1. Definitions
Affiliate: Any entity that directly or indirectly controls, is controlled by, or is under common control with, a party.
Agreement: This Google catalog metadata content license agreement.
Catalog Metadata Content: All content made available to Google under this Agreement.
Confidential Information: Information that one party (or an Affiliate) discloses to the other party under this 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 rightfully given to the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient.
Google: Google LLC
Including: Including but not limited to:
Users: Users of Google products and services, including users of Google APIs.
2. Accepting this Agreement
2.1 This Agreement forms a legally binding contract between you (“You” or “Licensor”) and Google in relation to Your provision and Google’s use of Catalog Metadata Content.
2.2 If You are agreeing to be bound by this Agreement on behalf of Your employer or other entity, You represent and warrant that You have full legal authority to bind Your employer or such entity to this Agreement. If You do not have the requisite authority, You may not accept the Agreement or provide Catalog Metadata Content to Google.
3. License
3.1 Grant. To the extent that Catalog Metadata Content is copyrightable, Licensor grants to Google a non-exclusive, worldwide, sub-licensable (only under Section 3.2 (Sublicensing)) license to use the Catalog Metadata Content in connection with Google products or services.
3.2 Sublicensing. Google may sublicense the rights granted in this Agreement to its (a) Affiliates (but only if (i) Google ensures that its Affiliates are subject to the same obligations as Google, and (ii) Google is liable for its Affiliates’ breach of those obligations); and (b) Users (only to the extent necessary to permit them to use Google products and services).
3.3 Specifications. Licensor will use commercially reasonable efforts to ensure that the Catalog Metadata Content complies with the technical requirements stated on Quality checklist.
3.4 Delivery. Licensor will deliver the Catalog Metadata Content to Google in accordance with Google’s technical requirements and specified delivery methods stated on How to create a feed.
3.5 Retention of Rights. As between the parties: (a) Licensor retains all rights in Catalog Metadata Content; and (b) Google retains all rights in (i) Google products and services; (ii) Google-created content; and (iii) User-generated content.
3.6 No Other Restrictions. Nothing in this Agreement:
- (a) requires Google to use any Catalog Metadata Content in Google products or services;
- (b) restricts Google from using content it obtains elsewhere; or
- (c) restricts Google from exercising any rights it has at law (including under the U.S. Copyright Act).
4. Representations and Warranties
4.1 By Both Parties. Each party represents and warrants that it has full power and authority to enter into this Agreement.
4.2 By Licensor. Licensor represents and warrants that it has and will retain all necessary rights to grant the licenses in this Agreement and deliver the Catalog Metadata Content to Google.
4.3 Disclaimers. The parties’ only representations and warranties under this Agreement are expressly stated in this Section 4 (Representations and Warranties). Subject to Section 6.3 (Unlimited Liabilities), the parties disclaim all other representations and warranties (express or implied), including any warranties of merchantability and fitness for a particular purpose.
5. Indemnities
5.1 Obligations. Licensor will defend and indemnify Google and Google’s Affiliates, directors, officers, employees, and Users against all liabilities, damages, losses, costs, fees (including legal fees), and expenses relating to any allegation or third-party legal proceeding (including regulatory proceedings) to the extent claiming that use of Catalog Metadata Content infringes or violates the third party’s intellectual property or other rights.
5.2 Exclusions. Section 5.1 (Obligations) will not apply to the extent the underlying allegation arises from Google’s breach of this Agreement or from modifications to the Catalog Metadata Content that were not provided or authorized by Licensor.
6. Liability
6.1 Definition. In this Section 6 (Liability), “Liability” means any liability, whether under contract, tort, or otherwise, including for negligence (whether or not foreseeable or contemplated by the parties at the date this Agreement is made).
6.2 Limited Liabilities. Subject to Section 6.3 (Unlimited Liabilities):
- (a) Neither party will have any Liability arising out of or relating to this Agreement or the Catalog Metadata Content for:
- (i) loss of profits;
- (ii) loss of business opportunity;
- (iii) loss of revenue;
- (iv) indirect or consequential losses;
- (v) special or incidental losses; or
- (vi) punitive damages; and
- (b) each party’s total aggregate Liability arising out of or relating to this Agreement or the Catalog Metadata Content is limited to US$10,000.
6.3 Unlimited Liabilities. Nothing in this Agreement excludes or limits either party’s Liability for:
- (a) death or personal injury resulting from its negligence or the negligence of its employees, contractors, or agents;
- (b) fraud or fraudulent misrepresentation;
- (c) its obligations under Section 5 (Indemnities);
- (d) breach of Section 7.1 (Confidentiality); or
- (e) matters for which liability cannot be excluded or limited under applicable law.
7. Confidentiality; Publicity
7.1 Confidentiality. The recipient will not disclose the other party’s Confidential Information, except to employees, affiliates, agents, or professional advisors (“Delegates”) who need to know it and who have a legal obligation to keep it confidential. The recipient will use the other party’s Confidential Information only to exercise rights and fulfil obligations under this Agreement while using reasonable care to protect the Confidential Information. The recipient will ensure that its Delegates are also subject to the same non-disclosure and use obligations. The recipient may also disclose Confidential Information when required by law after giving reasonable notice to the other party, if permitted by law.
7.2 Publicity. Neither party may make any public statement regarding this Agreement without the other party’s prior written approval.
8. Term and Termination.
8.1 Term. This Agreement will continue to apply until terminated.
8.2 Termination. Licensor may terminate this Agreement for convenience with 30 days’ prior written notice to Google.
8.3 Effects of Termination. On expiration or termination of this Agreement for any reason (contractual or otherwise):
- (a) at Google’s request, Licensor will provide an empty feed to Google to replace the Catalog Metadata Content; and
- (b) Google and its Users may continue to:
- (1) Use Catalog Metadata Content in Google products and services for a wind-down period of 120 days; and
- (2) use Catalog Metadata Content that was incorporated into fixed media in accordance with this Agreement, solely as incorporated in the fixed media, for as long as that fixed media exists (examples of "fixed media" include screenshots of Google products or services in print or video, DVDs, and other media that it would not be reasonably practical to recall); and
- (c) Sections 4 (Representations and Warranties) through 9 (General) of this Agreement (and any other sections that under their terms or by implication ought to survive) will survive.
9. General
9.1 Notices. All notices of termination or breach must be in writing and addressed to the other party’s Legal Department. The address for notices to Google’s Legal Department is legal-notices@google.com. All other notices must be in writing and addressed to the other party’s primary contact. Notice will be treated as given on receipt, as verified by written or automated receipt or by electronic log (as applicable).
9.2 Affiliates, Consultants, and Contractors. Google may use its Affiliates, consultants, and contractors to exercise its rights and fulfill its obligations under this Agreement, but only if (a) those parties are subject to the same obligations as Google, and (b) Google is liable for those parties’ acts and omissions.
9.3 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 this Agreement; (b) the assigning party remains liable for obligations under the Agreement if the assignee defaults on them; and (c) the assigning party has notified the other party of the assignment. Any other attempt to assign is void.
9.4 Change of Control. If a party experiences a change of control (for example, through a stock purchase or sale, merger, or other form of corporate transaction): (a) that party will give written notice to the other party within 30 days after the change of control; and (b) the other party may immediately terminate this Agreement any time between the change of control and 30 days after it receives that written notice.
9.5 Force Majeure. Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.
9.6 No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
9.7 No Agency. This Agreement does not create any agency, partnership, or joint venture between the parties. 9.8 No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.
9.9 Counterparts. The parties may execute this Agreement in counterparts, including facsimile, PDF, and other electronic copies, which taken together will constitute one instrument.
9.10 Amendments. Any amendment must be in writing, signed by both parties, and expressly state that it is amending this Agreement.
9.11 Entire Agreement. Subject to Section 6.3(b) (Unlimited Liabilities), this Agreement states all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter.
9.12 Severability. If any term (or part of a term) of this Agreement is invalid, illegal or unenforceable, the rest of the Agreement will remain in effect.
9.13 Governing Law. ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY RELATED GOOGLE PRODUCTS OR SERVICES WILL BE GOVERNED BY CALIFORNIA LAW, EXCLUDING CALIFORNIA'S CONFLICT OF LAWS RULES, AND WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF SANTA CLARA COUNTY, CALIFORNIA, USA; THE PARTIES CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS.