Portal Services Agreement - Inktomi Corp. and Microsoft Corp.
PORTAL SERVICES AGREEMENT
This Portal Services Agreement (this "Agreement") is entered into as of
October 28, 1999 (the "Effective Date"), by and between Inktomi Corporation, a
Delaware corporation with its principal place of business at 4100 E. Third
Avenue, Mail Stop FC2-5, Foster City, California, 94404 ("Inktomi") and
Microsoft Corporation, a Washington corporation, with its principal place of
business at One Microsoft Way, Redmond, Washington, 98052 ("Customer").
RECITALS
A. Inktomi utilizes its technology to provide a variety of services
including without limitation those described on exhibits to this Agreement.
B. Customer desires to retain Inktomi to provide certain of Inktomi's
services to Customer in accordance with the terms and conditions of this
Agreement.
C. Customer has previously entered into the following agreements with
Inktomi (i) a Software Development Agreement dated July 27, 1997; (ii) an
Information Services Agreement dated July 27, 1997; (iii) a Software Hosting
Agreement dated July 27, 1997; and (iv) a License Agreement dated May 12, 1997.
The parties now desire that such agreements be terminated as of the Effective
Date of this Agreement and that this Agreement supercede and supplant such
agreements.
NOW THEREFORE, Inktomi and Customer agree as follows:
AGREEMENT
In consideration of the foregoing and the mutual promises contained herein
the parties agree as follows:
1. Definitions. For purposes of this Agreement, in addition to the other
terms defined elsewhere in this Agreement, the following terms shall have the
meanings set forth below:
1.1. "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, and any and all applications, renewals, extensions and
restorations thereof, now or hereafter in force and effect worldwide.
1.2. "Inktomi Technology" means the computer software, technology
and/or documentation which is supplied to Customer by Inktomi or used by Inktomi
in connection with delivery of a Service, including without limitation all
source code and object code therefor and all algorithms, ideas and Intellectual
Property Rights therein, including upgrades, updates, successor versions,
replacement versions thereof. The definition of "Inktomi Technology" shall
include any supplemented definition set forth in an Exhibit for a Service.
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1.3. "Services" means the various services to be provided by Inktomi
for Customer under this Agreement, as more fully described on the Exhibits
attached to this Agreement.
1.4. "Site" means a Web site and/or sites established and maintained
by Customer or other authorized entity (to the extent permitted) through which
end-users may access a Service as set forth in the Exhibit for such Service. For
purposes of this Agreement, "Site" shall include MSN, other Microsoft Web sites,
and MSN-branded, Microsoft-branded, co-branded and private-labeled Web sites,
whether hosted or operated by Customer or third parties or subsidiaries,
affiliates, or joint ventures or partnerships in which Customer participates,
and any subsequent versions or upgrades of the foregoing, provided, however,
that except as set forth in Section 2.1.1. herein no such Site shall resell or
distribute such Service as standalone OEM services to third parties in
competition to Inktomi.
1.5. "Term" shall have the meaning indicated in Section 9.
1.6. "Web" means the World Wide Web, containing, inter alia, pages
written in hypertext markup language (HTML) and/or any similar successor
technology.
1.7. "Web page" means a document on the Internet which may be viewed
in its entirety without leaving the applicable distinct URL address.
1.8. "Web site" means a collection of inter-related Web pages.
2. Provision of Services.
2.1. Services. Subject to the terms and conditions of this
Agreement, Inktomi shall provide each Service in accordance with the
functionality specifications, performance criteria specified in the Exhibit and
Schedule applicable to such Service as the same may change from time to time
during the Term of this Agreement with the mutual consent of Customer and
Inktomi, and all other terms and conditions contained in this Agreement,
including Exhibits. Inktomi agrees that the Services shall be performed in a
professional manner and shall be of a high grade, nature and quality.
2.1.1. Scope of Rights. Customer shall have the right to use
the Services and the search results generated thereby solely in connection with
the provision of Customer's search engine services throughout the world during
the Term, if and to the extent that it may determine is appropriate, including
without limitation by way of sublicensing any and all rights herein to third
parties. However, with respect to such sublicensing: (i) such sublicensees may
operate Customer co-branded and/or private label sites accessing all or portions
of the Services through Customer servers, provided that any such private labeled
sublicensee sites shall include branding or attribution (such as "powered by MSN
Search") which identifies Customer as the source of the Services (ii) Results
Sets generated by sublicensees will be cumulative (but not double-counted) with
Results Sets generated by Customer for purposes of Section 5; (iii) any
sublicense shall be effective only, during the Term; and (iv) each sublicensee
shall agree to hold all confidential and proprietary information regarding
Inktomi and the Services in confidence, to use all or portions of the Services
only in connection with providing search engine services to end users through
sites operated by such sublicensee, and not to reverse engineer, disassemble or
decompile the object code version of any Inktomi Technology. Except as set forth
above, neither Customer nor its sublicensees shall be restricted in any way with
respect to the access to and use of the Services or customized Customer services
based on the Services. Inktomi's sole remedy,
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and Customer's sole obligation, for any breach by a Customer's sublicensee of
its sublicense rights is termination or suspension of such sublicense.
2.2. Additional Services. Throughout the Term of this Agreement, the
Services and Inktomi Technology and related features, functionality,
performance, support and upgrades provided hereunder will be at least equal to
those Inktomi provides to all other Inktomi customers. In the event Inktomi
develops new Services and Inktomi Technology that it licenses or provides
separately on a premium basis to its search customer base, then Inktomi shall
offer such features and functionality to Customer at most favored customer
pricing as against other Inktomi customers who have entered into agreements with
Inktomi for similar services and with similar contract terms as those described
herein. New Services and Inktomi Technology that are made available to Inktomi
customers on a premium or non-premium basis will be offered to Customer no later
than the same time they are offered to other Inktomi customers. Furthermore,
upon request, and provided that Customer is current with service fees due under
this Agreement, Customer may request customized services to be provided by
Inktomi which are not otherwise contemplated or provided for by this Agreement.
Such customized services shall be mutually agreed upon by the parties and shall
be set forth, in Inktomi's reasonable discretion, on an additional Exhibit to
this Agreement which upon execution, shall become binding between the parties.
Such customized services, if provided pursuant to an additional Exhibit shall be
provided in accordance with the rates, charges, terms and conditions of such
Exhibit and the terms of this Agreement.
2.3. End-User Support. Inktomi, shall provide technical support for
the Services to the extent set forth in Schedule 1 hereto. Except as set forth
in such Schedule, Customer, at its own expense, shall provide all support of the
Site.
2.4. Nonexclusive Services. Customer understands that Inktomi will
provide the Services on a nonexclusive basis. Customer acknowledges that Inktomi
has customized and provided, and will continue to customize and provide, its
software and technology to other parties for use in connection with a variety of
applications, including, without limitation, search engine, e-commerce and
communication applications. Nothing in this Agreement will be deemed to limit or
restrict Inktomi from customizing and providing its software and technology to
other parties for any purpose or in any way affect the rights granted to such
other parties. Further, nothing in this Agreement will be deemed to limit or
restrict Customer's ability to acquire, license, independently develop, or serve
for itself, or have others acquire, license, develop, or serve for Customer,
similar services performing the same or similar functions as the Services
contemplated by this Agreement, or to market and offer such similar services in
addition to the Services contemplated by this Agreement.
2.5 [*]
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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3. Intellectual Property Licenses/Ownership.
3.1. Inktomi Technology. As between Customer and Inktomi, Customer
acknowledges that Inktomi owns all right, title and interest in and to the
Inktomi Technology (except for any software licensed by third parties to
Inktomi), and that Customer shall not acquire any right, title, and interest in
or to the Inktomi Technology, except as expressly set forth in this Agreement.
Customer shall not modify, adapt, translate, prepare derivative works from,
decompile, reverse engineer, disassemble or otherwise attempt to derive source
code from any Inktomi Technology, except and only to the extent that such
activity is otherwise permitted by Inktomi or is expressly permitted by
applicable law notwithstanding this limitation. Customer will not remove,
obscure, or alter Inktomi's copyright notice, trademarks, or other proprietary
rights notices affixed to or contained within any Inktomi software or
documentation.
4. Warranties and Disclaimer. Each party agrees as follows:
4.1. Inktomi Warranties. Inktomi warrants that: (i) it has full
power and authority to enter into this Agreement; and (ii) it has not previously
and will not grant any rights in the Inktomi Technology to any third party that
are impede the rights granted to Customer hereunder; (iii) throughout the Term,
each Service provided for Customer and the Inktomi Technology provided in
connection with each such Service shall be free of material errors and defects
and shall perform in accordance with the performance criteria set forth on the
applicable Exhibit for such Service; and (iv) each Service provided for the
Customer and the Inktomi Technology provided in connection with each Service do
not and will not infringe any copyright, patent, trade secret, or other
proprietary right held by any third party, and Inktomi has no knowledge of any
allegations of any such infringement. INKTOMI MAKES NO OTHER WARRANTY OF ANY
KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT
LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, AND
NONINFRINGEMENT. IN PARTICULAR, INKTOMI MAKES NO WARRANTIES WHATSOEVER REGARDING
THE NATURE OF THE MATERIAL CONTAINED IN ITS SEARCH DATABASES AND TO THE MAXIMUM
EXTENT PERMITTED BY LAW DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR SUCH
MATERIAL.
4.2. Customer Warranties. Customer warrants that: (i) it has full
power and authority to enter into this Agreement; and (ii) it will seek all
necessary governmental approvals required to effectuate this Agreement. CUSTOMER
MAKES NO OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR USE, AND NONINFRINGEMENT.
5. Payments.
5.1. Fees. Customer shall pay Inktomi fees for the Services in
accordance with the Schedule 2 hereto.
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5.2. Records. To the extent applicable for each Service and solely
to the extent each party has obligations to make payments to the other party in
connection with such Service each party shall: (i) maintain all records relevant
to calculating service fees and/or revenues for a Service for a two (2) year
period following the year in which any payments pertaining to such service fees
and/or revenues were due; and (ii) have the right to designate a certified
public accountant (other than on a contingency fee basis) to examine the other
party's records from time to time but no more than once every year, and not
later than one year following the date of the records or payment in question, to
determine the correctness of any payment made under this Agreement. Such
examination shall be conducted at reasonable times during the audited party's
normal business hours and upon at least ten (10) business days' advance notice
and in a manner so as not to unreasonably interfere with the conduct of the
audited party's business. If any such examination indicates that the audited
party has underpaid by more than five percent (5%) of the aggregate payments due
for the period subject to such examination, the audited party shall reimburse
the other party for reasonable costs of such examination.
5.3. Taxes. Customer shall be responsible for all sales taxes, use
taxes, withholding taxes, value added taxes and any other similar taxes imposed
by any federal, state, provincial or local governmental entity on the
transactions contemplated by this Agreement, excluding taxes based upon
Inktomi's net income. When Inktomi has the legal obligation to pay or collect
such taxes, the appropriate amount shall be invoiced to and paid by Customer
unless Customer provides Inktomi with a valid tax exemption certificate
authorized by the appropriate taxing authority.
5.4. Payment. All fees quoted and payments made hereunder shall be
in U.S. Dollars. Within thirty (30) days after the end of each calendar month
with respect to which Customer owes Inktomi any service fees, Inktomi shall
furnish Customer with an invoice. The invoice shall be based upon the fees set
forth in the applicable Schedule(s) to this Agreement during the month then
ended, and shall contain information reasonably sufficient to discern how fees
were computed. Within thirty (30) days of receiving an invoice from Inktomi,
Customer shall pay all amounts due under this Agreement to Inktomi at the
address indicated at the beginning of this Agreement or such other location as
Inktomi designates in writing.
6. Confidentiality.
6.1 The parties hereby agree that all terms and conditions of that
certain Microsoft Corporation Non-Disclosure Agreement between them dated March
18, 1997, shall govern the disclosure of confidential and proprietary
information made under this Agreement. In this connection, the parties hereby
agree that the terms of this Agreement shall be treated as confidential in
accordance with the terms of said Non-Disclosure Agreement.
6.2 Without having first sought and obtained Customer's written
approval (which Customer may withhold in its sole and absolute discretion),
Inktomi shall not, directly or indirectly, (i) trade upon this transaction or
any aspect of Inktomi's relationship with Customer, or (ii) otherwise deprecate
Microsoft technology.
6.3 Neither party will issue any press release or make any public
announcement(s) relating in any way whatsoever to this Agreement or the
relationship established by this Agreement without the express prior written
consent of the other party. However, the parties acknowledge that this
Agreement, or portions thereof, may be required under applicable law to be
disclosed, as part of or an exhibit to a party's required public disclosure
documents. If either party is advised by its legal counsel that such disclosure
is required, it will notify the other
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in writing and the parties will jointly seek confidential treatment of this
Agreement to the maximum extent reasonably possible, in documents approved by
both parties and filed with the applicable governmental or regulatory
authorities.
7. Indemnification.
7.1 By Inktomi. Inktomi shall, at its expense and Customer's
request, defend any third party claim or action brought against Customer, and
Customer's subsidiaries, affiliates, directors, officers, employees, agents and
independent contractors, which, if true, would constitute a breach of any
warranty, representation or covenant made by Inktomi under this Agreement, and
Inktomi will indemnify and hold Customer harmless from and against any costs,
damages and fees reasonably incurred by Customer, including but not limited to
fees of attorneys and other professionals, that are attributable to such claim.
Customer shall: (i) provide Inktomi reasonably prompt notice in writing of any
such claim or action and permit Inktomi, through counsel mutually acceptable to
Customer and Inktomi, to answer and defend such claim or action; and (ii)
provide Inktomi information, assistance and authority, at Inktomi's expense, to
help Inktomi to defend such claim or action. Inktomi will not be responsible for
any settlement made by Customer without Inktomi's written permission, which
permission will not be unreasonably withheld.
7.2 By Customer. Customer shall, at its expense and Inktomi's
request, defend any third party claim or action brought against Inktomi, and
Inktomi's subsidiaries, affiliates, directors, officers, employees, agents and
independent contractors, which, if true, (i) would constitute a breach of any
warranty, representation or covenant made by Customer under this Agreement, (ii)
is based in material part upon modifications to Inktomi Technology made by
Customer but not approved by Inktomi, or (iii) is based in material part upon
Customer's use of the Services but is not covered by Section 4.1 above, and
Customer will indemnify and hold Inktomi harmless from and against any costs,
damages and fees reasonably incurred by Inktomi, including but not limited to
fees of attorneys and other professionals, that are attributable to such claim.
Inktomi shall: (i) provide Customer reasonably prompt notice in writing of any
such claim or action and permit Customer, through counsel mutually acceptable to
Inktomi and Customer, to answer and defend such claim or action; and (ii)
provide Customer information, assistance and authority, at Customer's expense,
to help Customer to defend such claim or action. Customer will not be
responsible for any settlement made by Inktomi without Customer's written
permission, which permission will not be unreasonably withheld.
7.2 Separate Counsel; Reimbursement. An indemnified party shall have
the right to employ separate counsel and participate in the defense of any claim
or action. The indemnifying party shall reimburse the indemnified party upon
demand for any payments made or loss suffered by it at any time after the date
hereof, based upon the judgment of any court of competent jurisdiction or
pursuant to a bona fide compromise or settlement of claims, demands, or actions,
in respect to any damages related to any claim or action under this Section 7.
7.3 Settlement. The indemnifying party may not settle any claim or
action under this Section 7 without first obtaining the indemnified party's
written permission, which permission will not be unreasonably withheld. In the
event Customer and Inktomi agree to settle a claim or action, each party agrees
not to publicize the settlement without first obtaining the other's written
permission, which permission will not be unreasonably withheld.
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7.4 Proprietary Rights Infringement. Without limiting any of
Customer's rights or remedies, in the event of any breach or alleged breach by
Inktomi of Section 4.1(iv), Inktomi shall notify Customer and shall at Inktomi's
expense (i) procure for Customer all rights necessary so that Inktomi shall not
be in breach of Section 4.1(iv), or (ii) modify the pertinent item or infringing
part thereof, or replace the infringing software with other software having
substantially the same or better capabilities. If neither of the foregoing is
commercially practicable to achieve within a reasonable period of time, then, in
addition to any other rights and remedies available to Customer, Customer may
immediately terminate this Agreement.
8. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, NEITHER PARTY SHALL BE LIABLE FOR ANY LOST PROFITS OR COSTS OF PROCUREMENT
OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOST DATA, HOWEVER CAUSED AND UNDER
ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT, PRODUCTS
LIABILITY, STRICT LIABILITY AND NEGLIGENCE, AND WHETHER OR NOT IT WAS OR SHOULD
HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS
SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY. THIS SECTION SHALL NOT APPLY TO EITHER PARTY'S (A) ABILITY TO OBTAIN
INJUNCTIVE OR OTHER EQUITABLE RELIEF; (B) CONFIDENTIALITY OBLIGATIONS UNDER
SECTION 6; AND (C) OBLIGATIONS UNDER SECTION 3.1.
9. Term and Termination.
9.1. Term. The term of this Agreement (the "Term") shall commence on
the Effective Date and shall continue in force for three (3) years or until the
termination of the last Service. The parties may agree to renew the Agreement on
mutually agreed upon terms.
9.2. Termination for Breach. In addition to any other rights and/or
remedies that either party may have under the circumstances, all of which are
expressly reserved, either party may suspend performance of and/or terminate
this Agreement if (i) the other party materially breaches any term or condition
of this Agreement and fails to cure such breach within thirty (30) days after
receiving written notice of the breach, or (ii) either party is in material
breach of Section 6.1.
9.3. Termination due to Insolvency. Either party may suspend
performance and/or terminate this Agreement if the other party becomes insolvent
or makes any assignment for the benefit of creditors or similar transfer
evidencing insolvency, or suffers or permits the commencement of any form of
insolvency or receivership proceeding, or has any petition under bankruptcy law
filed against it, which petition is not dismissed within sixty (60) days of such
filing, or has a trustee or receiver appointed for its business or assets or any
party thereof.
9.4. Termination Without Cause. Upon ninety (90) days prior written
notice to Inktomi, Customer may terminate this Agreement in its entirety without
cause provided Customer has paid the annual minimum total Per Search Query
Service Fee set forth in Schedule 2 of this Agreement [*]. In addition, if
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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Customer no longer wishes to receive either the General Search Services or the
Site Search Services, upon ninety (90) days prior written notice to Inktomi,
Customer may terminate such portions of this Agreement that relate to the
General Search Services or the Site Search Services, as the case may be provided
Customer has paid the minimum total Per Search Query Service Fee set forth in
Schedule 2 of this Agreement [*]; provided, that if Customer elects to terminate
the Site Search Services portion of this Agreement, Customer shall have no
further obligation to pay monthly service fees following the date of such
termination.
9.5. Effect of Termination. Upon the termination of this Agreement
for any reason: (i) all license rights granted under this Agreement shall
terminate; (ii) Customer shall immediately pay to Inktomi all amounts due and
outstanding as of the date of such termination; and (iii) each party shall
return to the other party, or destroy and certify the destruction of, all
Confidential Information of the other party.
9.6. Survival. In the event of any termination or expiration of this
Agreement for any reason, Sections 1, 3, 4, 5.2, 6, 7, 8, 9, 10 and 11 shall
survive termination or expiration of this Agreement. Neither party shall be
liable to the other party for damages or equitable remedies of any sort
resulting solely from terminating this Agreement in accordance with its terms.
9.7. Remedies. Each party acknowledges that its breach of the
confidentiality or service/license restrictions contained herein may cause
irreparable harm to the other party, the extent of which would be difficult to
ascertain. Accordingly, each party agrees that, in addition to any other
remedies to which the non-breaching party may be legally entitled, the
non-breaching party shall have the right to seek immediately injunctive relief
in the event of a breach of such confidentiality or service/license restrictions
by the other party or any of its officers, employees, consultants or other
agents.
9.8. If Inktomi is in material breach of this Agreement, then, in
addition to any other remedies which Customer may have under the circumstances,
Customer will have the right to withhold payment of amounts otherwise owed by
Customer to Inktomi pursuant to this Agreement; provided, however, that Customer
shall give Inktomi not less than forty-five (45) days to cure such breach prior
withholding any such payments.
10. Miscellaneous.
10.1. Understanding. Each party acknowledges that it has read this
Agreement, understands it and agrees to be bound by it. Each party acknowledges
that it has not been induced to enter into such agreements by any
representations or statements, oral or written, not expressly contained herein
or expressly incorporated by reference.
10.2. Notice. Any notice required for or permitted by this Agreement
shall be in writing and shall be delivered as follows with notice deemed given
as indicated: (i) by personal delivery when delivered personally; (ii) by
overnight courier upon written verification of receipt; (iii) by telecopy or
facsimile transmission when confirmed by telecopier or facsimile transmission
report; or (iv) by certified or registered mail, return receipt requested, upon
verification of receipt. All notices to Inktomi must be sent to the addresses
first described above or to such other address that Inktomi may have provided
for the purpose of notice in accordance with this Section. All notices to
Customer must be sent to: Microsoft Corporation, One Microsoft
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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Way, Redmond, WA 98052, Attention:MSN Search manager, fax: (425) 936-7329, with
a copy to: Microsoft Corporation, Law and Corporate Affairs, fax: (425)
936-7409, or to such other address that Customer may have provided for the
purpose of notice in accordance with this Section.
10.3. Assignment. Neither party may assign its rights or delegate
its obligations under this Agreement without the other party's prior written
consent, except (i) to the surviving entity in a merger or consolidation in
which it participates or to a purchaser of all or substantially all of its
assets, so long as such surviving entity or purchaser shall expressly assume in
writing the performance of all of the terms of this Agreement, or (ii) in the
case of Customer, to the Microsoft business unit responsible for MSN and/or MSN
Search, in the event such unit becomes a separate legal entity, or to the
purchaser of all or substantially all of the assets of the Microsoft business
unit responsible for MSN and/or MSN Search.
10.4. No Third Party Beneficiaries. All rights and obligations of
the parties hereunder are personal to the party that holds the rights or has the
obligation. Except as otherwise specifically stated herein, this Agreement is
not intended to benefit, nor shall it be deemed to give rise to, any rights in
any third party.
10.5. Governing Law. This Agreement will be governed and construed,
to the extent applicable, in accordance with United States law, and otherwise,
in accordance with Washington law, without regard to its conflict of law
principles. In any action or suit to enforce any right or remedy under this
Agreement the prevailing party shall be entitled to recover its reasonable
attorneys' fees and costs.
10.6. Independent Contractors. The parties are independent
contractors. Neither party shall be deemed to be an employee, agent, partner or
legal representative of the other for any purpose and neither shall have any
right, power or authority to create any obligation or responsibility on behalf
of the other.
10.7. Force Majeure. Neither party shall be liable hereunder by
reason of any failure or delay in the performance of its obligations hereunder
(except for the payment of money) on account of strikes, shortages, riots,
insurrection, fires, flood, storm, explosions, earthquakes, telecommunications
outages, acts of God, war, governmental action, or any other cause which is
beyond the reasonable control of such party.
10.8. Compliance with Laws and Export Regulations. Each party shall
be responsible for compliance with all applicable laws, rules and regulations,
if any, related to the performance of its obligations under this Agreement.
Customer acknowledges that Inktomi is not the originator or exporter of any
information the Services return as the result of queries submitted by any user
of Customer's system. Customer is responsible for ensuring that the export of
any information provided by the Services is exported in accordance with all
applicable U.S. laws and regulations, including U.S. export control laws.
Additionally, Customer acknowledges that Inktomi is not the exporter of any
products or information sold by Customer through the Services. Customer is
responsible for ensuring that the export of any products facilitated for sale
through the Services are exported in accordance with all applicable U.S. laws
and regulations, including U.S. export control laws. Customer agrees to provide
adequate safeguards including on line disclaimers on Customer's site to ensure
compliance with these provisions.
10.9. Waiver. The failure of either party to require performance by
the other party of any provision shall not affect the full right to require such
performance at any time
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thereafter; nor shall the waiver by either party of a breach of any provision
hereof be taken or held to be a waiver of the provision itself.
10.10. Conflicts. In the event of a conflict between the terms of
this Agreement and an Exhibit attached hereto, the terms of the Exhibit shall
prevail.
10.11. Severability. If any provision of this Agreement is held by a
court of competent jurisdiction to be contrary to law, the parties agree that
such provision shall be changed and interpreted so as to best accomplish the
objectives of the original provision to the fullest extent allowed by law and
the remaining provisions of this Agreement shall remain in full force and
effect.
10.12. Headings. The section headings appearing in this Agreement
are inserted only as a matter of convenience and in no way define, limit,
construe or describe the scope or extent of such paragraph, or in any way affect
such agreements.
10.13. Counterparts. This Agreement may be executed simultaneously
in two or more counterparts, each of which will be considered an original, but
all of which together will constitute one and the same instrument.
10.14. Entire Agreement. This Agreement, Exhibits, Attachments and
Schedules hereto, constitute the entire agreement between the parties with
respect to the subject matter hereof. This Agreement supersedes, and the terms
of this Agreement govern, any other prior or collateral agreements with respect
to the subject matter hereof. Any amendments to this Agreement must be in
writing and executed by an officer or other duly authorized representative of
the parties.
IN WITNESS WHEREOF, the parties have caused this Portal Services Agreement
to be signed by their duly authorized representatives.
MICROSOFT CORPORATION INKTOMI CORPORATION
By: /s/ Brad Chase By: /s/ Jerry Kennelly
--------------------------------- ---------------------------------
Name: Brad Chase Name: Jerry Kennelly
------------------------------- -------------------------------
Title: Vice-President Title: Chief Financial Officer
------------------------------ ------------------------------
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EXHIBIT A-1
TO THE
PORTAL SERVICES AGREEMENT
GENERAL SEARCH SERVICES
This Exhibit to the Portal Services Agreement (this "Exhibit"), in conjunction
with the terms of the Portal Services Agreement (the "Agreement") shall
constitute the terms and conditions pursuant to which Inktomi shall provide
General Search Services to Customer at the Site set forth above:
1. Definitions. In addition to any terms defined in this Exhibit, the
following terms shall have the meanings set forth below. Any other terms not
otherwise defined in this Exhibit shall have the meanings prescribed to them in
the Agreement.
1.1. "Database" means Inktomi's full text index database of Web pages
accessible by end users of the Site and end users of other Inktomi customers at
any given time.
1.2. "General Search Database" is the database maintained as part of the
General Search Services described on Attachment A to this Exhibit. The General
Search Database shall at no time be less comprehensive than the Database.
1.3 "General Search Services" means the Internet Search Engine services
and related support services to be provided by Inktomi for Customer under this
Exhibit, as more fully described on Attachment A to this Exhibit and Schedule 1
to the Agreement.
1.4 "Inktomi Data Protocol" means the written specification on how an
Interface communicates and interacts with the Inktomi Search Engine.
1.5 "Inktomi Search Engine" means Inktomi's current Search Engine as of
the Effective Date. The Inktomi Search Engine does not and will not include
features, options and modules developed and customized specifically for third
parties and provided to such third parties on an exclusive basis, or features,
options, modules and future products which Inktomi licenses or provides
separately; however, the Inktomi Search Engine will include all upgrades,
updates, successor versions, replacement versions and new releases thereto which
Inktomi makes generally available at no additional fees.
1.6 "Inktomi Technology" means the Inktomi Search Engine, the Inktomi Data
Protocol, the Interface Construction Tools and all other computer software,
technology and/or documentation which is supplied by Inktomi for use in or in
connection with delivery of the General Search Services, including, without
limitation, all source code and object code therefor and all algorithms, ideas
and Intellectual Property Rights therein, including upgrades, updates, successor
versions, replacement versions and new releases thereof.
1.7 "Interface" means the editorial and graphical content, and
functionality (which is not otherwise Inktomi Technology hereunder), of the Web
and other pages served to end users of Customer, including without limitation
all Search Pages, Inktomi Results Pages, instruction pages, frequently asked
questions pages and any site end user terms and guidelines.
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1.8 "Interface Construction Tools" means all software tools, if any, in
object code form, provided by Inktomi to assist Customer to build the Interface
to the Inktomi Search Engine, including without limitation Inktomi's application
server currently known as Forge.
1.9 "Results Pages" means all Web pages displaying search results
presented to end-users directly as a result of accessing the query mechanisms of
the Inktomi Search Engine or indirectly through a cache controlled or influenced
by Customer.
1.10 "Results Set" means a set of results consisting of between zero and
one hundred unique records presented (either directly from the Inktomi Search
Engine or indirectly through a cache controlled or influenced by Customer) in
response to a search query.
1.11 "Search Engine" means computer software which crawls the Internet,
downloads and analyzes text and other data, sorts and organizes the data,
creates an index of accessible data, and, after receiving a particular search
request (in the form of a word query), locates material accessible in the
database, and presents the results of the search.
1.10 "Search Pages" means all Web pages which enable end users of the Site
to initiate and send search queries to the Inktomi Search Engine.
1.11 "Inktomi Search Result Data" means the proprietary search result data
(consisting of URLs, corresponding Web site descriptions, and corresponding
numerical relevancy rankings among the individual search results provided by
Inktomi) associated with specific queries that is provided by Inktomi to
Customer for serving and display to end users of the Customer Services as part
of the search results delivered in response to such end users' search queries.
1.12 Microsoft Query Default State - [*]
2. Provision of General Search Services; Site Implementation.
2.1. General Search Services and Site Implementation. Subject to the
terms and conditions of this Exhibit and the Agreement, Inktomi shall provide
the General Search Services to Customer for use in the Site or in other Customer
applications, such services to be provided in accordance with the functionality
specifications, performance criteria and limitations specified on Attachment A
to this Exhibit and Schedule 1 to the Agreement. Inktomi, at its own expense,
shall provide all data transmission capacity (bandwidth), disk storage, server
capacity and other hardware and software required to run the Inktomi Search
Engine and maintain the Database. Customer, at its election and at its own
expense, shall create one or more Interface(s) to the Inktomi Search Engine for
the Site, and shall provide all disk storage, server capacity and other hardware
and software required to run and maintain the Site and the Interface(s), and to
serve advertisements on the Interface(s). Inktomi shall provide reasonable
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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assistance (through telephone, e-mail, the Web, or fax) to Customer during
regular business hours regarding development of the Interface and integration of
the same with the Inktomi Search Engine. Customer, at its own expense, shall
provide all data transmission capacity (bandwidth) required to connect to and
receive information from the Inktomi Search Engine. Customer may only utilize
the General Search Services in conjunction with search services provided by
Customer to end users of the Site[s] or as otherwise permitted in this
Agreement. Customer may cache Results Sets and other information obtained from
the Inktomi databases; provided, that if Customer wishes to begin such caching,
Inktomi and Customer will first agree on appropriate Customer reporting
requirements to ensure proper accounting of payments hereunder.
2.2. Test Cluster. During the development period for the Interface,
Customer shall only have access through the Inktomi Data Protocol to a
non-production version of the Inktomi Search Engine (the "Test Cluster"). Upon
completion of the Interface and all desired testing against the Test Cluster,
Customer shall present the Interface to Inktomi for review and testing against
the production version of the Inktomi Search Engine. Inktomi shall promptly
notify Customer of any problems or issues discovered by Inktomi regarding the
Interface. Once cleared by Inktomi, Inktomi shall provide access to Customer to
the production version of the Inktomi Search Engine. Customer may run reasonable
tests against the Test Cluster and the production version of the Inktomi Search
Engine, provided however that Customer may not conduct any load testing (prior
to commercial launch of its search service) without the prior consent of
Inktomi. There shall no service fee payable by Customer for searches run against
the Test Cluster. Additional test support requirements for routine and
non-routine testing are itemized in Schedule 1 of the Agreement.
2.3. Delivery of Materials. Promptly following execution of this
Exhibit, Inktomi shall provide the Inktomi Data Protocol and the Interface
Construction Tools to Customer, which Customer may use solely in strict
compliance with the terms of Section 4.
2.4. Technical Support. Inktomi, at its own expense, shall provide
technical support services to Customer regarding the operation of the Inktomi
Search Engine and the General Search Services. Such support services will be
provided as set forth on Schedule 1 of the Agreement.
3. Customer Obligations.
3.1. Technical Support. Except as set forth in Section 2.4 and
Schedule 1 of the Agreement, Customer at its own expense shall provide all
support including, without limitation, first level customer support services to
end-users of the Site.
4. Intellectual Property Licenses/Ownership.
4.1. Inktomi Data Protocol. Inktomi grants to Customer a
nontransferable, nonexclusive license during the Term (as defined below) to use
the Inktomi Data Protocol and the Interface Construction Tools solely to create
and maintain the Interface to the Inktomi Search Engine for the Site. The
license granted hereunder shall include the right to use the Interface
Construction Tools or to develop an Interface to the Inktomi Search Engine for
use on the Sites.
4.2. Interface. As between Inktomi and Customer, Inktomi
acknowledges that Customer owns all right, title and interest, including without
limitation all Intellectual Property Rights, in and to the Interface (except for
any software licensed by third parties to Customer and except for editorial
content regarding the use and functionality of the Inktomi Search Engine
provided by Inktomi to
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Customer for incorporation into the Site, which content shall be and remain
Inktomi Technology), and that Inktomi shall not acquire any right, title or
interest in or to the Interface.
4.3 Inktomi Search Results Data. As between Customer and Inktomi,
Customer acknowledges and agrees that Inktomi owns all right, title and interest
in and to the Inktomi Search Result Data, including without limitation any and
all Intellectual Property Rights therein, and that Customer shall not acquire
any right, title or interest in or to the Inktomi Search Result Data, except as
expressly set forth in this Agreement. Inktomi hereby grants to Customer a
worldwide, nontransferrable, nonsublicensable, nonexclusive license to use,
reproduce, reformat, publicly perform, and publicly display the Inktomi Search
Result Data for the limited purposes of (1) serving and displaying such Inktomi
Search Result Data to end users of the Customer Services as part of the search
results delivered in response to such end users' search queries, (2) for
Customer's internal research and review and (3) in Customer's ad sales
activities; and except as may be required to fulfill such limited purpose,
Customer shall not use, reproduce, modify, adapt, prepare derivative works from,
distribute, resell, provide or disclose to any third party any Inktomi Search
Result Data, alone or in combination with other data, without the express prior
written consent of Inktomi.
4.4 Other Data. Any and all other data relating to or arising from
use of the General Search Services ("Other Data") shall be owned by Customer,
including any and all Intellectual Property Rights therein, and Inktomi shall
not acquire any right, title or interest in or to such other data. Inktomi shall
make no use of such other data except as expressly authorized in writing by
Customer. Notwithstanding anything to the contrary, however, any data generated
by operation of the Inktomi Search Engine in connection with the search services
and collected by Inktomi may be used for internal research and review and
marketing only and shall not be shared or otherwise disclosed to third parties
in any manner except in aggregated form only.
5. Payments.
5.1. Service Fees. Customer shall pay Inktomi service fees for the
General Search Services in the amount and on terms specified on Schedule 2 of
the Agreement.
5.2. Records. For purposes of fulfilling its obligations under this
Section 5.2, Customer shall keep complete and accurate records as set forth in
Section 5 of the Agreement.
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IN WITNESS WHEREOF, the parties have caused this Exhibit to the Agreement to be
signed by their duly authorized representatives.
MICROSOFT CORPORATION INKTOMI CORPORATION
By: By:
--------------------------------- ---------------------------------
Name: Name:
------------------------------- -------------------------------
Title: Title:
------------------------------ ------------------------------
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ATTACHMENT A
TO
EXHIBIT A-1
GENERAL SEARCH SERVICES
Capitalized terms not otherwise defined in this Attachment shall have the
meanings prescribed to them in the corresponding Exhibit to which this
Attachment is attached or the Portal Services Agreement to which such Exhibit
and Attachment are attached.
General Search Services
Inktomi will use the Inktomi Search Engine and its own editorial
discretion to crawl the Internet, download and analyze text and other data, sort
and organize the data, create an index of accessible data, and, after receiving
a particular search request from Customer's end user (in the form of a word
query), locate material accessible in the General Search Database, and provide
the results of the search to Customer for presentation to it's end user. Inktomi
will serve end user search queries out of one or more of its search engine data
centers at Inktomi's discretion provided these search engine data centers
reflect Customer's AddURL submissions, meet the specifications and support
levels provided for in this Agreement and include a dedicated communications
link as currently exists. Should Inktomi in its discretion elect to serve end
user queries out of one or more of such data center, the parties will, prior to
such serving of end user queries, mutually agree upon a network connectivity
solution. Notwithstanding, upon 30 days prior notice to Inktomi by Customer,
Inktomi will serve end user search queries out of any its search engine data
centers requested by Customer, provided that Inktomi has sufficient capacity in
such data centers. The functionality specifications and performance criteria
applicable to such General Search Services are as follows:
General Search Services Functionality Specifications:
Inktomi will operate the Inktomi Search Engine so as to enable end users
of the Site to run queries against the General Search Database with the
following functionality:
[*]
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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[*]
General Search Services Performance Criteria
- Size of Database - Minimum of [*] million documents will
be available for all daily queries. In
addition, Customer will have access to
any other Inktomi databases on the
same terms that Inktomi makes
available to other customers pursuant
to an agreement with Inktomi similar
to Customer's Agreement for similar
services as those described
herein.
- General Search Database The General Search Database will be
Freshness updated a minimum of [*] times per
year (approximately every [*] weeks,
which may vary depending on
operational circumstances) with a goal
of [*] times per year. Other worldwide
databases accessed by Customer will be
updated with similar frequency (e.g.,
the [*] database will be updated a
minimum of [*] times per year or
approximately every [*] weeks
depending upon operational
circumstances).
- Uptime/Downtime - Minimum [*]% uptime ([*]% downtime)
over monthly windows with a goal of
[*]% uptime. Downtime = any [*] minute
period in which Inktomi Search Engine
processes no requests.
- Query/Response Speed - For any two word query (Boolean And),
the average time to return results to
the Yukon client is no more than [*]
seconds on average and is less than
[*] second for [*]% of the queries.
The average overall query response
time goal shall be less than or equal
to [*] milliseconds and the average
maximum response time goal shall not
exceed [*] milliseconds. The query
response time goals shall be based
upon the Microsoft Default Query
State.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
<PAGE>
- Query Capacity Inktomi will provision the General Web
Search Service according to Customer's
historic query volume growth rates,
provided that Customer shall give
Inktomi at least ninety (90) days
advance notice of any forecasted
increase in queries from one month to
another that exceeds the prior month's
queries by [*] ([*]) percent or
more.
AddURL Submissions functionality and performance criteria
[*]
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
<PAGE>
[*]
Production Schedule
Customer will begin work on constructing the Interface, and Inktomi will
begin work on tuning its Search Engine to provide the services set forth herein
promptly upon execution of the Exhibit. Both parties will use commercially
reasonable efforts so that the General Search Services are available to Customer
for use in the Site within ninety (90) days following the Effective Date.
LINGUISTICS & INTERNATIONAL SUPPORT
[*]
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
<PAGE>
[*]
CRAWL BREADTH PER INTERNATIONAL MARKET
[*]
* Certain information on this page has been omitted and filed separately,
with the commission. Confidential treatment has been requested with respect
to the omitted portions.
<PAGE>
SCHEDULE 1
TO THE
PORTAL SERVICES AGREEMENT
SUPPORT GUIDELINES FOR
SEARCH SERVICES
1. Definitions.
(a) Hours of Operation. Inktomi will provide Customer with 7 x 24
support as set forth herein.
(b) Problem. Any error, bug, or malfunction that makes any feature of
the Inktomi Search Engine perform unpredictably or to otherwise
become intermittently unavailable, or that causes the Inktomi Search
Engine to have a material degradation in response time performance.
(c) Severe Problem. Any error, bug, or malfunction that causes the
Inktomi Search Engine to become inaccessible to Customer and its
Site end users, or that causes any feature of the Inktomi Search
Engine to become continuously unavailable.
(d) Enhancement Request. A request by Customer to incorporate a new
feature or enhance an existing feature of the Inktomi Search Engine.
(e) Fix. A correction, fix, alteration or workaround that solves a
Problem or a Severe Problem.
2. Contact points.
(a) Customer Technical Support Personnel. Customer will designate
certain Customer employees and executive escalation personnel as
qualified to contact Inktomi for technical support. Customer will
designate a liaison for centralized project coordination purposes.
Customer may change its designated Technical Support Personnel and
executive escalation personnel at its discretion with reasonable
notice to Inktomi.
(b) Inktomi Technical Support Personnel. Inktomi will ensure that its
Technical Support Personnel are adequately trained to provide
technical support to Customer. Inktomi will designate a liaison for
centralized project coordination purposes. Inktomi will provide
Customer with a web interface or an email address (the "Support
Address"), as well as an email pager address (the "Support Pager")
for contacting the Inktomi Technical Support Personnel no later than
one week prior to the Launch Date. Inktomi will also provide
Customer with contact information for executive escalation personnel
no later than one week prior to the Launch Date. Inktomi may change
its designated Technical Support Personnel and executive escalation
personnel at its discretion with reasonable notice to Customer.
3. Support procedures.
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(a) All Problems reported by Customer Technical Support Personnel to
Inktomi must be submitted via web site or email to the Support
Address.
(b) If Customer believes it is reporting a Severe Problem, Customer will
accompany its email request with a page via the Support Pager.
(c) Upon receiving a report from Customer, Inktomi will respond to the
request and use reasonable commercial efforts to provide a Fix as
described in the support table set forth below.
(d) Inktomi will use commercially reasonable efforts to inform Customer
Technical Support Personnel of Fixes.
4. Support levels.
(a) Customer will provide technical support to end users of the Sites
who email or otherwise contact Customer directly with questions
about the Sites. Customer will use its commercially reasonable
efforts to Fix any Problems without escalation to Inktomi.
(b) Inktomi will provide the following technical support solely to
Customer Technical Support Personnel:
<TABLE>
<CAPTION>
RECEIPT OF REQUEST TYPE OF TARGET RESPONSE TARGET FIX TIME AND REPORTING
REQUEST TIME FROM RECEIPT
<S> <C> <C> <C>
[*] [*] [*] [*]
[*] [*] [*] [*]
[*] [*] [*] [*]
</TABLE>
(c) In the event Inktomi does not respond to Customer within the target
response time from email receipt set forth above, then Customer may
contact the following Inktomi executive escalation personnel in
order:
Darryl Rosen - Liason
Steve Crusenberry - Search Engine Technical
Operations
Troy Toman - Director of Partner Services
Dick Pierce - Vice President Marketing
David Peter Schmidt - CEO
(c) All problems reported by customer will be given a "fix by" date
estimate by Inktomi as to when the problem will be resolved and
deployed (if deployment is required).
(d) Customer will be given access to the Inktomi problem tracking system
and defect (bug) tracking system for all problems and bugs that
affect Customer. These systems will be monitored by Inktomi [*].
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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(e) Inktomi and Exodus will monitor the search cluster and the leased
line and will provide a status to Customer on demand. Inktomi will
provide a mechanism that alerts the Customer (via a pager and email)
within [*] seconds of any partial or complete outages.
(f) Inktomi will notify Customer within [*] minutes (via an alert page
and email) of the FTP Site, site search feed & crawl process, crawl
reports, and other related processes becoming inoperable. Customer
will use Inktomi web support tracking system to report problems with
these services when discovered by Customer.
(g) Inktomi will provide Customer with [*] hours advance notice of
scheduled maintenance outage and will maintain published scheduled
maintenance windows.
(h) Inktomi will provide MS with [*]-hour turn-around in removing
domains, which clone, spam, hijack or misappropriate MS URLs, with a
goal of [*]-hour turn-around.
5. Periodic Reviews and Upgrades
(a) Inktomi will arrange and hold weekly status calls and quarterly
operations reviews with Customer.
(b) Customer will be given the opportunity to perform early review and
provide comment on Inktomi's search roadmap.
(c) Customer will be given access to Inktomi's detailed feature lists.
Inktomi will make commercially reasonable efforts to work with
Customer to launch new product releases, enhancements, and fixes of
the Inktomi Technology with minimal disruption to Customer. Such
efforts may include the review of proposed features, changes in
search operations, and proposed test plans.
(d) Inktomi will provide a minimum of [*] days notice to Customer of any
upgrade or new release of the Services. Any change which could
potentially impact the Customer's Site Search service must be
approved by Customer prior to such change occurring except for
critical bug fixes or activity required of Inktomi to meet its
obligations under this Agreement.
6. Test Support
(a) Inktomi will provide test access to Customer for any new cluster or
software that Inktomi plans to use for serving Customer's queries.
Testing procedures will be mutually agreed to by the parties and
will be designed to replicate expected traffic conditions. Customer
will not incur any per query charges for performing these queries.
(b) Customer may periodically run higher than normal load testing on
standard search clusters during non-peak hours with Inktomi's prior
consent. Specific test parameters, including load and timing, will
be mutually agreed to by the parties on a per event basis. Customer
will not incur any per query charges for performing these queries.
(c) Routine test queries - Inktomi will permit Customer to run routine
non-high load stress tests [*] against the main index at any time
without prior approval. Customer will incur per query charges in the
event these routine test queries exceed [*]% of total monthly
queries.
(d) Inktomi will provide Customer with a separate client ID to track
test queries performed under 6 (a) and (b) above.
(e) Customer may request engineering versions of search code which can
be tested against the test search cluster.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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7. General Reporting
(a) Inktomi will provide weekly status reports that include information
regarding crawl rates, service uptime, and operations problem
summaries including time, duration, and description of problem.
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SCHEDULE 2
TO THE
PORTAL SERVICES AGREEMENT
SERVICE FEES
1. Site Search Information Service Fee. Customer shall pay Inktomi a base
information services fee of $[*] per year for provisioning of the Site Search
Services as set forth in Exhibit A-2. For the first year under the Agreement,
the base information services fee shall be paid as follows: twelve (12) equal
monthly installments on the last day of each month. For subsequent years, the
base information service fee shall be paid in equal monthly installments on the
last day of each month.
2. Supplementary Site Search Information Service Fee. In addition to the
fees set forth above, Customer shall pay Inktomi a Supplementary Site Search
Information Service Fee of $[*] annually for the failover solution provided as
part of the Site Search Services as set forth in Exhibit A-2. For the first year
under the Agreement, the base Supplemental Site Search Information Services Fee
shall be paid as follows: twelve (12) equal monthly installments on the last day
of each month. For subsequent years the Supplemental Site Search Information
Services Fee shall be invoiced in equal monthly installments on the last day of
each month.
3. Site Search Capacity Expansion Fee. In addition to the fees set forth
above, if Customer explicitly requests database capacity more than [*] Web pages
for its Site Search Services, then Customer shall pay Inktomi a capacity
expansion fee of $[*] per year for each additional [*] Web pages. The Capacity
Expansion Fee shall be added to and paid as part of the Site Search Information
Services Fee set forth above.
4. Per Search Query Service Fee. In addition to the information service
fees set forth above, Customer shall pay Inktomi monthly per-query service fees
based on the total number of Results Sets served for General Search Services and
Site Search Services on a monthly basis. These fees equal:
(A) the total number of Results Sets served during the month divided by
the total number of days in such month ("Average Daily Results Sets
Served"),
(B) multiplied and added in accordance with the following graduated
schedule
For the first [*] million Average Daily
Results Sets Served $[*] per Results Sets Served
For the next [*] million Average Daily
Results Sets Served $[*] per Results Sets Served
For any additional Average Daily
Results Sets Served $[*] per Results Sets Served
(C) multiplied by the total number of days in such month.
(D) multiplied by [*]% to reflect the [*]% test query volume specified
in 6.(c) of Schedule 1 to the Portal Services Agreement.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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3. All Services. The service fees set forth above are for General Search
Services and Site Search Services provided by Inktomi as such Services are
contemplated in the applicable Exhibit. If Inktomi and Customer mutually agree
to modify any of the Services, additional charges may apply. Monthly service
fees shall be paid within thirty (30) calendar days of receiving an invoice from
Inktomi as provided in the Portal Service Agreement.
The annual minimum Per Search Query Service Fees payable by Customer shall
be $[*] in the first year of the Term, $[*] in the second year of the Term, and
$[*] in the third year of the Term.
4. Notwithstanding any other provision of this Agreement, Customer shall
have no obligation to use the Services, or to limit the frequency or number of
search results on any given Web page in the Site[s]. Inktomi acknowledges and
agrees that it is not entitled to any share in any revenue derived by Customer
from the Site[s], regardless of how derived, and that except as may be expressly
provided otherwise in this Agreement (or by subsequent mutual agreement of the
parties) the service fees payable (if any) under this Schedule will be the only
payments required to be made to Inktomi for or in consideration of the rights
granted to Customer hereunder, the Services and all results and proceeds
thereof. Nothing in this Agreement will be construed as restricting Customer's
ability to acquire, license, develop, manufacture, use or distribute for itself,
or have others acquire, license, develop, manufacture, use or distribute for,
similar technology performing the same or similar functions as the technology
contemplated by this Agreement, or to market, use and distribute such similar
technology in addition to, or in lieu of, the technology contemplated by this
Agreement.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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EXHIBIT A-2
TO THE
PORTAL SERVICES AGREEMENT
SITE SEARCH SERVICES
This Exhibit to the Portal Services Agreement (this "Exhibit"), in conjunction
with the terms of the Portal Services Agreement (the "Agreement") shall
constitute the terms and conditions pursuant to which Inktomi shall provide Site
Search Services to the Site set forth above:
1. Definitions. In addition to any terms defined in this Exhibit, the
following terms shall have the meanings set forth below. Any other terms not
otherwise defined in this Exhibit shall have the meanings prescribed to them in
the Agreement.
1.1. "Inktomi Data Protocol" means the written specification on how
an Interface communicates and interacts with the Inktomi Search Engine.
1.2. "Inktomi Search Engine" means Inktomi's current Search Engine
as of the Effective Date. The Inktomi Search Engine does not and will not
include features, options and modules developed and customized specifically for
third parties and provided to such third parties on an exclusive basis, or
features, options, modules and future products which Inktomi licenses or
provides separately; however, the Inktomi Search Engine will include all
upgrades, updates, successor versions, replacement versions and new releases
which Inktomi makes generally available at no additional fees.
1.3. "Inktomi Technology" means the Inktomi Search Engine, the
Inktomi Data Protocol, the Interface Construction Tools and all other computer
software, technology and/or documentation which is supplied by Inktomi for use
in or in connection with delivery of the Site Search Service, including without
limitation all source code and object code therefor and all algorithms, ideas
and Intellectual Property Rights therein, including upgrades, updates, successor
versions, replacement versions and new releases thereto.
1.4. "Interface" means the editorial and graphical content and
design of the Web pages served to end users of the Site, including without
limitation all Search Pages, Results Pages, instruction pages, frequently asked
questions pages and any Site end user terms and guidelines.
1.5. "Interface Construction Tools" means all software tools, if
any, in object code form, provided by Inktomi to assist Customer to build the
Interface to the Inktomi Search Engine, including without limitation Inktomi's
application server currently known as Forge.
1.6. "Site Content Database" is a database maintained as part of the
Site Search Services described on Attachment A to this Exhibit.
1.7. "Site Search Services" means the Internet Search Engine
services and related support services to be provided by Inktomi for Customer
under this Exhibit, as more fully described on Attachment A to this Exhibit and
Schedule 1 to the Agreement.
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1.8. "Results Pages" means all Web pages displaying search results
presented to end-users directly as a result of accessing the query mechanisms of
the Inktomi Search Engine or indirectly through a cache controlled or influenced
by Customer.
1.9 "Results Set" means a set of results consisting of between zero
and one hundred unique records presented (either directly from the Inktomi
Search Engine or indirectly through a cache controlled or influenced by
Customer) in response to a search query.
1.10 "Search Engine" means computer software which crawls the
Internet, downloads and analyzes text and other data, sorts and organizes the
data, creates an index of accessible data, and, after receiving a particular
search request (in the form of a word query), locates material accessible in the
database, and presents the results of the search.
1.10 "Search Pages" means all Web pages which enable end users of
the Site to initiate and send search queries to the Inktomi Search Engine.
1.11 "Inktomi Search Result Data" means the proprietary search
result data (consisting of URLs, corresponding Web site descriptions, and
corresponding numerical relevancy rankings among the individual search results
provided by Inktomi) associated with specific queries that is provided by
Inktomi to Customer for serving and display to end users of the Customer
Services as part of the search results delivered in response to such end users'
search queries.
1.12 Microsoft Query Default State - [*]
2. Provision of Site Search Services; Site Implementation.
2.1. Site Search Services and Site Implementation. Subject to the
terms and conditions of this Exhibit and the Agreement, Inktomi shall provide
the Site Search Services to Customer for use in the Site or in other Customer
applications, such services to be provided in accordance with the functionality
specifications and performance criteria specified on Attachment A to this
Exhibit and Schedule 1 to the Agreement. Inktomi, at its own expense, shall
provide all data transmission capacity (bandwidth), disk storage, server
capacity and other hardware and software required to run the Inktomi Search
Engine and maintain the Site Content Database. Customer, at its election and at
its own expense, shall create one or more Interface(s) to the Inktomi Search
Engine for the Site, and shall provide all disk storage, server capacity and
other hardware and software required to run and maintain the Site and the
Interface(s), and to serve advertisements on the Interface(s). Inktomi shall
provide reasonable assistance (through telephone, e-mail, the Web, or fax) to
Customer during regular business hours regarding development of the Interface
and integration of the same with the Inktomi Search Engine. Customer, at its own
expense, shall provide all data transmission capacity (bandwidth) required to
connect to and receive information from the Inktomi Search Engine. Customer may
only utilize the Site Search Services
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the Commission. Confidential treatment has been requested with respect to the
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in conjunction with search services provided by Customer to end users of the
Site[s] or as otherwise permitted in this Agreement. Customer may cache Results
Sets and other information obtained from the Inktomi databases; provided, that
if Customer wishes to begin such caching, Inktomi and Customer will first agree
on appropriate Customer reporting requirements to ensure proper accounting of
payments hereunder.
2.2. Test Cluster. During the development period for the Interface,
Customer shall only have access through the Inktomi Data Protocol to a
non-production version of the Inktomi Search Engine (the "Test Cluster"). Upon
completion of the Interface and all desired testing against the Test Cluster,
Customer shall present the Interface to Inktomi for review and testing against
the production version of the Inktomi Search Engine. Inktomi shall promptly
notify Customer of any problems or issues discovered by Inktomi regarding the
Interface. Once cleared by Inktomi, Inktomi shall provide access to Customer to
the production version of the Inktomi Search Engine. Customer may run reasonable
tests against the Test Cluster and the production version of the Inktomi Search
Engine, provided however that Customer may not conduct any load testing (prior
to commercial launch of its search service) without the prior consent of
Inktomi. There shall no service fee payable by Customer for searches run against
the Test Cluster. Additional test support requirements for routine and
non-routine testing are itemized in Schedule 1 of the Agreement.
2.3. Delivery of Materials. Promptly following execution of this
Exhibit, Inktomi shall provide the Inktomi Data Protocol and the Interface
Construction Tools to Customer, which Customer may use solely in strict
compliance with the terms of Section 4.
2.4. Technical Support. Inktomi, at its own expense, shall provide
technical support services to Customer regarding the operation of the Inktomi
Search Engine and Site Search Services. Such support services will be provided
as set forth on Schedule 1 of the Agreement.
3. Customer Obligations.
3.1. Technical Support. Except as set forth in Section 2.4 and
Schedule 1 of the Agreement, Customer at its own expense shall provide all
support including, without limitation, first level customer support services to
end-users of the Site.
4. Intellectual Property Licenses/Ownership.
4.1. Inktomi Data Protocol. Inktomi grants to Customer a
nontransferable, nonexclusive license during the Term (as defined below) to use
the Inktomi Data Protocol and the Interface Construction Tools solely to create
and maintain the Interface to the Inktomi Search Engine for the Site. The
license granted hereunder shall include the right to use the Interface
Construction Tools or to develop an Interface to the Inktomi Search Engine for
use on the Sites.
4.2. Interface. As between Inktomi and Customer, Inktomi
acknowledges that Customer owns all right, title and interest, including without
limitation all Intellectual Property Rights, in and to the Interface (except for
any software licensed by third parties to Customer and except for editorial
content regarding the use and functionality of the Inktomi Search Engine
provided by Inktomi to Customer for incorporation into the Site, which content
shall be and remain Inktomi Technology), and that Inktomi shall not acquire any
right, title or interest in or to the Interface.
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4.3 Inktomi Search Results Data. As between Customer and Inktomi, to
the extent that the Inktomi Search Results Data consists of Microsoft URLs
entirely, Inktomi acknowledges and agrees that Customer owns all right, title
and interest in and to the Inktomi Search Result Data and any and all other data
relating to or arising from use of the Site Search Services ("Other Data"),
including without limitation any and all Intellectual Property Rights therein,
and that Inktomi shall not acquire any right, title or interest in or to the
Inktomi Search Result Data, except as expressly set forth in this Agreement.
Except as may be required to fulfill the purpose of processing search queries
and serving and displaying search results, Inktomi shall not use, reproduce,
modify, adapt, prepare derivative works from, distribute, resell, provide or
disclose to any third party any Inktomi Search Result Data or any Other Data,
alone or in combination with other data, without the express prior written
consent of Customer. As between Customer and Inktomi, to the extent that that
the Inktomi Search Results Data consists in part or all of non-Microsoft URLs,
Customer acknowledges and agrees that Inktomi owns all right, title and interest
in and to the Inktomi Search Result Data, including without limitation any and
all Intellectual Property Rights therein, and that Customer shall not acquire
any right, title or interest in or to the Inktomi Search Result Data, except as
expressly set forth in this Agreement, except that Inktomi hereby grants to
Customer a worldwide, nontransferrable, nonsublicensable, nonexclusive license
to use, reproduce, reformat, publicly perform, and publicly display such data
for the limited purposes of (1) serving and displaying such data to end users of
the Customer Services as part of the search results delivered in response to
such end users' search queries, (2) for Customer's internal research and review
and (3) in Customer's ad sales activities. Notwithstanding anything to the
contrary, however, any data generated by operation of the Inktomi Search Engine
in connection with the search services and collected by Inktomi may be used for
internal research and review and marketing only and shall not be shared or
otherwise disclosed to third parties in any manner except in aggregated form
only.
5. Payments.
5.1. Service Fees. Customer shall pay Inktomi service fees for the
Site Search Services in the amount and on terms specified on Schedule 2 of the
Agreement.
5.2 Records. For purposes of fulfilling its obligations under this
Section 5.2, Customer shall keep complete and accurate records as set forth in
Section 5 of the Agreement.
IN WITNESS WHEREOF, the parties have caused this Exhibit to the Agreement
to be signed by their duly authorized representatives.
MICROSOFT CORPORATION INKTOMI CORPORATION
By: By:
--------------------------------- ---------------------------------
Name: Name:
------------------------------- -------------------------------
Title: Title:
------------------------------ ------------------------------
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ATTACHMENT A
TO
EXHIBIT A-2
SITE SEARCH SERVICES
Site Search Services:
Inktomi will use the Inktomi Search Engine to crawl or otherwise access
the Site Content Databases, download and analyze text and other data, sort and
organize the data, create an index of accessible data, and, after receiving a
particular search request from an end user (in the form of a word query), locate
material accessible in the Site Content Database and present the results of the
search to the end user. The functionality and performance criteria applicable to
such services are as follows:
1. Site Content Database Capacity. Inktomi will provision sufficient
hardware, software and other equipment that can provide query access to a Site
Content Database containing up to [*] Web pages. Customer may request
additional database capacity (i.e. query access to a Site Content Database
containing more Web pages), provided however that Customer shall pay the
Capacity Expansion Fee set forth on Schedule 2. Inktomi will upgrade capacity
within thirty (30) days of notification by Customer.
2. Crawling and Indexing. Inktomi will use reasonable commercial efforts
to crawl or otherwise access and index up to [*] new and updated pages per hour
associated with the Site Content Databases. The Web pages included in the Site
Content Database shall be compiled by crawling URL lists to be added, deleted or
updated provided by Customer. The URL list will follow the URL List File Format
below. Inktomi will provide the same level of service for URLs to be deleted as
for URLs to be added. Specific requirements shall be as set forth below. Such
requirements may change from time to time upon mutual agreement of the parties.
a. [*]
b. [*]
c. [*]
d. File Types
[*]
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e. [*]
f. [*]
g. [*]
3. Queries. Inktomi will provision sufficient hardware, software and other
equipment to service up to [*] queries per day from Customer. Specific query
functionality shall be as set forth below.
[*]
4. Uptime/Downtime. The Inktomi Search Engine running the Site Search
Services will have a minimum uptime operation of [*]% (downtime of [*]%) over
monthly windows with a goal of
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[*]% uptime. Downtime shall mean any one minute interval in which the Inktomi
Search Engine is unable to process search requests.
5. Response Time. For any two word query (Boolean And) and additionally
restricted by DOMAIN:<site>, the average time to return results to the Yukon
client is no more than [*] seconds on average and is less than [*] second for
[*]% of the queries. The average overall query response time goal shall be less
than or equal to [*] milliseconds and the average maximum response time goal
shall not exceed [*] milliseconds. The query response time goals shall be based
upon the Microsoft Default Query State.
6. Document Tagging. Microsoft will send Inktomi on a weekly basis
a list of URLs to be "tagged" allowing these URLs to be found when searching
on specific attributes. Specific requirement for this have been outlined by
Inktomi in their [*].
[*]
Additional requirements are as follows:
[*]
[*]
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the omitted portions.
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[*]
7. Reports
[*]
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omitted portions.
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Production Schedule
Customer will begin work on constructing the Interface and identifying the
Site Content Database and the URL List, and Inktomi will begin work on tuning
its Search Engine to provide the services set forth herein promptly upon
execution of this Agreement. Both parties will use commercially reasonable
efforts so that the Site Search Services are available to Customer for use in
the Site are available within ninety (90) days following the Effective Date.
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