Mizera v. Google

Filing 21

Mizera v. Google

Doc. 21 Att. 2

Case 5:05-cv-02885-RMW

Document 21-3

Filed 03/09/2006

Page 1 of 19

EXHIBIT B

Dockets.Justia.com

Case 5:05-cv-02885-RMW
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RICHA L. KELLNER SBN 171416
350 South Grand Avenue, 39 Floor 3 Los Angeles, California 90071-3801

2 KABATECKBROWNK L~NERLLP
Telephone: (213.) 217-5000
4 Facsimile: [phone]

FRANK E. MARCHETTÏË SBN 203185

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5 SHAWN KHORRMI SBN 180411
6 14550 Haynes Street, Third Floor Van Nuys, California 91411
7 Telephone: [phone]
Facsimile: [phone]
8

LAW OFFICES OF SHA WN KHORRMI

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9 DARN T. KALAN (To be admitted pro hac vice) CHITWOOD HAEY BARNS LLP
10 2300 Promenade II

GREGORY E. KELLERfTo be admitted pro hac vice)
l 230 Peachtree Street, N.E.

l~

11 Atlanta, Georgia 30309

Telephone: [phone]

12 Facsimile: [phone]

13 Attorneys for Plaintiffs
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15

;V t $
SAN JOSE DIVISION

UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA
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CLICK DEFENSE INC., a Colorado corporation, Individually and on behalf of all others similarly situated
Plaintiffs,

caGO 0

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23

FOR: .
AND

CLASS ACTION COMPLAINT
1. BREACH OF CONTRACT; 2. NEGLIGENCE; 3. UNJUST ENRICHMENT;

-againstGOOGLE, INC., a Delaware corporation, and DOES 1 THROUGH
100, Inclusive,

24
25

26

Defendants.
27 28

4. UNFAIR BUSINESS PRACTICES (CALIFORNIA BUSINESS & PROFESSIONS CODE 17200, ET SEQ.)
JURY TRIAL DEMANDED

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Plaintiff Click Defense, Inc., by and through its attorneys, alleges the

2 following upon information and belief, except as to those allegations concerning
3 Plaintiff, which are alleged upon personal knowledge. Plaintiffs information and

4 belief are based upon, among other things, its and/or counsels' investigation, which filings made by Google, Inc.
5 included without limitation: (a) review and analysis of

6 ("Google") with the United States Securities and Exchange Commission ("SEC");
7 (b) review and analysis of information posted by Google at

8 https://adwords.google.com/select/ogin and https://ww.google.com/adsense/; (c)

9 review and analysis of press releases and other publications disseminated by Google;
10 (d) review of news articles and postings on various Internet forums concerning
11 Google's "AdWords" and "AdSense" programs; and (e) review of other

publicly

12 available information concerning Google. Plaintiff believes that further substantial

13 evidentiary support wil exist for the allegations herein after a reasonable opportunity the facts supporting the allegations contained herein are
14 for discovery. Many of

15 known only to Google or are within its control.

16 SUMMARY OF CLAIMS
17 1. This is a class action against Google for Breach of Contract,

18 Negligence, Unjust Enrichment and Unfair Business Practices (California Business
19 & Professions Code § 17200, Et Seq.). Plaintiff

brings this action on behalf of itself
their related parties

20 and all other persons or entities, except for Google and certain of

21 as described below, who, within the past five years, have paid money to Google for
22 advertising through Google' s "AdWords" program.

23 THE PARTIES

24 2. Plaintiff Click Defense, Inc. is a corporation organized under the laws
25 ofthe State of Colorado with its principal place of

business in Fort Collns,

26 Colorado. Plaintiff is, and was at all times herein mentioned, qualified to do
27 business in Colorado. Plaintiff is ~ngaged in the business of providing software and
28 services designed to keep track of PayPer-Click advertising. Plaintiff

brings this

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action individually and as a class action under rule 23 of the Federal Rules of Civil

2
3

Procedure on behalf of all persons and/or entities that paid money to Google for
advertising through Google's "AdWords" program.
3. Defendant Google is a corporation organized under the laws of the State
of Delaware, with its principal place of

4
5

business in Mountain View, California,

6

which is within the Northern District of California. Google is, and was at all times

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8

herein mentioned, qualified to do business in California. Google provides Internet search engine services to Internet users and advertising services to individuals,

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11

businesses and educational and governmental entities involved in Internet sales and
marketing

throughout the United States. Purchasers of such advertising services

presumptively include citizens of every state in the United States.

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13

4. The true names and capacities, whether individual, corporate, associate,
or otherwise, of Defendants named herein as DOES 1 through 100, and each of

them,

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15

are unkown to Plaintiff, who therefore sues said Defendants by such fictious names.
5. Plaintiff wil ask leave to amend this Complaint to state said

16 17
18

Defendants' true identities and capacities when the same have been ascertained.
6. Each of the Defendants designated herein as DOE took part in and

participated with Google in all matters referred to herein and was in some manner

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responsible for the injuries and losses suffered by Plaintiff.
7. At all times herein mentioned, each of the Defendants was the agent,
servant, and/or employee or occupied other relationships with each of

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21

the other

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23

named Defendants and at all times herein mentioned acted within the course and
scope of said agency and/or employment and/or other relationship and each other

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25

Defendant has ratified, consented to, and approved of the acts of his agents,
employees, and representatives, and each actively participated in, aided and abetted,

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27 28

or assisted one another in the commission of the wrongdoings alleged in this
Complaint.

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JURISDICTION AND VENUE
2 8. This Court has original jurisdiction over this action pursuant to 28
3 U.S.C. § 1332(d)(2) in that it is class action fied under rule 23 of

the Federal Rules

4 of

Civil Procedure, the matter in controversy, as aggregated pursuant to 28 U.S.c. §
interest and costs, and a

5 1332(d)(6) exceeds the sum of$5,OOO,0000 exclusive of

6 substantial number of members of the class of plaintiffs are citizens of a state
7 different from Google.
8 9. Venue is proper in the Northern District of

California pursuant to 28

9 U.S.C. § 1391(a) in that (1) Google resides in this

judicial district, (2) a substantial

10 part of the events or omissions giving rise to the claims asserted herein occurred in

11 this judicial district and (3) Google is subject to personal jurisdiction in the Northern California. In addition, the agreement between Google and all members
12 District of 13 of

14 County, California," which is within the Northern District of

the class provides that, "(t)his Agreement must be ., . adjudicated in Santa Clara California.
brings this action as a class action pursuant to

15 CLASS ACTION ALLEGATIONS
16 10. Alleged Class: Plaintiff 17 Federal Rule of

Civil Procedure 23(a) and (b)(3) on behalf of all persons and/or
the

18 entities that paid money to Google for advertising through Google's "AdWords"
19 program. Excluded from the Class are Defendants, officers and directors of

20 Company, members of

the immediate families and each of

their legal representatives,

21 heirs, successors or assigns and any entity

in which Google has or has had a

22 controllng interest.
23 11. This action is properly maintainable as a class action because:
24 (a) the members of

the Class for whose benefit this action is brought are

25 dispersed

throughout the United States and are so numerous that joinder of all

26 Class members is impracticable. While the exact number of Class members is

27 unknown to Plaintiff at this time and can only be ascertained through appropriate
28 discovery, Plaintiff

believes that Class members number in the thousands.
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Members of

the Class may be identified from records maintained by Google and

2 may be notified of the pendency ofthis action by mail, using a form of notice
3 similar to that customarily used in class actions;
4 (b) Plaintiffs claims are typical ofthose of

the Class as all members of

5 the Class are similarly affected by Google's actionable conduct as alleged herein;
6 (c) Plaintiff wil fairly and adequately protect the interests of

the Class

7 and has retained counsel competent and experienced in class action litigation
8 including class actions within the Northern District of California. Plaintiff

has no

9 interests antagonistic to, or in conflict with, the Class that Plaintiff seeks to

10 represent;
11 (d) A class action is superior to other available methods for the fair and
12 efficient adjudication of the claims asserted herein, because joinder of all

13 members is impracticable. Furthermore, because the damages suffered by
14 individual members ofthe Class may be relatively small, the expense and burden
15 of individual

litigation make it virtually impossible for Class members to redress

16 the wrongs done to them. The likelihood of individual Class members

17 prosecuting separate claims is remote;
18 ( e) Plaintiff anticipates no difficulties in the management of this action

19 as a class action; and
20 (f) The questions of law and fact common to the members of

the Class

21 predominate over any questions affecting individual members ofthe Class.
22 Among the questions of law and fact common to the Class are:
23 1. the pervasiveness of advertising "click

fraud;"

24 11. the construction of the agreement between Google and the

25 Class;
27
28

26 11. Google's acts and/or omissions as alleged herein;

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iv. whether Google's promotional and advertising materials for its
2 "AdWords" program misrepresented and/or omitted material
3 facts with respect to the pervasiveness of

"click fraud;"

4 v. whether Google has breached its agreement with the class;

6 fraud;"
10 viii.to what extent the members of

5 Vi. whether Google has taken adequate measures to prevent "click

7 vii. whether Google has properly accounted and for and refunded

9 "click fraud;" and

8 fees it has wrongfully collected from identified victims of
the Class have sustained

I I damages and the proper measure of damages.

12 SUBSTANTIVE ALLEGATIONS COMMON TO ALL COUNTS
13 1. Goo~de "AdWords" and "AdSense" Pro2:rams

14 12. Plaintiff alleges the following on information and belief:
15 13. Google's free Internet search engine is the most widely-used Internet

1 6 search~engine in the world. It answers hundreds of milions of user searches and
17 covers billons of

web pages each day.

18 14. Google also sells a number of

products and services to individuals and
the programs Google offers

19 business, educational and governental entities. One of

20 to its business customers is a keyword-triggered advertising program entitled

21 "AdWords." Google has offered this program since October 2000.
22 15. Google's AdWords program permits Google's advertising customers to

23 purchase advertising links associated with certain keywords. Google posts the links

24 on the margins of its search engine results pages based on whichever keywords

25 appear in user queries posted to Google's Internet search engine. Google's
26 advertising customers pay Google based on the number of Internet users who click

27 on these advertising links.
28

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16. Google' s advertisers select the keywords that wil trigger their

2 advertisements. Thus, for example, a computer hardware retailer might select

3 keywords such as "computer," "hard drive," "memory," and the like. Then, whenever
4 a user entered a search string containing any of those keywords, that retailer's paid

5 advertisement would appear alongside the search results.
6 17. Advertisers make bids for the key words that wil trigger their

7 advertisements. The highest bidder for a word or phrase generally finds its ad on top
8 of the list. Advertisers then pay Google a fee every time someone clicks on their ad.

9 Payments average approximately 50 cents per click, but can reach over $ i 00 for

10 sought-after terms valuable to advertisers.
11 18. Google also places the AdWords text ads on other Web sites though its

12 "AdSense" program. Under this program, relevant ads are selected based on the
13 paricular website's content. Again, Advertisers pay Google a fee every time

14 someone clicks on their ad as displayed thorough the AdSense program. A portion

15 of the fee the advertisers pay to Google is then remitted back to the site which

16 displays the ad.
17 19. Other internet search companies besides Google offer variants on

18 Google's AdWords program. These programs are substantially identical to Google's
19 in that advertisers pay fees to the internet search company each time their ads are

20 clicked. These programs are referred to generically as "pay-per-click".
21 20. According to Google's 2005 Anual Report, advertising revenue (which

23 2. "Click Fraud"
22 means revenue from AdWords) represents 99% of 27 nor under the pleading requirements of

Google's total revenue in 2004.

24 21. "Click Fraud" is the term the industry uses to describe when someone

25 clicks on a search advertisement with an il intent and with no intention of doing

26 business with the advertiser. It is not "fraud" as such is understood at common law
the federal rules; rather, it merely describes
28 purposeful clicks on advertisements for some kind of improper purpose. Perpetrators
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of click fraud exploit the nature of pay-per-click advertising in order to increase the
2 pay-per-click fees paid by rivals, boost the placement oftheir own advertisements, or
3 to directly profit from the activity. Many of

these fraudulent clickers have used
times:

4 software programs that automatically click on ads hundreds or thousands of

5 (a) Business rivals llse click fraud to drive up the advertising costs of
6 their competitors, often to the point that they use up a competitor's budget and

7 cause the competitor's pay-per-click advertisement to be removed from further
8 search results, which may also boost the prominence of

the fraudulent clicker's

9 own advertisement.
10 (b) Another form of click fraud is engaged in by companies who accept
i 1 pay-per-click advertising on their websites under programs such as Google's

12 AdSense program. These sponsoring companies engage in click fraud to increase
13 their own commissions, which in turn also increases the amount that advertisers

14 pay for the advertisements.
15 22. Click fraud can be prevented by tracking the use of a pay-per-click
i 6 advertisement, including who is clicking on the advertisement/link and how often the

i 7 same individual clicks on it. Such tracking can be accomplished by computer
18 programs that count the number of clicks originating from a single source and

19 whether or not those clicks result in a sale. It is likely that the very computer
20 programs that Google uses to track clicks for purposes of charging their advertisers

21 fees could also be used to screen for fraudulent clicks.

22 23. Tracking fraudulent clicks at the source-that is, the website on which
23 the advertisement clicked on appears--is even more effective since websites that host
24 advertisements provide tracking data to Google with every click.

25 24. Google appears to be at least partially able to ascertain which "clicks"
26 constitute "click-fraud," insofar as it has provided a small number of

rebates to

27 advertisers who have complained of

being victims of click fraud.

28

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25. Google is in a unique position to track click fraud that originates though
2
3

its own AdSense program since these sites are affiiates of Google and the entire
process takes place within the closed-end Google universe of internet links.

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5

3. The Pervasiveness of Click Fraud
26. Click fraud is a rampant problem inthe pay-per-click advertising

6

business. Some analysts believe that as many as 20% of clicks are fraudulent.
27. In December 2004, Google's chief

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8

financial officer, George Reyes,

characterized click fraud as, "the biggest threat to the Internet economy."
28. However, in a meeting with analysts in February Google co-founder,

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Sergey Brin downplayed Reyes's comments.

4. Goog:le's Failure to Disclose the Pervasiveness of Click Fraud
29. Google disclosed the following in its 2005 Anual Report:

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If we fail to detect click-through fraud, we could lose the confidence of our advertisers, thereby causing our business to suffer.
fraudulent clicks on our ads by persons seeking to increase the advertising fees paid to
We are exposed to the risk of

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our Google Network members. We have regularly refuded
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revenue that our advertisers have paid to us and that was later attributed to click-through fraud, and we expect to do so in the future. Click-through fraud occurs when a person clicks on a Google AdW ords ad displayed on a web site in order to generate the revenue share payment to the Google Network member rather than to view the underlying content. Ifwe are unable to stop this fraudulent activity, past fraudulent clicks we may have to issue refunds retroactively of amounts previously paid to our Google Network members. This would negatively affect our
these refunds may increase. Ifwe find new evidence of profitability, and these types of

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fraudulent activities could

hurt our brand. If fraudulent clicks are not detected, the affected advertisers may experience a reduced return on their investment in our advertising programs because the
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fraudulent clicks wil not lead to potential revenue for the advertisers. This could lead the advertisers to become dissatisfied with our advertising programs, which could lead to loss of advertisers and revenue.
30. In this context, and given the fact that 99% of its revenue is derived

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5

from AdW ords there is little doubt why Google will not disclose its own estimate of

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8

the number of fraudulent clicks its advertisers pay for.
31. Nevertheless, Google knows, and at all relevant times hereto has known,

that click fraud is rampant in its AdW ords program and that the advertisements it

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sold and sells to Plaintiff and the class are worth significantly less than the amount which plaintiff and the Class have bid for key words and have consequently paid to
Google for clicks.

12 13

32. Google has failed to take any significant measures to track or prevent

click fraud, and fails to adequately warn its existing and potential customers about
the existence of click fraud.
; 33. When customers become the victims of click fraud, Google fails to (a)

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15

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18

adequately advise them that they have been victimized, and (b) refund them the
excess charges that they have incurred as a result of

the fraudulent click activity.
interest in preventing click fraud

34. Google has an inherent conflict of

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since it derives the same amount of income from each fraudulent click as it does
from each legitimate click.
5. Gooele's Aereement with the Class

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21

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35. All AdWords advertisers enter into the "Google Inc. AdWords Program
Terms" (the "AdWords Program Terms"). The AdWords Program Terms are revised
from time-to-time, but remain identical in substance. All AdW ords advertisers are

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required to accept thèse new Terms and Conditions in order to advertise with the
AdWords program. A copy of

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the "AdWords Program Terms," is annexed hereto as

Exhibit "A" and made a part hereof.

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1 36. Pursuant to the "AdWords Program Terms," advertisers "shall be

2 charged based on actual clicks...." A fraudulent click is not, however, an "actual
3 click," not only within the meaning of

"AdWords Program Terms" but pursuant to

4 industry practices and Google's own practices as demonstrated by the limited
5 refunds Google has made to advertisers who have complained of

being victims of

6 click fraud.
7 37. Every member of

the Class is a party to the AdWords Program Terms.

8 38. The AdWords Program Terms provide that the agreement is to be

9 "governed by California law." Therefore, a single body of substantive state law
10 applies to this action such that a nationwide class may be certified.

11 FACTUAL BACKGROUND
12 39. On or around January 21,2005, Click Defense entered into a written

13 form contract with Google for the placement of a pay-per-click advertisement to be

14 displayed as a sponsored link. Click Defense successfully bid $3 for the display of

15 Click Defense's advertisement and a link to Click Defense's website whenever a user
16 of

Google's search engine searched for the key words "click fraud." Other than the
Click Defense's bid, Click Defense was not permitted to negotiate the

17 amount of

18 specific terms of the contract - the terms were offered by Google on a take it or leave

19 it basis.
20 40. Between January 21,2005 and the present, Click Defense became the

21 victim of click fraud.

22 FIRST CAUSE OF ACTION

23 (BREACH OF CONTRACT)
24 41. Plaintiff repeats and realleges each of the preceding paragraphs, as if set
25 fort fully herein.

26 42. Pursuant to the "AdWords Program Terms," advertisers "shall be

27 charged based on actual clicks.. .." A fraudulent click is not an "actual click," not
28 only within the meaning of "Ad

Words Program Terms" but pursuant to industry
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practices and Google's own practices as demonstrated by the limited refunds Google
has made to advertisers who have complained of being victims of click fraud.
43. Further, the AdWords Program Terms contains and contained an

implied covenant of good faith and fair dealing that Google would not do anything

that would have the effect of injuring the right of plaintiff and the Class to receive
the benefits of the contract.

44. Google breached its contracts with Plaintiff and the Class, and the

covenant of good faith and fair dealing, by collecting fees from plaintiff and the
Class for click fraud even though Google knew, or should have reasonably known,
that the clicks were not "actual clicks" but rather puroseful clicks made for an
improper purpose.
45. As a direct and proximate result of Google's breach of

the covenant of

good faith and fair dealing, plaintiff and the Class have been damaged in an amount to be determined at trial but in excess of an aggregated amount of $5,000,000.

SECOND CAUSE OF ACTION

46. Plaintiff

repeats and reaiiegeS each of

(NEGLIGENCE) the preceding paragraphs, as if

set fort fully herein.

47. Google owes and owed a duty to plaintiff and the Class to monitor its

AdWords program for click fraud and to protect plaintiff and the Class from click fraud to ensure that Plaintiff and the Class were charged only for "actual clicks."
48. Google has breached its duty to plaintiff and the Class by failing to

adequately monitor its AdW ords program for click fraud and to protect plaintiff and

the Class from click fraud, and by charging plaintiff and the Class for purposeful
clicks on search advertisements made for an improper purpose.
49. As a proximate result of Google's breach of

their duties owed to

plaintiff and the Class, plaintiff and the Class have b~en damaged in an amount to be

determined at trial but in excess of an aggregated amount of $5,000,000.
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1 THIRD CAUSE OF ACTION

2 (UNJUST ENRICHMENT)
3 50. Plaintiff repeats and realleges each of

the preceding paragraphs, as if set

4 forth fully herein.
5 51. Google has received and retains money belonging to plaintiff and the

6 Class resulting from clicks made for an improper purpose, i.e., fraudulent clicks.
7 52. Under principles of equity and good conscience, Google should not be
8 permitted to retain the money belonging to plaintiff and the Class which Google has

9 unjustly received as a result of its actions.

10 FOURTH CAUSE OF ACTION
11 (UNFAIR BUSINESS PRACTICES)
12 (BUSINESS & PROFESSIONS CODE 17200, ET SEQ.)

13 53. Plaintiff repeats and realleges each of the preceding paragraphs, as if set
14 forth fully herein. .
15 54. As described above, the Agreement between Google and plaintiff

and

16 the Class provides that the Agreement shall be governed by California law.

17 California Business & Professions Code § 17200 provides that "unfair competition
18 shall mean and include any unlawful, unfair or fraudulent business act or practice."

19 55. Google's conduct in charging Plaintiff and the class for fraudulent
20 clicks, as alleged hereinabove, violated California Business & Professions Code,
21 section 17200, et seq. because it was an unlawful, unfair and/or fraudulent business

22 act and practice.
23 56. As a proximate result of Go

ogle's conduct alleged herein, both Plaintiff

24 and the class have sustained pecuniary loss.
25 57. Unless restrained by this Court, Defendant Goggle wil continue to

26 engage in the unlawful, unfair, and/or fraudulent business acts or practices alleged

27 above, in violation of Section 17200 of the Business and Professions Code, thus
28 tending to render jndgment in the instant action ineffectuaL. Plaintiff

has no
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,
1

adequate remedy at law, in that Defendant wil continue to engage in such practices,
as alleged above, in violation of Section 17200 of

2
3

the Business and Professions

Code, thus engendering a multiplicity of judicial proceedings.
58. Plaintiff and the Class are entitled to the disgorgement of any profits

4
5

Google obtained as a result of charging plaintiff and the Class for fraudulent clicks,

6

restitution of any monies plaintiff and the Class paid for clicks that could be

7
8

determined to be fraudulent, and attorneys' fees as provided by California Code of
Civil Procedure, section 1021.5.

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11

PRAYER FOR RELIEF

WHREFORE, plaintiff Click Defense, individually and on behalf of all those
similarly situated, prays for judgment against Google as follows:

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13

1. Allowing this action to be brought as a class action;
11. Awarding Plaintiff

and the Class damages for Google's breach of

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15

contract in an amount to be determined at trial but not less than an aggregate amount
in excess of $5,000,000;

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18

111. Awarding Plaintiff and the Class damages for Google's
negligence in an amount to be determined at trial but not less than an aggregate
amount in excess of $5,000,000;
iv. Requiring Google to return Plaintiffs and the Class's money in

19

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21

the amount in which Google has been unjustly enriched;

V11. Awarding Plaintiff and the Class injunctive relief and restitution
for Google's violation of

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23

the Business & Professions Code section 17200;

viii. Awarding Plaintiff and the Class pre- and post-judgment interest
as allowed by law;

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25

ix. Awarding counsel for Plaintiff and the Class reasonable
attorneys' fees and costs;

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28

x. Awarding Plaintiff and the Class declaratory and injunctive relief
requiring Gl)ogle to disclose the true extent of click fraud and to credit all members
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1 of the class for any clicks that were the result of click fraud; and

2 Xl. Granting such other and further relief that this Court may deem
3 just and proper.

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5

6 7
8

Dated. June~, 2005

. n'?

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By:

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K:\Cases\Pay Per Click\GOOGLE\PLEADlNGS\Google Complaint (FlNAL).doc

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Class Action Complaint

Case 5:05-cv-02885-RMW

Document 21-3
Document 1

Filed 03/09/2006

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Case 5:05-CV-02579.lT

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Google Inc. AdWords Program Terms
These Google Inc. AdWords Program Terms ("Terms") are entered into by you and Google Inc. C'Google") regarding the Google AdWords Program

("Program") as further described in the Program's frequently asked
questions at httPs://adwords.Qoogle.com/supportbin/indèx.py?fulldump=1

. (the "FAQs") (collectively, the "Agreement"). "You" or "you" means the

party listed on the account you create and you represent you have the authority to agree to this Agreement for that party. You represent and warrant that you are authorized to act on behalfof, and bind to this Agreement, any third party for which you generate ads. You hereby agree

and acknowledge: . .

1 Policies. Program use.is subject to all applicable Google and Partner
policies, including without limitation the Editorial Guidelines

(adwords.qooQle,com/select/Quidelines.html), Google Privacy Policy
(WWW.Qoogle.com/privacy.html) and Trademark Guidelines

(ww.QooQle.com/permissions/trademarks.html). Policies may be modified any time. You shall direct only to Google communications regarding your ads on Partner Properties. Some Program features are identified as "Beta," "Ad Experiment," or otherwise unsupported ("Beta Features"). Beta Features are provided "as is" and at your option and risk. You shall not or access to disclose to any third party any information from, existence of Beta Features. Google may modify ads to comply with any Google Property or Partner Property policies.

2 The Program. You are solely responsible for all: (a) keywords and ad targeting options (collectively "Targets") and all ad content and ad URLs ("Creative"), whether generated by or for you; and (b) web sites proximately reachable from Creative URLs and your services and products (collectively "Services"). You shall protect your passwords and take full
responsibility for your own, and third party, use

of your accounts. Ads may

be placed on (y) any content or property provided by Google ("Google Property"), and unless opted-out by you (z) any other content or property a third party ("Partner") upon which Google places ads provided by
Target for any or no reason. You may independently cancel online any campaign at any time (such cancellation is generally effective within 24 cancel immediately any 10, the Program or these hours): Google may

("Partner Property"). Google or Partners may reject or remove any ad or

Terms at any time with notice (additional notice is not required to cancel a
reactivated account). Google may modify the Program or these Terms at any time without liabilty and your use of the Program after notice that
Terms have changed indicates acceptance of the Terms. Sections'

1 ,2,4,

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EXHBIT A

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5. 6 and 7 wil survive any expiration or termination of this Agreement.

3 Prohibited Uses. You shall not, and shall not authorize any party to: . (a) generate automated, fraudulent or otherwise invalid impressions or clicks; or (b) advertise anything ilegal or engage in any ilegal or fraudulent business practice in any state or country where your ad is displayed. You

and display your ads and Targets (JlUseJl);and (z) such Use and websites
linked from your ads (including services or products therein) wil not violate or encourage violation of any applicable laws. Violation of these policies may result in immediate termination of this Agreement or your account without notice and may subject you to legal penalties and consequences.

,information is correct and current; (y) you hold and grant Google and Partners all rights to copy, distribute
represent and warrant that (x) all your

4 Disclaimer and Limitation of Liabilty. GOOGLE DISCLAIMS ALL
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION FOR NONINFRINGEMENT, MERCHANTABILITY AND . FITNESS FOR ANY PURPOSE. Google disclaims all guarantees regarding positioning or the levels ortiming of: (i) costs per click, (ii) click

through rates, (ii) delivery of any impressions on any Partner Property or
Google Property or sections of such properties, (iv) clicks or (v) conversions for any ads or Targets. EXCEPT FOR INDEMNIFICATION AMOUNTS PAYABLE TO THIRD PARTIES HEREUNDER AND YOUR BREACHES OF SECTION 1, TO THE FULLEST EXTENT PERMITTED BY LAW: (a) NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY. PUNITIVE, OR OTHER DAMAGES WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY; AND (b) EACH PARTY.S AGGREGATE LIABILITY TO THE OTHER IS LIMITED TO AMOUNTS PAID OR PAYABLE TO GOOGLE BY YOU FOR THE AD GIVING RISE TO THE CLAIM. Except for payment, neither party is liable for failure or delay resulting from a condition beyond the reasonable control of the party, including but not limited to acts of God, government, terrorism, natural disaster, labor conditions and power failures.

5 Payment. You shall be charged based on actual clicks or other billing / shall pay methods you may choose online (e.g. cost per impression). You' all charges in the currency selected by you via your online AdWords account, or in such other currency as is agreed to in writing by the parties. Charges are exclusive of taxes. You are responsible for paying (y) all taxes and government charges, and (z) reasonable expenses and attorney fees

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EXHIBIT A

Case 5:05-cv-02885-RMW

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Document 1

Filed 03/09/2006

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Case 5:05-CV-02579tjT
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Filed 06/24/.5

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800gle incurs collecting late amounts. You waive all claims relating to charges unless claimed within 60 days after the charge (this does not affect your credit card issuer rights). Charges are solely based on Google's click measurements. Refunds (if any) are at the discretion of Google and only in the form of advertising credit for Google Properties. You acknowledge and agree that any credit card and related billing and payment information that you provide to Google may be shared by Google with companies who work on Google's behalf, such as payment processors and/or credit agencies, solely for the purposes of checking
credit, effecting payment to Google and servicing your account.

Google

may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. Google shall not be liable for any use or disclosure of such information by such third parties.
6 Indemnification. You shall indemnify and defend Google, its agents, affiliates, and licensors from any third party claim or liabiliy (including without limitation reasonable legal fees) arising out of your Program use, Targets, Creative and Services and breach of the Agreement.

7 Miscellaneous. The Agreement must be construed as if both parties
jointly wrote it, governed by California law except for its conflicts of laws principles and adjudicated in Santa Clara County, California. The Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. You may grant approvals, permissions and consents by email, but any modifications by you to the Agreement must be made in a writing (not including email) executed by both parties. Any notices to Google must bè sent to: Google Inc., AdWords Program, 1600 Amphitheatre Parkway, Mountain View, CA 94043, USA, with a copy to Legal Department, via first class or air mail or overnight deemed given upon receipt. Notice to you may be effected courier, and are by sending email to the email address specified in your account, or by posting a message to your account interface, and is deemed received when sent (for email) or no more than 15 days after having been posted (for messages in your AdWords interface). A waiver of any default is not a

waiver of any subsequent default. Unenforceable provisions wiIbe

modified to reflect the parties' intention, and remaining provisions of the Agreement will remain in full effect. You may not assign any of your rights hereunder and any such attempt is void. Google and you and Google and Partners are not legal partners or agents, but are independent contractors.

Apri/19, 2005

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EXHIBIT A