Clemons v. Google, Inc.

Filing 10

MOTION to Dismiss for Failure to State a Claim or, in the Alternative, Transfer Venue with Roseboro,. by Google, Inc.. (Attachments: # 1 Affidavit of Brittany Araujo, # 2 Proposed Order)(Roche, John)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

RICHARD CLEMONS,
Plaintiff,

Civil Action No. 1:17-CV-00963-AJT-TCB

v.
GOOGLE INC.,
Defendant.

DECLARATION OF BRITTANY ARAUJO
1.

I, Brittany Araujo, am a Legal Investigations Support Specialist at Google LLC

(“Google”) in Mountain View, California. I am over 18 years of age, am competent to testify
truthfully to the facts asserted herein, and the foregoing is based on my personal knowledge.
2.

Google is a Delaware limited liability corporation with its principal place of

business in Mountain View, California.
3.

Google provides various free web-based products to the public, including its

widely-used Gmail service.
4.

The owner of the Gmail account at issue in this matter, [e-mail], is

a Google user who, upon account creation on June 8, 2016 at 11:26:39 UTC, was presented with
a copy of Google’s Terms of Service and affirmed his agreement to those Terms of Service when
creating the account.
5.

Google’s current Terms of Service, available at

https://www.google.com/policies/terms/, and the Terms of Service in place at the time of account
creation, available at https://www.google.com/policies/terms/archive/20140414/, provide that:

EXHIBIT 1

Google Terms of Service – Privacy & Terms – Google

 Privacy & Terms
Overview

Privacy Policy

Terms of Service

Technologies and Principles

FAQ

Terms of Service

Google Terms of Service

Updates

My Account

Last modified: October 25, 2017 (view archived versions)

Welcome to Google!
Thanks for using our products and services (“Services”). The Services are provided by
Google LLC (“Google”), located at 1600 Amphitheatre Parkway, Mountain View, CA
94043, United States.
By using our Services, you are agreeing to these terms. Please read them carefully.
Our Services are very diverse, so sometimes additional terms or product requirements
(including age requirements) may apply. Additional terms will be available with the relevant
Services, and those additional terms become part of your agreement with us if you use
those Services.

Using our Services
You must follow any policies made available to you within the Services.
Don’t misuse our Services. For example, don’t interfere with our Services or try to access
them using a method other than the interface and the instructions that we provide. You
may use our Services only as permitted by law, including applicable export and re-export
control laws and regulations. We may suspend or stop providing our Services to you if you
do not comply with our terms or policies or if we are investigating suspected misconduct.
Using our Services does not give you ownership of any intellectual property rights in our
Services or the content you access. You may not use content from our Services unless
you obtain permission from its owner or are otherwise permitted by law. These terms do
not grant you the right to use any branding or logos used in our Services. Don’t remove,
obscure, or alter any legal notices displayed in or along with our Services.
Our Services display some content that is not Google’s. This content is the sole
responsibility of the entity that makes it available. We may review content to determine
whether it is illegal or violates our policies, and we may remove or refuse to display content
that we reasonably believe violates our policies or the law. But that does not necessarily
mean that we review content, so please don’t assume that we do.
In connection with your use of the Services, we may send you service announcements,
administrative messages, and other information. You may opt out of some of those
communications.
https://www.google.com/policies/terms/[11/16/2017 1:46:55 PM]

Google Terms of Service – Privacy & Terms – Google

Some of our Services are available on mobile devices. Do not use such Services in a way
that distracts you and prevents you from obeying traffic or safety laws.

Your Google Account
You may need a Google Account in order to use some of our Services. You may create
your own Google Account, or your Google Account may be assigned to you by an
administrator, such as your employer or educational institution. If you are using a Google
Account assigned to you by an administrator, different or additional terms may apply and
your administrator may be able to access or disable your account.
To protect your Google Account, keep your password confidential. You are responsible for
the activity that happens on or through your Google Account. Try not to reuse your Google
Account password on third-party applications. If you learn of any unauthorized use of your
password or Google Account, follow these instructions.

Privacy and Copyright Protection
Google’s privacy policies explain how we treat your personal data and protect your privacy
when you use our Services. By using our Services, you agree that Google can use such
data in accordance with our privacy policies.
We respond to notices of alleged copyright infringement and terminate accounts of repeat
infringers according to the process set out in the U.S. Digital Millennium Copyright Act.
We provide information to help copyright holders manage their intellectual property online.
If you think somebody is violating your copyrights and want to notify us, you can find
information about submitting notices and Google’s policy about responding to notices in
our Help Center.

Your Content in our Services
Some of our Services allow you to upload, submit, store, send or receive content. You
retain ownership of any intellectual property rights that you hold in that content. In short,
what belongs to you stays yours.
When you upload, submit, store, send or receive content to or through our Services, you
give Google (and those we work with) a worldwide license to use, host, store, reproduce,
modify, create derivative works (such as those resulting from translations, adaptations or
other changes we make so that your content works better with our Services),
communicate, publish, publicly perform, publicly display and distribute such content. The
rights you grant in this license are for the limited purpose of operating, promoting, and
improving our Services, and to develop new ones. This license continues even if you stop
using our Services (for example, for a business listing you have added to Google Maps).
Some Services may offer you ways to access and remove content that has been provided
to that Service. Also, in some of our Services, there are terms or settings that narrow the
scope of our use of the content submitted in those Services. Make sure you have the
necessary rights to grant us this license for any content that you submit to our Services.

https://www.google.com/policies/terms/[11/16/2017 1:46:55 PM]

Google Terms of Service – Privacy & Terms – Google

Our automated systems analyze your content (including emails) to provide you personally
relevant product features, such as customized search results, tailored advertising, and
spam and malware detection. This analysis occurs as the content is sent, received, and
when it is stored.
If you have a Google Account, we may display your Profile name, Profile photo, and
actions you take on Google or on third-party applications connected to your Google
Account (such as +1’s, reviews you write and comments you post) in our Services,
including displaying in ads and other commercial contexts. We will respect the choices you
make to limit sharing or visibility settings in your Google Account. For example, you can
choose your settings so your name and photo do not appear in an ad.
You can find more information about how Google uses and stores content in the privacy
policy or additional terms for particular Services. If you submit feedback or suggestions
about our Services, we may use your feedback or suggestions without obligation to you.

About Software in our Services
When a Service requires or includes downloadable software, this software may update
automatically on your device once a new version or feature is available. Some Services
may let you adjust your automatic update settings.
Google gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive
license to use the software provided to you by Google as part of the Services. This license
is for the sole purpose of enabling you to use and enjoy the benefit of the Services as
provided by Google, in the manner permitted by these terms. You may not copy, modify,
distribute, sell, or lease any part of our Services or included software, nor may you reverse
engineer or attempt to extract the source code of that software, unless laws prohibit those
restrictions or you have our written permission.
Open source software is important to us. Some software used in our Services may be
offered under an open source license that we will make available to you. There may be
provisions in the open source license that expressly override some of these terms.

Modifying and Terminating our Services
We are constantly changing and improving our Services. We may add or remove
functionalities or features, and we may suspend or stop a Service altogether.
You can stop using our Services at any time, although we’ll be sorry to see you go. Google
may also stop providing Services to you, or add or create new limits to our Services at any
time.
We believe that you own your data and preserving your access to such data is important. If
we discontinue a Service, where reasonably possible, we will give you reasonable
advance notice and a chance to get information out of that Service.

Our Warranties and Disclaimers

https://www.google.com/policies/terms/[11/16/2017 1:46:55 PM]

Google Terms of Service – Privacy & Terms – Google

We provide our Services using a commercially reasonable level of skill and care and we
hope that you will enjoy using them. But there are certain things that we don’t promise
about our Services.
OTHER THAN AS EXPRESSLY SET OUT IN THESE TERMS OR ADDITIONAL TERMS,
NEITHER GOOGLE NOR ITS SUPPLIERS OR DISTRIBUTORS MAKE ANY SPECIFIC
PROMISES ABOUT THE SERVICES. FOR EXAMPLE, WE DON’T MAKE ANY
COMMITMENTS ABOUT THE CONTENT WITHIN THE SERVICES, THE SPECIFIC
FUNCTIONS OF THE SERVICES, OR THEIR RELIABILITY, AVAILABILITY, OR ABILITY
TO MEET YOUR NEEDS. WE PROVIDE THE SERVICES “AS IS”.
SOME JURISDICTIONS PROVIDE FOR CERTAIN WARRANTIES, LIKE THE IMPLIED
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY LAW, WE EXCLUDE ALL
WARRANTIES.

Liability for our Services
WHEN PERMITTED BY LAW, GOOGLE, AND GOOGLE’S SUPPLIERS AND
DISTRIBUTORS, WILL NOT BE RESPONSIBLE FOR LOST PROFITS, REVENUES, OR
DATA, FINANCIAL LOSSES OR INDIRECT, SPECIAL, CONSEQUENTIAL,
EXEMPLARY, OR PUNITIVE DAMAGES.
TO THE EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF GOOGLE, AND ITS
SUPPLIERS AND DISTRIBUTORS, FOR ANY CLAIMS UNDER THESE TERMS,
INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE AMOUNT YOU
PAID US TO USE THE SERVICES (OR, IF WE CHOOSE, TO SUPPLYING YOU THE
SERVICES AGAIN).
IN ALL CASES, GOOGLE, AND ITS SUPPLIERS AND DISTRIBUTORS, WILL NOT BE
LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.

Business uses of our Services
If you are using our Services on behalf of a business, that business accepts these terms. It
will hold harmless and indemnify Google and its affiliates, officers, agents, and employees
from any claim, suit or action arising from or related to the use of the Services or violation
of these terms, including any liability or expense arising from claims, losses, damages,
suits, judgments, litigation costs and attorneys’ fees.

About these Terms
We may modify these terms or any additional terms that apply to a Service to, for example,
reflect changes to the law or changes to our Services. You should look at the terms
regularly. We’ll post notice of modifications to these terms on this page. We’ll post notice of
modified additional terms in the applicable Service. Changes will not apply retroactively
and will become effective no sooner than fourteen days after they are posted. However,
changes addressing new functions for a Service or changes made for legal reasons will be

https://www.google.com/policies/terms/[11/16/2017 1:46:55 PM]

Google Terms of Service – Privacy & Terms – Google

effective immediately. If you do not agree to the modified terms for a Service, you should
discontinue your use of that Service.
If there is a conflict between these terms and the additional terms, the additional terms will
control for that conflict.
These terms control the relationship between Google and you. They do not create any
third party beneficiary rights.
If you do not comply with these terms, and we don’t take action right away, this doesn’t
mean that we are giving up any rights that we may have (such as taking action in the
future).
If it turns out that a particular term is not enforceable, this will not affect any other terms.
The laws of California, U.S.A., excluding California’s conflict of laws rules, will apply to any
disputes arising out of or relating to these terms or the Services. All claims arising out of or
relating to these terms or the Services will be litigated exclusively in the federal or state
courts of Santa Clara County, California, USA, and you and Google consent to personal
jurisdiction in those courts.
For information about how to contact Google, please visit our contact page.

Our legal policies

More information

Privacy Policy

Technologies and
Principles

Additional resources
How Google Wallet uses
credit card numbers

Terms of Service

My Account
Google Safety Center

Advertising

How Google Voice works

FAQ
How Google uses cookies
How Google uses pattern
recognition

How Google uses data
when you use our partners'
sites or apps

Google Product Privacy
Guide
Your privacy, security, and
controls

Types of location data used
by Google

Google
· About Google
· Privacy
· Terms

https://www.google.com/policies/terms/[11/16/2017 1:46:55 PM]

English

English

EXHIBIT 2

Google Terms of Service – Privacy & Terms – Google

 Privacy & Terms
Overview

Privacy Policy

Terms of Service
Updates

Terms of Service

Technologies and Principles

FAQ

My Account

Google Terms of Service
This is an archived version of our Terms of Service. View the current version or all past
versions.
Last modified: April 14, 2014 (view archived versions)

Welcome to Google!
Thanks for using our products and services (“Services”). The Services are provided by
Google Inc. (“Google”), located at 1600 Amphitheatre Parkway, Mountain View, CA 94043,
United States.
By using our Services, you are agreeing to these terms. Please read them carefully.
Our Services are very diverse, so sometimes additional terms or product requirements
(including age requirements) may apply. Additional terms will be available with the relevant
Services, and those additional terms become part of your agreement with us if you use
those Services.

Using our Services
You must follow any policies made available to you within the Services.
Don’t misuse our Services. For example, don’t interfere with our Services or try to access
them using a method other than the interface and the instructions that we provide. You
may use our Services only as permitted by law, including applicable export and re-export
control laws and regulations. We may suspend or stop providing our Services to you if you
do not comply with our terms or policies or if we are investigating suspected misconduct.
Using our Services does not give you ownership of any intellectual property rights in our
Services or the content you access. You may not use content from our Services unless
you obtain permission from its owner or are otherwise permitted by law. These terms do
not grant you the right to use any branding or logos used in our Services. Don’t remove,
obscure, or alter any legal notices displayed in or along with our Services.
Our Services display some content that is not Google’s. This content is the sole
responsibility of the entity that makes it available. We may review content to determine
whether it is illegal or violates our policies, and we may remove or refuse to display content
that we reasonably believe violates our policies or the law. But that does not necessarily
mean that we review content, so please don’t assume that we do.

https://www.google.com/policies/terms/archive/20140414/[11/16/2017 1:48:27 PM]

Google Terms of Service – Privacy & Terms – Google

In connection with your use of the Services, we may send you service announcements,
administrative messages, and other information. You may opt out of some of those
communications.
Some of our Services are available on mobile devices. Do not use such Services in a way
that distracts you and prevents you from obeying traffic or safety laws.

Your Google Account
You may need a Google Account in order to use some of our Services. You may create
your own Google Account, or your Google Account may be assigned to you by an
administrator, such as your employer or educational institution. If you are using a Google
Account assigned to you by an administrator, different or additional terms may apply and
your administrator may be able to access or disable your account.
To protect your Google Account, keep your password confidential. You are responsible for
the activity that happens on or through your Google Account. Try not to reuse your Google
Account password on third-party applications. If you learn of any unauthorized use of your
password or Google Account, follow these instructions.

Privacy and Copyright Protection
Google’s privacy policies explain how we treat your personal data and protect your privacy
when you use our Services. By using our Services, you agree that Google can use such
data in accordance with our privacy policies.
We respond to notices of alleged copyright infringement and terminate accounts of repeat
infringers according to the process set out in the U.S. Digital Millennium Copyright Act.
We provide information to help copyright holders manage their intellectual property online.
If you think somebody is violating your copyrights and want to notify us, you can find
information about submitting notices and Google’s policy about responding to notices in
our Help Center.

Your Content in our Services
Some of our Services allow you to upload, submit, store, send or receive content. You
retain ownership of any intellectual property rights that you hold in that content. In short,
what belongs to you stays yours.
When you upload, submit, store, send or receive content to or through our Services, you
give Google (and those we work with) a worldwide license to use, host, store, reproduce,
modify, create derivative works (such as those resulting from translations, adaptations or
other changes we make so that your content works better with our Services),
communicate, publish, publicly perform, publicly display and distribute such content. The
rights you grant in this license are for the limited purpose of operating, promoting, and
improving our Services, and to develop new ones. This license continues even if you stop
using our Services (for example, for a business listing you have added to Google Maps).

https://www.google.com/policies/terms/archive/20140414/[11/16/2017 1:48:27 PM]

Google Terms of Service – Privacy & Terms – Google

Some Services may offer you ways to access and remove content that has been provided
to that Service. Also, in some of our Services, there are terms or settings that narrow the
scope of our use of the content submitted in those Services. Make sure you have the
necessary rights to grant us this license for any content that you submit to our Services.
Our automated systems analyze your content (including emails) to provide you personally
relevant product features, such as customized search results, tailored advertising, and
spam and malware detection. This analysis occurs as the content is sent, received, and
when it is stored.
If you have a Google Account, we may display your Profile name, Profile photo, and
actions you take on Google or on third-party applications connected to your Google
Account (such as +1’s, reviews you write and comments you post) in our Services,
including displaying in ads and other commercial contexts. We will respect the choices you
make to limit sharing or visibility settings in your Google Account. For example, you can
choose your settings so your name and photo do not appear in an ad.
You can find more information about how Google uses and stores content in the privacy
policy or additional terms for particular Services. If you submit feedback or suggestions
about our Services, we may use your feedback or suggestions without obligation to you.

About Software in our Services
When a Service requires or includes downloadable software, this software may update
automatically on your device once a new version or feature is available. Some Services
may let you adjust your automatic update settings.
Google gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive
license to use the software provided to you by Google as part of the Services. This license
is for the sole purpose of enabling you to use and enjoy the benefit of the Services as
provided by Google, in the manner permitted by these terms. You may not copy, modify,
distribute, sell, or lease any part of our Services or included software, nor may you reverse
engineer or attempt to extract the source code of that software, unless laws prohibit those
restrictions or you have our written permission.
Open source software is important to us. Some software used in our Services may be
offered under an open source license that we will make available to you. There may be
provisions in the open source license that expressly override some of these terms.

Modifying and Terminating our Services
We are constantly changing and improving our Services. We may add or remove
functionalities or features, and we may suspend or stop a Service altogether.
You can stop using our Services at any time, although we’ll be sorry to see you go. Google
may also stop providing Services to you, or add or create new limits to our Services at any
time.
We believe that you own your data and preserving your access to such data is important. If
we discontinue a Service, where reasonably possible, we will give you reasonable

https://www.google.com/policies/terms/archive/20140414/[11/16/2017 1:48:27 PM]

Google Terms of Service – Privacy & Terms – Google

advance notice and a chance to get information out of that Service.

Our Warranties and Disclaimers
We provide our Services using a commercially reasonable level of skill and care and we
hope that you will enjoy using them. But there are certain things that we don’t promise
about our Services.
OTHER THAN AS EXPRESSLY SET OUT IN THESE TERMS OR ADDITIONAL TERMS,
NEITHER GOOGLE NOR ITS SUPPLIERS OR DISTRIBUTORS MAKE ANY SPECIFIC
PROMISES ABOUT THE SERVICES. FOR EXAMPLE, WE DON’T MAKE ANY
COMMITMENTS ABOUT THE CONTENT WITHIN THE SERVICES, THE SPECIFIC
FUNCTIONS OF THE SERVICES, OR THEIR RELIABILITY, AVAILABILITY, OR ABILITY
TO MEET YOUR NEEDS. WE PROVIDE THE SERVICES “AS IS”.
SOME JURISDICTIONS PROVIDE FOR CERTAIN WARRANTIES, LIKE THE IMPLIED
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY LAW, WE EXCLUDE ALL
WARRANTIES.

Liability for our Services
WHEN PERMITTED BY LAW, GOOGLE, AND GOOGLE’S SUPPLIERS AND
DISTRIBUTORS, WILL NOT BE RESPONSIBLE FOR LOST PROFITS, REVENUES, OR
DATA, FINANCIAL LOSSES OR INDIRECT, SPECIAL, CONSEQUENTIAL,
EXEMPLARY, OR PUNITIVE DAMAGES.
TO THE EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF GOOGLE, AND ITS
SUPPLIERS AND DISTRIBUTORS, FOR ANY CLAIMS UNDER THESE TERMS,
INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE AMOUNT YOU
PAID US TO USE THE SERVICES (OR, IF WE CHOOSE, TO SUPPLYING YOU THE
SERVICES AGAIN).
IN ALL CASES, GOOGLE, AND ITS SUPPLIERS AND DISTRIBUTORS, WILL NOT BE
LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.

Business uses of our Services
If you are using our Services on behalf of a business, that business accepts these terms. It
will hold harmless and indemnify Google and its affiliates, officers, agents, and employees
from any claim, suit or action arising from or related to the use of the Services or violation
of these terms, including any liability or expense arising from claims, losses, damages,
suits, judgments, litigation costs and attorneys’ fees.

About these Terms
We may modify these terms or any additional terms that apply to a Service to, for example,
reflect changes to the law or changes to our Services. You should look at the terms
regularly. We’ll post notice of modifications to these terms on this page. We’ll post notice of
https://www.google.com/policies/terms/archive/20140414/[11/16/2017 1:48:27 PM]

Google Terms of Service – Privacy & Terms – Google

modified additional terms in the applicable Service. Changes will not apply retroactively
and will become effective no sooner than fourteen days after they are posted. However,
changes addressing new functions for a Service or changes made for legal reasons will be
effective immediately. If you do not agree to the modified terms for a Service, you should
discontinue your use of that Service.
If there is a conflict between these terms and the additional terms, the additional terms will
control for that conflict.
These terms control the relationship between Google and you. They do not create any
third party beneficiary rights.
If you do not comply with these terms, and we don’t take action right away, this doesn’t
mean that we are giving up any rights that we may have (such as taking action in the
future).
If it turns out that a particular term is not enforceable, this will not affect any other terms.
The laws of California, U.S.A., excluding California’s conflict of laws rules, will apply to any
disputes arising out of or relating to these terms or the Services. All claims arising out of or
relating to these terms or the Services will be litigated exclusively in the federal or state
courts of Santa Clara County, California, USA, and you and Google consent to personal
jurisdiction in those courts.
For information about how to contact Google, please visit our contact page.

Our legal policies

More information

Privacy Policy

Technologies and
Principles

Additional resources
How Google Wallet uses
credit card numbers

Terms of Service

My Account
Google Safety Center

Advertising

How Google Voice works

FAQ
How Google uses cookies
How Google uses pattern
recognition

How Google uses data
when you use our partners'
sites or apps

Google Product Privacy
Guide
Your privacy, security, and
controls

Types of location data used
by Google

Google
· About Google
· Privacy
· Terms

https://www.google.com/policies/terms/archive/20140414/[11/16/2017 1:48:27 PM]

English