YOUTUBE MERCHANT AFFILIATE TERMS AND CONDITIONS
These YouTube Merchant Affiliate Terms and Conditions (these “Terms”) are between Google LLC, organized in the state of Delaware, with offices at 1600 Amphitheatre Parkway, Mountain View, CA 94043 (“Google”) and the entity on behalf of which you accept these terms (“Merchant”, “You” or “Your”) and are effective as of the date of acceptance (“Effective Date”).
In consideration of the mutual promises contained herein, the sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Definitions.
1.1 “Affiliate Entity” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party. Control in this context means direct or indirect possession of the power to direct or cause the direction of the management and policies of such entity, whether through ownership or control of more than 50% of the voting interests of the subject entity, by contract or otherwise.
1.2 “Affiliate Program” or “Program” means the Google-run program that enables Participating Creators to earn Commissions for Conversions.
1.3 “Applicable Law” means all applicable laws, rules, and regulations.
1.4 “Attribution Period” means the attribution period for a Commission as specified by Merchant in the Interface using the functionality of the Interface.
1.5 “Commission” means the total amount payable by Merchant to Google for Conversions specified in an applicable Invoice as calculated by Google and based on applicable Qualifying Parameters (e.g., the Commission Rate, or the percentage of the Merchandise sale amount offered to Google per Conversion, as specified by Merchant in the Interface using the functionality of the Interface) and other parameters associated with Conversions and the payment of Commissions as determined by Google.
1.6 “Commission Rate” means the commission rate per Conversion as specified by Merchant in the Interface using the functionality of the Interface.
1.7 “Conversion” means the successful purchase of Merchandise from the Merchant Site by a Lead or some other conversion event as specified by Merchant in the Interface using the functionality of the Interface.
1.8 “Google App” or “Google & YouTube App” means the official Google application available via the Shopify App Store that enables merchants to set up Google Merchant Center and sign up to various Google programs, including the Affiliate Program, if eligible as determined by Google.
1.9 “Google Tag” means the Google tag described here: https://support.google.com/tagmanager/answer/11994839 and its successor URLs, that can be implemented on a website to collect data, including conversion data, from such website and deliver such data to Google product destinations, and all replacement, successor and/or derivative versions thereof.
1.10 “includes” or “including” means “including but not limited to”. Examples are illustrative and not the sole examples of a particular concept.
1.11 “Indemnified Liabilities” means any liabilities, damages, losses, costs, fees (including legal fees), and expenses arising from or related to a Third-Party Legal Proceeding.
1.12 “Intellectual Property Rights” means all registered or unregistered intellectual property rights throughout the world, including: rights in patents, copyrights, trademarks, trade secrets, designs, databases, domain names, and moral rights.
1.13 “Interface” means the Program interface accessible within the Google App.
1.14 “Invoice” has the meaning given to such term in Section 7.1 (Invoice(s)).
1.15 “Lead” means a YouTube user who is transferred to the Merchant Site by clicking on a Shopping Link.
1.16 “Merchandise” means a good or service that is offered for sale on the Merchant Site.
1.17 “Google Merchant Center” means Google Merchant Center which is governed by the Google Merchant Center Terms of Service available at https://support.google.com/merchants/answer/160173 and its successor URLs.
1.18 “Merchant Data” means all data and information relating to the Merchant, Merchant Site or Merchandise provided or made available by Merchant or Shopify or retrieved by Google (e.g., transaction data). For clarity, Merchant Data also includes data and information that Google obtains through the Google Tags implemented on the Merchant Site and data and information obtained by Google from Shopify in connection with these Terms.
1.19 “Merchant Marks” means any trademarks, service marks, trade names, logos, banners, buttons, digital images, graphics, or other imagery made available by or on behalf of Merchant in connection with the Program.
1.20 “Merchant Site” means the Merchant owned, controlled, or operated website or mobile app connected to the Merchant’s account within the Google App, all mirror and/or derivative sites and all replacement, successor and/or international versions of the foregoing.
1.21 “Participating Creators” means the creators who are eligible as determined by Google to participate in the Program and include Shopping Links on their YouTube channels or videos.
1.22 “Pending Period” means the hold period that a Commission is subject to as specified by Merchant in the Interface using the functionality of the Interface.
1.23 “Privacy Policy” means the privacy policy on the Merchant Site.
1.24 “Reporting” means the performance data relating to the Merchandise or Merchant Site that is provided or made available by Google to Merchant in connection with the Program.
1.25 “Shopify App Store” is the platform offered by Shopify where Merchant can view and install applications on their Shopify store and is currently available through: https://apps.shopify.com.
1.26 “Shopping Link” means a link directing a Lead to the Merchant Site.
1.27 “Tax(es)” means all government-imposed tax obligations (including taxes, duties, and withholdings), except those based on net income, net worth, asset value, property value, or employment.
1.28 “Term” has the meaning given in Section 9.1 (Term).
1.29 “Third-Party Legal Proceeding” means any legal proceeding filed by a third party before a court or government tribunal (including any civil, administrative, investigative or appellate proceeding) or any regulatory inquiry.
1.30 “Users” means users and/or visitors to the Merchant Site.
1.31 “YouTube” means the Google products and services connected with https://www.youtube.com and all related mobile applications, all mirror and/or derivative sites and all replacement, successor and/or international versions thereof.
2. Google Merchant Center. Merchant may not set up any Campaign until: (a) Merchant has reviewed and accepted the Google Merchant Center Terms of Service (the “GMC Terms”) available at https://merchants.google.com/files/tos/extend/US/tos.html (provided that the Merchant Terms and the URL through which the GMC Terms are made available by Google may be updated or otherwise modified by Google from time to time); and (b) Merchant has uploaded relevant Merchandise information and Merchant Marks to the Google Merchant Center. In the event of a conflict between the GMC Terms and these Terms, these Terms will control solely with respect to the subject matter of these Terms.
3. Interface.
3.1 Your Use of the Interface. Subject to the terms set forth herein, Google grants to You during the Term the limited, non-exclusive, revocable, non-transferable and non-sublicensable right to access and use the Interface to set up and manage Program campaigns (“Campaign(s)”) in connection with these Terms. Merchant may select qualifying parameters associated with such Campaigns using the functionality of the Interface, which may include the Commission Rate, Pending Period, Attribution Period (“Qualifying Parameters”). You will use the Google App, including the Interface, in compliance with all Applicable Law and these Terms.
3.2 Changes; Responsibility. Merchant understands that the Google App, including the Interface, and its features and functionalities, may be modified by Google from time to time at Google’s discretion. Further, Merchant is solely responsible for its use of the Google App and the Interface, including access to and use of the associated account and safeguarding account usernames and passwords.
4. Licenses
4.1 Merchant Data. Merchant grants to Google a non-exclusive, worldwide, sublicensable, and royalty-free right and license to use, reproduce, create derivative works based on, distribute, promote, display, share, combine, and otherwise exploit the Merchant Data in connection with the Program or Google products or services. For clarity, Google may disclose Merchant Data, including through public reporting, and Google may use the Merchant Data for advertising and marketing purposes.
4.2 Merchandise, Merchant Site and Merchant Marks. The parties acknowledge and agree that Google may: (a) make Shopping Links available to Participating Creators; (b) post Shopping Links on YouTube; (c) direct visitors from YouTube to the Merchant Site; and (d) permit Participating Creators to carry out the actions contemplated by (b) and (c). In connection with the foregoing, Merchant grants to Google a non-exclusive, worldwide, sublicensable, and royalty-free right and license to: (i) display, advertise and promote the Merchandise, Merchant, and Merchant Site; and (ii) use and display the Merchant Marks in connection with the rights granted pursuant to this Section 4.2 (Merchandise, Merchant Site and Merchant Marks) Google will not promote Merchandise or Shopping Links: (a) through the use of fake redirects, automated software, or other mechanisms to generate Leads; or (b) through actions that are not in good faith, such as those using any automated device, robot, iframes, or hidden frames.
5. Reservation of Rights. Each party reserves all rights not expressly granted in these Terms. For clarity, Google retains all right, title and interest, including all Intellectual Property Rights, in and to the Google App, Interface, Google Tags, Shopping Links, YouTube, the Program and all Google Confidential Information except for the limited use rights expressly set out in these Terms.
6. Conversion Tracking; Analytics ToS; Reporting and Related Terms.
6.1 Conversion Tracking. For clarity, You acknowledge that conversion tracking and our implementation of Google Tags on the Merchant Site for conversion tracking purposes is required in order to participate in the Affiliate Program. Merchant will provide Google with all support and assistance necessary for the implementation, operation and maintenance of the Google Tags on the Merchant Site in connection with these Terms. You may turn off such conversion tracking by ending all of Your active Campaigns (i.e., make all such Campaigns “inactive”) and then updating Your conversion tracking preferences within the settings page of the Google App. You will comply with all Applicable Law in Your use of or access to the Google Tags, which for clarity include all privacy laws, rules and regulations. You will ensure that users are provided with clear and comprehensive information about the data collected on Merchant sites, apps, and other properties. You will also get consent for that collection where required by law or any applicable Google policies governing user consent, including Google’s EU User Consent Policy available at https://www.google.com/about/company/user-consent-policy/.
6.2 Analytics ToS. Merchant agrees to the Google Analytics Terms of Service available at https://marketingplatform.google.com/about/analytics/terms/us/ and its successor URLs.
6.3. Restrictions. Without limiting Section 5 (Reservation of Rights), You agree not to (and not allow any third party to): (a) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, decrypt or decompile the Google Tags or otherwise attempt to discover any source code or trade secrets related to the Google Tags; (b) rent, lease, sell, assign or otherwise transfer rights in or to the Google Tags; (c) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Google Tags; (d) use the trademarks, trade names, service marks, logos, domain names or other distinctive brand features or any copyright or other proprietary rights associated with the Google Tags for any purpose without the express written consent of Google; (e) register, attempt to register or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with Google other than in the name of Google; (f) sublicense, distribute, or use the Google Tags outside the scope of the rights expressly granted to You in these Terms; (g) publicly disseminate technical information regarding the performance of the Google Tags; or (h) use any automated means or form of scraping or data extraction to access, query or otherwise collect information from the Google Tags.
6.4 Removal of Google Tags. For clarity, Google reserves the right to remove the Google Tags from the Merchant Site at any time as reasonably determined by Google, including for any of the reasons set forth in Section 9.4(a) through 9.4(e) hereunder.
6.5 Reporting. Google may make Reporting available to You in connection with the Program. For example, Google may make Your Merchandise sales and Commissions available in Your reporting dashboard of the Interface. You will comply with all Applicable Law in Your use of and access to the Reporting.
6.6 Adjustments. For clarity, Google reserves the right to revise any Reporting if, in Google’s determination, such Reporting contains an error or otherwise requires adjustment. Any such revision may affect the amount of Commissions.
6.7 Disclaimer. Merchant acknowledges and understands that Google relies on data and information provided or made available by Merchant or Shopify to produce the Reporting. For example, Google may use Merchandise return data provided or made available by Shopify to calculate Your Commissions. THEREFORE, GOOGLE DOES NOT GUARANTEE OR WARRANT THE ACCURACY OR COMPLETENESS OF THE REPORTING.
6.8 Data Sharing Consent. Merchant acknowledges and agrees that data and information relating to the Merchant, Merchant Site or Merchandise (e.g., transaction data) may be shared between Google and Shopify for product improvements and to provide relevant analytics. For example, Google may share data provided by Shopify on Your Merchandise sales and Commissions in Your reporting dashboard. Google’s use of such data is governed by the Google privacy policy, available at policies.google.com/privacy. Shopify may receive data relating to traffic coming from Shopping Links for their analytics. Shopify’s use of such data is governed by their privacy policy. Make sure that You read and understand these policies.
7. Invoices and Related Terms.
7.1 Invoice(s). Individual invoice(s) (“Invoice(s)”) are subject to these Terms. Invoices will specify the Commissions payable by Merchant to Google as calculated by Google and based on applicable Qualifying Parameters and other parameters associated with Conversions and the payment of Commissions as determined by Google. Merchant will pay Commissions to Google or its designee for Conversions using a payment method approved by Google for that Merchant (as may be modified from time to time) within a commercially reasonable time period specified by Google (e.g., in the Invoice) or, where applicable, such Commissions will be automatically deducted from Merchant’s payment method. Invoices will be sent to an email address associated with Merchant’s billing account for the Program, or if there are any issues with such email address, then any other email address Google has on file for Merchant. Merchant is responsible for monitoring the relevant email address to check for current Invoices. Merchant’s obligation to pay Commissions is non-cancellable.
7.2 Claims; Waiver. If Merchant believes that an Invoice or associated Reporting contains an error or inconsistency, Merchant must notify Google of such errors or inconsistencies (“Claims”) within sixty (60) days of the Invoice date (“Claim Period”) in accordance with the terms set forth in this Section 7.2 (Claims; Waiver). Merchant will follow these instructions to notify Google of such Claims: https://support.google.com/paymentscenter/answer/9491683 and its successor URLs, and upon request, Merchant will provide or make available to Google any supporting data for the purpose of verifying the validity of such Claim. Google will determine in its sole discretion the validity of such Claims. If Google confirms the validity of a Claim made by You in accordance with this Section 7.2 (Claims; Waiver) and if Google determines that You paid Google a Commission amount greater than the amount owed in connection therewith, then Google will provide You with a Program credit equal to such difference, which You must use towards Your participation in the Program within sixty (60) days of issuance (“Use-By Date”). TO THE FULLEST EXTENT PERMITTED BY LAW, IF MERCHANT DOES NOT DISPUTE AN INVOICE OR ASSOCIATED REPORTING WITHIN THE APPLICABLE CLAIM PERIOD IN ACCORDANCE WITH THE TERMS SET FORTH IN THIS SECTION 7.2 (CLAIMS; WAIVER) OR IF GOOGLE CANNOT, USING COMMERCIALLY REASONABLE EFFORTS, DETERMINE THE VALIDITY OF THE CLAIM, SUCH INVOICE AND ASSOCIATED REPORTING WILL BE DEEMED ACCEPTED BY MERCHANT AND MERCHANT HEREBY WAIVES ANY RIGHT TO DISPUTE SUCH INVOICE OR ASSOCIATED REPORTING. FOR CLARITY, ANY PROGRAM CREDITS ISSUED MUST BE USED BY THE USE-BY DATE.
7.3 Resolution of Discrepancies. Notwithstanding Section 7.2 (Claims; Waiver) of these Terms, in the event of discrepancies arising out of different measurement sources, Google’s reporting will control, including with respect to the amount of Commissions.
7.4 Late Payments. A payment of Commissions is late if Merchant has not paid it in full by the date it is due. Late payments may bear interest at the rate of the lesser of one and a half percent (1.5%) per month and the highest rate permitted by law from the date payment is due until paid in full. Merchant will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Google in collecting late amounts except where such late amounts are disputed in good faith as determined by Google. Merchant understands that any attempt to defraud through the use of fraudulent requests or methods of payment, or any failure to honor charges or requests for payments, may result in civil or criminal prosecution.
7.5 Taxes. Taxes are not included in the Commission and will be separately itemized on Google’s invoices if applicable. Merchant will pay correctly-invoiced Taxes unless Merchant provides a valid tax exemption certificate. Merchant will pay all Commission amounts without reduction for Taxes. Google will timely provide customary tax documentation reasonably requested by Merchant.
7.6 Commission Parity. Merchant will offer to Google a Commission Rate that is at least equivalent to the greater of the following:
(a) Sub-affiliate program rate: the same commission that Merchant offers to any other affiliate partner publisher for the same Merchandise; or
(b) Direct affiliate program rate: an amount that is at least forty three percent (43%) greater than any commission offered by Merchant directly to a creator in connection with Merchant’s own affiliate program
(For example, if Merchant pays 9% commission to a sub-affiliate and 10% commission to a creator through Merchant’s own affiliate program, Merchant must offer Google a commission rate of at least 14.3%. If Merchant pays 15% commission to a sub-affiliate and 10% commission to a creator through Merchant’s own affiliate program, Merchant must pay Google at least 15%.)
If Merchant increases the rate of commission paid to another affiliate partner, publisher, or creator beyond what is offered by Merchant to Google in connection with the Program, Merchant will immediately adjust the Commission specified in the Interface using the functionality of the Interface. Notwithstanding the foregoing, Merchant will not be in breach of this Section 7.6 (Commission Parity) if Merchant offers no more than fifty (50) creators (or such higher number approved by Google in writing (email suffices)) in a given calendar year a higher commission than otherwise permitted by this Section 7.6 (Commission Parity), provided that such higher commission(s) are offered by Merchant pursuant to a written agreement between Merchant and such creator(s) that remains in effect for no more than six (6) months.
7.7 No Minimums. Google makes no guarantee or representation that it will generate any Leads. Merchant makes no guarantee or representation that Google will be successful in earning any Commissions.
7.8 Audit Rights. Promptly upon prior written notice of not less than thirty (30) days by Google to Merchant, and not more than once per twelve-(12) month period, Merchant shall make available to Google (or Google’s independent, third-party auditor), during normal business hours of Merchant, any books of accounts, records, or supporting data for the sole purpose of verifying (a) any Commissions owed to Google, and (b) Commissions paid by Merchant to Google. Google will notify Merchant with information regarding discrepancies between audit findings and Commissions and any incorrect payments of Commissions discovered during the course of any such audit, and Merchant shall correct its records and remit any Commissions payable but not yet paid to Google within five (5) days after receipt of Google’s report. If any such audit reveals a discrepancy in Commissions paid to Google during the period being audited of five percent (5%) or greater, Merchant shall reimburse Google for its reasonable costs and expenses in conducting such audit.
8. Confidentiality; Publicity.
8.1 Definition. “Confidential Information” means any information and materials related to a party (or an Affiliate Entity) that are disclosed by such party to the other party during the Term (whether in writing, or in oral, graphic, electronic, or any other form) under circumstances that would indicate to a reasonable person that such information or materials are confidential or proprietary or that is marked as confidential.
8.2 Confidentiality Obligations. The receiving party will hold Confidential Information of the disclosing party in confidence, and shall take at least the same degree of care that it uses to protect its own confidential and proprietary information of similar nature and importance (but in no event less than reasonable care) to protect the confidentiality of the Confidential Information of the disclosing party. The receiving party will not disclose or otherwise make available to any third party any Confidential Information of the disclosing party, except to its employees, Affiliate Entities, agents, professional advisors, and third-party contractors who need to know it and who have a legal obligation to keep it confidential consistent with those set forth in these Terms (“Delegates”). The receiving party will use the disclosing party’s Confidential Information only to exercise its rights and fulfill its obligations under these Terms. The receiving party will ensure that its Delegates are also subject to the same non-disclosure and use obligations.
8.3 Exclusions. Section 8.2 (Confidentiality Obligations) will not apply to any Confidential Information (a) that is rightfully known by the receiving party prior to disclosure by the disclosing party; (b) that is rightfully obtained by the receiving party from a third party without restrictions on disclosure; (c) that is disclosed by the receiving party with the prior written approval of the disclosing party; or (d) disclosed to the extent required by law or court order, so long as the receiving party provides advance notice to the disclosing party as promptly as possible and cooperates with the disclosing party’s efforts to obtain a protective order regarding such disclosure.
8.4 Public Statements about these Terms. Merchant will not make any public statement regarding these Terms without Google’s prior written approval.
8.5 Feedback; Residuals. Merchant may, but is not required to, provide to Google suggestions, comments, ideas, plans, drawings, know-how, original or creative materials, or other information or materials, in any form, related to Google or its products, services, or technology, including with respect to the subject matter of these Terms (“Feedback”). Such Feedback will be considered Confidential Information of Google. Google (and anyone it authorizes) may (and is hereby granted a perpetual and irrevocable right to) use, disclose, reproduce, license, distribute, and otherwise exploit Feedback and Residuals worldwide, for any purpose, in any medium now known or later developed. “Residuals” means information retained in the unaided memory of persons employed or retained by Google who have accessed or used Merchant’s Confidential Information, including, ideas, concepts, know‐how, or techniques contained therein. Google shall have no obligation to limit or restrict the assignment of such persons, and shall have no obligation of any kind relating to the use of Residuals or Feedback, including any obligation to provide compensation or attribution for use thereof.
9. Term; Termination and Suspensions.
9.1 Term. The term of these Terms (the “Term”) shall begin on the Effective Date and shall remain in effect until a party terminates in accordance with this Section 9 (Term; Termination and Suspensions).
9.2 Terminations by Merchant. Merchant may terminate these Terms for any reason or no reason and at any time by sending written notice (email sufficing) to Google at legal-notices@google.com, and in the event Merchant has any active Campaign(s), Merchant must end all such Campaigns (i.e., make all such Campaigns “inactive”) before termination is effective.
9.3 Terminations by Google. Google may terminate these Terms immediately for any reason or no reason by sending written notice (email sufficing) to Merchant at any time in accordance with Section 14.1 (Notices).
9.4 Suspensions or Restrictions by Google. Google may suspend, end, or pause (in whole or in part) any Campaign or Merchant’s access to, or use of, the Google App or Interface (“Suspension”) if: (a) Merchant breaches these Terms or Applicable Law; (b) Google is required to do so to comply with a legal requirement or a court order; (c) Merchant no longer meets the eligibility requirements, as determined by Google, to participate in the Program; (d) Google reasonably believes there has been conduct that creates liability or harm to any user, third party, Google or its affiliates; or (e) in the event these Terms are terminated. Google will provide written notice (email sufficing) to Merchant in the event of a Suspension in accordance with Section 14.1 (Notices) if required by applicable law.
9.5 Effects of Termination. Except as stated otherwise herein, when these Terms terminate, (a) Google will, within thirty (30) days of termination, cease any new publication of Shopping Links; (b) Merchant will immediately end all active Campaigns and cease all use of the Interface; (c) each party will return to the other party (or, upon such other party’s request, destroy) such other party’s Confidential Information; and (c) Merchant shall pay all then-unpaid Commissions due to Google as calculated by Google within a time period specified by Google (e.g., in the Invoice), or where applicable, such unpaid Commissions will be automatically deducted from Merchant’s payment method. For clarity, such Commissions due to Google include Commissions for Conversions that occur as of the date of termination, even if the Pending Period for such Commissions ends after the termination date.
9.6 Survival. The following Sections will survive any expiration or termination of these Terms: Sections 1, 4, 5, 6.2, 6.3, 6.4, 6.6, 6.7, 6.8, 7, 8, 9, 10, 11, 12, 13, and 14.
10. Representations and Warranties.
10.1 Mutual. Each party represents and warrants that (a) it has full power and authority to enter into these Terms and to perform its obligations hereunder; and (b) it will use reasonable care and skill in performing these Terms.
10.2 Merchant. Merchant further represents and warrants that (a) it has and will retain all necessary rights to grant the rights and licenses contemplated in these Terms (including the rights and licenses set forth in Section 4 (Licenses) of these Terms) and to fulfill its obligations under these Terms, without the need for any licenses, releases, consents, approvals, or immunities not yet obtained; and (b) its performance under these Terms will comply with all Applicable Law, including Merchant’s use of or access to the Google App, Interface, and Google Tags.
10.3 Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES DISCLAIM ALL OTHER REPRESENTATIONS AND WARRANTIES (EXPRESS OR IMPLIED). FOR CLARITY, THE GOOGLE APP, INTERFACE, AND GOOGLE TAGS ARE PROVIDED ON AN “AS-IS”, “WHERE-IS” BASIS AND WITH ALL FAULTS AND DEFECTS, WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE AND NON-INFRINGEMENT. FURTHER, GOOGLE DOES NOT GUARANTEE OR WARRANT THE ACCURACY OR COMPLETENESS OF ANY REPORTING OR ANY DATA OR INFORMATION MADE AVAILABLE IN THE GOOGLE APP OR THAT THE SHOPPING LINKS WILL RESULT IN ANY LEADS.
11. Defense and Indemnity.
11.1 Indemnity by Merchant. Merchant will defend Google and its Affiliate Entities, and indemnify them against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from or related to: (a) Merchant’s breach of these Terms, including Merchant’s breach of Section 10 (Representations and Warranties) and Section 8 (Confidentiality; Publicity) or any Applicable Law in connection with these Terms; (b) the Merchant Data, Merchant Marks, Merchant Site or Merchandise (including product liability claims or claims related to infringement of a third party’s rights, including Intellectual Property Rights, in connection therewith); (c) Your use of the Google App, Interface, or Google Tags; or (e) Merchant’s gross negligence or intentional misconduct.
11.2 Indemnity by Google. Google will defend Merchant and its Affiliate Entities and indemnify them against Indemnified Liabilities, in any Third-Party Legal Proceeding to the extent arising from or related to Google’s gross negligence or intentional misconduct in connection with its performance of its obligations under these Terms.
11.3 Conditions. The obligations set forth in Sections 11.1 (Indemnity by Merchant) and 11.2 (Indemnity by Google) are conditioned upon the following: (a) the indemnified party must promptly provide the indemnifying party with any materials related to any allegation(s) that preceded the Third-Party Legal Proceeding and cooperate reasonably with the indemnifying party to defend the Third-Party Legal Proceeding (if a breach of this Subsection 11.3(a) prejudices the defense of the Third-Party Legal Proceeding, the indemnifying party’s obligations under this Section 11 (Defense and Indemnity) will be reduced in proportion to the prejudice); and (b) the indemnified party must tender sole control of the indemnified portion of the Third-Party Legal Proceeding to the indemnifying party, subject to the following: (i) the indemnified party has the right to approve controlling counsel, such approval not to be unreasonably withheld, conditioned, or delayed (and which approval may be withheld or withdrawn if there is a conflict of interest); (ii) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (iii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed.
12. Limitations of Liability.
12.1 Liability. “Liability” means any losses, damages, costs (including court costs and reasonable legal fees), expenses, or other liability, whether under contract, tort, or otherwise (including for negligence), and whether or not foreseeable or contemplated by the parties.
12.2 Limitations. SUBJECT TO SECTION 12.3 (EXCEPTIONS TO LIMITATIONS): (A) NEITHER PARTY WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS FOR LOSS OF PROFITS, REVENUE, BUSINESS OPPORTUNITY, GOODWILL, OR ANTICIPATED SAVINGS, INDIRECT OR CONSEQUENTIAL LOSSES, SPECIAL OR INCIDENTAL LOSSES, OR EXEMPLARY OR PUNITIVE DAMAGES, IN EACH CASE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) GOOGLE’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS IS LIMITED TO THE COMMISSIONS PAID OR PAYABLE BY MERCHANT TO GOOGLE IN THE PRECEDING TWELVE (12) MONTH PERIOD.
12.3 Exceptions to Limitations. Nothing in these Terms excludes or limits either party’s Liability for (a) death or personal injury resulting from such party’s negligence or the negligence of its employees or agents (for clarity, Participating Creators are not agents of Google); (b) fraud or fraudulent misrepresentation, gross negligence, or willful misconduct; (c) payment of any amounts due under these Terms, including in connection with each party’s indemnity obligations; or (d) matters for which liability cannot be excluded or limited under Applicable Law.
13. Conduct. Merchant will not disparage Google, its affiliates, subsidiaries, creators, merchants or channels, and Merchant will not take any action that (or Merchant will not fail to take any action, where such failure to act) might adversely affect, bring into disrepute or public scandal, or cast or portray in a negative, derogatory, detrimental or disparaging light any of the following: Google, its affiliates or any of their respective images, brands, reputations, products or services, including programs.
14. General.
14.1 Notices. All notices must be in English and in writing. The address for notices to Google’s legal department is legal-notices@google.com. The address for notices to Merchant is the email address associated with Merchant’s account within the Google App or if there are any issues with such email address, then any other email address Google has on file for Merchant. Emails are written notices. Notice will be treated as given on receipt, as confirmed by written or electronic records.
14.2 Assignment. Neither party may assign any part of these Terms without the written consent of the other, except to an Affiliate Entity where: (a) the assignee has agreed in writing to be bound by these Terms; (b) the assigning party has notified the other party of the assignment; and (c) the assigning party remains liable for obligations under these Terms if the assignee defaults on them. Any other attempt by a party to assign these Terms absent the other party’s consent is void.
14.3 No Waiver. A party’s delay or omission in exercising any right under these Terms will not be treated as a waiver of that right.
14.4 Independent Contractors; No Agency. The parties are independent contractors. These Terms do not create any agency, partnership, joint venture, or employment relationship.
14.5 No Third-Party Beneficiaries. There are no third-party beneficiaries under these Terms unless these Terms expressly state that there are. Google’s Affiliate Entities are third-party beneficiaries to the extent these Terms expressly grants them rights. The parties can amend, rescind, or terminate these Terms without any third-party beneficiary’s consent.
14.6 Execution. The parties acknowledge that this copy of the Terms has been digitally generated on Google's behalf in place of a physical signature by Google, and agree that such generation, together with Merchant’s electronic acceptance, satisfies any and all procedural requirements to form a valid and effective agreement.
14.7 Changes to Terms. Google may make non-material changes to these Terms at any time without notice. Google will provide prior written notice (email sufficing) of any material changes to these Terms in accordance with Section 14.1 (Notices). Changes to the Terms will not apply retroactively and will become effective fifteen (15) days after making such updated Terms available. However, changes made for legal reasons or to protect Google products and services, our users or partners from harm will be effective immediately upon notice. If You do not agree to the modified Terms, You can terminate the Terms (as set out above in Section 9.2 (Terminations by Merchant)).
14.8 Severability. If any part of these Terms is invalid, illegal, or unenforceable, the rest of these Terms will remain in effect.
14.9 GOVERNING LAW. CALIFORNIA LAW WILL GOVERN ALL DISPUTES ARISING OUT OF OR RELATING TO THESE TERMS, OR ANY RELATED GOOGLE PRODUCTS OR SERVICES, REGARDLESS OF ANY CONFLICT OF LAWS RULES. THESE DISPUTES WILL BE RESOLVED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF SANTA CLARA COUNTY, CALIFORNIA, USA, AND THE PARTIES CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS.
14.10 Entire Agreement. These Terms, together with the Analytics ToS, and Google Pay/Google Payment Terms of Service, if applicable, state all terms agreed between the parties and supersede all other agreements between the parties relating to its subject matter. If any provision of the body of these Terms conflicts with specific terms of the Analytics ToS and Google Pay/Google Payment Terms of Service, these Terms will control solely to the extent of the conflict. To the extent any translated version of these Terms is inconsistent with the English version, the English version will govern. In entering into these Terms, the parties have relied solely on the express statements in these Terms. Neither party has relied on, and neither party will have any right or remedy based on, any other statement, representation, or warranty (whether made negligently or innocently).