Mizera v. Google
Mizera v. Google
Doc. 21 Att. 3
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RICHARD L. KELLNER; SBN 171416 FRANK E. MARCHETTIË SBN 203 185 2 KABA TECK BROWN K L~NER LLP 350 South Grand Avenue, 39 i Floor
3 Los Angeles, California 90071-3801
Telephone: (213) 217-5000
4 Facsimile: (213) 217-5010
RICHARD W WIL~.iNG
LA W OFFICES OF SHAWN KHORRAMI 6 14550 Haynes Street, Third Floor Van Nuys, California 9141 i (818)947-5111 Facsimile: (818) 947-5121
5 SHAWN KHORRMI SBN 180411
JUL 1 52005 t-T! ¿,J
CLERK U.S. DlsrneT r 0uriT
NORTHERN DISTRICi Li~ C;"UfORNìA
GREGORY E. KELLERfTo be admitted 9 DARRN T. KAPLAN (To be admitted
CHITWOOD HARLEYHARNES LLP
10 2300 Promenade II
1230 Peachtree Strees N.E.
pro hac vice) pro hac vice)
11 Atlanta, Georgia 303u9
Telephone: (4D4) 873-3900
12 Facsimile: (404) 876-4476
13 Attorneys for Plaintiffs
UNTED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNA
SAN JOSE DIVISION
STEVE MIZERA., An Individual, Individually and on behalf of all
others similarly situated
CLASS ACTION COMPLAINT FOR:
-againstGOOGLE, INC., a Delaware
cotporation, and DOES 1 THROUGH i 00, Inclusive,
1. BREACH OF CONTRACT; . 2. NEGLIGENCE; 3. UNJUST ENRICHMENT;
4. UNFAIR BUSINESS PRACTICES (CALIFORNIA BUSINESS & PROFESSIONS CODE 17200, ET SEQ.)
JURY TRIAL DEMANDED
Class Action Complaint
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Plaintiff Steve Mizera., by and through his attorneys, alleges the following
2 upon information and belief, except as to those allegations concerning Plaintiff,
3 which are alleged upon personal knowledge. Plaintiffs information and belief are
4 based upon, among other things, his and/or counsels' investigation, which included
5 without limitation: (a) review and analysis of
filings made by Google, Inc.
6 ("Google") with the United States Securities and Exchange Commission ("SEe");
7 (b) review and analysis of information posted by Google at
8 https://adwords.google.com/select/Login and https://www.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 "Ad
Words" 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
14 for discovery. Many of the facts supporting the allegations contained herein are
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 § 1 7200, Et Seq.). Plaintiff brings this action on behalf of
20 himself and all other persons or entities, except for Google and certain of their
21 related parties as described below, who, within the past five years, have paid money
23 THE PARTIES
24 2. Plaintiff 25 Sacramento in the County ofY olo, State of 27 individually and as a class action under rule 23 of
22 to Google for advertising -through Google's "AdWords" program.
Steve Mizera is an individual residing in the city of
California. Plaintiff is engaged in the
26 business of sel i ing panoramic pictures on the internet. Plainti ff brings this action
the Federal Rules of
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Procedure on behalf of all persons and/or entities that paid money to Google for
2 advertising through Google's "AdWords" program.
3 3. Defendant Google is a corporation organized under the laws of
4 of Delaware, with its principal place of business in Mountain View, California,
5 which is within the Northern District of
California. Google is, and was at all times
6 herein mentioned, qualified to do business in California. Google provides Internet
7 search engine services to Internet users and advertising services to individuals, 8 businesses and educational and governmental entities involved in Internet sales and
9 marketing throughout the United States. Purchasers of such advertising services
10 presumptively include citizens of every state in the United States.
i 1 4. The true names and capacities, whether individual, corporate, associate,
them, 13 are unknown to Plaintiff, who therefore sues said Defendants by such fictious names.
12 or otherwise, of Defendants named herein as DOES 1 through 100, and each of 14 5. Plaintiff
will ask leave to amend this Complaint to state said
15 Defendants' true identities and capacities when the same have been ascertained.
16 6. Each of the Defendants designated herein as DOE took part in and
17 participated with Google in all matters referred to herein and was in some manner
18 responsible for the injuries and losses suffered by Plaintiff.
i 9 7. At all times herein mentioned, each of the Defendants was the agent,
20 servant, and/or employee or occupied other relationships with each of the other
21 named Defendants and at all times herein mentioned acted within the course and
22 scope of said agency and/or employment and/or other relationship and each other
23 Defendant has ratified, consented to, and approved of the acts of
24 employees, and representatives, and each actively participated in, aided and abetted,
25 or assisted one another in the commission of
the wrongdoings alleged in this
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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 filed under rule 23 of
the Federal Rules
4 of Civil Procedure, the matter in controversy, as aggregated pursuant to 28 U.S.c. §
5 1332(d)(6) exceeds the sum of$5,000,0000 exclusive of
interest and costs, and a
the class of
6 substantial number of
plaintiffs are citizens ofa state
California pursuant to 28
7 different from Google.
8 9. Venue is proper in the Northern District of
9 U.S.c. § 1391(a) in that (l) 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 Nortern
12 District of California. In addition, the agreement between Google and all members
the class provides that, "(t)his Agreement must be.. . adjudicated in Santa Clara
14 County, California," which is within the Northern District of California.
15 CLASS ACTION ALLEGATIONS
16 10. Alleged Class: Plaintiff
brings this action as a class action pursuant to
Procedure 23(a) and (b )(3) on behalf of all persons and/or
17 Federal Rule of Civil
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 controlling 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 of those of
the Class as all members of
5 the Class are similarly affected by Google's actionable conduct as alleged herein;
6 (c) Plaintiff will 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
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 of
the Class may be relatively small, the expense and burden litigation make it virtually impossible for Class members to redress
15 of individual
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
21 predominate over any questions affecting individual members of
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
26 111. 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
4 v. whether Google has breached its agreement with the class;
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
11 damages and the proper measure of damages.
12 SUBSTANTIVE ALLEGATIONS COMMON TO ALL COUNTS
13 1. Goo2:1e "AdWords" and "Ad
14 12. Plaintiff alleges the following on information and belief:
15 13. Google's free Internet search engine is the most widely-used Internet
16 search engine in the world. It answers hundreds of milions of user searches and
17 covers bilions of web pages each day.
18 14. Google also sells a number of products and services to individuals and
i 9 business, educational and governmental entities. One of the programs Google offers
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 ofInternet users who click
27 on these advertising links.
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16. Google's advertisers select the keywords that will trigger their
advertisements. Thus, for example, a computer hardware retailer might select
keywords such as "computer," "hard drive," "memory," and the like. Then, whenever
those keywords, that retailer's paid advertisement would appear alongside the search results.
a user entered a search string containing any of
17. Advertisers make bids for the key words that will trigger their
advertisements. The highest bidder for a word or phrase generally finds its ad on top
the list. Advertisers then pay Google a fee every time someone clicks on their ad.
Payments average approximately 50 cents per click, but can reach over $ i 00 for
sought-after terms valuable to advertisers.
18. Google also places the AdWords text ads on other Web sites though its
"AdSense" program. Under this program, relevant ads are selected based on the
particular website's content. Again, Advertisers pay Google a fee every time
15 16 17 18 19
someone clicks on their ad as displayed thorough the AdSense program. A portion
the fee the advertisers pay to Google is then remitted back to the site which
displays the ad.
i 9. Other internet search companies besides Google offer variants on
Google's AdWords program. These programs are substantially identical to Google's
in that advertisers pay fees to the internet search company each time their ads are
i clicked. These programs are referred to generically as "pay-per-c1ick".
20. According to Google's 2005 Annual Report, advertising revenue (which
means revenue from AdWords) represents 99% of Go
ogle's total revenue in 2004.
2. "Click Fraud"
21. "Click Fraud" is the term the industry uses to describe when someone
clicks on a search advertisement with an il intent and with no intention of doing
business with the advertiser. It is not "fraud" as such is understood at common law
nor under the pleading requirements of
the federal rules; rather, it merely describes purposeful clicks on advertisements for some kind of improper purpose. Perpetrators
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1 of dick fraud exploit the nature of pay-per-click advertising in order to increase the
2 pay-per-click fees paid by rivals, boosuhe placement of
their own advertisements, or
these fraudulent clickers have used
3 to directly profit from the activity. Many of
4 software programs that automatically click on ads hundreds or thousands of
5 (a) Business rivals use 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
11 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
16 advertisement, including who is clicking on the advertisement/link and how often the
17 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
27 advertisers who have complained of being victims of click fraud.
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25. Google is in a unique position to track click fraud that originates though
its own AdSense program since these sites are affiliates of Google and the entire
process takes place within the closed-end Google universe of internet links.
3. The Pervasiveness of Click Fraud
26. Click fraud is a rampant problem in the pay-per-click advertising
business. Some analysts believe that as many as 20% of clicks are fraudulent.
27. In December 2004, Google's chief 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,
Sergey Brin downplayed Reyes's comments.
4. Gooi!le's Failure to Disclose the Pervasiveness of Click Fraud
29. Goog1e disclosed the following in its 2005 Annual Report:
I/wefail to detect click-through/raud, we could lose the
confidence of our advertisers, thereby causing our business to suffer.
We are exposed to the risk of fraudulent clicks on our ads by persons seeking to increase the advertising fees paid to our Google Network members. We have regularly refunded 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 AdWords 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, these refunds may increase. If we find new evidence of past fraudulent clicks we may have to issue refunds retroactively of amounts previously paid to our Google Network members. This would negatively affect our 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
profitability, and these types of
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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
from AdWords there is little doubt why Google will not disclose its own estimate of
the number of
fraudulent clicks its advertisers pay for.
.31. Nevertheless, Google knows, and at an relevant times hereto has known,
that click fraud is rampant in its AdWords program and that the advertisements it
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.
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)
adequately advise them that they have been victimized, and (b) refund them the the fraudulent click activity.
excess charges that they have incurred as a result of
34. Google has an inherent conflct of interest in preventing click fraud
since it derives the same amount of income from each fraudulent click as it does
from each legitimate click.
5. Gooi:!le's Ae:reement with the Class
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
required to accept these new Terms and Conditions in order to advertise with the
AdWords program. A copy of
the "AdWordsProgram Terms," is annexed hereto as
Exhibit "A" and made a part hereof.
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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 "Ad
Words 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. In or around March of2005, Steve Mizera entered into a written form
13 contract with Google for the placement of a pay-per-click advertisement to be
14 displayed as a sponsored link. Steve Mizera successfully bid $.05 for the display of
15 Steve Mizera's advertisement and a link to Steve Mizera's website whenever a user
16 of Go
ogle's search engine searched for the key words "Yellowstone Post Cards," as
Mizera's bid, Steve
17 well as other similar phrases. Other than the amount of Steve
18 Mizera was not permitted to negotiate the specific terms of the contract - the terms
19 were offered by Google on a take it or leave it basis.
20 40. Between March, 2005 and the present, Steve Mizera became the victim
21 of click fraud.
22 FIRST CAUSE OF ACTION 23 (BREACH OF CONTRACT)
24 41. Plaintiff repeats and reãTleges each of
the preceding paragraphs, as ifset
25 forth 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
"AdWords Program Terms" but pursuant to industry
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practices and Google's own practices as demonstrated by the limited refunds Google
2 has made to advertisers who have complained of being victims of click fraud.
3 43. Further, the AdWords Program Terms contains and contained an
4 implied covenant of good faith and fair dealing that Google would not do anything
5 that would have the effect of injuring the right of plaintiff and the Class to receive
6 the benefits of the contract.
7 44. Google breached its contracts with Plaintiff and the Class, and the
8 covenant of good faith and fair dealing, by collecting fees from plaintiff and the
9 Class for click fraud even though Google knew, or should have reasonably known,
10 that the clicks were not "actual clicks" but rather purposeful clicks made for an
1 1 improper purpose.
12 45. As a direct and proximate result of Google's breach of
the covenant of
13 good faith and fair dealing, plaintiff and the Class have been damaged in an amount
14 to be determined at trial but in excess of an aggregated amount of $5,000,000.
15 SECOND CAUSE OF ACTION
17 46. Plaintiff repeats and realleges each of
the preceding paragraphs, as if
and the Class to monitor its
18 set forth fully herein.
19 47. Google owes and owed a duty to plaintiff
20 AdWords program for click fraud and to protect plaintiff and the Class from click
21 fraud to ensure that Plaintiff and the Class were charged only for "actual clicks."
22 48. Google has breached its duty to plaintiff and the Class by failing to
23 adequately monitor its AdWords program for click fraud and to protect plaintiff and
24 the Class from click fraud, and by charging plaintiff and the Class for purposeful
25 clicks on search advertisements made for an improper purpose.
26 49. As a proximate result of Go ogle's breach of
their duties owed to
27 plaintiff and the Class, plaintiff and the Class have been damaged in an amount to be
2& determined at trial but in excess of an aggregated amount of $5,000,000.
Class Action Complaint
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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
i i (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 i 7200, 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 judgment in the instant action ineffectuaL. Plaintiff has no
Class Action Complaint
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adequate remedy at law, in that Defendant wil continue to engage in such practices,
2 as alleged above, in violation of Section 17200 of
the Business and Professions
3 Code, thus engendering a multiplicity of judicial proceedings.
4 58. Plaintiff and the Class are entitled to the disgorgement of any profits
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 determined to be fraudulent, and attorneys' fees as provided by California Code of
8 Civil Procedure, section 102 i .5.
9 PM YER FOR RELIEF
10 WHREFORE, plaintiff Click Defense, individually and on behalf of
11 similarly situated, prays for judgment against Google as follows:
12 1. Allowing this action to be brought as a class action;
13 ll. Awarding Plaintiff and the Class damages for Google's breach of
14 contract in an amount to be determined at trial but not less than an aggregate amount
15 in excess of $5,000,000;
16 iiI. Awarding Plaintiff and the Class damages for Google's
17 negligence in an amount to be determined at trial but not less than an aggregate
18 amount in excess of$5,000,000;
19 iv. Requiring Google to return Plaintiffs and the Class's money in
20 the amount in which Google has been unjustly enriched;
21 Vll. Awarding Plaintiff and the Class injunctive relief and restitution
22 for Google's violation of
the Business & Professions Code section i 7200;
23 viii. Awarding Plaintiff and the Class pre- and post-judgment interest
24 as allowed by law;
25 ix. Awarding counsel for Plaintiff and the Class reasonable
26 attorneys' fees and costs;
27 x. Awarding Plaintiff and the Class declaratory and injunctive relief
28 requiring Google to disclose the true extent of click fraud and to credit all members
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the class for any clicks that were the result of click fraud; and
2 Xl. Granting such other and further reliefthat this Court may deem
3 just and proper.
Dated: July \ ~, 2005
K:\Cases\Pay Per Click\GOOLE\PLEADINGS\Mizera v. Google.doc
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Google Inc. AdWords Program Terms
These Google Inc. AdWords Program Terms ("Terms") are entered into by
you and Google Inc. ("Google") regarding the Google AdWords Program ("Program") as further described in the Program's frequently asked
questions at https://adwords.Qooqle.com/support/bin/index.pv?fulIdump= 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 behalf of, and bind to this
Agreement, any third party for which you generate ads. You hereby
and acknowledge: .
any time. You shall direct only to Google communications regarding your
ads on Partner Properties. Some Program features are identiied as "Beta," "Ad Experiment," or otherwise unsupported ("Beta Features"). Beta Features are provided lias is" and at your option and risk. You shall not disclose to any third party any information from, existence of or access to Beta Features. 800gle may modify ads to comply with any Google or Partner Property policies. Property
2 The Program. You are solely responsible for all: (a) keywords and ad targeting options (collectively "Targets") and all àd content and ad URLs and (b) web sites ("Creative"), whether generated by or for you; proximately reachable from Creative URLs and your services and products (collectively "Services"). You shall protect your passwords and take full
responsibilty 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 êöntent or property provided by a third party ("Partner") upon which Google places ads
("Partner Property"). Go091e or Partners may reject or remove any ad or
Target for any or no reason. You may independently cancel online any campaign at any time (such cancellation is generally effective within 24 hours): Googl8 may cancel immediately any 10, the Program or these
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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5, 6 and 7 wi1 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 cHcks; or (b) advertise anything illegal or engage in any illegal or fraudulent business practice in any state or country where your ad is displayed. You
represent and warrant that (x) all your
information is correct and current;
(y) you hold and grant Google and Partners all rights to copy, distribute and display your ads and Targets ("Use"); and (z) such Use and websites linked from your ads (including services or products therein) will 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.
4 Disclaimer and Limitation of Liability. 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 or timing 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 \S LIMITED TO AMOUNTS PAID OR PAYABLE TO GOOGLE BY YOU FOR THE AD GIVING RISE or
TO THE CLAIM. Except for payment, neither party is liable for failure
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 biling methods you may choose online (e.g. cost per impression). You shall pay 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) rea~onable expenses and attorney fees
Page 19 of 19
Google 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 Go091e 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 shallîndemnify and defend Google, its agents,
affilates, and licensors from any third party claim or liabilty (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 writng (not including email) executed by both parties. Any notices to Google must be sent to": Google Inc., AdWords Program, 1600 Amphitheatre Parkway, Mountain View, CA 94043, USA, or overnight
with a copy to Legal Department, via first class or air mail
courier, and are deemed given upon receipt. Notice to you may be effected by sending email to the email address specified in your account, or by posting a message to your account interface, and is deemed received ail) or no more than 15 days after having been posted when sent (for em
(for messages in your AdWords interface). A waiver of any default is not a be
waiver of any subsequent default. Unenforceable provisions wil
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
Declaration of David J. Silbert in Support of 20
MOTION to Stay : Defendant Google Inc's Motion to Stay Pending Settlement
filed byGoogle Inc.,. (Attachments: # 1
Exhibit A# 2
Exhibit B# 3
Exhibit C# 4
Exhibit D)(Related document(s)20
) (Silbert, David) (Filed on 3/9/2006)
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