Archived Version

Creative Services Attachment

Last modified: September 14, 2020 (view archived versions)

This Attachment will apply to the extent that Contractor provides any creative design, advertising, marketing, or production Services. To the extent this Attachment and the body of the ISA conflict, this Attachment will govern.

1. Definitions.

1.1 “Restricted Entities” means Apple Inc., Microsoft Corporation, Twitter Inc., Facebook, Inc., Yahoo! Inc., Amazon.com, Inc., or any of their respective parent, subsidiary, or affiliate entities, any additional entities identified as a Restricted Entity on an applicable SOW, and any entities whose interests may conflict with those of Google’s interest under an applicable SOW.

1.2 “Third Party Materials” means any third party’s proprietary information or materials (including an individual’s name, likeness, photograph, voice, or image) or open source materials.

2. Services.

2.1 Provision. Contractor will not provide Services before the parties fully execute an applicable SOW, and Google may reject any Services or Deliverables that are performed or developed before an applicable SOW is executed. Time is of the essence regarding Contractor’s performance of this Agreement.

2.2 Warranty. Contractor represents and warrants and that all Deliverables (other than Google’s Background IP or Third Party Materials approved by Google in writing to be incorporated into Deliverables) will be original and have not been previously published in any form unless Contractor has obtained Google’s prior written approval in each case, and that all Services and Deliverables comply with all applicable laws, rules and regulations (including advertising laws and industry guidelines or codes of practice), and will not contain any obscene, blasphemous, libelous or otherwise unlawful content

2.3 Destruction of Google Background IP. Contractor will not destroy any of Google’s Background IP without Google's prior written consent.

2.4 Approvals. Contractor will not incorporate any statements or claims regarding Google products or services, or any third party's products or services, into any Services or Deliverables without Google’s prior written approval in each case. Unless otherwise stated in an SOW, Contractor will obtain Google’s general written approval of campaign plans and specific written approval for all creative work (including all final pre-publication versions) and media schedules prior to publication or use.

2.5 No Agency. Unless otherwise specified in an SOW, Contractor will carry out the Services acting as principal at law. As between Contractor and Google, Contractor is solely responsible for all liabilities and obligations (including properly classifying talent) to any applicable collective bargaining, union, or guild agreements, including SAignoredAFTRA and the Director’s Guild of America (“Guild Agreements”). For avoidance of doubt: (A) nothing in this Agreement permits Contractor to execute any contract with any third party on Google’s behalf; (B) nothing in this Agreement permits Contractor to buy any media or any advertising space; (C) Contractor has no authority to cause Google to incur any obligations to any talent, or under any Guild Agreement; and (D) nothing in this Agreement obligates Google to enter into any Guild Agreement. Contractor will invoice Google, and Google will pay Contractor for all costs and expenses, without mark-up, properly-incurred by Contractor under Guild Agreements. Notwithstanding the foregoing Section 2.5 of this Attachment, Google is not responsible for paying any costs or expenses incurred by Contractor resulting from Contractor’s error.

2.6 Records and Reporting. Contractor will maintain accurate records of staffing time, in 30 minute increments, for all Personnel providing Services. At Google's request, during the term of an applicable SOW and for one year after its termination, Contractor will promptly provide Google with detailed and accurate reports (“Reports”), at Contractor’s own expense, in the formats requested by Google, outlining on a line item basis for the period indicated: (A) the status of all Services and Deliverables, including all work in progress, (B) all actual direct staffing time for Contractor's Personnel providing Services (provided solely for Google’s internal analysis; for the avoidance of doubt, Contractor retains sole discretion over Personnel staffing and compensation), (C) reimbursable and reimbursed expenses, (D) production costs, and (E) any additional information regarding the Services or Deliverables as Google may request. At Google's request, Contractor's Managing Director or higher executive will verify in writing, in the form, substance, and detail that Google requests, that all information in each Report is complete and accurate. At Google's expense, Contractor will provide Google's third-party auditor with all reasonable assistance to verify that all information contained in the Reports are accurate. Notwithstanding Section 12.4 of the ISA, Google’s audits of Contractor’s records will not include individual payroll information, profitability, overheads or non-billable expenses, or information about Contractor’s other clients.

2.7 No Publicity. Any written approval from Google of any publicity relating to this Agreement (in accordance with Section 6.4 of the ISA) must be provided by a member of Google’s Agency Relations team or their successor(s); all other approvals from Google are void.

2.8 Personnel. If a SOW names specific Personnel to be involved in providing certain Services, Contractor will notify Google if such Personnel are changed during the course of providing those Services.

2.9 Other Entities.

(A) Cooperation. Contractor will fully cooperate with other third parties designated by Google in writing from time to time. If the Services involve Contractor’s interaction with media agencies, Contractor will (1) supply all relevant information to media agencies fully and promptly, in order to enable such agencies to meet their own obligations to Google, (2) be responsible for correct copy rotation and supply of copy to media, and (3) be responsible for any surcharges levied by media owners arising from the supply of late or wrong copy.
(B) Subcontractors and Suppliers. Contractor will not subcontract any of its obligations except to subcontractors expressly permitted in an applicable SOW (or SOW amendment). Contractor will use reasonable care and skill to select and appoint third party suppliers in connection with the provision of the Services. Contractor will not make any hidden revenues, income or profits, whether directly or indirectly, under this Agreement. Contractor will invoice all third party costs and expenses at cost without mark-up unless expressly permitted otherwise in an applicable SOW.
(C) Documents. If requested by Google, Contractor will cause all persons and entities that provide any portion of the Services or Deliverables under this Agreement, to sign nondisclosure agreements and waivers in the form(s) provided by Google, without modifications.

2.10 Website and Software Development. If the Services include development or use of code, websites, or software:

(A) Contractor will comply with the Google Partner Security Documentation at https://g.co/partner-security.
(B) Contractor will not purchase any domain names for Google or on behalf of Google.
(C) Contractor will host all sites on Google infrastructure, and Contractor will not route traffic from Google-owned domains to third-party servers.
(D) Contractor will adhere to Google’s internal coding style guides at https://code.google.com/p/google-styleguide/ when building any websites for launch on hostnames such as google.com and others as determined by Google in its sole discretion.
(E) Unless Contractor obtains Google’s prior written approval in each case, Contractor will ensure that all web applications: (1) are built and hosted on Google App Engine or other Google-approved architecture; and (2) will have back-end code written in programming languages approved by Google in advance. Contractor acknowledges that Google recommends Contractor use Google’s App Engine Secure Scaffold to help ensure sites are in compliance with all Google security requirements.
(F) Contractor will optimize all websites for mobile use. Unless Contractor obtains Google’s prior written approval in each case, Contractor will ensure that all websites work in the latest desktop and mobile versions of Chrome, Safari, Firefox, and Internet Explorer, and any additional browsers required under an applicable SOW.
(G) During the term of an SOW, Contractor will patch security vulnerabilities in or caused by any Services or Deliverables in a timely manner at no additional charge.
(H) All web experiences will meet WCAG 2.0 Level AA accessibility.
(I) When using third-party code or open source materials, Contractor will not use third-party scripts, tools, or libraries without Google’s prior written approval in each case. Google will have sole discretion over whether Google or Contractor hosts scripts for projects. Contractor will not use scripts hosted on third party systems.

2.11 Social Media. Contractor will not compensate any third parties, including social media influencers, for participating in any activity relating to this Agreement unless expressly required under an applicable SOW. For the avoidance of doubt, any such third party individuals will constitute Personnel. As between the parties, Contractor is solely responsible for, and will ensure such third parties’ compliance with all applicable laws, rules, and regulations (including disclosures regarding advertising, paid, or sponsored content), and will promptly notify Google of any noncompliance, and will ensure that the applicable third party immediately deletes any non-compliant content or any other content developed under this Agreement that Google requests to be deleted. Contractor will ensure that social media influencers only make statements reflecting the influencer’s honest beliefs, opinions, findings, or experiences. If requested by Google relating to any breach of this Agreement or any applicable terms of service or branding guidelines, or any activity that damages Google's brand as determined by Google, Contractor will promptly cease any or all activity with any social media influencer.

2.12 User Experience Research. If Contractor performs any user experience research, Contractor is solely responsible for ensuring: (A) Contractor obtains informed consent from all participants; (B) the research is conducted in a non-coercive manner complying with all applicable laws, regulations, and ethical guidelines; (C) Google obtains all rights and licenses to view focus group video streams and to use and indefinitely retain results of the research (including without limitation, all comments, feedback, ideas, reports, suggestions, data, or other information provided to Contractor by each research study participant and any audio or video recordings (or transcripts) of the same); (D) Google retains the right to publicly disclose anonymized or aggregated information derived from the research; (E) participants acknowledge and agree that Google has no obligation to use any research results; and (F) all persons briefed about or participating in the research study will not record or disclose, and will use a reasonable degree of care to prevent any unauthorized use or disclosure of, any information provided to them about Google or its current or future products or services during the research study.

2.13 Access to Google Systems. If Personnel access Google’s systems from any non-Google facility, Contractor will meet Google’s remote access standards at https://g3doc.corp.google.com/company/teams/security-privacy/policies/security/guidelines/remote-workers.md (or such other URL as Google may specify).

3. Intellectual Property.

3.1 Pitches. To the extent that Services involve Contractor’s delivery of pitch-related Services, Contractor retains all rights in pitch content (excluding any Google Background IP or Third Party Materials incorporated in pitch content) unless and until Google selects the pitch for production, except that Contractor grants to Google a perpetual, non-exclusive, worldwide license to use pitch content for the purpose of internal Google distribution, discussion, and evaluation. If Google selects a pitch for production, Google will pay Contractor an amount mutually agreed upon by the parties, and Google will automatically own the pitch content as Deliverables in accordance with the terms of the ISA. Contractor recognizes that Google may concurrently or in the future develop or purchase information, materials, or services related to or similar to the Deliverables or pitch content, and nothing restricts Google from using such information, materials, or services in any manner or for any purpose.

3.2 Trademark Searches. Unless otherwise agreed to in writing by Google and Contractor, Contractor will, at its own cost, undertake such preliminary trademark searches as is reasonably necessary in all applicable territories for potential trademarks created by Contractor to be incorporated in Deliverables. Contractor will provide Google with the results of all trademark searches and notify Google in writing of all resulting trademark concerns. Google will approve or reject in writing the inclusion of such potential trademarks in Deliverables. If Contractor fails to obtain such searches and advice, Contractor will reimburse Google in full for the cost of carrying out its own searches and advice using counsel of Google’s choice. Google will be responsible for any additional searches Google deems appropriate regarding such potential trademarks. Google will determine whether to file for any registrations for such potential trademarks, which will be undertaken at Google’s own cost.

3.3 Google Materials. Google owns any fabricated, printed, or purchased materials for which Contractor requests reimbursement under this Agreement. Contractor will promptly ship all such materials to Google upon the earlier of Google's request or any termination of an applicable SOW.

3.4 Third Party Materials. Contractor is solely responsible for obtaining from all appropriate third parties all rights and licenses (including, for example, releases and waivers) necessary for Google's use of all Third Party Materials incorporated into Services and Deliverables as contemplated under the applicable SOW, except for specific Third Party Materials expressly identified in an applicable SOW as those for which the parties agree that Contractor is not responsible for obtaining such rights and licenses. Any permitted Third Party Materials will remain the property of such third parties and subject to their applicable license terms.

4. Restricted Entities. Contractor represents, or may represent in the future, Restricted Entities. In order to preserve the confidentiality of Google’s Confidential Information, Contractor represents and warrants that:

4.1 It will establish and maintain, throughout the term of the ISA and for 6 months thereafter, sufficient protections to prevent any exchange of information relating to this Agreement or the Services or Deliverables between Personnel performing Services for Google and Contractor’s Personnel working on matters for Restricted Entities (such personnel working on matters for Restricted Entities constituting “Conflicted Staff”). Such protections will include at least the following:

(A) All Personnel performing Services for Google will agree in writing not to discuss any work performed for Google with any Conflicted Staff, and not to make any of Google’s Confidential Information accessible to any Conflicted Staff.
(B) No Conflicted Staff will perform Services for Google or otherwise create or access any of Google’s Confidential Information.
(C) Facilities in which Personnel perform Services for Google will remain locked and secured, and Conflicted Staff will be restricted from accessing those facilities.
(D) All information relating to Services performed for Google will remain segregated from work performed for Restricted Entities, and Conflicted Staff will be restricted from accessing information relating to Services performed for Google using physical and technical access controls.
(E) Contractor will notify each Personnel in writing of the requirements of the protections regarding Services performed for Google.

4.2 If Contractor desires to perform services for any third party that Google may construe as a conflict of interest with Contractor’s performance of Services for Google, Contractor will refrain from performing such services unless Contractor obtains Google’s prior written consent. If Google does provide consent, then unless Google notifies Contractor in writing that such services for such third party do not constitute a conflict of interest, such third party will be deemed a Restricted Entity for which Contractor’s obligations under this Section 4 will apply.

4.3 Contractor will immediately notify Google in writing if, at any time during the term of the ISA: (A) any of Google’s Confidential Information is disclosed in violation of this Agreement; (B) Contractor is likely to become unable to perform Services for Google without violating any of the obligations set forth in this Section 4; or (C) Contractor engages in any activity for any entity that Google may construe as a conflict of interest with Contractor’s performance of Services for Google. This Section 4 will survive for six months following any termination of the ISA.

5. Additional Defense and Indemnity Exclusions. In addition to Section 9.2 of the ISA (Exclusions), Contractor’s obligations under Section 9 (Defense and Indemnity) will not apply to the extent the underlying allegation arises from:

5.1 Statements or claims regarding Google products or services, or any third party's products or services, incorporated into any Services or Deliverables with Google’s prior written approval in accordance with Section 2.4 of this Attachment.

5.2 Contractor’s incorporation of Google’s Background IP in Services and Deliverables in the manner approved by Google in writing in advance.

5.3 Specific Third Party Materials expressly identified in an applicable SOW as those for which the parties agree that Contractor is not responsible for obtaining such rights and licenses in accordance with Section 3.4 of this Attachment.

6. Termination or Suspension.

6.1 Contractor may terminate this ISA upon 30 days prior written notice to Google if all outstanding SOWs will terminate or expire before the effective date of termination. Such termination does not limit Contractor’s obligation to comply with Section 4.1 of this Attachment (Restricted Entities) or other terms of this Agreement that survive termination.

6.2 Upon any termination of the ISA or any SOW:

(A) Contractor will promptly act to minimize any cancellation or other charges. Google will reimburse Contractor for costs expressly set forth as non-cancellable in an applicable SOW.
(B) At Google’s request, Contractor will provide Google with a detailed written update on the Services that have been performed prior to termination. Contractor will provide all assistance requested to enable the smooth transition of any Services or Deliverables to Google or its third-party designee. If Contractor’s provision of Services involves any activity relating to a labor union or talent guild such as SAignoredAFTRA, Contractor will transition all related obligations and agreements directly to Google’s third-party designee.
(C) Contractor will deliver to Google in accordance with Google's written instructions all Deliverables, Developed IP, Third Party Materials, Google’s Background IP, and all other information and material generated or acquired by Contractor in its provision of Services under the terminated ISA or SOW(s).