Google Partner Agreement (the way it oughtta be)
by Lynn Chu
This is a redraft of Google's basic "Partner Agreement" by which owners license use rights to Google. It works together with the set of Owner Options I've also created, which sets up reasonable, legal default settings and account options for owners. That is, everything is off till turned on by its owner, after the owner agrees to the monthly fee or percentage of all ad revenue Google is offering for that particular use.
Google Books Partner Program Standard Terms and Conditions Revised for Fairness
THIS IS A CONTRACT. READ VERY CAREFULLY. IF YOU CLICK “ACCEPT,” IT MEANS THAT YOU ACCEPT THE FOLLOWING TERMS AND CONDITIONS, ALL OF WHICH ARE LEGALLY BINDING UPON YOU. IF YOU WISH TO NEGOTIATE THESE TERMS AND CONDITIONS, DO NOT CLICK “ACCEPT.” YOU MAY, HOWEVER, CONTACT US TO NEGOTIATE THESE TERMS, BY CLICKING HERE.
Introduction. If you (“You”) accept this agreement (the "Agreement”), Google Inc. and its affiliates ("Google"), will provide scanning, storage, hosting and online publishing for your content (referred to as the “Program”) under the terms of this Agreement, as stated below.
1. Program Participation. Google reserves the right to refuse participation in the Program to any applicant or participant, or with respect to any content, at any time, in Google’s sole discretion. Due to occasional technical difficulties, legal issues, or otherwise, Google cannot guarantee that it will be able to perform its services under the Program perfectly. You agree to waive minor or immaterial defaults.
2. Implementation. Participation in this Program is effectuated by Your signing this Agreement and delivering a copy of a literary work to us for this purpose (which will not be returned to you), or by selecting a work from our list of available scans. If you are unhappy with the scans used, you may deliver new content to us either digitally, or in print, so that we might scan at higher resolution at our standard prices for that service. For each work you authorize, you warrant that you have all permissions to use all text, images, photographs, illustrations and all other material and artwork used in it or with it as well as the name of its author and its title (the “Work”). If you do not have such permission, or any of them, then you must highlight such material and all material you so highlight will be blacked out until such time as you warrant that you have obtained that permission or its owner logs on to authorize its use in connection with your Work. By signing this Agreement you authorize Google (or its agents), in connection with the Program, to digitally scan, host or store the Work on servers in any location, to index it, to search it for user search request matches, and to display it as you specify.
3. Restrictions on Use of Authorized Works. Google shall (a) display the Work, limited to the pages and other Program options that You select, and shall (b) copy-protect the Work against hacking, so that general online users will not be able to cut, copy, paste, or (unless you allow this under Program options) print it.
4. You understand that works in the public domain are ineligible for this Program.
5. Brand Features; Publicity. You agree that Google may reasonably use Your name and such logo art as you furnish to us in connection with the Program.
6. Ads; Payment. Google will solicit advertisers for webpages displaying or listing Work.
7. Your payment will be ___% of all revenue received from advertisers for “valid” clicks on Ads displayed on webpages which display any content from a Work. This includes homepages for the Work which may display none of its content but only presents the Work and portals to its content. It also includes all webpages displaying any snippets from a Work, including all snippets listed from any user search, if an advertiser has requested that an Ad juxtaposed with the Work, or if Google has juxtaposed an Ad so as to relate to the Work, its title, author, subject matter, or content).
8. Google will pay you earned balances of $100 or more within approximately thirty (30) days after the end of each calendar month.
9. Ads displayed on webpages displaying only lists of multiple authors and titles with no content returned on search are excluded from any payment hereunder.
10. Also excluded are “invalid clicks.” Invalid clicks are clicks on Ads generated by any person, bot, automated program or similar device, including, without limitation: (i) clicks originating from Your IP addresses or computers under Your control; (ii) clicks on Ads that are in any way requested or solicited from users;
11. Google shall provide each participant in his/her online account a reasonable number of analyses of aggregate data related to uses of his/her Work. Such data will include information about Ads posted with the Work; total “hits” or “views”; average length of “views”; total views (or Ads) over a specified period of time; total views of specified portions of the Work (by participant specified page or line numbers). Google will maintain participant accounts so as to update such data on a continuous or regular basis.
12. Audit: You shall be entitled to audit our books and records relating to your account upon reasonable written notice, and we shall retain all such records digitally for a period of six years.
13. Force Majeure. Google shall not be liable to any participant for defaults arising from conditions beyond its reasonable control, including but not limited to acts of war, earthquake or other acts of God, and labor unrest.
14. Representations and Warranties. You represent and warrant that (a) You are at least 18 years of age, (b) all information You provide to Google to include the Authorized Works and participate in the Program is correct and current; (c) You have the right and the authority to enter into this Agreement and to license to Google all rights of copyright and trademark granted hereby; (d) the use of the Work under this Agreement does not violate or infringe any personal, property, or contract rights of any person or entity, nor any U.S. law or regulation.
15. Your Obligation to Indemnify. You agree to indemnify, defend and hold Google harmless from and against all actual out of pocket costs (including reasonable legal fees) arising from a breach of one or more of the foregoing warranties declared by a court of final jurisdiction in the matter.
16. Termination. You may terminate this Agreement with or without cause by notice to Google, online, or in writing by U.S. Mail or hand delivery, at any time. Google may at any time in its sole discretion terminate the Program, terminate this Agreement, or withdraw any Work in the Program. Upon termination by Google, Google will notify You of its reasons therefor. Google will remove all terminated content within ten (10) days. The provisions of this Agreement will survive any termination with respect to matters arising while the Agreement was in force.
17. Personal Information. Google may retain your contact and billing information unless you direct Google to expunge that data from its system. Google shall display your name with the Work as licensor of its display under the Program. Google shall also provide your contact data to any person or entity who disputes any of your representations and warranties, after notifying you of such person’s claim and their contact data. Google may also make your information available to third parties as required or permitted by law. Google will send You Your data upon request and not later than 30 days after termination. On termination, Google will expunge all copies of Work within 30 days unless otherwise directed in writing. You understand that Google may share aggregate Program data (i.e., not personally identifiable, nor identifiable to your individual Work) on a non-compensated basis with anyone. However, Google may not use or monetize the scans of your Work, nor your aggregate Program data, in any databases, products or services, without your prior permission.
18. Parties' Responsibilities. You agree not to ask or encourage any third party to generate queries, impressions of or clicks on any Ad(s) through any automated, deceptive, fraudulent or other invalid means, directly or indirectly, such as through repeated manual clicks, the use of robots or other automated query tools and/or computer generated search requests. Google may investigate any use of software to access Ads. This Agreement prohibits all hacking.
19. Miscellaneous. This Agreement shall be governed by the laws of California. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. Any modifications to this Agreement must be made in a writing executed by both parties. The waiver of any breach or default of this Agreement shall not constitute a waiver of any subsequent breach or default. If any provision herein is held unenforceable, then such provision will be modified to reflect the parties' intention, and the remaining provisions of this Agreement will remain in full force and effect.
Revised by Lynn Chu 9.20.09
FOOTNOTES (sorry folks, footnote insertion marks and numbering are blown away when cutting and pasting. I will hand enter their locations as soon as I have a chance. But here is the gist.)
Contracts to publish should not be non-negotiable.
No “affiliated” companies or persons can be deemed to be automatically included and automatically contractually bound to the same extent as the signatory owner.
No unilateral changes by Google can be permitted.
Google may not have the power to eliminate multiple accounts. Google may not joint account individual works. One owner may have many works and each account must track each work.
No total waiver of loss, theft or damage of any kind to their works is acceptable. Google must copyprotect the works from hacking. There is no reason to have two defined terms, both Authorized Work and Authorized Content, the latter referring to the addition of permission material. Permissions should be excluded from the start by the owner unless that owner warrants they have the right to put that material online.
Google is well aware that jacket art and copy may be owned by a publisher and other material by others. Google should create a series of dialog screens to alert and require authors to mark any material for which the author thinks he or she has no permission for online use, and Google should clearly alert the author that all material so marked will be blacked out until written permission is received or granted by log-on and signing by a person warranting ownership, at which point Google can then turn those portions of the material on.
Repetitive material omitted
Vague references to permitting whatever Google might later determine have been omitted.
Google must state that it will perform its services under the agreement. It must also agree to copyprotect material and fulfill Program options.
Google should provide fixed cut options, disabling dynamic search, and term limits by participants, at a minimum.
Disclosing or announcing the use of a work in the Program should not be secret or confidential or subject to Google’s prior consent. Use of a person’s name and image should be reasonable only and restricted to the Program, not used in any “presentations, marketing materials, customer lists, financial reports or Web site listings of customers” of Google. “Proprietary Rights; Required Notices” deleted. There were no required notices in the paragraph. The Agreement does convey an “ownership right” to Google, though a highly limited one. It licenses Google to publish on its site. There is no need for this disclaimer since copyright law already imposes it. It serves only a marketing purpose in this agreement. The Confidentiality clause is ridiculous. There may be no obligations imposed on participants in the Program. The terms of the non negotiable publicly posted Agreement are entirely public. Nothing about Google programming or guidelines of documentation is confidential or disclosed to participants by being in this Program. Nothing about participant click through or other accounting data should be confidential. No forward-looking obligations, which have nothing to do with the Program should be imposed.
There can be no agreement that Google can pay whatever it wants.
Google may not consume the participant’s final $10. Google may not stop paying monthly just because you have terminated and go to tri-monthly. It should pay till all receipts stop coming in after termination.
Use of ads in association with an author is a merchandising use even if snippets constitute fair use (which I do not concede). Ads on snippets should pay.
No charging to participant credit cards may be permitted based on disputable allegations of invalid click creation by the participant.
Google should not have any right to offset other than as provided by law.
There is no need to put W9 requirements into this contract. Nor any statement that participants must pay their taxes.
Google’s bank fees for returned checks are its liability and may not be costed to the participant. Google may not unilaterally modify the agreement at will. Google may not impose a requirement that all breaches by it are waived if not asserted within 30 days. This is a perversion of the no breach till you notify us in writing of it and we have 30 days to cure clause.
Google cannot shout that it makes no warranty. It warrants copy-protection among other things. Disclaiming how many clicks there might be is unnecessary.
Total exoneration of itself for all liability whatsoever for damages in contract or tort or other legal theory while imposing on participants full indemnity of Google and confidentiality to Google is ridiculous in the extreme, as is its limitation of any liability to whatever one was paid in the 3 months preceding claim.
Google should not say that cyberterror exonerates it from taking precautions, or permits it to escape liability for allowing hacking, and it should take precautions against power failures. Labor “conditions” such as a recession should not exonerate it from anything.
Duplication omitted. Incorporation by reference to other documents omitted. Compliance only with U.S. law. It is the use of the content on this site under this agreement that may not violate book contracts or authors’ reservation of these rights. Not the work itself. This clause appears to have been written to exonerate publishers for licensing rights they in fact do not own and are violating book contracts by licensing without permission from authors, so as to obtain the permission and effectuate the publication.
Vastly overreaching indemnity. Publishing indemnities are personal to the publisher only and limited to costs of actual breach of a warranty, not unmeritorious claims of breach, and not all breaches re: all contract matters. Publishers have liability for most legal risks of conducting their publishing business apart from matters solely within the control and knowledge of the licensor.
Google can’t say 30 days then say any reasonable period after that that we choose.
Google can’t impose confidentiality and other provisions on people forever nonterminably. This is a perversion of the standard contract idea that the Agreement governs all matters that it governed prior to termination.
Google may NOT retain the scanned data. Must expunge it.
This is where Google buries its implicit right to use and monetize all data about the use of your work and its hits, accesses and sales.
If you use California law you also use its conflicts doctrines. No choice of venue. No waiver of applicable international law or treaties. No amendment except by a writing signed by both parties. No one-sided impositions of contract.
A party is entitled to presume a course of conduct and not to have new duties of performance imposed on him if previously waived. Waiver of breach however does not auto-amend the agreement.
The fact that the Agreement doesn’t affect other rights should not be stated here. Meaning unclear here. Assignability—Google may not assign. User may assign as the agreement is largely about proceeds. No provision is best. All publishing agreements are partnerships and Google owes the the licensor a fiduciary responsibility pertinent to this relationship, particularly as to a reasonable degree of copy-protection.