Exhibit 10.28
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN PORTIONS OF
THIS AGREEMENT.
CONFIDENTIAL PORTIONS HAVE BEEN OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
Amended and Restated
Google Services Agreement
This Amended and Restated Google Services Agreement ("GSA") is entered into by
and between Google Inc. ("Google") and Miva, Inc., a corporation formed under
the laws of Delaware ("Customer").
This GSA shall be effective as of January 1,
2009 ("GSA Effective Date") and hereby amends and restates the Google Services
Agreement between Google and Customer dated December 27, 2006. Each Order
Form (as defined below) shall be governed by this GSA and shall become effective
on January 1, 2009 ("Order Form Effective Date"). This GSA and the corresponding
individual Order Form into which this GSA is incorporated together constitute
the "Agreement".
1
DEFINED TERMS.
THE FOLLOWING CAPITALIZED TERMS SHALL HAVE THE MEANINGS SET
FORTH BELOW.
CAPITALIZED TERMS USED BUT NOT DEFINED IN THIS GSA SHALL HAVE THE
MEANINGS STATED IN THE ORDER FORM.
1.1
"BETA FEATURES" ARE THOSE FEATURES OF THE SERVICES WHICH ARE IDENTIFIED
BY GOOGLE AS BETA OR UNSUPPORTED IN GOOGLE'S THEN CURRENT TECHNICAL
DOCUMENTATION.
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 SERVED TO END USERS OF THE SITE(S) OR CUSTOMER CLIENT
APPLICATION(S) AND THAT IS NOT PROVIDED BY GOOGLE.
1.4
"DESTINATION PAGE" MEANS ANY WEB PAGE WHICH MAY BE ACCESSED BY CLICKING
ON ANY PORTION OF AN ADVERTISING RESULT AND/OR SEARCH RESULT.
1.5
"GOOGLE PROTOCOL" MEANS GOOGLE'S THEN CURRENT PROTOCOL FOR ACCESSING AND
IMPLEMENTING THE SERVICES.
1.6
"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.
1.7
"ORDER FORM" MEANS THE INDIVIDUAL GOOGLE SERVICES AGREEMENT ORDER
FORM EXECUTED BY BOTH CUSTOMER AND GOOGLE AND INTO WHICH THIS GSA HAS BEEN
INCORPORATED BY REFERENCE AS PROVIDED THEREIN.
EACH ORDER FORM (AS IT MAY BE
AMENDED FROM TIME TO TIME) INTO WHICH THIS GSA MAY BE INCORPORATED WILL BE
CONSIDERED A SEPARATE AGREEMENT FROM ANY OTHER ORDER FORM.
ACCORDINGLY, FOR
PURPOSES OF INTERPRETATION OF ANY SPECIFIC ORDER FORM, "ORDER FORM" SHALL REFER
ONLY TO THAT ORDER FORM INTO WHICH THIS GSA HAS BEEN INCORPORATED AND WHICH IS
THE SUBJECT OF INTERPRETATION, AND NOT TO ANY OTHER ORDER FORM INTO WHICH THIS
GSA MAY OTHERWISE BE INCORPORATED (UNLESS AND THEN ONLY TO THE EXTENT THE
PARTIES HAVE EXPRESSLY PROVIDED OTHERWISE).
1.8
"SERVICES" MEANS THE SERVICES ORDERED BY CUSTOMER AND TO BE PROVIDED BY
GOOGLE PURSUANT TO THE ORDER FORM.