Exhibit 10.27
***Text Omitted and Filed
Separately
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. §§ 200.80(b)(4) AND
240.24b-2
GOOGLE INC.
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
|
|
|
|
Google
Confidential
|
|
121608
|
|
|
Execution
Copy
|
|
|
***CONFIDENTIAL TREATMENT
REQUESTED
|
|
|
•
|
|
“ Chrome Browser
” means the machine-readable binary code version of the
Google Chrome browser for the Windows operating system provided to
Distributor in connection with this Agreement, and any
modifications or updates thereto that Google may provide to
Distributor hereunder.
|
|
|
•
|
|
“ Chrome Browser
Installer ” means the machine-readable binary code
version of the installer that installs the Chrome Browser provided
to Distributor in connection with this Agreement, and any
modifications or updates thereto that Google may provide to
Distributor hereunder.
|
|
|
•
|
|
“ Google Toolbar
” means the machine-readable binary code version of the
Google Toolbar for Internet Explorer provided to Distributor in
connection with this Agreement, and any modifications or updates
thereto that Google may provide to Distributor
hereunder.
|
|
|
•
|
|
“ Google Toolbar
Installer ” means the machine-readable binary code
version of the installer that installs the Google Toolbar provided
to Distributor in connection with this Agreement, and any
modifications, updates or upgrades thereto that Google may provide
to Distributor hereunder.
|
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
|
|
|
|
Google
Confidential
|
|
121608
|
|
|
Execution
Copy
|
|
|
***CONFIDENTIAL TREATMENT
REQUESTED
|
2.2 [ *** ]
Distribution. Distributor
shall have the right to offer or distribute Bundles [ *** ]
directly to End Users ([ *** ]); provided, however, that
(a) in connection with any and all such offers or
distributions, Distributor shall, [ *** ], distribute Bundles in a
manner that is [ *** ] this Agreement, and (b) Google in its
sole discretion shall have the right to direct Distributor to cease
offers or distributions of Bundles [ *** ] would either
(1) harm or devalue Google’s business, brand or name, or
(2) violate Google’s privacy policy, and [ *** ]. For
the avoidance of doubt, in no event shall any [ *** ] have the
right to bundle [ *** ] in or with Bundles without Google’s
prior written approval.
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,
3
|
|
|
|
Google
Confidential
|
|
121608
|
|
|
Execution
Copy
|
|
|
***CONFIDENTIAL TREATMENT
REQUESTED
|
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