GOOGLE SCHOLAR
SERVICES AGREEMENT
THIS SERVICES AGREEMENT is entered into by and between, National Academy of
Sciences of Ukraine a Ukrainian corporation ("Publisher") and Google Ireland Limited, a
company incorporated in Ireland, and its affiliates (“Google”). This Agreement shall be
effective as of the Effective Date set forth below. This Services Agreement and the
corresponding Order Form attached hereto as Exhibit A (“Order Form”) together constitute the
“Agreement.”
WHEREAS Google provides digitization, storage and hosting services at the direction
of publishers and other content providers that seek to make their content available to end users
of the Google Services, subject to certain policies as described herein;
WHEREAS “Google Services” are Google’s products and services that are accessible
through and otherwise provided by various computer and electronic technologies, networks
(syndicated and otherwise) and systems, including, without limitation, Internet-based services
and products accessible through any Google website and any Google syndication partner sites;
WHEREAS Google serves search results and related advertising in response to
requests by end users of the Google Services (“Search Results”); and
WHEREAS Subject to the terms contained herein, Publisher desires Google to store
and host specific volumes and issues of journals (“Journals”) and to display the full text of
articles contained in such Journals to end users of the Google Services.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein, Google
and Publisher hereby agree as follows:
1. Publisher Content. Publisher will designate Journals for hosting and display to
end users by either: (1) delivering Journals in print format or other format agreed upon by the
parties; (2) sending a list of volumes and issues of Journals (or Journals and date ranges) to
scholar-partner@google.com (or other email address Google may provide from time to time);
or (3) attaching a list of Journal volumes and issues as an Exhibit to the Order Form. Journals
designated by Publisher in any of the ways described in clauses (1) – (3) above are referred to
herein as “Authorized Journals.” Publisher will also provide bibliographic metadata for the
articles in Authorized Journals in XML or other format acceptable to both parties. All content
contained within the Authorized Journals, including but not limited to all text, images,
photographs, illustrations, metadata and all material and artwork on the journal jackets and
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covers, is referred to collectively as the “Publisher Content.”
2. Delivery of Authorized Journals. Publisher will deliver Authorized Journals to
Google in either print or other format that is mutually agreed to by the parties. Publisher will
deliver the first shipment of Authorized Journals to Google within sixty (60) days of the
Effective Date. Publisher may continue to ship Authorized Journals to Google throughout the
Term. All shipments of Authorized Journals will be in accordance with Google’s policies and
shipping instructions and will be at Publisher’s expense. Google will not return the Authorized
Journals shipped by Publisher.
3. Use of Content. Publisher hereby requests and authorizes Google to (i) render the
Publisher Content into digital format, if necessary; (ii) digitize the Publisher Content obtained
in print format, including the content contained on journal covers, (iii) store the Publisher
Content on servers hosted by Google, (iv) index the Publisher Content; (v) display Search
Results and Content Pages of Publisher Content through the Google Services; and (vi) use the
Publisher Content as provided herein. Publisher agrees that Google may digitize the Publisher
Content in any location it chooses.
a. Content Pages. Google will make available “Content Pages” that display Publisher
Content consisting of the full text of articles within the Authorized Journals and other material
that Google may change from time to time. End Users will be able to print, download and copy
the Publisher Content from the Content Pages.
b. Withdrawal of Publisher Content. Publisher may provide written notice to
scholar-partner@google.com (or to such other email address that Google may provide for this
purpose) to withdraw any article and/or Authorized Journal from display of the Content Pages.
If Publisher requests that a particular article and/or Authorized Journal be withdrawn, Google
will make commercially reasonable efforts to terminate display of the Content Pages for that
article and/or Authorized Journal within sixty (60) days after confirmed receipt of written
notice. Email notices to scholar-partner@google.com, (or to such other email address that
Google may provide for this purpose), shall be sufficient. In addition, although Publisher grants
Google the permission to digitize, index and host the Authorized Journals and display Content
Pages, Google makes no promise or representation that it will or that it will continue to do so
with each Authorized Journal that Publisher sends to Google.
c. Advertising. Publisher agrees that Google may serve advertisements (“Ads”) on
Content Pages unless Publisher opts-out of Ads by checking the “NO” box under Advertising
on the attached Order Form or by other means that may be provided by Google in the future. If
Publisher does not opt-out of Ads, such Ads will appear in the style and format that may be
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offered generally by Google, when such advertising inventory is available.
d. Barcodes. Publisher will include a barcode on all Authorized Journals before
shipment to Google. For Authorized Journals without a barcode and where Publisher is unable
to create a barcode from its records, Google will generate a barcode from metadata provided by
Publisher and Publisher will apply the barcode to the Authorized Journals prior to shipment to
Google.
4. Brand Features. Publisher grants to Google a limited, non-exclusive, worldwide,
royalty-free license to use its trademarks, trade names, designs and logos (“Brand Features”),
in accordance with Publisher’s usage guidelines, if and as provided by Publisher, for use in
connection with the Publisher Content, in presentations, marketing materials, customer lists,
financial reports and Web site listings of customers, and as otherwise provided under this
Agreement. All uses of Publisher’s Brand Features, and all goodwill associated therewith, shall
inure solely to the benefit of Publisher. Subject to the express license granted herein, right, title
and interest in and to Publisher’s Brand Features are and shall remain with Publisher.
5. Proprietary Rights. Nothing in this Agreement conveys any ownership right to
Google in any of the Publisher Content, Publisher Brand Features or other materials provided
by Publisher.
6. Confidentiality. “Confidential Information” means (i) the specific terms of this
Agreement (but not the existence of this Agreement) and the discussions, negotiations and
proposals related thereto, (ii) click-through rates and all other reporting information (including
revenues paid to Publisher by Google) provided by Google, and (iii) any other information
provided by one party to the other under this Agreement (other than Publisher Content and
other information intended for storage and display to end users under this Agreement)
including, but not limited to, tangible, intangible, visual, electronic, present, or future
information such as: (A) trade secrets; (B) financial information, including pricing; (C)
technical information, including research, development, procedures, algorithms, data, designs,
and know-how; (D) business information, including operations, planning, marketing interests,
and products; and (E) information acquired during any facilities tours. Except with the prior
written consent of the disclosing party, neither party shall (y) use or disclose any Confidential
Information other than to employees and contractors who have a need to know and any
disclosure to contractors may only be to contractors who have signed a non-disclosure
agreement to protect the confidential information of third parties; or (z) make copies or allow
others to make copies of such Confidential Information except as is reasonably necessary for
internal business purposes. In addition, nothing in this Agreement shall prohibit or limit either
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party's use or disclosure of information (a) previously known to it without obligation of
confidence, (b) independently developed by or for it without use of or access to the other party’s
Confidential Information, (c) acquired by it from a third party which is not under an obligation
of confidence with respect to such information, or (d) which is or becomes publicly available
through no breach of this Agreement. Each party shall within thirty (30) days of the expiration
or termination of this Agreement return all Confidential Information to the disclosing party or
certify to its destruction. The parties acknowledge and agree that breach of this Section 6 may
cause irreparable injury for which monetary damages are not an adequate remedy. Accordingly,
each party may seek injunctive relief and any other available equitable remedies to enforce the
provisions of this section, without posting a bond if otherwise required by law.
7. Payment; Reports.
If Publisher elects to receive Ads on Content Pages, then
Publisher shall receive a payment related to the number of valid clicks and/or number of valid
impressions on Ads displayed on Content Pages. Unless otherwise agreed to by the parties in
writing (including electronic mail), payments to Publisher shall be sent by Google within
approximately thirty (30) days after the end of each calendar month that Ads are running on
Content Pages if Publisher’s earned balance is $100 or more. In the event the Agreement is
terminated, Google shall pay Publisher’s earned balance to Publisher within approximately
ninety (90) days after the end of the calendar month in which Google recognizes that the
Agreement has been terminated, but in no event shall Google make payments for any earned
balance less than $10. Payments to Publisher shall be made either by check or (if by wire
transfer) pursuant to the wire transfer instructions specified on the Order Form. Google
reserves the right to retain all revenues derived from its search services, including without
limitation, Ads that appear with Search Results. Notwithstanding the foregoing, Google shall
not be liable for any payment based on (a) any amounts which result from invalid queries,
invalid clicks or invalid impressions on Ads, generated by any person, bot, automated program
or similar device, including, without limitation, through any clicks or impressions (i) originating
from Publisher’s IP addresses or computers under Publisher’s control, or (ii) solicited by
payment of money, false representation or request for users to click on Ads; (b) Ads delivered
to end users whose browsers have JavaScript disabled; (c) Ads benefiting charitable
organizations and other placeholder or transparent Ads that Google may deliver; (d) Google
advertisements for its own products and/or services; or (e) clicks co-mingled with a significant
number of invalid clicks described in (a) above, or (f) as a result of any breach of this
Agreement by Publisher for any applicable pay period. Google reserves the right to withhold
payment or charge back Publisher’s account due to any of the foregoing, any breach of this
Agreement by Publisher, pending Google’s reasonable investigation of any of the foregoing or
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any breach of this Agreement by Publisher, or in the event that an advertiser whose Ads are
displayed on Content Pages defaults on payment for such Ads to Google. In addition, if
Publisher is past due on any payment to Google in connection with any Google program
(including without limitation the Google AdWords program), Google reserves the right to
withhold payment until all outstanding payments have been made or to offset amounts owed to
Publisher in connection with this Agreement by amounts owed by Publisher to Google. Google
will provide access to such standard aggregated advertising data that Google provides to
publishers generally.
To ensure proper payment, Publisher is solely responsible for providing and
maintaining accurate contact and payment information associated with its account. For U.S.
taxpayers, this information includes without limitation a valid U.S. tax identification number
and a fully-completed Form W-9. For non-U.S. taxpayers, this information includes without
limitation either a signed certification that the taxpayer does not have U.S. Activities (as
described on the Google: Tax Information Page) or a fully-completed Form W-8 or other form,
which may require a valid U.S. tax identification number, as required by the U.S. tax
authorities. Any bank fees related to returned or cancelled checks due to a contact or payment
information error or omission may be deducted from the newly issued payment. Publisher
agrees to pay all applicable taxes or charges imposed by any government entity in connection
with Publisher’s participation in this program. Google may change its pricing and/or payment
structure at any time.
Publisher shall not, and shall not authorize or encourage any third party to directly or
indirectly generate queries, impressions of or clicks on any Ad(s) through any automated,
deceptive, fraudulent or other invalid means, including but not limited to through repeated
manual clicks, the use of robots or other automated query tools and/or computer generated
search requests, and/or the fraudulent use of other search engine optimization services and/or
software. Google reserves the right to investigate, at its own discretion, any activity that may
violate this Agreement, including but not limited to any use of a software application to access
Ads or any engagement in any activity prohibited by this Agreement.
8. Representations and Warranties. Each party represents and warrants (i) it has the
right, power and authority to enter into this Agreement and to fully perform its obligations
hereunder and grant the rights granted herein; and (ii) upon execution and delivery hereof, this
Agreement shall constitute the valid and binding obligations of the party. Publisher represents
and warrants that (a) all of the information provided by Publisher to Google is correct and
current and (b) Publisher holds the necessary rights, including all intellectual property rights, in
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and to the Publisher Content and Publisher Brand Features to enter into this Agreement and
grant the rights granted herein
9. Disclaimer of Warranty. THE PARTIES MAKE NO WARRANTIES OTHER
THAN THE LIMITED WARRANTIES STATED IN THIS AGREEMENT. THE PARTIES
WAIVE ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO (i) IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR
A PARTICULAR PURPOSE, (ii) WARRANTIES AS TO THE QUALITY OR
PERFORMANCE OF THE MATERIALS, INFORMATION, GOODS, SERVICES,
TECHNOLOGY AND/OR EDITORIAL CONTENT PROVIDED UNDER THIS
AGREEMENT, INCLUDING THE DELIVERY OR AVAILABILITY OF ANY
ADVERTISEMENTS, AND ANY LIMITATIONS ON END USER ACCESS TO OR USE OF
PUBLISHER CONTENT; AND (iii) WARRANTIES AS TO THE PERFORMANCE OF
COMPUTERS OR NETWORKS WHEN USED IN CONJUNCTION WITH THE
MATERIALS, INFORMATION, GOODS, SERVICES, TECHNOLOGY AND/OR
EDITORIAL CONTENT PROVIDED UNDER THIS AGREEMENT.
10. Indemnification. Publisher shall indemnify, defend and hold harmless Google,
and its and their respective directors, officers, employees and agents with respect to any claim,
demand, cause of action, debt or liability, including reasonable attorneys' fees (collectively,
“Losses”) based upon any third-party claim (a) that Google’s use of the Publisher Content or
any other materials delivered by Publisher to Google under this Agreement infringes any thirdparty copyright, database rights, trademark, trade secret, moral rights, privacy rights, rights of
publicity, or is in breach of any applicable data protection laws, but such obligation may be
reduced to the extent that Google’s use of the Publisher Content is not in accordance with this
Agreement and such use results in a violation of such third party rights or (b) that arises from
any use of the Digital Image provided by Google to Publisher. Google shall indemnify, defend
and hold harmless Publisher and its respective directors, officers, employees and agents with
respect to any Losses based on any third-party claim that any Google Brand Feature or the
technology of the Google Services infringes any United States trademark, copyright or trade
secret of a third party. Notwithstanding the foregoing, in no event shall Google have any
obligations or liability under this Section 10 arising from any content, information or data
provided to Google by Publisher, end users or any other third parties. The obligation to
indemnify will be contingent upon the indemnified party: (i) providing the indemnifying party
with prompt written notice of any claim for which indemnification is sought; (ii) cooperating
fully with the indemnifying party; and (iii) allowing the indemnifying party to control the
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defense and settlement of such claim. The indemnified party may, at its own expense, assist in
the defense if it so chooses.
11. Limitation of Liability. EXCEPT WITH RESPECT TO THE PARTIES’
INDEMNIFICATION OBLIGATIONS HEREUNDER OR BREACH OF SECTION 6
(CONFIDENTIALITY), NEITHER PARTY HERETO SHALL BE LIABLE TO THE OTHER
FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, LIQUIDATED, SPECIAL, PUNITIVE
OR EXEMPLARY DAMAGES OR PENALTIES INCLUDING, BUT NOT LIMITED TO,
LOSSES OF BUSINESS, REVENUE OR ANTICIPATED PROFITS.
GOOGLE'S
AGGREGATE LIABILITY TO PUBLISHER UNDER THIS AGREEMENT FOR ANY
CLAIM IS LIMITED TO THE NET AMOUNT PAID BY GOOGLE TO PUBLISHER
DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF
THE CLAIM.
THE FOREGOING LIMITATIONS OF LIABILITY WILL APPLY
REGARDLESS OF THE CAUSE OF ACTION UNDER WHICH SUCH DAMAGES ARE
SOUGHT, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE, STRICT
LIABILITY, OR OTHER TORT, WHETHER OR NOT THE PARTIES WERE OR SHOULD
HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND
REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
12. Term and Termination.
a. Term. The initial term of this Agreement shall commence on the Effective Date (as
defined below), and shall continue for twelve months ending on the last day of the calendar
month (the “Initial Term”). This Agreement will renew automatically for subsequent one-year
renewal periods (each a “Renewal Term”) unless a party notifies the other party at least thirty
(30) days prior to the end of the Initial Term or the end of any Renewal Term that it intends to
terminate. The Initial Term and/or Renewal Term(s) may also be referred to as the “Term.”
Upon expiration or earlier termination of this Agreement, Google shall, within sixty (60) days
(or as soon thereafter as is commercially reasonable), cease to display Content Pages to end
users. Google may continue to index the Publisher Content to show Search Results after
termination or expiration of this Agreement (or after a withdrawal of an Authorized Journal
under Section 3.b).
b. Termination. Either party may terminate this Agreement: (a) immediately upon
written notice to the other party if (i) the other party files a petition for bankruptcy, becomes
insolvent, or makes an assignment for the benefit of its creditors, or a receiver is appointed for
the other party or its business; or (ii) the other party breaches Section 6 of this Agreement
(Confidentiality) and does not cure such breach within three (3) business days of deemed
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receipt of notice of such breach; or (b) with thirty (30) days written notice for any other breach,
if such breach is not cured within the notice period. Either party may terminate this Agreement
for convenience with sixty (60) days prior written notice. In the event that Google terminates
this Agreement for convenience and if requested by Publisher, Google will provide to Publisher
a copy of the digital image of the Publisher Content (“Digital Image”). Publisher agrees that
the Digital Image is provided “AS IS”. GOOGLE MAKES NO WARRANTY, EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION WITH RESPECT TO THE DIGITAL
IMAGE AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF
MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE.
13. General.
a. Assignment. Neither party may assign any of its rights or delegate any of its duties
under this Agreement without the prior written consent of the other party, which shall not
unreasonably be withheld, except that either party may assign its rights and delegate its duties
under this Agreement upon written notice to the other party to a division or an affiliate thereof
(that is not a competitor of the non-assigning party), provided such division or affiliate agrees to
be bound by all of the terms hereof; and provided further that Google may assign this
Agreement without consent to a successor-in-interest in connection with a merger or the sale of
all or substantially all of its assets. Any attempted assignment, delegation or transfer in
derogation hereof shall be null and void. This Agreement shall be binding upon the successors
and permitted assigns of both parties.
b. Notices. Unless provided for to the contrary in this Agreement, any and all notices
or other communications or deliveries required or permitted to be made under this Agreement
shall be sent (a) if to Publisher at the address identified in the Order Form and (b) if to Google
to such address as provided at www.google.com/corporate/address.html or as otherwise
provided in writing for such notice purposes. A second copy of every notice to Google shall be
sent to the same address, “Attn: Legal Dept.” Notice shall be deemed received (i) upon receipt
when delivered personally, (ii) upon written verification of receipt from overnight courier, (iii)
upon verification of receipt of registered or certified mail or (iv) upon verification of receipt via
facsimile, provided that such notice is also sent simultaneously via first class mail. Contact
information shall be updated in writing as necessary to ensure that each party has current
information regarding all such contacts.
c. Miscellaneous. The parties hereto are and shall remain independent contractors, and
nothing herein shall be deemed to create an agency, partnership, or joint venture between the
parties hereto. This Agreement does not affect any right that either party would have had, or
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shall have, independent of the Agreement including rights to Publisher Content under the
Copyright Act. Neither party shall be liable for failing or delaying performance of its
obligations (except for the payment of money) resulting from any condition beyond its
reasonable control, including but not limited to, governmental action, acts of terrorism,
earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet
disturbances. If any provision of this Agreement shall be adjudged by any court of competent
jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the
minimum extent necessary so that this Agreement shall otherwise remain in full force and effect
and remain enforceable between the parties. The failure of either party to act in the event of a
breach of this Agreement by the other shall not be deemed a waiver of such breach or a waiver
of future breaches. This Agreement sets forth the entire understanding and agreement between
the parties and may be amended only in a writing signed by both parties. This Agreement shall
be construed as if jointly drafted by the parties. Publisher will not make any public
announcement regarding the specific terms of this Agreement without the prior written consent
of Google. This Agreement shall be governed by the laws of the State of California, without
regard to its principles of conflicts of law. Any litigation hereunder shall be brought in any
state or federal court of competent jurisdiction in Santa Clara County, California; the parties
agree that venue shall be proper in, and consent to the personal jurisdiction of, such courts. The
Order Form to this Agreement is hereby made a part of and incorporated by reference herein.
This Agreement may be executed in one or more counterparts, each of which shall be deemed
an original and all of which, when taken together, shall constitute one and the same instrument.
The provisions of Sections 1, 3 (the first sentence only to the extent necessary to index the
Publisher Content to provide Search Results), 5, 6, 9, 10, 11, 12a, and 13 shall survive any
expiration or termination of this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed by persons duly
authorized as of the “Effective Date”, which shall be the date written by Google below.
Publisher: National Academy of
Sciences of Ukraine
Google Ireland Limited
By:
By:
Print Name:
Print Name:
Title:
Title:
Date:
Date: __ November 2007
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EXHIBIT A
Google
Limited
st
Ireland Services Agreement
Google SPD Mgr:
DiCarlo
ORDER FORM
nd
1
& 2
Gordon House
Floor
C
Google SPD Director:
Barrow Street
Google Sales Engineer:
Dublin 4,Ireland
Google Legal Contact:
Tel: 353 1 436 1000
Fax: 353 1 436 1001
PUBLISHER TO COMPLETE THIS SECTION
PUBLISHER (FULL LEGAL NAME): National Academy of Publisher URL: www.nas.gov.ua/
Sciences of Ukraine
Corporate Contact:
Publisher
Contact
Operations
Attention:
VAT/Tax Number:
Publisher Wire Transfer Info (if
applicable):
Title:
Address:
City, State:
Currency:
Postal
Code:
US Dollar
Other
Country:
Phone:
Authorized Journals:
Attach to Order Form:
List of Journal Names
Fax:
Volume and Issues
Advertising:
Email:
Yes
No
Customer Service email address/alias:
GOOGLE TO COMPLETE THIS SECTION
Effective Date:
Initial Term:
This Order Form shall be governed by and incorporates by reference the
Services Agreement between Google and Publisher. All capitalized terms used
herein shall have the meanings stated in the Services Agreement, unless stated
otherwise.
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