each affected Analytics Service.

MISCELLANEOUS

9.1 MODIFICATION OF POLICIES. Google may modify any policies or fees that apply to the Analytics Service(s), including the Google Terms, at any time. Customer should review the policies regularly. Google will post notice of the modifications to these policies at the applicable URL for such policies. Changes will not apply retroactively and will become effective no sooner than 14 days after they are posted.

9.2 SATISFACTION SURVEYS. Customer acknowledges and agrees that Google and/or Company may from time to time send a customer satisfaction survey to Customer. Customer acknowledges that Company may receive a copy of any survey completed by Customer.

 

9.3 AFFILIATE USE. An Affiliate of Customer in the Territory may receive the Analytics Service(s) provided under this License Agreement so long as such entity remains an Affiliate of Customer and provided that Customer will be liable for the acts and omissions of such Affiliate to the extent any of such Affiliate’s acts or omissions if performed by Customer, would constitute a breach of, or otherwise give rise to liability under, this License Agreement.

9.4 GOVERNING LAW; SEVERABILITY. This License Agreement is governed by California law, excluding its choice of law rules. Any unresolved controversy or claim arising out of or relating to this License Agreement shall be submitted to arbitration by one arbitrator mutually agreed upon by the parties, and if no agreement can be reached within thirty (30) days after names of potential arbitrators have been proposed by [the American Arbitration Association (“AAA”)] then by one arbitrator having reasonable experience in commercial transactions of the type provided for in this License Agreement and who is chosen by the AAA. The arbitration shall take placein [San Francisco, CA], in accordance with the AAA rules then in effect, and judgment upon any award rendered insuch arbitration will be binding and may be entered in any court having jurisdiction thereof. If any provision of this License Agreement is found to be unenforceable by a court of competent jurisdiction, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose.

9.5 GENERAL. No party may assign or transfer any part of this License Agreement without the written consent of the other party, except Company may assign its rights and delegate its duties hereunder to Google to the extent such rights and duties relate to a Google product. Any other attempt to transfer or assign is void. Nothing in this License Agreement will limit a party’s ability to seek equitable relief. This License Agreement is the parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject. All amendments hereto must be executed by both parties and expressly state that they are amending this License Agreement. Failure to enforce any provision will not constitute a waiver. If any provision is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose. Each party is liable for the acts and omissions of its subcontractors. The parties are independent contractors, and this License Agreement does not create an agency, partnership or joint venture. Neither party will be liable for any acts or omissions resulting from circumstances or causes beyond its reasonable control. Any notice, demand, request or written communication which may be required to be given by a party to the other party under this License Agreement shall be given by either serving it upon the other personally or delivering or mailing it by overnight courier or registered mail, or by facsimile, or via e-mail to the other party at the coordinates provided by such party. Notwithstanding termination or expiration of the License Agreement, any provisions of the License Agreement that by their nature are intended to survive will survive termination.