10/27/22, 4:40 PM
`Mobile Application Distribution Agreement between Motorola, Inc. and Google Inc.
`EX-10.12 4 dex1012.htm MOBILE APPLICATION DISTRIBUTION AGREEMENT BETWEEN
`MOTOROLA, INC. AND GOOGLE INC.
`Portions of this document have been redacted pursuant to a Request for Confidential Treatment filed with the Securities and Exchange
`Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended. Redacted portions are indicated with the
`notation “[***]”.
`
`EXHIBIT 10.12
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`MOBILE APPLICATION DISTRIBUTION AGREEMENT
`(ANDROID)
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` Google Inc.
`1600 Amphitheatre Parkway
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`Mountain View, CA 94043
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` Google SPD Rep: Jennie Ebbitt
`Google SPD Director:
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`Google Sales Engineer: Lan Roche
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`Google Legal Contact: Frank Montes
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`COMPANY:
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`Attention:
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`Title:
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` Company Contact Information: Company Technical Contact:
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` Stephen McDonnell
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` Christy Wyatt
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`Address, City, State,
`Postal Code, Country:
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`Vice President
`Software Applications and
`Ecosystem
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`809 11th Ave
`Sunnyvale, CA, 94089
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`Phone: 408 541 6755
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`Fax:
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` Company Legal Notices to:
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` Head of Legal
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`Mobile Devices Business
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`600 N US Highway 45
`Libertyville, IL 60048
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`Global Alliance Manager,
`Google
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`809 11th Ave
`Sunnyvale, CA, 94089
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` 415-686-8886
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` smcdonnell@motorola.com
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`Email:
` Christy@motorola.com
`Effective Date: May 1, 2009 (must be start of calendar month)
`Term: Starting on the Effective Date and continuing through December 31, 2011 (inclusive)
`Renewal Term: None.
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`This Mobile Application Distribution Agreement, including all exhibits hereto (collectively referred to as the “Agreement”), effective as
`of the date noted above (the “Effective Date”), is made by and between Motorola, Inc., a Delaware corporation with offices at the address
`noted above (“Company” or “Motorola”), and Google Inc., with offices at the address noted above (which, with its affiliates, shall be
`referred to herein as “Google”).
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`1. Definitions. The following capitalized terms shall have the meanings set forth below:
`
`1.1 “Android” means those components of Google’s mobile phone software being delivered from time to time either under the Android
`License Agreement between the Parties with the Effective Date of April 22, 2008, or otherwise made available as open source software.
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`1.2 “Client ID” means unique alphanumeric code(s) provided by Google to Company to be used to identify Google Applications usage on
`Company Devices, as such Client IDs may be modified by Google from time to time in its sole discretion upon notice to Company.
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`1.3 “Device” means the wireless device(s) set forth in Exhibit A as may be updated by the Parties from time to time and using only the
`Android operating system which is enabled by Company and used by an End User to access the Service.
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`1.4 “End User(s)” means an end user customer of the Device.
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`https://www.sec.gov/Archives/edgar/containers/fix380/1495569/000119312510271362/dex1012.htm
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`1/21
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`Hafeman, Exhibit 2020
`Google LLC et al. v. Hafeman
`IPR2022-01190
`
`

`

`Mobile Application Distribution Agreement between Motorola, Inc. and Google Inc.
`10/27/22, 4:40 PM
`1.5 “Final Embed Date” means the latest possible date, as determined at Company’s sole discretion, that Company can accept updated
`Google Applications from Google for a specific Device deployment.
`
`1.6 “Google Applications” means the machine-readable binary code version of the Google Applications listed in Exhibit A which are
`provided to Company in accordance with this Agreement, and any modifications or updates to Google Applications that Google may make
`available to Company hereunder from time to time in its sole discretion and any modifications or updates thereto that Google makes
`generally available.
`
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`Page 1 of 16
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`Confidential
`(Revd. 3/09)
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`https://www.sec.gov/Archives/edgar/containers/fix380/1495569/000119312510271362/dex1012.htm
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`2/21
`
`Hafeman, Exhibit 2020
`Google LLC et al. v. Hafeman
`IPR2022-01190
`
`

`

`10/27/22, 4:40 PM
`
`Mobile Application Distribution Agreement between Motorola, Inc. and Google Inc.
`
`Portions of this document have been redacted pursuant to a Request for Confidential Treatment filed with the Securities and Exchange
`Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended. Redacted portions are indicated with the
`notation “[***]”.
`
`
`1.7 “Google Mobile Branding Guidelines” means Google’s brand treatment guidelines for mobile in effect from time to time (and any
`content contained or referenced therein), which are located at http://www.google.com/wssynd/mobile_guidelines.html and
`http://www.google.com/permissions/guidelines.html (or such other URLs as may be provided by Google from time to time), together with
`such additional brand treatment guidelines for mobile as Google may make available to Company from time to time.
`
`1.8 “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, semiconductor
`chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and
`any and all other proprietary rights, as well as, any and all applications, renewals, extensions, restorations and re-instatements thereof, now
`or hereafter in force and effect worldwide.
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`1.9 “ODM” means an original device manufacturer that manufactures Motorola-branded Devices for Motorola.
`
`1.10 “Service” means the wireless service owned and/or operated by Telecom Operator that allows End Users using a Device to access the
`Internet.
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`1.11 “Telecom Operator” a company that provides wireless service that allows End Users using a Device to access the Internet approved
`by Google to distribute Google Applications to End Users in the Territories.
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`1.12 “Territories” means the country or countries in which distribution of Google Applications is permitted under the conditions listed in
`Exhibit A (together with such other countries and conditions as may be added to Exhibit A from time to time upon the mutual written
`agreement of the parties). Distribution of Google Applications outside of the Territories is prohibited.
`
`1.13 “Trademarks” means the trade names, trademarks, service marks, logos, domain names and other distinctive brand features of each
`party as owned by such party from time to time.
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`2. Google Applications.
`2.1 License Grant.
`2.1.1 Applications. Subject to the terms and conditions of this Agreement (including Section 2.7), Google hereby grants to Company a
`nontransferable, nonsublicensable (except Company may sublicense to affiliates, resellers, distributors, ODMs and Telecom Operators
`with whom Company has a written agreement and as set forth in 2.1.3 below), nonexclusive license during the Term to: (a) use,
`demonstrate, display and reproduce each of (and/or any total number of) the Google Applications to the extent necessary to exercise the
`right granted in (b) through (c), (b) distribute each of (and/or any total number of) the Google Applications for no cost directly to End
`Users only in the Territories via the distribution methods specified in Exhibit A, and (c) distribute each of (and/or any total number of) the
`Google Applications for no cost [***]
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`Google Applications in each individual Territory shall be [***]
`pursuant to the applicable Launch Addendum(s), which shall be substantially similar to the example
`Launch Addendum set forth in Attachment 1 to Exhibit A. Additionally, where Google specifies a specific version of a Google
`Application to be distributed in a certain Territory on the Launch Addendum, Company shall distribute only such version within such
`Territory (as such versions are changed from time to time at Google’s sole discretion upon notice to Motorola and Motorola shall have
`reasonable time to adjust to such changes, as set forth in Section 2.3.1. It is the express intent of the parties that Company be enabled to
`include Google Applications on its Devices and that the parties will work in good faith and in a timely manner with each other with
`respect to approving the implementation of Google Application on Company’s Devices.
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`. The pre-loading of a Device with
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`2.1.2 Documentation License and Documentation Dérivatives. Subject to the terms and conditions of this Agreement Google grants to
`Motorola a nontransferable, non-sublicensable (except as provided for herein), nonexclusive license to reproduce, and create derivative
`works of: (a) Google documentation for the Google Applications, which may be provided by Google to Motorola for insertion into
`Motorola written or electronic manuals or documentation related to the operation of a Device; and (b) Google Applications solely in the
`form of screen shots of Google Applications on Devices for insertion into Motorola written manuals or documentation related to the
`operation of Devices. Motorola shall provide Google with a copy of such Motorola documentation and screen shots, for Google’s review
`and written consent, which shall not be unreasonably delayed or withheld. Google shall use commercially reasonable efforts in providing
`comments and/or consent back to Motorola on such documentations within fifteen (15) business days of their receipt. For clarity and the
`avoidance of doubt, once Motorola obtains Google’s consent with regard to any particular Motorola documentation or screen shot,
`Motorola shall
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`Page 2 of 16
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`https://www.sec.gov/Archives/edgar/containers/fix380/1495569/000119312510271362/dex1012.htm
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`3/21
`
`Hafeman, Exhibit 2020
`Google LLC et al. v. Hafeman
`IPR2022-01190
`
`

`

`10/27/22, 4:40 PM
`Confidential
`(Revd. 3/09)
`
`Mobile Application Distribution Agreement between Motorola, Inc. and Google Inc.
`
`https://www.sec.gov/Archives/edgar/containers/fix380/1495569/000119312510271362/dex1012.htm
`
`4/21
`
`Hafeman, Exhibit 2020
`Google LLC et al. v. Hafeman
`IPR2022-01190
`
`

`

`10/27/22, 4:40 PM
`
`Mobile Application Distribution Agreement between Motorola, Inc. and Google Inc.
`
`Portions of this document have been redacted pursuant to a Request for Confidential Treatment filed with the Securities and Exchange
`Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended. Redacted portions are indicated with the
`notation “[***]”.
`
`
`not need to obtain Google’s consent for such particular Motorola documentation or screen shot for future uses, and Motorola may modify
`such approved documentation or screen shot for purposes of internationalization or reformatting so long as any such modifications adhere
`to the Branding Guidelines (as such Branding Guidelines are changed from time to time at Google’s sole discretion upon notice to
`Motorola and Motorola shall have reasonable time to adjust to such changes); provided, however, that Motorola shall make any such
`modified documentation or screen shot available to Google for review upon Google’s written request.
`
`2.1.4 Sublicensing. Notwithstanding anything herein to the contrary, (i) Motorola may sublicense the licenses granted to it by Google
`pursuant to Section 2.1.1 to its ODMs for manufacturing; (ii) Motorola may sublicense the documentation licenses granted to it by Google
`pursuant to Section 2.1.2 to its vendors and suppliers, provided that such ODMs, vendors or suppliers, as the case may be, are deemed to
`be and subject to the same requirements as described in Section 2.1.5 with respect to Contractors.
`
`2.1.5 Delegation to Contractors. Except as otherwise specifically set forth in this Agreement, each party (a “Delegating Party”) may
`delegate the exercise and/or performance of all or a portion of its rights and/or obligations set forth in this Agreement to its Affiliates,
`contractors, and/or ODMs (each, a “Contractor”), provided that such Contractors are each bound in writing to an agreement with the
`Delegating Party where each such agreement is at least as protective of the other party (the “Non-Delegating Party”) as this Agreement
`(however, the parties acknowledge and agree that, except with regard to the Non-Delegating Party’s Confidential Information, such
`agreement may not be exactly as protective with regard to each individual aspect of this Agreement). Each Contractor may delegate the
`exercise and/or performance of all or a portion of its rights and/or obligations set forth in this Agreement to subcontractors, provided that
`such subcontractors are each bound in writing to an agreement with the Delegating Party or the applicable Contractor where each such
`agreement is at least as protective of the Non-Delegating Party as this Agreement (however, the parties acknowledge and agree that, except
`with regard to the Non-Delegating Party’s Confidential Information, such agreement may not be exactly as protective with regard to each
`individual aspect of this Agreement). For clarity, it is understood that any Delegating Party or any Contractor, as applicable, need not
`mention the Non-Delegating Party by name in any such written agreement. The Delegating Party shall indemnify the Non-Delegating
`Party from and against any loss, damage, liability, fees, cost and/or expense incurred by the Non-Delegating Party arising out of any
`delegation permitted under this Section.
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`2.2 License Grant Restrictions. Company shall not, and shall not allow any third party to: (a) disassemble, de-compile or otherwise
`reverse engineer the Google Applications or otherwise attempt to learn the source code or algorithms underlying the Google Applications;
`(b) create derivative works from or based on the Google Applications; (c) except as expressly set forth in this Agreement, provide, sell,
`license, distribute, lease, lend, or disclose the Google Applications to any third party; (d) use the Google Applications for timeshare,
`service bureau, or other unauthorized purposes; (e) exceed the scope of any license granted to Company hereunder; or (f) ship, divert,
`transship, transfer, export or re-export the Google Applications, or any component thereof, into any country or use it in any manner
`prohibited by any export control laws, restrictions, or regulations administered by the U.S. Commerce Department’s Bureau of Export
`Administration, the U.S. Department of Treasury’s Office of Foreign Assets Control or any other applicable government agency.
`
`2.3 Delivery.
`2.3.1 Applications. Upon general availability to any third party, Google shall deliver the Google Applications to Company. For the sake of
`clarity, the parties acknowledge and agree that Google has no obligation to develop or deliver any Google Application, and any such
`development is at Google’s sole discretion. If Company receives an updated version of a Google Application more than 30 days before
`submitting a Device to a Telecom Operator for testing, Company shall commence distribution of updated versions of Google Applications
`to such Telecom Operator within 30 days of receipt from Google. If Company receives an updated version of a Google Application, less
`than 30 days before submitting a Device to a Telecom Operator for testing but prior to commercial distribution of such Device, Company
`will use commercially reasonable efforts to distribute the updated version of a Google Application to the Telecom Operator. If Company
`cannot, after using commercially reasonable efforts, distribute the updated version of a Google Application to the Telecom Operator, then
`Company will cooperate with Google pursuant to Section 4.5 to update the Google Application by over-the air updates.
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`2.4 Form of Distribution Offering. (a) During the Term, upon Google’s approval as described in Section 4.3, Company shall make the
`Google Applications available to End Users on the Device as described in this Agreement. The form of any such offering shall be as set
`forth in this Agreement, and shall adhere to the Google Mobile Branding Guidelines. Without limiting the foregoing sentence, except for
`End Users as expressly set forth in this Agreement, Company shall not offer or distribute the Google Applications to any third party
`(except as set forth in Section 2.1). (b) Company (or any third party) shall not: (i) serve or otherwise place any advertisements during the
`launch process of the Google Applications; (ii) offer, download or install, or allow any third party to offer, download or install, any
`additional products during the launch process of the Google Applications; or (iii) preload, install or launch any Google Application (or
`otherwise act or fail to act) such that an End User is denied the opportunity to review and accept (or reject) the relevant Google terms of
`service.
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`5/21
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`Hafeman, Exhibit 2020
`Google LLC et al. v. Hafeman
`IPR2022-01190
`
`

`

`10/27/22, 4:40 PM
`Confidential
`(Revd. 3/09)
`
`Mobile Application Distribution Agreement between Motorola, Inc. and Google Inc.
`
`https://www.sec.gov/Archives/edgar/containers/fix380/1495569/000119312510271362/dex1012.htm
`
`6/21
`
`Hafeman, Exhibit 2020
`Google LLC et al. v. Hafeman
`IPR2022-01190
`
`

`

`10/27/22, 4:40 PM
`
`Mobile Application Distribution Agreement between Motorola, Inc. and Google Inc.
`
`Portions of this document have been redacted pursuant to a Request for Confidential Treatment filed with the Securities and Exchange
`Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended. Redacted portions are indicated with the
`notation “[***]”.
`
`
`2.5 Accurate Reproduction. Company agrees that in connection with its exercise of the right granted in Section 2.1 of this Agreement, it
`will accurately reproduce the Google Applications (including any legal notices and marks contained therein) and will not insert into the
`Google Applications any viruses, worms, date bombs, time bombs, or other code that is specifically designed to cause the Google
`Applications to cease operating, or to damage, interrupt, allow access to or interfere with any Google Applications or End User data.
`
`2.6 Open Devices. The parties will create an open environment for the Devices by making all Android applications and Android
`Application Programming Interfaces available and open on the Devices and will take no action to limit or restrict the Android platform.
`
`2.7 Authorization to Distribute Google Applications on the Devices Based Upon Android Compatibility Testing The license to
`distribute Google Applications in Section 2.1 is contingent upon Motorola certifying that the Device passes the Android Compatibility
`Test Suite and conforms to the Android Compatibility Definition. The Android Compatibility Test Suite (the “CTS”) as defined below may
`change from time to time at Google’s sole discretion, however the parties agree that once a Device is approved for Launch pursuant to this
`Agreement (including, among other things, by virtue of having passed the then-current version of the CTS applicable to the version of
`Android loaded on the Device) then such Google-approved Device shall not be required to pass future versions of the CTS in order to
`continue to be distributed in the Google-approved Territories: a) Any additional tests or changes to CTS shall not apply to any Device(s)
`that passed the CTS any time prior to the implementation of any changes to the CTS have already received terminal acceptance by both
`parties. The final software build of Devices must pass the Compatibility Test Suite prior to Launch. For purposes of this Agreement, the
`CTS shall only apply to the functionality of Android and related APIs, and while CTS may require a Device to include certain
`functionality in order to pass (such as the ability to send and receive email) a Device will be able to pass CTS without including for
`distribution of any specific applications, including but not limited to Google Applications (such as a particular email application).
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`2.8 Privacy. To the extent that the Google Application stores, tracks or transmits user-identifiable information the Parties agree to the
`following:
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`2.8.1 Consumer Privacy Rights. The parties will post their privacy rights policies in an easily consumer-findable location and note both
`the existence of such policies and location in their End User License Agreement or another mutually agreed to location.
`
`2.9 Legacy Sunset. To the extent that Google wishes to discontinue or make inoperable any Google Application previously provided
`hereunder, (“Discontinued Software”), Google shall provide Motorola with written notice of such Discontinued Software and shall
`support such Discontinued Software for [***] from the date such notification was received by Motorola; provided that Google
`makes such support for Discontinued Software generally available to third parties and further provided, however, that Google may support
`such Discontinued Software for a shorter period if the decision to discontinue or make inoperable such Software arises from applicable
`law or other factors outside of Google’s control. The parties will discuss in good faith the timing for the discontinuation of any distribution
`of Google Applications that are licensed pursuant to this Agreement.
`
`2.10 Other Agreements. This Agreement will supersede any agreements between the parties or any of their respective affiliates
`((including, but not limited to (a) the Master Framework Agreement, dated March 13, 2007, by and between Motorola, Inc. and Google
`Inc. and (b) the Directed Traffic Distribution Agreement, dated December 28, 2005 (“Directed Traffic Agreement”), by and between
`Motorola, Inc. and Google Inc.) regarding the Google Applications provided by Google that are distributed on Devices that run on
`Android, but will have no affect on any other agreements between the parties regarding other devices or other Google services or
`applications. Notwithstanding the foregoing, if and when the Directed Traffic Agreement is amended by the parties (or the parties agree to
`a new agreement) [***]
`
`shall apply to the
`Devices distributed with the Google Applications licensed hereunder contingent upon the parties’ compliance with the terms of the
`Directed Traffic Agreement or other agreement as applicable.
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`3. Device Distribution. Company agrees that it will be solely responsible for the distribution of the Devices and managing its inventory.
`
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`Page 4 of 16
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`Confidential
`(Revd. 3/09)
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`https://www.sec.gov/Archives/edgar/containers/fix380/1495569/000119312510271362/dex1012.htm
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`7/21
`
`Hafeman, Exhibit 2020
`Google LLC et al. v. Hafeman
`IPR2022-01190
`
`

`

`10/27/22, 4:40 PM
`
`Mobile Application Distribution Agreement between Motorola, Inc. and Google Inc.
`
`Portions of this document have been redacted pursuant to a Request for Confidential Treatment filed with the Securities and Exchange
`Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended. Redacted portions are indicated with the
`notation “[***]”.
`
`
`4. General.
`4.1 Payments.
`4.1.1 Except as set forth in Section 2.10 (Other Agreements), Company and Google shall each retain any and all revenue generated from
`provision of their respective products or services. For the sake of clarity, except as expressly set forth in this Agreement, neither party shall
`be required to account to the other or otherwise make any payment to the other regarding the Google Applications, Google products or
`services, the Devices or any revenue generated therefrom.
`
`4.2 Reports. The parties shall provide the reports detailed in Exhibit B.
`
`4.3 Google Approval and Launch. The distribution of each of (and/or any total number of) the Google Applications shall be subject to
`Google’s prior written approval (not to be unreasonably withheld or delayed) to ensure adherence to the terms and conditions of this
`Agreement, including but not limited to the Google Mobile Branding Guidelines (as such Google Mobile Branding Guidelines are changed
`from time to time at Google’s sole discretion and Motorola shall have reasonable time to adjust to such changes). [***]
`
`Upon receipt of each such Google
`approval, Company shall promptly begin distribution and implementation in accordance with this Agreement (each, “Launch” or
`“Launch Date”). Company will provide written confirmation to Google of Launch promptly following the launch of any Device in each
`Territory. For the avoidance of doubt, each new Territory, each new Device, and each new Telecom Operator in each Territory needs to be
`approved by Google prior to Launch.
`
`4.4 Implementation Requirements. The parties shall provide the materials and information listed in Exhibit C hereto. Additionally,
`Company shall provide any and all other information, equipment and/or assistance necessary to allow Google to deliver the Google
`Applications and make the Google Applications (including over-the-air updates thereto) available on the Service and the Devices.
`
`4.5 Over-the-Air Updates.
`4.5.1 Google may auto-update Google Applications over-the-air at Google’s reasonable discretion in accordance with the terms set forth in
`this Section 4.5.1. The parties shall work together in good faith to deliver the most up to date Google Applications on the Devices. The
`parties acknowledge that it is unreasonable to make any update to the Google Applications that causes a material malfunction in the
`Google Applications, the Devices, or the Telecom Operator’s network. Company shall not prevent such over-the-air auto-updates. Google
`acknowledges that in the event Company sells Devices to a Telecom Operator, such Telecom Operator may impose restrictions regarding
`over-the-air updates of applications, including Google Applications. Company shall, in good faith, use commercially reasonable efforts to
`ensure that a Telecom Operator will not preclude over-the-air updates to Google Applications.
`
`4.6 Site Pages. Company shall not redirect an End User away from, block access to, frame, or modify or change the look or feel of any
`web page or web site accessed via a Google Application, or place anything on or near any web site page that in any way implies that
`Google is responsible for the contents of such page.
`
`4.7 Data Collection and Reporting. Each party’s applicable privacy and security policies shall apply with respect to the user information
`collected by it. The parties will provide each other reasonable aggregate information about usage of the Devices during the Term, in order
`to help each party improve End User’s experience with the Device, consistent with each party’s privacy policies. Such information will not
`involve any personal information.
`
`4.8 Mobile Service Operator Customer Restrictions. The parties acknowledge and agree that the placement and distribution obligations
`contained in Section 2.1 are subject to restrictions placed upon Company by its direct mobile service operator customers. However,
`pursuant to Section 2.1, if a Google Application is on a Device, then any such placement and distribution, including the appearance of
`Google Applications, shall be subject to Google’s prior written approval as set forth herein, and shall adhere to the terms and conditions of
`this Agreement including but not limited to the Google Mobile Branding Guidelines.
`
`4.9 No Connectivity Notice. Where an End User launches a Device’s web browser or launches a Google Application and there is no data
`connectivity available, Company will ensure that such End User is presented with a message indicating lack of data connectivity.
`
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`Page 5 of 16
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`Confidential
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`https://www.sec.gov/Archives/edgar/containers/fix380/1495569/000119312510271362/dex1012.htm
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`8/21
`
`Hafeman, Exhibit 2020
`Google LLC et al. v. Hafeman
`IPR2022-01190
`
`

`

`10/27/22, 4:40 PM
`
`Mobile Application Distribution Agreement between Motorola, Inc. and Google Inc.
`
`Portions of this document have been redacted pursuant to a Request for Confidential Treatment filed with the Securities and Exchange
`Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended. Redacted portions are indicated with the
`notation “[***]”.
`
`
`4.10 Points of Contact. Company and Google shall each appoint a partner manager (the “Partner Manager”) who shall be the point of
`contact for all issues concerning this Agreement.
`
`5. Term and Termination.
`5.1 Term. The term of this Agreement will be the “Term” set forth on the cover page of this Agreement, unless earlier terminated as
`provided in this Agreement.
`
`5.2 Termination. (a) Either party may suspend performance or terminate this Agreement if (i) the other party is in material breach of the
`Agreement and fails to cure that breach within thirty (30) days after written notice; or (ii) the other party ceases its business operations or
`becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days. (b) Notwithstanding the
`foregoing, either party may terminate this Agreement immediately upon written notice upon a breach of Sections 2.1 to 2.2 (License Grant
`and Restrictions), Section 2.4(b)(iii) (opportunity to review and accept Google terms of service), Section 2.5 (Accurate Reproduction),
`Section 6.1 (Confidentiality) or Section 7 (Trademarks), or as set forth in Section 12.4 (Change of Control). (c) Notwithstanding anything
`to the contrary, in the event that the government or controlling body of any country or territory in which the Google Applications are
`distributed or made available imposes any law, restriction or regulation that makes it illegal to distribute or make available the Google
`Applications, or any portion thereof, into such country or territory, or if any such law, restriction or regulation places a substantial burden
`on Google, where substantial is measured with respect to Google’s economic benefit relating to the promulgation of the Android platform
`and/or the distribution of Google Applications, as determined by Google in its commercially reasonable and good faith judgment (such
`substantial burden, a “Substantial Burden”) then Google shall have the right to suspend the distribution and/or availability of such
`Google Applications in such country or territory until such time as such law, restriction or regulation is repealed or nullified or modified
`such that there it is no longer illegal or a Substantial Burden, as applicable, for the Google Applications to be distributed or made available
`in such country or territory (“Special Suspension”).
`
`5.3 Effect of Termination. Upon expiration or termination of this Agreement: (a) except as otherwise set forth herein, all rights and
`licenses granted hereunder shall immediately cease (provided that all rights granted to End Users shall not be terminated); (b) except as set
`forth herein, including but not limited to Section 5.4 below, Company will immediately stop reproducing, offering or distributing the
`Google Applications (except as set forth in Section 5.4 below); and (c) each Party shall return or destroy (and a duly appointed officer
`shall certify to such destruction) all copies of the Google Applications (in the case of Company) and any other Confidential Information in
`its possession which it is aware and to which it has access and is reasonably able to destroy or delete (which, for the avoidance of doubt,
`does not include archived back up copies which are not in live working use and which are no longer easily accessible or retrievable),
`including from all hard disks and memory. Neither party shall be liable to the other for any damages resulting solely from termination of
`this Agreement as permitted for under this Agreement.
`
`5.4 Sell-Off Right. Notwithstanding the provisions of Section 5.3 above, for a period of [***] following expiration or
`termination of this Agreement (“Sell-Off Period”), Company shall have the right to distribute in accordance with the terms and conditions
`of this Agreement all Google Application(s) actually preloaded on the Device inventory as of the date of expiration or termination of this
`Agreement (“Inventory”), and such party shall have the right to use the Google Trademarks in accordance with this Agreement in
`connection with such Inventory (“Sell-Off Right”); provided, however, that Company shall provide no less than thirty (30) days prior
`written notification to Google of its intent to exercise the Sell-Off Right (“Sell-Off Right Notice”). Notwithstanding anything to the
`contrary, the Sell-Off Right shall not apply in the event that either (a) Company does not provide the Sell-Off Right Notice as set forth
`above in this Section 5.4, or (b) this Agreement (or any right granted hereunder) is suspended or terminated by Google pursuant to
`Section