This is a document preview
***Text Omitted and Filed Separately
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2
PROMOTION AND DISTRIBUTION AGREEMENT
This Google Inc. Promotion and Distribution Agreement, including all exhibits hereto, (collectively referred to as the “ Agreement ”), effective as of March 1, 2009 (the “ Effective Date ”), is made by and between DivX, Inc., with offices at 4780 Eastgate Mall, San Diego, CA 92121 (“ Distributor ”), and Google Inc., with offices at 1600 Amphitheatre Parkway, Mountain View, CA 94043 (which, with its affiliates, shall be referred to herein as “ Google ”).
SECTION 1. DEFINITIONS
The following capitalized terms shall have the meanings set forth below:
1.1 “ Bundle ” means the Products bundled with the Distributor App(s).
1.2 “ Distributor App(s) ” means the following Distributor software: [ *** ].
1.3 [ *** ].
1.4 [ *** ].
1.5 “ End User ” means an end user customer of Distributor.
1.6 “ End User License Agreement ” or “ EULA ” means the end user license agreement applicable to a Product, which such end user license agreement may be updated or modified by Google in its sole discretion from time to time.
1.7 “ Google Criteria Checker ” means a set of software routines provided to Distributor by Google, as part of a software library, that determine if the Products can be installed on an End User’s system. The Google Criteria Checker checks, with respect to the Chrome Browser, include:
• [ *** ]
Google may change the Google Criteria Checker for any Product at any time. The Google Criteria Checker will not [ *** ].
1.8 “ Google Trademarks ” means all names, trade names, trademarks, and logos used by Google in connection with the Products.
1.9 “ Products ” means the following products, along with their associated definitions:
1.10 “ Segment ” means each level of breakdown of the payments set forth in Exhibit C (e.g., country and tier).
1.11 “ Successful Chrome Activation ” occurs when each of the following has occurred, [ *** ], as determined [ *** ] by Google and based on the communication between a Chrome Browser (obtained as part of a Bundle) and a Google server following installation of Chrome Browser via a Bundle, and provided [ *** ]: (a) [ *** ].
1.12 “ Successful Toolbar Activation ” means the communication between a Google Toolbar (obtained as part of a Bundle) and a Google server that occurs [ *** ], as determined [ *** ] by Google. Distributor acknowledges, and will cooperate with Google to ensure, that Successful Toolbar Activations: (a) [ *** ]; (b) [ *** ].
1.13 “ Territory ” means those countries listed in Exhibit C for each Product.
1.14 “ Trademarks ” means the Google Trademarks.
SECTION 2. LICENSE GRANTS AND RESTRICTIONS
2.1 Products License Grant. Subject to the terms and conditions of this Agreement, Google hereby grants to Distributor a royalty-free, nontransferable, nonsublicensable, nonexclusive license during the Term to: (a) reproduce, the Products to the extent necessary to exercise the right granted in the following (b); (b) bundle the Products, in machine-readable binary code format only, solely with Distributor App(s); and (c) distribute Bundles directly ([ *** ]) to End Users in the Territory.
2.3 License Grant Restrictions. Distributor shall not, and shall not allow any third party to: (i) disassemble, de-compile or otherwise reverse engineer the Products or otherwise attempt to learn the source code or algorithms underlying the Products; (ii) create derivative works from or based on the Products; (iii) except as expressly set forth in this Agreement, provide, sell, license, distribute, lease, lend, or disclose the Products to any third party; (iv) use the Products for timeshare, service bureau, or other unauthorized purposes; or (v) exceed the scope of any license granted to Distributor hereunder.
2.4 Trademark License and Use. Subject to the terms and conditions of this Agreement, Google hereby grants to Distributor a limited, non-exclusive, non-transferable, nonsublicensable, royalty-free license during the Term to use the Google Trademarks, in accordance with Google’s trademark usage guidelines, solely to market and promote the Products consistent with this Agreement, provided that all use of the Google Trademarks shall be subject to Google’s prior review and advance written consent, which may include email consent. All uses of the Google Trademarks, and all goodwill associated therewith, shall inure solely to the benefit of Google. Distributor acknowledges that the Google Trademarks are owned solely by Google.
2.5 Trademark Restrictions. Distributor shall not remove, modify, adapt, or prepare derivative works of any Trademarks, Google copyright notices, or other Google proprietary rights notices.
SECTION 3. DISTRIBUTION AND OTHER OBLIGATIONS
3.1 Delivery. Distributor acknowledges that Google has delivered the Products to Distributor as of the Effective Date.
3.2 Form of Distribution Offering. The form of any offering of the Products by Distributor shall be materially as set forth in Exhibit A of this Agreement, as may be updated from time to time upon mutual written approval (such written approval may be obtained via email). Except as set forth in Section 2.2 of this Agreement and except for distribution to End Users as expressly set forth in this Agreement, Distributor shall not offer or distribute the Products to any third party. Upon successful installation of the Chrome Browser on an End User’s computer, Distributor will [ *** ] the Chrome Browser [ *** ].
3.3 Guidelines for Applications. Distributor agrees that it will comply, [ *** ], with the Guidelines for Applications set forth in Exhibit B attached hereto.
3.4 Launch. Distributor will begin distribution of Bundles in accordance with this Agreement (“ Launch ”) within [ *** ] following the Effective Date (the date of such Launch, the “ Launch Date ”), provided however, Launch of Bundles containing the Google Toolbar will be [ *** ] at any time during the Term. Subject to the foregoing, beginning on the Launch Date and continuing throughout the Term, Distributor shall ensure that every Distributor App distributed by or on behalf of Distributor is [ *** ] as set forth in this Agreement. After Launch,
Distributor will implement any updated Chrome Browser Installer(s), or Google Toolbar Installer(s) in the event Distributor elects to distribute Google Toolbar, within [ *** ] of receipt of such build(s) from Google.
3.5 Exclusivity. During the Term (a) Distributor will not [ *** ] other than the Products; and, (b) Distributor agrees that [ *** ] will be bundled with Distributor Apps, except (i) in the event the Google Criteria Checker determines that no [ *** ], each in their respective Territory, can be made to a particular End User, then Distributor may offer a [ *** ] which is not a [ *** ] to such End User; or (ii) that Distributor Apps downloaded by End Users for the [ *** ] may be distributed with a [ *** ], provided that such [ *** ].
3.6 End User License Agreement. In connection with Distributor’s distribution of the Products under this Agreement, and before any such Products can be installed by an End User, Distributor shall provide each End User with (i) a clear statement inviting the End User to agree to the terms of the applicable EULA, (ii) the opportunity for each End User to review such EULA via a hyperlink to such EULA, and (iii) a button on which each End User may click indicating agreement to the terms of such EULA. In the event that an End User does not affirmatively agree to install some or all of the Products, by clicking on the button to agree to the terms of the applicable EULA, then the Products shall not be installed on such End User’s computer.
3.7 Accurate Reproduction. Distributor agrees that in connection with its exercise of the right granted in Section 2.1 of this Agreement it will accurately reproduce the Products and will not insert into the Products any viruses, worms, date bombs, time bombs, or other code that is specifically designed to cause the Products to cease operating, or to damage, interrupt, or interfere with any Products or End User data.
3.8 Obligation to Maintain. During the Term and for a period of [ *** ] following the expiration or termination of this Agreement, Distributor will not, and will not engage