Optimize 360: Customer Minimum Terms (North America)

Last modified: August 5, 2016

Reseller’s agreement with Customer governing Customer’s use of Optimize 360 (the “Agreement”) must contain terms no less protective of Google Inc. (“Google”) and no less restrictive than the following (the “CMTs”):

1. DEFINITIONS.

"Account" refers to the billing account for the Service.

"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control of a party.

"Beta Feature" means any Service feature that is expressly identified as "Beta" or "Labs" or that is otherwise expressly identified as unsupported. Notwithstanding anything to the contrary in the Agreement, Google will have no liability under the Agreement arising out of or related to any Beta Features.

"Confidential Information" means information disclosed by one party to the other party under the 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, was independently developed by the recipient without reference to the discloser’s confidential information, or is rightfully given to the recipient by a third party without confidentiality obligations.

"Customer" means the entity to whom Reseller sells the Service.

"Customer Data" means Customer’s creative content or code for creative content that Customer inputs into the Optimize 360 Service.

"Documentation" means any accompanying documentation made available to Customer by Google for use with the Processing Software, including any documentation available online.

"Downtime" means the applicable definition of downtime set forth below for each SLA, in each case, excluding (i) time resulting from technical malfunctions in the Mobile SDKs, in Customer’s website’s systems, or any other circumstances beyond Google’s reasonable control (including, without limitation, Internet delays, network congestion and ISP malfunctions), (ii) time required for routine system maintenance (with notice to Customer, including through in-product notifications) or customer initiated account upgrades, and (iii) misconfigurations of Optimize 360 by Customer or Reseller.

“GA Property” or “GA Properties” means the collection of Google Analytics settings and information associated with the same Google Analytics Property ID to which Hits are sent from a Property or collection of Properties.

“GA Terms” means the Google Analytics Terms of Service (located at https://www.google.com/analytics/terms/us.html) or, if applicable, the negotiated terms governing the GA Property(ies) linked to Customer’s Optimize account (e.g. the Analytics 360 Order Form or Analytics 360 Customer Minimum Terms).

“GTM Terms” means the Google Tag Manager Terms of Service (located at https://www.google.com/analytics/tag-manager/use-policy/) or, if applicable, the negotiated terms governing the Google Tag Manager 360 account used with Customer’s Optimize account (e.g. the Tag Manager 360 Order Form).

"Hits" means the base unit of measurement that is sent to the Google Analytics service for processing, which may include but is not limited to a page view, a transaction or a call to the Google Analytics system by an OSCI.

"Intellectual Property Rights" means current and future worldwide rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and other similar rights.

"Mobile SDK" means a mobile operating system software development kit made available by Google that developers may use in an application to send Optimize Container requests to the Service.

"OEP" means an “Optimize 360 Enabled Property,” which is a GA Property that is enabled for linking to Optimize 360.

"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 to the Google Analytics service.

"Optimize Container" means the code delivered through the Optimize 360 Service, through which Customer may serve code required to deliver modified Visitor experiences.

"Privacy Policy" means the privacy policy on a Property.

"Processing Software" means the Optimize 360 server-side software and any upgrades, which allows Customer to configure, and request the use of, an Optimize Container on a Property.

"Property" means any web page, application, or other property that uses an OSCI to send data to Google Analytics through Customer’s Google Analytics account.

“Reseller” means the reseller selling the Service to Customer.

"Servers" means the servers controlled by Google (or its wholly owned subsidiaries) on which the Processing Software is stored.

"Service" means the Optimize 360 service, including Software and Documentation. The Google Optimize 360 service is a shared digital experimentation and optimization service provided by Google to owners of web pages and applications that allows Customer to create and test new user experiences with OEPs for Customer’s Visitors. For clarity, Customer’s use of the free Optimize Service on free Optimize properties will be governed by the standard Optimize Terms of Service available at https://support.google.com/360suite/optimize/answer/6230273 (or other URL as provided by Google).

"Shared GA Data" means Customer’s data that is shared between Google Analytics and the Optimize 360 Service as necessary to provide the Optimize 360 Service. Such data will be limited to data from Google Analytics accounts associated with the GA Properties that Customer links (or has linked on its behalf) to the Optimize 360 Service.

"SLA" means the Service Level Agreement in Appendix A.

"Software" means the Optimize 360 configuration user interface, the Optimize Container and Processing Software.

"Third Party" means any third party (i) to which Customer provides access to Customer’s Account or (ii) for which Customer uses the Service to collect information on the third party's behalf. For clarity, an Affiliate is a Third Party.

"Visitors" means visitors to Customer’s Properties.

The words "include" and "including" mean "including but not limited to."

2. USE OF SERVICE.

2.1. USE OF SERVICE. Subject to the terms and conditions of the Agreement, Customer has a limited, revocable, non-exclusive, non-sublicensable license to access and use the Service on Customer’s Properties or authorized Third Party's Properties. Except as expressly permitted in this Section, Customer will not (and Customer will not allow any third party to) (i) copy, modify, adapt, translate or otherwise create derivative works of the Software or the Documentation; (ii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software, except as expressly permitted by the law in effect in the jurisdiction in which Customer is located; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the Software, the Documentation or the Service; (iv) remove any proprietary notices or labels on the Software or placed by the Service; (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service or the Software; (vi) host the Optimize Container on any domain other than the Optimize domain; (vii) use the Service or interfaces provided with the Service to engage in or promote any unlawful, infringing, defamatory or otherwise harmful activity; (viii) disable, interfere with or circumvent any aspect of the Service; (ix) upload any data to the Service that personally identifies an individual or that Google could use or recognize as personally identifiable information; or (x) use the Service or interfaces provided with the Service to access any other Google product or service in a manner that violates their respective terms. If Customer uploads, submits, stores, sends or receives content through use of the Optimize 360 Service, Customer must have, and represents that Customer has, all necessary rights to do so, and agrees that Google is not responsible for, and will not be liable for, any such content, including any content Customer received from a third party and any damage arising from the use of that content.

2.2. RESTRICTIONS ON USE. Customer will comply with all applicable laws and regulations in Customer’s use of and access to the Documentation, Software and Service.

2.3. USE OF OPTIMIZE 360 WITH GOOGLE ANALYTICS. In order to use Optimize 360, Customer must comply with the GA Terms governing the GA Properties that are linked to Customer’s Optimize account. Customer may only link GA Properties to Customer’s Optimize account if it has all necessary rights to such GA Properties and Shared GA Data and has all necessary rights to perform such linking. Customer may control what GA Properties are linked to Customer’s Optimize account in Customer’s applicable settings in the Optimize or Google Analytics user interfaces. For Google Analytics accounts associated with the GA Properties that Customer links (or has linked on its behalf) to the Optimize 360 Service, Customer agrees to share Customer’s data between Google Analytics and the Optimize 360 Service as necessary to provide the Optimize 360 Service and the Google Analytics service. Subject to this Section 2.3 and Section 4.1 below and Customer’s settings in the Optimize and GA 360 Suite Home user interfaces (if any and as applicable), Google will not otherwise use Customer’s Google Analytics Customer Data (as defined in the GA Terms) other than as permitted in Customer’s Google Analytics account settings. If Customer uses Optimize 360 hereunder with a free Google Analytics account, delays or issues with Google Analytics reporting may result in delays, inconsistencies, stale data or other issues with the results generated by the Optimize 360 Service. For clarity, unless explicitly specified otherwise herein, all references to “Google Analytics” throughout this Agreement include Analytics 360 if Customer is an Analytics 360 customer.

2.4. USE OF OPTIMIZE 360 WITH GOOGLE TAG MANAGER. If Customer is an existing Optimize beta user who used Optimize prior to May 24, 2016 and also used or uses Google Tag Manager or Tag Manager 360 (the “Google Tag Manager Service”) with Customer’s Optimize Service account, then Customer agrees to the following: (i) Customer will comply with the applicable GTM Terms, (ii) Google may collect information regarding how the Google Tag Manager Service is used, including how and what code is deployed (“GTM Data”), (iii) Google may use this GTM Data to provide, improve, maintain, protect and develop the Optimize Service, the Google Tag Manager Service, and other Google services as described in Google’s privacy policy, and (iv) in the event of conflict between this Section 2.4 and the GTM Terms, this Section 2.4 will govern and will continue to govern Customer’s use of the Google Tag Manager Service even if Customer stops using the Optimize Service.

2.5. USE OF OPTIMIZE 360 WITH GOOGLE ANALYTICS 360 SUITE HOME. Customer’s use of the Google Analytics 360 Suite user interface through which Customer can access certain suite-level services and functionality (the “GA 360 Suite Home”) is governed by the Google Analytics 360 Suite Home Terms of Service (or as subsequently re-named) available at https://360suite.google.com/terms (or such other URL as Google may provide) as modified from time to time (the “Suite Home Terms”), but subject to Section 2 of the Suite Home Terms, use of the Service will continue to be governed by the Agreement.

2.6 SUBSIDIARY USE. A wholly owned subsidiary of Customer (other than an entity that is organized in Russia or China) (“Subsidiary”), may receive the Optimize 360 Service provided under Customer’s Agreement so long as such entity remains a wholly owned subsidiary of Customer and provided that Customer will be liable for the acts and omissions of such Subsidiary to the extent any of such Subsidiary’s acts or omissions, if performed by Customer, would constitute a breach of, or otherwise give rise to liability under, the Agreement.

2.7 SLAs AND SUPPORT. Reseller will use commercially reasonable efforts to provide the Service and related support in accordance with the SLAs and support levels described in Exhibit A.

3. TERMINATION

3.1. TERM. The Service will be provided for the initial term indicated in the purchase order Reseller is required to submit to Google regarding Customer (the “Purchase Order”) unless earlier terminated under Section 3.2 or 3.3 of this Agreement. Thereafter, this Agreement will automatically renew for additional one-year periods unless either party provides written notice to the other party, at least 30 days before the expiration of the then-current term, of its intention not to renew the Agreement.

3.2. TERMINATION FOR BREACH. Reseller or Google may suspend performance or terminate the Agreement if: (a) Customer is in material breach of the Agreement and fails to cure that breach within 30 days after receipt of written notice; (b) Customer ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days; or (c) Customer is in material breach of the Agreement more than two times even if the breaches were cured.

3.3. TERMINATION FOR CONVENIENCE. Only with respect to Customers who entered into the Agreement on or prior to December 31, 2016, Customer may terminate the Agreement for convenience upon the end of the (SELECT ONE: 3rd, 4th, 5th or 6th) month of the initial term indicated in the Purchase Order (the “Early Termination Date”) by providing Reseller with written notice at least 45 days prior to the Early Termination Date.

3.4. EFFECT OF TERMINATION. Upon any termination or expiration of the Agreement, Google will stop providing the Service on behalf of the Reseller. In the event of any termination or expiration: (a) within a reasonable time after Customer provides written notice to Reseller to delete Customer Data, Reseller will render Customer Data permanently inaccessible and (b) continued Optimize 360 use is subject to Google's then standard Optimize (or its successor name) Terms of Use available at https://support.google.com/360suite/optimize/answer/6230273 (or other site as may be provided to Customer by Google) and (c) for clarity, Customer will only be permitted to export Customer Data as the then-standard Optimize 360 product permits.

4. DATA AND SECURITY

4.1. DATA. Customer owns Customer Data; provided that Google may only use and disclose Customer Data (i) in accordance with the settings in Customer’s Optimize Account and the GA 360 Suite Home organization (if any and as applicable), (ii) subject to the settings in Customer’s Account and the GA 360 Suite Home organization (if any and as applicable), as Service statistics, which will not include personally identifiable information or information that identifies or would reasonably be expected to identify Customer, (iii) to provide the Service and enforce its rights under the Agreement (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 the Agreement) without Customer’s written consent), and (iv) 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)); provided further, however, that with respect to data derived from Customer’s use of a Beta Feature, in addition to its rights set forth in the preceding proviso, Google may use and disclose such data, and all results and feedback from the Beta Feature, for any purpose 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 without Customer’s prior written consent. Subject to Customer’s settings in the Optimize and GA 360 Suite Home user interfaces (if any and as applicable), Customer grants to Google a perpetual, irrevocable, non-exclusive, worldwide, transferable, royalty free right to use, copy, modify, distribute and display Customer Data and Shared GA Data not directly identifiable with Customer and derivatives thereof for the improvement of the Optimize 360 Service, provided that Customer Data and Shared GA Data is not shared with any third parties without Customer’s consent.

4.2. ACCOUNT SECURITY. Customer will protect Customer’s passwords and take full responsibility for Customer’s own, and third party, use of Customer’s Accounts. Customer will notify Google immediately upon learning of any unauthorized use of Customer’s Account or any other breach of security.

4.3. DATA SECURITY. Reseller will (i) use current industry-standard security measures in connection with its provision of the Service and (ii) promptly notify Customer of any breach of Reseller security resulting in unauthorized access to Customer Data.

4.4. THIRD PARTIES. If Customer uses the Service on behalf of a Third Party or a Third Party otherwise uses the Service through Customer’s Account, whether or not Customer is authorized by Google to do so, then Customer represents and warrants that (a) Customer is authorized to act on behalf of, and bind to the Agreement, the Third Party to all obligations that Customer has under the Agreement, (b) Google may share with the Third Party Customer Data specific to the Third Party's Properties, and (c) Customer will not disclose Third Party's data described in Section 4.4(b) to any other party without the Third Party's consent. For clarity, only Subsidiaries are authorized Third Parties under the Agreement.

5. CONFIDENTIALITY.

5.1. OBLIGATIONS. Each party will: (a) protect the other party's Confidential Information (including Google’s Confidential Information that the party may obtain from its use of the Service) with the same standard of care it uses to protect its own Confidential Information (but in no event less than a reasonable standard of care); and (b) subject to Section 4.1, not disclose the Confidential Information, except to Affiliates, employees and agents who need to know it and who have agreed in writing to keep it confidential. Each party (and any Affiliates, employees and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfill obligations under the Agreement. Each party is responsible for any actions of its Affiliates, employees and agents in violation of this Section. Upon termination of the Agreement, the parties will promptly either return or destroy all Confidential Information and, upon request, provide written certification of compliance with this Section 5.1.

5.2. REQUIRED DISCLOSURE. Each party may disclose the other party's Confidential Information when required by law but only after it, if legally permissible: (a) uses commercially reasonable efforts to notify the other party; and (b) gives the other party the chance to challenge the disclosure.

5.3. PUBLICITY. Neither party will issue any press release, public announcement, or public statement regarding the existence or content of the Agreement without the other party's prior written approval; provided, however, Google may use Customer’s brand features (e.g., name and logo) in marketing the Service unless Customer opts out by Reseller's marking the appropriate opt-out on the Purchase Order.

6. INDEMNIFICATION.

6.1. CUSTOMER’S INDEMNIFICATION OBLIGATIONS. To the extent permitted by applicable law, Customer will indemnify, hold harmless and defend Google and its wholly owned subsidiaries, at Customer’s expense, from any and all third party claims, actions, proceedings, and suits brought against Google or any of its officers, directors, employees, agents or Affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by Google or any of its officers, directors, employees, agents or Affiliates, arising out of or relating to (a) Customer’s (or Customer’s Third Party) breach of the Agreement, or (b) Customer’s (or Customer’s Third Party) use of the Service.

6.2. INDEMNIFICATION PROCEDURES. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party has full control and authority over the defense, except that: (a) any settlement requiring the party seeking indemnification to admit liability or to pay any money will require that party's prior written consent, which may not be unreasonably withheld or delayed; and (b) the other party may join in the defense with its own counsel at its own expense.

7. PRIVACY

Customer will have and abide by an appropriate Privacy Policy and will comply with all applicable laws and regulations relating to the collection of information from Visitors. Customer must post a Privacy Policy and that Privacy Policy must provide notice of Customer’s use of cookies (if any) that are used to collect traffic data, and Customer must not circumvent any privacy features (e.g., an opt-out) that are part of the Service. 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 (if any) or other information on the Visitor’s device where such activity occurs in connection with the Service and where providing such information and obtaining such consent is required by law.

8. LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES.

8.1. LIMITATION OF LIABILITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, GOOGLE WILL NOT BE LIABLE FOR CUSTOMER’S LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF GOOGLE OR ITS SUBSIDIARIES AND AFFILIATES HAVE BEEN ADVISED OF, KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. GOOGLE'S (AND ITS WHOLLY OWNED SUBSIDIARIES' TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THE SERVICE WILL NOT EXCEED $500 (USD).

8.2. DISCLAIMER OF WARRANTIES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, GOOGLE MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT.

8.3. LIMITATION ON THIRD PARTY TAG LIABILITY. GOOGLE WILL NOT BE LIABLE FOR ANY CLAIM OR LOSS ARISING FROM OR RELATED TO CUSTOMER’S USE OF THIRD PARTY TAGS OR CUSTOMER’S CUSTOM TAGS.

9. PROPRIETARY RIGHTS.

The Service, including all associated Intellectual Property Rights is, and will remain, the property of Google (and its wholly owned subsidiaries). All rights in the Service not expressly granted to Customer in the CMTs are expressly reserved and retained by Google and its licensors without restriction, including, Google's (and its wholly owned subsidiaries') right to sole ownership of the Service. For example, Customer will not (and will not allow any third party to): (a) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Service for any purpose without the express written consent of Google; (b) register, attempt to register, or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with Google (or its wholly owned subsidiaries) other than in the name of Google (or its wholly owned subsidiaries, as the case may be); (c) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Service; or (d) seek, in a proceeding filed during the term of the Agreement or for one year after such term, an injunction of any portion of the Service based on patent infringement.

Customer is not required to provide Feedback; however, if Customer provides any materials, feedback, requests, questions, comments, test results or ideas to Google regarding the Service, including suggesting or recommending changes, features, functionality or improvements to the Service (“Feedback”), then Google may use the Feedback for any purposes without obligation or compensation to Customer. Customer grants to Google and its affiliates and successors a paid-up, royalty-free, irrevocable, perpetual, non-exclusive, sublicensable, transferable, worldwide license to make, use, sell, offer for sale, import, export the whole or a component of, copy, distribute, modify, create derivative works based on, publicly perform, publicly display, and otherwise exploit the Feedback for any purpose; provided, however, that Google does not disclose Feedback to third parties in a manner that would identify or reasonably be expected to identify Customer without Customer’s prior written consent.

10. U.S. GOVERNMENT RIGHTS

If the use of the Service is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (DOD) acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the Government's rights in the Software, including its rights to use, modify, reproduce, release, perform, display or disclose the Software or Documentation, will be subject in all respects to the commercial license rights and restrictions provided in the Agreement.

11. MISCELLANEOUS

11.1. NOTICES. All notices to Google must be in writing and sent to: Google Inc., 1600 Amphitheatre Parkway, Mountain View, CA 94043 with a copy to Legal Department or legal-notices@google.com (if notice is via email). Notice will be deemed given: (a) when verified by written receipt if sent by personal courier, overnight courier, or when received if sent by mail without verification of receipt; or (b) when verified by automated receipt or electronic logs if sent by facsimile or email.

11.2. ASSIGNMENT. Customer may not assign or transfer any part of the Agreement without the written consent of Google, except to an Affiliate, but only if: (a) the assignee agrees in writing to be bound by the terms of the Agreement; and (b) the assigning party remains liable for obligations incurred under the Agreement prior to the assignment. Any other attempt to transfer or assign is void.

11.3. CHANGE OF CONTROL. Upon Customer’s change of control (for example, through a stock purchase or sale, merger, or other form of corporate transaction): (a) Customer will provide written notice to Google within 30 days after the change of control; and (b) Google may immediately terminate the Agreement any time between the change of control and 30 days after it receives the written notice in subsection (a).

11.4. FORCE MAJEURE. Google will not be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party's reasonable control.

11.5. NO WAIVER. Failure to enforce any provision of the Agreement will not constitute a waiver.

11.6. SEVERABILITY. If any provision of the Agreement is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision's essential purpose.

11.7. NO AGENCY. The parties are independent contractors, and the Agreement does not create an agency, partnership or joint venture.

11.8. NO THIRD-PARTY BENEFICIARIES. There are no third-party beneficiaries to the Agreement, except Google is an intended third party beneficiary of the Agreement.

11.9. EQUITABLE RELIEF. Nothing in the Agreement will limit Google’s ability to seek equitable relief.

11.10. GOVERNING LAW. The Agreement is governed by California law, excluding that state's choice of law rules. FOR ANY DISPUTE RELATING TO THE AGREEMENT, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN SANTA CLARA COUNTY, CALIFORNIA.

Notwithstanding the previous two sentences, if Customer opts in to New York governing law, jurisdiction, and venue, by Reseller's marking the appropriate opt-in on the Purchase Order, then the Agreement is governed by New York law, excluding the state's choice of law rules and FOR ANY DISPUTE RELATING TO THE AGREEMENT, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN THE SOUTHERN DISTRICT OF NEW YORK, USA.

11.11. EXPORT CONTROL. The Software is governed by U.S. export regulations, and it may not be exported to or used by embargoed countries or individuals.

11.12. SURVIVAL. Notwithstanding termination or expiration of the Agreement, any provisions of the Agreement that by their nature are intended to survive, will survive termination.

APPENDIX A: SLAS AND CUSTOMER SUPPORT

SERVICE LEVEL AGREEMENTS

Google will use commercially reasonable efforts to ensure that the Service meets the service levels indicated below (collectively, the “SLAs”). For clarity, the SLAs do not apply during Downtime experienced during (i) time resulting from technical malfunctions in the Mobile SDKs, in Customer’s website’s systems, or any other circumstances beyond Google’s reasonable control (including, without limitation, Internet delays, network congestion and ISP malfunctions) and (ii) time required for routine system maintenance (with notice to Customer, such as through in-product notifications) or customer initiated account upgrades. If Google fails to meet the SLAs in any calendar month, and if Customer meets Customer’s obligations under the SLAs, Customer will be eligible to receive credit in an amount equal to monthly fees paid by Customer for the calendar months during which Google failed to meet the applicable SLAs (“Credit”). In order to receive such Credit, Customer must notify Reseller and Reseller must notify Google within 30 days from the time Customer becomes eligible to receive such Credit. Failure to comply with this requirement will forfeit Customer’s right to such Credit. Credit will be issued as a credit memo for the affected invoice (which Customer may apply to its following monthly invoice). The maximum Credit that Customer may be eligible for in the aggregate in any given calendar month is 100% of monthly fees. If Google fails to meet any of the SLAs in any 3 consecutive months or in any 4 months in any 12-consecutive month period, Customer will have a one-time right to terminate the Agreement upon prior written notice to Reseller and Reseller’s prior written notice to Google, subject to such notice being received by Reseller and Google within 30 days of the end of the month in which Customer becomes eligible for such right of termination. The remedies set forth in these SLAs are Customer’s sole and exclusive remedies for any failure by Google to meet the SLAs.

SLAs

Downtime

Optimize Container Delivery SLA Customer’s Optimize Containers, as most recently published by Customer, will be served to Properties configured to send Hits to an OEP and enabled under the Optimize 360 Service at the lesser of the following: (i) 99.99% of Optimize Container requests, as most recently published by Customer or (ii) the total number of Optimize Container requests in any calendar month minus 500 Optimize Container requests.

Periods of Optimize 360 Service unavailability.

The Optimize Container Delivery SLA only applies (1) if Customer uses the Service in accordance with the Agreement, (2) when the Optimize Container is requested of an Optimize 360 server and (3) the total number of requests for all Optimize Containers across all Properties is no more than 20 billion per month, calculated on a calendar monthly basis.

SLA EXCLUSIONS AND LIMITS.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, GOOGLE WILL HAVE NO LIABILITY (INCLUDING IN RESPECT OF INDEMNIFICATION OBLIGATIONS OR SLA OBLIGATIONS) UNDER THE AGREEMENT ARISING OUT OF OR RELATED TO ANY BETA FEATURES. THE MAXIMUM SLA REMEDY FOR ANY INDIVIDUAL MONTH IS 100% OF THE FEES INCURRED BY CUSTOMER UNDER THIS AGREEMENT FOR THAT MONTH.

CUSTOMER SUPPORT:

INSTALLATION SUPPORT:

Reseller will provide commercially reasonable ongoing implementation guidance for one Optimize 360 experiment of Customer’s choosing. With respect to Mobile SDKs, any implementation support provided by Reseller will be limited to: (i) the then-current Mobile SDK and (ii) for a period of 6 months after the release date of the then-current Mobile SDK, the version of the Mobile SDK that immediately preceded the then-current Mobile SDK. Reseller will also provide commercially reasonable ongoing maintenance support for the Optimize 360 Service for Customer’s OEPs throughout the term of the Agreement.

ON-GOING SUPPORT:

Reseller will use commercially reasonable efforts to meet the target response and resolution timeframes set forth at https://support.google.com/360suite/optimize/answer/6396562 (as modified from time to time at Google’s sole discretion, the “Support SLAs”). The priority level of support cases logged by Customer will initially be designated by Customer, in its reasonable discretion based on the descriptions in the table at the link above. Reseller Customer Support may lower the priority level designation of any case (a “Priority Adjustment”) if Reseller, in its reasonable discretion, believes that Customer’s initial priority designation does not comport with the descriptions in the table. Reseller Customer Support will notify Customer as soon as is reasonably practicable of any Priority Adjustment. Reseller Customer Support may also perform a Priority Adjustment while permanent solutions are being developed, as soon as a workaround solution is implemented.

With respect to Mobile SDKs, on-going support provided by Reseller will be limited to: (i) the then-current Mobile SDK and (ii) for a period of 6 months after the release date of the then-current Mobile SDK, the version of the Mobile SDK that immediately preceded the then-current Mobile SDK.

Target resolution times are goals. Depending on the volume and severity of tickets submitted, response times and time to resolution may vary. Occasionally an issue needs to be escalated to our engineering team. In such cases, it may take more time to resolve the issue. Customer’s customer support representative will keep Customer informed throughout the process.

In addition to the above on-going support, Reseller will provide Customers with the necessary front-end technical support, defined as reactive troubleshooting and maintenance support. Reseller may charge Customers for front-end technical support if Reseller provides more than 4 hours of front-end technical support per month.

TRAINING:

Customer may attend Optimize 360 training classes provided by Google and delivered via webinar, free of charge.

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