Document Fragment View

Matching Fragments

11.6. Google Ireland as per the service agreement shares Confidential information in the following manner:
CONFIDENTIAL INFORMATION.
Access and Use of Confidential Information. During the course of performance of this Agreement; Google Ireland will disclose certain Confidential Information to Google India solely to permit Google India to perform its obligations under this Agreement. Except as otherwise provided in this Agreement, Google India agrees that such Confidential Information shall be kept secret by Google India during the term of this Agreement and after the expiration hereof Google India shall retrain from using or exploiting any and all Confidential Information for any purposes or activities other than those contemplated in this Agreement.

25. It was further contended that Google AdWord Program is a "self-

serve"onlineadvertising service provided by Google (Google Inc./GIL) for IT(IT)ANos.1190, 1295/Bang/2014, 2845, 949, 950/Bang/2017, IT(TP)A Nos.374, 466/Bang/2013, 68, 205, 1299/Bang/2015, IT(TP)A Nos. 69, 191/Bang/2014, 559, 881/Bang/2016, IT(TP)A No.387/Bang/2017 businesseswanting to display advertisement in relation to their websites and products on Google online property or a third party online property. The advertisers are required to upload his/her billing information, without which he/she will not be able to conclude the account of creation process and his/her advertisement would not be displayed. Once the advertiser chooses India as his/her location and INR as his billing currency, he gets into a contract with the appellant, subject to him agreeing terms and conditions. The advertisers that use Google AdWords Program for advertising on Google Search Engine can create relevant advertisement by selecting anappropriate title and text to describe its business and the forms of text of the advertisement. The advertiser also selects keywords or phrases that may match with a "search query" (relevant to the business of such advertiser) that people input while using Google Search Engine. The keywords are used to trigger an advertisement that is relevant to the search query of the user. Multiple advertisers can choose the same Keyword. The keywords or phrases are neithersold or allowed to be used exclusively by anyone advertiser.

27. It was further contended that the advertiser sets a daily budget, as per his own discretion, using the web interface of Google AdWords program, which, when achieved the advertisement of the advertiser stops displaying. The appellant has no role in negotiating such budget except for providing customer support services to the advertiser in order to familiarize the advertiser of various features of the Google AdWord Program.

The Google AdWord Program is an independent product offered online to any one who wants to advertise its business. The pre-conditions for the proper use of Google AdWords Program are the requirement of having an e-mail account, a website for one's business, who wishes to advertise and billing details. There are no other conditions for an advertiser to be able to use Google AdWords Program. Once the advertisement is created by the advertiser using the web interface of Google AdWords Program, the same is uploaded and IT(IT)ANos.1190, 1295/Bang/2014, 2845, 949, 950/Bang/2017, IT(TP)A Nos.374, 466/Bang/2013, 68, 205, 1299/Bang/2015, IT(TP)A Nos. 69, 191/Bang/2014, 559, 881/Bang/2016, IT(TP)A No.387/Bang/2017 stored on data servers outside India and advertisement uploaded by an Indian advertiser located in India or elsewhere may be reviewed by the ITES division of the Appellant, if routed to such division of the Appellant by the automated system, and the Appellant's ITES division has no control over which advertisements are routed to it for review. The review process is only for ensuring that the advertisement does not violate editorial guidelines of Google and local Government regulations of the jurisdiction where advertisement needs to be displayed.

40. The learned Standing Counsel further contended that from the reading of all clauses of the service agreement in conjunction with Google AdWord Program Distribution Agreement, it is clear beyond doubt that Google India has been provided with thelicence to use IP for which Google India has agreed to make certain payments to Google Ireland and same is in the nature of royalty, as per provisions of section 9(1)(vi) of the Act read with DTAA. It was further contended that Google Ireland is allowing Google India to access all intellectual properties and confidential information and the same is being used by the Appellant (Google India) for the activities related to distribution agreement. The obligation/distribution of the services agreement would make it clear that both the documents cannot be separated from each other and are to be read together. Therefore, for the purpose of marketing and distribution activities, Google India is granted the right to use the valuable business asset of Google Ireland, which includes intellectual Property in the products and services offered by GIL.