GoTo-In-A-Box Agreement [Amendment No. 3] - Overture Services Inc. and Microsoft Corp.
AMENDMENT NO. 3
Effective Date of Amendment No. 3: September 1, 2002
This AMENDMENT NO. 3 ("Amendment No. 3") to the GoTo-In-A-Box Agreement dated
April 15, 2001 (the "Agreement") is made by and between OVERTURE SERVICES, INC.,
a Delaware corporation ("Company"), and MICROSOFT CORPORATION, a Washington
corporation ("Microsoft").
RECITALS
The parties desire to amend the Agreement on the terms and conditions provided
herein;
The parties hereby agree as follows:
AMENDMENT
1. Section 1.8 (the definition of "IE 4.x or 5.x") shall be deleted in its
entirety and replaced with the following:
1.8 "Internet Explorer" means the English-- and Spanish-speaking
United States and English-speaking Canada versions of Microsoft
Internet Explorer (IE) and any updates to such versions, released
during the Term.
2. Section 1.11 (the definition of "MSN Search Pane") shall be deleted in
its entirety and replaced with the following:
1.11 "MSN Search Pane" means a MSN-branded Web page end-users obtain
after clicking the Search Button. With the parties' mutual
consent, Microsoft may also test Company Search Results on other
Microsoft Web pages that launch after end-users click the Search
Button and include such Web pages within the definition of "MSN
Search Pane" provided that Microsoft may unilaterally terminate
such testing at any time with Forty-Eight Hours notice to
Company.
3. Section 1.16 (the definition of "Search Button") shall be deleted in its
entirety and replaced with the following:
1.16 "Search Button" means a button feature, or other such successor
features implemented by Microsoft, that is part of IE, accessible
to end-users, and labeled "search" (or similar term).
4. Section 1.17 (the definition of "Search Pane") shall be hereby deleted
in its entirety from the Agreement
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5. Section 2.4 shall be deleted in its entirety and replaced with the
following:
2.4 The parties acknowledge the Search Button not only launches the
MSN Search Pane, but may--if users were assigned to an
alternative search provider or chose an alternative search
provider--launch other search pane features from external third
parties or from internal Microsoft entities; however, Microsoft
will ensure any reallocation of traffic among third-party
providers will not intentionally jeopardize Company's receipt of
all monthly Guaranteed Queries. If another entity within
Microsoft preempts the MSN Search Pane, Microsoft will employ
commercially reasonable efforts to ensure its obligations
pursuant to this Agreement are fulfilled, including without
limitation its obligation to deliver the monthly Guaranteed
Queries. For the avoidance of doubt, the parties intend this
Section 2.4 to allow for the possibility that not all end-user
clicks on the Search Button will launch the MSN Search Pane. The
parties do not intend this section to relieve Microsoft of its
obligations under this Agreement or to allow Microsoft to
terminate or renegotiate this Agreement.
6. Section 5.1 (ii) shall be deleted in its entirety and shall be replaced
with the following:
"(ii) all materials delivered by Company to Microsoft and/or to
end-users accessing the Search Service through the MSN Search
Pane pursuant to this Agreement including without limitation the
Trademarks, Search Service UI, and/or, solely with respect to its
relationship with Microsoft under this Agreement, search results
do not infringe the copyrights, trademarks, service marks or any
other proprietary right of any third party;
7. The GTIAB Term shall be extended for the period commencing October 1,
2002 and ending December 31, 2003 ("Second Extended GTIAB Term"),
pursuant to the terms of the Agreement.
8. If the following [*] conditions are met: [*], then, during the last
month of the First Extended GTIAB Term (September 2002) and during the
entire Second Extended GTIAB Term, Company will pay to Microsoft per
month the greater of:
(i) [*] ("Fixed Payment"); or
(ii) A percentage of Gross Revenue (as set forth below).
The percentage of monthly Gross Revenue Company will owe to
Microsoft during the last month of the First Extended GTIAB Term
(September 2002) and for the Second Extended GTIAB Term will be
[*] percent
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* 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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([*]%), with the following exception: Beginning July 1, 2003, if
Microsoft delivers to Company in excess of [*] Queries from the
MSN Search Pane in the US during a month, the percentage of Gross
Revenue Company owes to Microsoft will be [*] percent ([*]%).
If Microsoft does not meet [*] of the [*] conditions above, Microsoft
qualifies only for the percentage of Gross Revenue set forth above.
Company will make all payments to Microsoft within forty-five (45) days
after the end of each calendar month. If Microsoft fails to deliver the
Guaranteed Queries for one or more months, Microsoft will continue to
provide Company placement on the MSN Search Pane until the cumulative
deficient Guaranteed Queries are delivered. That is, if Microsoft fails
to deliver the Guaranteed Queries by the end of the Second Extended
GTIAB Term, Microsoft will continue to provide Company placement on the
MSN Search Pane in the US until the shortfall is delivered. During such
extension period, Company will not be required to make any additional
Fixed Payments but Company will continue to be required to make Revenue
Share Payments.
9. Company will pay Microsoft prior to November 20, 2002 the non-refundable
fees below for services between September 1, 2002 to June 30, 2003.
a. MSN Search Pane in the U.S. For the MSN Search Pane in the U.S.,
Company will pay Microsoft a non-refundable fee of [*].
b. MSN Search Pane in Canada. For the MSN Search Site in Canada,
Company will pay Microsoft a non-refundable fee of [*].
10. The parties anticipate issuing a joint press release, or separate press
releases, regarding this Amendment No. 3. Neither party may issue a
press release or make a public announcement(s) relating to either this
Amendment No. 3 or the relationship established by this Amendment No. 3
without the express prior written consent of the other party, which
consent will not be unreasonably withheld or delayed. If an objection to
such a press release or public announcement(s) is not received within
five (5) business days after notice of one party to the other, consent
will be deemed granted.
11. The "Guaranteed Queries" for each month during the Second Extended GTIAB
Term shall be [*] Queries from the MSN Search Pane in the US.
12. Defined terms herein have the same meaning as set forth in the
Agreement, except as otherwise provided.
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* 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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13. This Amendment No. 3 amends modifies and supersedes to the extent of any
inconsistencies, the provisions of the Agreement. Except as expressly
amended by this Amendment No. 3, the Agreement remains in full force and
effect.
IN WITNESS WHEREOF, the parties have executed this Amendment No. 3 as of the
Amendment No. 3 Effective Date set forth above. All signed copies of this
Amendment No. 3 are deemed originals. This Amendment No. 3 does not constitute
an offer by either party. This Amendment No. 3 is effective upon execution on
behalf of Company and Microsoft by their duly authorized representatives.
MICROSOFT CORPORATION OVERTURE SERVICES, INC.
One Microsoft Way 74 N. Pasadena Avenue, 3rd Floor
Redmond, WA 98052-6399 Pasadena, CA 91103
By /s/ JOHN KRASS /s/ TED MEISEL
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(Sign) (Sign)
John Krass Ted Meisel
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Name(Print) Name(Print)
PUM CEO
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Title Title
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