Overture Search Services Agreement [Addendum No. 1] - Overture Services Inc. and Yahoo! Inc.
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FIRST ADDENDUM TO OVERTURE SEARCH SERVICES AGREEMENT
This First Addendum (the "First Addendum") is effective as of October 1, 2002
(the "First Addendum Effective Date") and entered into by and between Overture
Services, Inc. ("Overture"), a Delaware corporation with offices at 74 North
Pasadena Avenue, 3d Floor, Pasadena, CA 91103, and Yahoo! Inc. ("Yahoo"), a
Delaware corporation with offices at 701 First Avenue, Sunnyvale, CA 94089, in
connection with the Overture Search Services Agreement effective as of May 1,
2002 and entered into by and between Overture and Yahoo (the "Agreement").
RECITALS
WHEREAS, the Agreement provides for, among other things, the delivery
by Overture and the display by Yahoo of sponsored search results in response to
search queries conducted through Yahoo's principal, U.S. targeted directory to
the World Wide Web.
WHEREAS, the parties anticipate expanding their strategic relationship,
such that Overture will provide Yahoo with sponsored search results in response
to search queries conducted through other directories implemented by Yahoo
across its domestic or foreign networks, and the parties will share revenue
generated from these sponsored search results, and the parties will administer
certain of these incremental sponsored search result implementations in
accordance with this First Addendum, as further described herein.
NOW, THEREFORE, in consideration of the mutual promises and conditions
contained herein, and for good and valuable consideration, the parties agree as
follows:
AGREEMENT
1. Definitions. Capitalized terms not defined herein have the meanings set
forth in the Agreement.
1.1 Launch Date means the first date on which Overture Results are
publicly displayed within the applicable Yahoo Search
Functionality, as reported by Yahoo.
1.2 Minimum Display Requirements means the introductory paragraph
to Section 4.3 of the Agreement (beginning "After receiving
Overture Results . . ." and ending ". . . in the Featured
Sections.") and, except for the first sentence and the last
sentence thereof, Section 4.3(a) of the Agreement.
1.3 [*]
1.4 U.S. Implementation means the current implementation of the
Overture Results on Yahoo Search, as described in the
Agreement.
1.5 Yahoo Canada Network means the Yahoo Foreign Property that is
targeted to Canada and currently located at
http://www.yahoo.ca, including but not limited to Yahoo Canada
Search, the Yahoo Foreign Verticals that target Canada and any
other Canadian targeted products or services that are
developed and branded in whole or in part by or on behalf of
Yahoo or a Canadian based Yahoo Affiliate; provided that any
entity or property acquired, developed, controlled by or
branded in whole or in part by or on behalf of Yahoo or a
Canadian based Yahoo Affiliate after the First Addendum
Effective Date with whom Overture has a then-existing
contractual relationship will continue to perform under the
existing contract with Overture (to the extent that such
performance is within the reasonable control of Yahoo) and,
upon request by Overture, Yahoo shall not send any Yahoo
Canada Search Queries from any such entity in the event that
no contractual relationship exists between the entity and
Overture at the time of the date of acquisition, development
or branding in whole or in party by or on behalf of Yahoo.
1.6 Yahoo Canada Search means the Yahoo Foreign Vertical that is
the search functionality within the Yahoo Canada Network's
principal directory to the World Wide Web, currently located
at http://www.yahoo.ca, which search functionality currently
resolves either to ca.search.yahoo.com or to
ca.google.yahoo.com.
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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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1.7 Yahoo Canada Search Box means a graphical area substantially
similar in form to the example set forth in Exhibit B to the
Agreement that appears on web pages across the Yahoo Canada
Network, including but not limited to the front page of Yahoo
Canada Search and all Yahoo Canada Search Results Pages,
through which a user can only submit a search query that is
[*] a keyword or phrase that resolves to Yahoo Canada Search.
Additionally, searches initiated by a user clicking on the
"next" button on a Yahoo Canada Search Results Page and
searches conducted after Yahoo provides the user with the
correction to a misspelled word (in which case the user may
click on the corrected spelling to connect to a Yahoo Canada
Search Results Page) and "Related Searches" (or similar
functionality) that appear below the Featured Bottom Section
as shown in Exhibit C to the Agreement will be deemed as
submitted through a Yahoo Canada Search Box. For clarity,
search boxes that resolve to searchable directories other than
[*] or successor directories thereto (e.g., searches submitted
through any Yahoo Foreign Vertical within the Yahoo Canada
Network, including but not limited to the search box that
resolves to the specialty directory within the Yahoo Canada
Network's shopping-related property) are not Yahoo Canada
Search Boxes.
1.8 Yahoo Canada Search Query means any search query comprised of
a keyword or phrase and initiated through the Yahoo Canada
Search Box by a U.S. User. For clarity, search queries
initiated through means other than the Yahoo Canada Search Box
(e.g., searches initiated through any Yahoo Foreign Vertical
within the Yahoo Canada Network, including but not limited to
the search box that resolves to the specialty directory within
the Yahoo Canada Network's shopping-related property) will not
be deemed a Yahoo Canada Search Query.
1.9 Yahoo Canada Search Results Pages means those web pages within
Yahoo Canada Search, excluding the Jump Page, displayed in
response to Yahoo Canada Search Queries.
1.10 [*]
1.11 Yahoo Search Functionality means any search functionality
within either a Yahoo Vertical or a Yahoo Foreign Vertical and
within which the parties agree in writing to integrate the
Overture Results according to this First Addendum.
2. Integration of Overture Results within Yahoo Search Functionality. The
parties agree to work together and to undertake commercially
reasonable efforts to implement the Overture Results within those
Yahoo Search Functionalities upon which the parties mutually agree in
writing (each, an "Additional Implementation"). The parties will
undertake commercially reasonable efforts to schedule the Launch Date
for an Additional Implementation to occur [*]. Yahoo also will provide
Overture with email notice of the Launch Date of each Additional
Implementation within [*]. With respect to each Additional
Implementation, both parties agree to comply with the Service Level
Agreement.
2.1 Mock-Ups; Minimum Search Results Characteristics; Changes.
Before the parties can agree on the launch of a particular
Additional Implementation, the parties must agree on [*] For
clarity, the parties acknowledge and agree that email is an
appropriate medium through which to agree on an Additional
Implementation, as long as (i) the individuals who agree via
email are then employed as directors or higher by the party on
behalf of which the individual agrees (and, for individuals
employed by Overture, the individuals must be part of
Overture's Business Affairs Group); and (ii) the email
specifically states that it is an Additional Implementation
pursuant to this First Addendum and [*]
2.2 Suppression and Removal of Overture Results. The parties
acknowledge and agree that (a) each Additional Implementation
might implicate different regulatory regimes, editorial
policies and user considerations than those implicated by the
U.S. Implementation; and (b) the parties will work together
and adjust the circumstances under which Overture Results are
suppressed or removed accordingly. Overture also will suppress
Overture Results that link directly to a page owned or
controlled by [*]
2.3 Separate Feed and Reporting of each Additional Implementation.
Overture will deliver and Yahoo will utilize a separate and
distinct feed of Overture Results for each Additional
Implementation, and Overture will account for each Additional
Implementation as a separate line item in any reports required
hereunder
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or under the Agreement. Yahoo will provide Overture with the
same information at the time-of-search for an Additional
Implementation as it does for the U.S. Implementation, and
Overture will be entitled to use and disclose that
information subject to the use and disclosure restrictions
set forth in the Agreement.
2.4 Wind Down of any Additional Implementation. Each party will be
entitled to discontinue a particular Additional Implementation
upon [*] prior written notice to the other party, except that
(a) Yahoo will be entitled to discontinue a particular
Additional Implementation upon [*] prior written notice to
Overture to the extent that Yahoo elects to [*] and (b)
Overture will be entitled to discontinue a particular
Additional Implementation upon [*] prior written notice to
Yahoo to the extent that Yahoo (i) has made a [*] and (ii)
does not reverse that [*] within the [*] notice period. Yahoo
agrees that it will not present an active Additional
Implementation to Overture as part of a New Domestic
Opportunity or an International Opportunity, as applicable,
for a period of no less than [*] after the Launch Date of the
active Additional Implementation. [*]
2.5 Minimum Display Requirements and [*] for Yahoo Canada Search.
Except as set forth in Section 5.4 of the Agreement, Yahoo
will send the English language Yahoo Canada Search Query to
Overture each and every time that a U.S. User initiates a
search through a Yahoo Canada Search Box. The Minimum Display
Requirements will apply to this Additional Implementation. [*]
The parties acknowledge and agree that (i) each Yahoo Canada
Search Query (which, by definition, includes queries typed
into the Yahoo Canada Search Box and queries submitted from
either the "next" button or the "Related Searches" link on
Yahoo Canada Search Results Pages) will generate a [*] for
purposes of subsection (b) above; and (ii) any other
opportunity for a third party to provide Yahoo with Restricted
Search Results for display on pages within Yahoo Canada Search
constitutes an International Opportunity under Section 7.4 of
the Agreement. [*]
3. Payment. Overture will make payments to Yahoo in accordance with the
following:
3.1 Revenue Share Payments. With respect to each Additional
Implementation, Overture will make Quarterly revenue share
payments (the "Additional Implementation Revenue Share
Payments") to Yahoo based on Gross Revenue earned from Bidded
Clicks on the particular Additional Implementation (the
"Additional Implementation Gross Revenue") in the applicable
Quarter according to the schedule set forth below. [*]
Additional Implementation Revenue Share Payments are due and
payable to Yahoo within [*] days after the end of the
applicable Quarter.
[*]
Overture will retain all revenue that it derives from the
Overture Results within the Additional Implementations,
except as specifically set forth in this First Addendum.
3.2 Payment Mechanics. Overture will make payments to Yahoo in
U.S. dollars via wire transfer into Yahoo's main account
according to the instructions set forth below:
[*]
3.3 Late Payments; Interim Additional Implementation Payment. Any
undisputed Additional Implementation Revenue Share Payment
that is paid more than [*] late will bear interest at the rate
of [*]. With respect to Additional Implementations launched
between the Effective Date and the First Addendum Effective
Date (the "Interim Additional Implementations"), Overture
shall make a payment to Yahoo in the amount of [*] (which was
derived by deducting the [*] that Overture has already paid to
Yahoo for the Interim Additional Implementations from [*]
which is the total amount due to Yahoo for the Interim
Additional Implementations during the period between the
Effective Date and the First Addendum Effective Date) prior to
[*] (the "True-Up Payment"), without applying interest
hereunder. For clarity, provided that Overture makes the
True-Up Payment in the time and in the amount set forth in the
prior sentence, Overture shall not be in breach of this First
Addendum for failure to make the True-Up Payment and no
interest shall be applied to the True-Up Payment.
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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
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omitted portions.
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3.4 Audit Rights and Data Rights. Except as expressly set forth
herein or as otherwise agreed by the parties in writing, the
audit rights and data rights and obligations for the
Additional Implementations will mirror the U.S. Implementation
as set forth in Sections 8.4 (including Exhibit F) and 8.5 of
the Agreement.
3.5 No Payment Adjustments. The parties acknowledge and agree that
the performance of each Additional Implementation will be
tracked separately from the U.S. Implementation, and that the
Additional Implementations will not be included in the
calculation of Impressions, Coverage, PPC, CTR or of
adjustments to the Estimated Yahoo Payment or the Guaranteed
Fixed Payment under the Agreement.
4. Term and Termination.
4.1 Term. This First Addendum will become effective as of the
First Addendum Effective Date and, unless terminated as set
forth herein, will remain effective for the same period as the
Agreement remains effective.
4.2 Termination with Cause. If, with respect to any or all
Additional Implementations, either party breaches this First
Addendum in any material respect, and that party does not cure
its breach within [*] after written notice by the
non-breaching party of its breach, then the non-breaching
party will be entitled to terminate the affected Additional
Implementation(s) immediately upon written notice to the
breaching party after failure to cure within those [*] The
parties acknowledge and agree that a breach under this First
Addendum will not affect the Agreement, regardless of whether
the breach gives rise to termination of this First Addendum.
4.3 Termination in connection with Agreement. This First Addendum
and all Additional Implementations comprised hereunder will
terminate to the extent that the Agreement is terminated in
accordance with its terms, effective as of the effective date
of termination of the Agreement.
4.4 Effect of Termination. Sections 1, 3 (with respect to payments
accrued during the Term) and 5 above will survive termination
or expiration of this First Addendum.
5. Incorporation of Certain Provisions of the Agreement by Reference. Each
party's performance hereunder will be subject to the provisions of
Sections 12 - 14 and 16 of the Agreement, and those provisions are
incorporated herein by reference. For clarity, one party's liability to
the other party under this First Addendum will be subject to the same
liability caps set forth in Section 14 of the Agreement (i.e., this
First Addendum does not give rise to separate and distinct liability
caps in the amounts set forth in Section 14 of the Agreement).
[signature page follows]
EXECUTION CONFIDENTIAL
* 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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IN WITNESS WHEREOF, the parties have caused this First Addendum to be executed
by their duly authorized representatives as of the First Addendum Effective
Date.
YAHOO! INC. OVERTURE SERVICES, INC.
By: /s/ Jeff Weiner By: /s/ William Demas
--------------------------- ---------------------------
Name: Jeff Weiner Name: Bill Demas
Title: Senior Vice President, Title: Senior Vice President
Search and Marketplace & General Manager,
Affiliate Business Group
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EXHIBIT A
Overture Canadian Restricted Companies
[*]
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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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EXHIBIT B
[*]
[*]
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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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