Google Services Agreement [Amendment No. 1] - Focus Interactive Inc. and Google Inc.
AMENDMENT NUMBER ONE TO GOOGLE
SERVICES AGREEMENT
This Amendment Number One to the Google Services Agreement ("AMENDMENT ONE") is
entered into as of July 26, 2004 (the "AMENDMENT ONE EFFECTIVE DATE") by and
between Focus Interactive, Inc. a Delaware corporation, with its principal place
of business at One Bridge Street, Suite 42, Irvington, NY 10533 (f/k/a The
Excite Network, Inc. "Customer"), and Google Inc., a Delaware corporation, with
its principal place of business at 1600 Amphitheatre Parkway, Mountain View,
California 94043 and the successor by merger to Google Technology Inc.
("Google").
A. WHEREAS, Customer and Google entered into that certain Google Services
Agreement effective May 23, 2003 (the "GSA"), together with an Order Form of
even date therewith ("ORDER FORM"), as amended (collectively, the "ORIGINAL
AGREEMENT") pursuant to which Google provides Customer with certain Services (as
defined therein); and
B. WHEREAS, Google has [*] a [*] in the [*] that is [*] that [*]. These [*]
include but are not limited to [*].
C. WHEREAS, Google does not wish to [*], and has therefore developed [*]
(defined below) to [*] in connection therewith.
D. WHEREAS, Google believes that these [*] are necessary to [*] in a manner that
is [*]; and to [*], which are [*].
E. WHEREAS, Customer and Google now desire to amend the Original Agreement
through this Amendment One with respect to certain terms, but in all other
respects the Original Agreement shall continue in full force and effect. The
Original Agreement and this Amendment One are collectively referred to herein as
the "AGREEMENT."
NOW, THEREFORE, in consideration of the mutual promises contained herein,
the parties agree as follows.
1. Amendments. The Original Agreement will be modified as follows:
1.1. Delete the second sentence of Section 1.3.3 in its entirety and
replace with the following:
"Furthermore, Customer agrees to comply with the terms and
conditions of Exhibit H attached hereto, as such Exhibit may be
updated as permitted therein (the "Client Application Guidelines").
1.2. Delete clause (iv) of the second sentence of Section 1.3.6.1 of the
Agreement and the third sentence of Section 1.3.6.1 of the Agreement in their
entirety and replace with the following:
"(iv) otherwise comply with the terms and conditions of this
Agreement, including without limitation the Guidelines and the
Client Application Guidelines."
1.3. Delete clause (iv) of the first sentence of Section 1.3.6.2 of the
Agreement in its entirety and replace with the following:
"(iv) [*]."
1.4. Add the following terms and conditions as a new Section entitled
Addendum A:
"[*]. Notwithstanding anything to the contrary contained in this
Agreement, Customer agrees that it shall: (i) [*]; and (ii) [*]
[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
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[*] In the event that Google receives a material number of
complaints from persons who reasonably claim to have interacted with
[*] which reasonably claim that [*] ("COMPLAINTS"), and Google
reasonably believes from such Complaints that [*], then Google may
provide Customer with written notice of such reasonable belief (a
"COMPLAINT NOTICE"). The Complaint Notice shall include a [*] as
described above and [*] which relate to the [*]. The parties agree
that Complaints that are the subject of a Google Complaint Notice
[*]; provided, however, Google may [*] in providing Customer with a
Complaint Notice (e.g., Google shall [*]). Immediately upon
Customer's receipt of the Complaint Notice, the parties shall [*]
following Customer's receipt of the Complaint Notice (the "[*]") to
[*]. Google shall provide such information and other assistance [*]
in order to [*] such Complaints during the [*]). Immediately upon
expiration of the [*], if Google has [*], then Customer shall have a
period of [*] shall include, without limitation, any of the
following: (A) [*], (B) [*], or (C) [*]. Within [*] days of the [*],
Customer shall provide Google with written notice that [*]. In the
event that Customer notifies Google that [*] then, within [*],
Google may provide Customer with written notice that [*]. A [*]
shall be deemed effective only if it includes the [*] (e.g., [*]
which demonstrate that the [*]). If Google does not provide a [*]
during such [*] period, the Complaints shall be [*]. If Google
provides Customer with a [*], then Customer shall have a period of
[*] (the "[*]") following receipt of the [*] to demonstrate [*] that
there [*]. In the event that Google [*] by the [*] (e.g., [*] which
demonstrate that the [*]), then Customer shall [*].
Notwithstanding anything in the Agreement to the contrary, Customer
represents that [*].
[*]: Notwithstanding anything to the contrary contained, Customer
agrees to [*], including [*], from (1) [*], (2) [*], and (3) [*]
(collectively, the "[*]") as soon as practicable following the
Amendment One Effective Date, but in no event later than the last
day of the Compliance Period (as defined below).
Commencing as of the Amendment One Effective Date, Customer shall
make good faith efforts to determine whether Customer can or will
elect to bring the [*] into compliance with the Client Application
Guidelines and provide Google with written notice to such effect
("[*] DECISION NOTICE") as soon as practicable, but in any event no
later than [*] from the Amendment One Effective Date (the "[*]
NOTIFICATION PERIOD"). During the [*] Notification Period, Customer
shall be permitted to use Google Services in accordance with the
terms of the Original Agreement.
If in the [*] Decision Notice, Customer elects to bring all [*] into
compliance with the Client Application Guidelines and continue
distributing [*], then Customer shall make good faith efforts to
bring such [*] into compliance with such Client Application
Guidelines as soon as practicable, but in no event later than the
date that is [*] from the Amendment One Effective Date ("COMPLIANCE
PERIOD"); provided, however, that: (i) commencing at the end of the
Compliance Period, Customer shall ensure that only [*] that are in
compliance with the Client Application Guidelines with respect to
[*] shall be allowed to [*], (ii) prior to the end of the Compliance
Period, Customer shall provide Google with written notice of the
[*], (iii) prior to the end of the Compliance Period, Customer shall
no longer permit [*], (iv) Customer shall continue to have the right
to access and use the Services, including the use of [*], as
described in the Agreement only through the Compliance Period; and
(v) Google's exclusivity with respect to providing Sponsored Links
pursuant to Section 1.3.7 [*] shall remain intact. Customer shall
[*] by the end of the Compliance Period. Notwithstanding anything to
the contrary contained herein, if at the end of the Compliance
Period Customer has failed to bring all [*] into compliance with the
Client Application Guidelines, Google
[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
<PAGE>
shall provide Customer with written notice to such effect ("[*]
FAILURE TO COMPLY NOTICE") and Customer shall cease all use of the
Google Services in connection with such [*] as soon as practicable,
but in no event later than [*] from the end of the Compliance
Period.
If in the [*] Decision Notice, Customer elects to not bring the [*]
into compliance with the Client Application Guidelines, Customer
shall (x) [*]; (y) [*], in both cases as soon as practicable, but in
no event later than the end of the Compliance Period; and (z)
Google's exclusivity with respect to [*] shall terminate [*]. For
the avoidance of doubt and by way of example, Google's exclusivity
will terminate with respect to the [*] as of the date that Customer
ceases to use [*] and will terminate with respect to a [*] as of the
date that Customer ceases to use all [*]."
2. Services Term. The section of the Order Form entitled "Initial Services
Term" is hereby deleted and replaced with the following:
"INITIAL SERVICES TERM. From the GSA Effective Date to December 31, 2007"
3. Change to Order Form Terms and Conditions. The parties agree that the
second sentence of Section 2 (Services Term) of the GSA Order Form Terms
and Conditions is hereby deleted.
4. Miscellaneous. In the event of any conflict between the terms of the
Original Agreement, and this Amendment One, this Amendment One shall
control. This Amendment One may be executed in counterparts, including
facsimile counterparts. Except as modified here, the Original Agreement
will remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment One by persons duly
authorized as of the date first written above.
Customer: FOCUS INTERACTIVE, INC. GOOGLE INC.
By: /s/ Brett Robertson By: /s/ Joan Braddi
--------------------------- ----------------------
Name: Brett Robertson Name: Joan Braddi
Title: General Counsel Title: VP Search Services
Date: Date:
Fax: Fax: [*]
Ask Jeeves, Inc. hereby guarantees Customer's performance under the Agreement,
including this Amendment One, and will cause its affiliates to comply with the
terms of the Agreement applicable to Customer, including, without limitation,
the provisions of Addendum A.
ASK JEEVES, INC.
By: /s/ Brett Robertson
---------------------------
Name: Brett Robertson
Title: General Counsel
Date:
Fax:
[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
<PAGE>
[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
<PAGE>
EXHIBIT H
POLICY GUIDELINES FOR ACCESS OF GOOGLE SERVICES THROUGH CLIENT APPLICATIONS
[*]
[*] Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.