America Online 2010 Annual Report Download - page 252

EXECUTION COPY
(d) For an Ad Format that Google has ceased providing to AOL in accordance with 16.10(a)(i) or 16.10(a)(ii) above, should the
Ground(s) for Cessation no longer apply, the Ad Format will become an Additional Ad Format once again (and the Parties agree to
re-use any previous work to minimize the time or cost for implementation of that Ad Format).
16. [****] The following new section will be added to the Existing Agreement as Section 17:
17. [****].
(a) [****] means a method by which Google [****] for certain [****] on a [****] based upon a variety of factors generally correlated to
[****] relative to a [****]. In such cases the [****] is assigned a [****] that represents [****] relative to the [****], and the [****] for
the advertisements are [****] in proportion to the [****] if the [****] is below [****]. An [****] means a [****] by this Section 17.
(b) For the first [****], (i) if a Covered Property [****] is below [****], then it will remain [****], (ii) if a Covered Property [****] is
between [****], then it will be [****] by [****], and (iii) if a Covered Property [****] is [****] or greater, then its [****] will be [****]
to [****].
(c) After [****], (i) if a Covered Property [****] is below [****], then it will remain [****], (ii) if a Covered Property [****] is between
[****], then it will be [****] by [****], and (iii) if a Covered Property [****] is [****] or greater, then its [****] will be [****] to
[****].
(d) Google shall not calculate [****] of Covered Properties using a method different from Google's standard [****] calculation methods for
advertising syndication partners (excluding [****] set forth in this Agreement). In addition, Google shall not use the [****] program and
policies [****] standard [****] program and policies. If Google decides to apply a [****] for all partners [****] described in section
(b) or (c) above during the applicable period, then [****] described in section (b) or (c) above.
17. Limitation of Liability. Section 10.1 of Exhibit E of the Existing Agreement is hereby deleted in its entirety and replaced with the following:
10.1 Liability. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES), ARISING FROM BREACH OF THE AGREEMENT, THE SALE OF PRODUCTS, THE USE OR INABILITY TO USE THE
AOL NETWORK, ANY AOL PROPERTY(IES), OR THE GOOGLE SPONSORED ADVERTISING SERVICE, GOOGLE ADVERTISING
RESULTS, AOL SEARCH SERVICE, THE AOL SEARCH RESULTS, THE AOL DIRECTORY SERVICE, THE AOL DIRECTORY RESULTS,
OR THE LICENSED GOOGLE CONTENT, OR ARISING FROM ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT
LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS (COLLECTIVELY, "DISCLAIMED DAMAGES");
PROVIDED THAT EACH PARTY WILL REMAIN LIABLE TO THE OTHER PARTY TO THE EXTENT ANY DISCLAIMED DAMAGES ARE
CLAIMED (A) BY A THIRD PARTY AND ARE SUBJECT TO INDEMNIFICATION PURSUANT TO SECTIONS 5.5, 5.6(i), 7.6, OF THE
AGREEMENT and 10.3 OF THIS EXHIBIT; AND (B) FOR A PARTY'S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THIS
AGREEMENT OR VIOLATION OF THE OTHER PARTY'S INTELLECTUAL PROPERTY RIGHTS UNDER THIS AGREEMENT.
EXCEPT (A) AS PROVIDED IN SECTIONS 5.5, 5.6(i), 7.6 OF THE AGREEMENT, and 10.3 OF THIS EXHIBIT AND (B) FOR A PARTY'S
BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT OR VIOLATION OF THE OTHER PARTY'S
INTELLECTUAL PROPERTY RIGHTS UNDER THIS AGREEMENT, (I) LIABILITY ARISING UNDER THIS AGREEMENT WILL BE
LIMITED TO DIRECT, OBJECTIVELY MEASURABLE DAMAGES, AND (II) THE MAXIMUM LIABILITY OF ONE PARTY TO THE OTHER
PARTY FOR ANY CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED [****]; PROVIDED THAT EACH
PARTY WILL REMAIN LIABLE FOR THE AGGREGATE AMOUNT OF ANY PAYMENT OBLIGATIONS OWED TO THE OTHER PARTY
PURSUANT TO THE AGREEMENT.
16
Google Confidential [Legal Department MC/CW Google]