PORTAL SERVICES AGREEMENT
This Portal Services Agreement (this "Agreement") is entered into as of
June 18, 1999 (the "Effective Date"), by and between Inktomi Corporation, a
Delaware corporation with its principal place of business at 0000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx, 00000 ("Inktomi") and BeFirst Internet
Corporation, a Delaware corporation, with its principal place of business at 000
Xxxx 00xx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000 ("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.
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 Icon" means an icon to be provided by Inktomi from time
to time that indicates that Inktomi's technology is being used.
1.3. "Inktomi Technology" means the computer software, technology
and/or documentation which is supplied by Inktomi for use in or 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. The definition of "Inktomi
Technology" shall include any supplemented definition set forth in an
Exhibit for a Service.
1.4. "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.
1.5. "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.
1.6."Term" shall have the meaning indicated in Section 9.
1.7. "Web" means the World Wide Web, containing, inter alia, pages
written in hypertext markup language (HTML) and/or any similar successor
technology.
1.8. "Web page" means a document on the Internet which may be viewed
in its entirety without leaving the applicable distinct URL address.
1.9. "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 substantially in accordance with the
functionality specifications, performance criteria and limitations
specified in the Exhibit applicable to such Service.
2.2. Additional Services. Upon request, and provided that Customer is
current with service fees due under this Agreement, Inktomi may provide
Customer additional services in addition to the Services set forth in the
applicable Exhibit. Such additional service shall be mutually agreed upon
by the parties and shall be set forth, in Inktomi's reasonable discretion,
on a written work authorization or an additional Exhibit to this Agreement
which in either case has been executed by both parties. Such additional
service, if provided pursuant to: (i) a written work authorization shall be
provided at Inktomi's then applicable consulting rates and charges, and
shall be deemed rendered pursuant to and in accordance with the terms of
this Agreement; or (ii) an additional Exhibit shall be provided in
accordance with the rates, charges, terms and conditions of such Exhibit
and the terms of this Agreement. Any work authorizations issued under this
Agreement shall be sequentially numbered.
2.3. End-User Support. Inktomi, shall provide technical support for a
Service to the extent set forth in the Exhibit applicable to such Service.
Except as set forth in such Exhibit, 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 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. Inktomi
reserves the right to notify other customers of the signing of this
Agreement, but agrees not to provide such notice earlier than two (2) weeks
before a public announcement by Customer of its business relationship with
Inktomi or two (2) weeks before commercial launch of a Service provided by
Inktomi under this Agreement. whichever is later. Customer may not make any
public announcement involving Inktomi without Inktomi approval.
3. Intellectual Property Licenses/Ownership.
3.1. Trademark Licenses. Inktomi hereby grants Customer a
nontransferable, nonexclusive license to display the Inktomi Icon solely as
required in order to comply with its attribution obligations for each
Service. Customer hereby grants to Inktomi a nontransferable, nonexclusive
license under Customer's trademarks during the Term to advertise that
Customer is using Inktomi's services. Promptly following the Effective
Date, each party will provide to the other party its trademark usage
guidelines, as such guidelines may be amended from time to time. All uses
of trademarks as set forth
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above shall be in accordance with such guidelines. For uses outside of such
guidelines, a party will submit all materials of any kind containing the
other party's nonconforming trademarks to the other party before release to
the public for inspection, and such other party will have the right to
approve or disapprove such material prior to its distribution. Except as
set forth in this Section, nothing in this Agreement shall grant or shall
be deemed to grant to one party any right, title or interest in or to the
other party's trademarks. All use of Customer trademarks by Inktomi shall
inure to the benefit of Customer, and all use of Inktomi trademarks by
Customer shall inure to the benefit of Inktomi. At no time during or after
the Term shall one party challenge or assist others to challenge the
trademarks of the other party (except to the extent such restriction is
prohibited by applicable law) or the registration thereof or attempt to
register any trademarks, marks or trade names confusingly similar to those
of the other party.
3.2. 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 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 inconsistent with the rights granted to Customer hereunder, and
(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 substantially in
accordance with the performance criteria set forth on the applicable
Exhibit for such Service. Inktomi does not warrant that the Services will
meet all of Customer's requirements or that performance of the Services
will be uninterrupted or error-free. 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 THE DATABASE AND TO THE
MAXIMUM EXTENT PERMITTED BY LAW DISCLAIMS ANY RESPONSIBILITY OR LIABILITY
FOR SUCH MATERIAL.
4.2. Inktomi Obligations. Inktomi's sole obligation under the
foregoing warranties is to use reasonable efforts to correct any portion of
the Inktomi Technology or its business practices that does not meet the
foregoing warranties within a reasonable period of time, and if Inktomi
fails to do so, then Customer shall have the right to immediately terminate
this Agreement and receive as a sole remedy a refund of all amounts
advanced by Customer for the Agreement following the date of such
termination.
4.3. Customer Warranties. Customer warrants that: (i) it has full
power and authority to enter into this Agreement: (ii) it will seek all
necessary governmental approvals required to effectuate this Agreement; and
(iii) it shall perform the online services provided by Customer through the
Site in accordance with all federal. state and local laws, including all
professional registration requirements
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related thereto. 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 each of the Services in
accordance with the applicable Exhibit.
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
examine the other party's records from time to time but no more than once
every six (6) months 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 interfere
unreasonably 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. Customer shall pay all amounts due under this Agreement to
Inktomi at the address indicated at the address indicated at the beginning
of this Agreement or such other location as Inktomi designated in writing.
6. Confidentiality.
6.1. Definition of Confidential Information. All information and
documents disclosed or produced by either party in the course of this
Agreement which are disclosed in written form and identified by a marking
thereon as proprietary, or oral information which is defined at the time of
disclosure and confirmed in writing within ten (10) business days of its
disclosure, shall be deemed the "Confidential Information" of the
disclosing party. Notwithstanding the above, the parties agree that any
information (in any form, whether in tangible or Intangible) relating to
the Inktomi Technology is considered Confidential Information of Inktomi.
6.2. Treatment of Confidential Information. Each party agrees to
protect the other party's Confidential Information in the same manner as
such party protects its own Confidential Information of substantially
similar proprietary value, but in no case less than with reasonable care.
Each party agrees that it will use the Confidential Information of the
other party only for the purposes of this
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Agreement and that it will not divulge, transfer, sell, license, lease, or
otherwise disclose or release any such information or documents to third
parties, with the exception of: (1) its employees or subcontractors who
require access to such for purposes of carrying out such party's obligation
hereunder; and (ii) persons who are employed as auditors by a public
accounting firm or by a federal or state agency. Each party will use
reasonable efforts to advise any person obtaining Confidential Information
that such information is, proprietary and to obtain a written agreement
obligating such person to maintain the confidentiality of any Confidential
Information belonging to the party or its suppliers.
6.3. No Other Confidential Information. Neither party shall have any
obligation under this Section 6 for information of the other party which
the receiving party can substantiate with documentary evidence that has
been or is: (1) developed by the receiving party independently and without
the benefit of information disclosed hereunder by the disclosing party;
(ii) lawfully obtained by the receiving party from a third party without
restriction and without breach of this Agreement; (iii) publicly available
without breach of this Agreement; or (iv) known to the receiving party
prior to its receipt from the disclosing party.
7. Indemnification.
7.1. Inktomi Indemnification. With regard to each Service, Inktomi
shall indemnify Customer solely as set forth on the applicable Exhibit for
such Service.
7.2. Customer Indemnification. Customer shall defend and/or settle,
and pay damages awarded pursuant to, any third party claim brought against
Inktomi: (i) related to the services provided by Customer through the Site
or representations, claims or statements pertaining thereto, and (ii)
which, if true, would constitute a breach of any warranty, representation
or covenant made by Customer under Section 4.3; provided, that, Inktomi
promptly notifies Customer in writing of any such claim and promptly
tenders the control of the defense and settlement of any such claim to
Customer at Customer's expense and with Customer's choice of counsel.
Inktomi shall cooperate with Customer, at Customer's expense, in defending
or settling such claim and Inktomi may join in defense with counsel of its
choice at its own expense. Customer shall not reimburse Inktomi for any
expenses incurred by Inktomi without the prior written approval of
Customer.
8. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, IN NO EVENT WILL THE TOTAL LIABILITY OF INKTOMI AND ITS LICENSORS AND
SUPPLIERS ARISING OUT OF THIS AGREEMENT EXCEED THE NET AMOUNT INKTOMI HAS
ACTUALLY RECEIVED FROM CUSTOMER UNDER THIS AGREEMENT OVER THE PREVIOUS TWELVE
(12) MONTHS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INKTOMI AND ITS
LICENSORS AND SUPPLIERS SHALL NOT 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.
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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 until the expiration or
termination of the last Service.
9.2. Termination for Breach. Either party may suspend performance of
and/or terminate this Agreement if 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.
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. 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.
9.5. Survival. In the event of any termination or expiration of this
Agreement for any reason, Sections 1, 3, 4, 5.2, 6, 7 (to the extent
designated to survive in the applicable Exhibit), 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.
9.6. 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 other party may be legally entitled, such party shall
have the right to seek immediately injunctive relief in the event of a
breach of such sections by the other party or any of its officers,
employees, consultants or other agents.
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 such party 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 must be
sent to the addresses first described above or to such other address that
the receiving party may have provided for the purpose of notice in
accordance with this Section.
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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 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.
10.4. No Third Party Beneficiaries. All rights and obligations of the
parties hereunder are personal to them. 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 California law, without regard to conflict of law
principles. Except for claims relating to a breach of confidentiality under
Section 6 or involving Intellectual Property Rights, any dispute or claim
arising out of or in connection with this Agreement shall be finally
settled by binding arbitration in San Mateo County, California under the
Commercial Rules of the American Arbitration Association by one arbitrator
appointed in accordance with said rules. Judgment on the award rendered by
the arbitrator may be entered in any court having Jurisdiction thereof. In
connection with any litigation between the parties hereto arising out of or
relating to this Agreement, each party hereto irrevocably consents to the
exclusive jurisdiction and venue in the federal and state courts located in
San Francisco and/or San Mateo County.
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 Law. 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.
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 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, 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.
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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 of the parties.
IN WITNESS WHEREOF, the parties have caused this Portal Services Agreement
to be signed by their duly authorized representatives.
BeFirst Internet Corporation INKTOMI CORPORATION
By: /s/ Xxxxx Xxxxxxx Xxxxxxxxx By: /s/ Xxxxx Xxxxxxxx
------------------------------- --------------------
Name: Xxxxx X. Xxxxxxx Xxxxxxxxx Name: Xxxxx Xxxxxxxx
----------------------------- -------------------
Title: President Title: CFO
---------------------------- ------------------
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EXHIBIT A-I
TO THE
PORTAL SERVICES AGREEMENT
For BeFirst Internet Corporation ("Customer")
GENERAL SEARCH SERVICES
Customer's Site or Sites ("Site") shall be designated as follows:
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 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. "Affiliate" means with respect to any person or entity, any other
person or entity directly or indirectly controlling or controlled by or
under direct or indirect common control with such person or entity.
"Control" means the possession of beneficial ownership of more than 50% of
the stock or other similar interest entitled to vote for election of the
Board of Directors or similar managing authority.
1.2. "Database" means Inktomi's full text index database of Web pages
accessible by end users of the Site at any given time. The Database
includes the "General Search Database."
1.3. "Search Database" is the database maintained as part of the
General Search Services described on Attachment A to this Exhibit.
1.4. "General Search Services" means the Internet Search Engine
services to be provided by Inktomi for Customer under this Exhibit, as more
fully described on Attachment A to this Exhibit.
1.5. "Inktomi Data Protocol" means the written specification on how an
Interface communicates and interacts with the Inktomi Search Engine.
1.6. "Inktomi Search Engine" means Inktomi's current Search Engine as
of the Effective Date as the same may be: (i) updated as provided on
Schedule 1 to the Agreement; and (ii) otherwise updated, upgraded,
modified, changed, or enhanced by lnktomi from time to time at its sole
discretion. 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.
1.7. "Inktomi Technology" means the lnktomi 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.
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1.8. "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.
1.9. "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.
1.10. "Results Pages" means all Web pages displaying search results
presented to endusers directly as a result of accessing the query
mechanisms of the Inktomi Search Engine.
1.11. "Results Set" means a set of results consisting of between zero
and one hundred records presented in response to a search query.
1.12. "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.
1.13. "Search Pages" means all Web pages which enable end users of the
Site to initiate and send search queries to the Inktomi Search Engine.
1.14. "Usage Data" means the demographic, psychographic, statistical
and other end user data generated by operation of the lnktomi Search Engine
in connection with the search services provided by Customer to end users of
the Site, including without limitation all end user "click through"
information, but excluding Web usage data generated by the Database.
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, such
services to be provided substantially in accordance with the functionality
specifications, performance criteria and limitations specified on
Attachment A to this Exhibit. Inktomi, at its own expense, shall provide
all data transmission capacity (bandwidth), diskstorage, server capacity
and other hardware and software required to run the lnktomi Search Engine
and maintain the Database. Customer, at its own expense, shall create the
Interface 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, and to serve advertisements on
the Interface. 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 General Search Services in conjunction with search services
provided by Customer to end users of the Site, and Customer shall have no
right to provide, distribute, resell or provide services based on the
General Search Services or any information (including Results Sets)
generated therefrom to any other third party. Customer may not cache
Results Sets or any other information obtained from the Inktomi databases
without the prior written consent of Inktomi, which will not be
unreasonably withheld or delayed; and 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.
A1-2
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. Load testing as
used herein means the generation and delivery of more than five queries per
second. There shall no service fee payable by Customer for searches run
against the Test Cluster.
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
second level technical support services to Customer regarding the operation
of the Inktomi Search Engine. 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, Customer
at its own expense shall provide all support including, without limitation,
first level Customer Support services to end-users of the Site.
3.2. Attribution. All Search Pages and Results Pages shall
conspicuously display an icon to be provided by Inktomi (the "Inktomi
Icon") that indicates that Inktomi's technology is being used. The Inktomi
Icon shall measure at least 41 x 126 pixels and shall provide a link to a
page of Inktomi's choice on Inktomi's Web site located at xxx.Xxxxxxx.xxx.
The placement of the Inktomi Icon on the Web page shall be at Customer's
discretion.
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 Tool or to develop an Interface to the Inktomi
Search Engine for to Sites of Service Recipients.
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, except as expressly set forth in this Exhibit or the Agreement.
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4.3. Usage Data. The Usage Data belongs to Customer, provided however
that lnktomi shall have the right, during the term of this Agreement, to
use and redistribute the Usage Data solely for the purpose of billing
Customer for the queries and for ascertaining trends and demographic
preferences which can be used for targeting certain marketing campaigns at
end users.
5. Payment.
5.1. Service Fees. Customer shall pay Inktomi service fees in the
amount and on terms specified on Schedule 2 of the Agreement.
5.2. Records. For purposes of fulfilling its obligations under Section
5.2 of the Agreement, Customer shall keep complete and accurate records
pertaining to the number of Results Sets served during the applicable
period.
6. Indemnification. Inktomi shall defend and/or settle, and pay damages
awarded pursuant to any third party claim brought against Customer alleging the
software comprising the Inktomi Search Engine improperly includes any third
party copyrighted subject matter, third party patented subject matter or third
party trade secrets, provided that Customer promptly notifies Inktomi in writing
of any such claim and promptly tenders the control of the defense and settlement
of any such claim to Inktomi at Inktomi's expense and with Inktomi's choice of
counsel. Customer shall cooperate with Inktomi, at Inktomi's expense, in
defending or settling such claim and Customer may join in defense with counsel
of its choice at its own expense. Inktomi shall not reimburse Customer for any
expenses incurred by Customer without the prior written approval of Inktomi. The
indemnification obligation set forth in this Section 6 shall terminate upon the
expiration or termination of the General Search Services provided pursuant to
this Exhibit.
7. Term. The term of this Exhibit (the "Term") shall commence upon the
Effective Date and shall continue in force for a period of three (3) years,
thereafter unless otherwise terminated in accordance with the terms of the
Agreement.
IN WITNESS WHEREOF, the parties have caused this Exhibit to the Agreement
to be signed by their duly authorized representatives.
BeFirst Internet Corporation INKTOMI CORPORATION
By: /s/ Xxxxx Xxxxxxx Xxxxxxxxx By: /s/ Xxxxx Xxxxxxxx
----------------------------- ---------------------
Name: Xxxxx X. Xxxxxxx Xxxxxxxxx Name: Xxxxx Xxxxxxxx
--------------------------- -------------------
Title: President Title: CFO
-------------------------- ------------------
A1-4
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 an end user (in the form of a word query), locate
material accessible in the General Search Database, and present the results of
the search to the end user. Inktomi will serve end user search queries out of
one or more of its search engine data centers at Inktomi's discretion. The
functionality specifications and performance criteria applicable to such
services are as follows:
Functionality Specifications:
lnktomi will operate the lnktomi Search Engine so as to enable end users of
the Site to run queries against the General Search Database with the following
functionality:
o Ability to search by keyword, file type, domain (up to three levels),
document title, modification dates, document contents, depth and
metaword
o Ability to search by full text and phrase, and search with Boolean
operators (including AND, NOT and OR). Default search, barring user
modification at query time by the end user, will be AND.
o Search on included object, covering the following objects: Acrobat,
Java applets, active x controls, audio, plugins, Flash, form, frame,
image, script, Shockwave, table, video and vrml
o Search on included file type, by file extension
o Search on specific script language, covering Javascript and Vbscript
o Limit search to words in the HTML "title" field
o Grammatical stemming
o Search by language
o Case sensitivity support
o Pornography filtration
o Ability to selectively control the size of each Results Set (0-10
records, 11-20 records, 21-30 records, 31-50 records, 51-75 records,
76-100 records)
Performance Criteria
o Size of Database - Minimum 54 million documents for all
queries and a minimum of 110 million
documents that may be accessed for up to
20% of daily queries
AA1-1
o Database Freshness - Objective is minimum 13 updates per year
(approximately every 4 weeks, may vary
depending on operational circumstances)
o Uptime/Downtime - Minimum 99% uptime (1% downtime) over
monthly windows. Downtime = any 1 minute
period in which Inktomi Search Engine
processes no requests.
o Query/Response Speed - Average speed <= 750 milliseconds
Reports
Once a month, Inktomi will provide standard crawl and uptime reports to
Customer for the General Search Services.
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 thirty (30) days following the Effective Date.
AA1-2
SCHEDULE 1
TO THE
PORTAL SERVICES AGREEMENT
SUPPORT GUIDELINES FOR
GENERAL SEARCH
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.
1. Contact points.
(a) Customer Technical Support Personnel. Customer will designate no
more than three Customer employees as qualified to contact
lnktomi for technical support.
(b) Inktomi Technical Support Personnel. Inktomi will ensure that its
Technical Support Personnel are adequately trained to provide
technical support to Customer. Inktomi will provide Customer with
a web interface or an email address (the "Support Address"), as
well as an email pager address (the "Support Page") 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.
2. Support procedures.
(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.
S1-1
(c) Upon receiving a report from Customer, Inktomi will determine
whether the request is a Problem, a Severe Problem, or an
Enhancement Request. 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.
3. 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:
=============================================================================================================================
Target response
Receipt of email Type of email Time from email Target Fix Time and
request request receipt Reporting
-----------------------------------------------------------------------------------------------------------------------------
During business hours Problem Within one business Commercially
or other times day reasonable best
efforts with weekly
status reports to
Customer
-----------------------------------------------------------------------------------------------------------------------------
During the hours Severe Problem Within two hours Commercially
between 6:00 a.m. reasonable best
and 9:00 p.m. Pacific efforts with daily
time status reports to
Customer
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
During other times Severe Problem Within four hours Commercially
reasonable best
efforts with daily
status reports to
Customer
-----------------------------------------------------------------------------------------------------------------------------
During business hours Enhancement Requests Within five business At Inktomi's
or other times days discretion
=============================================================================================================================
S1-2
(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:
Xxxxx Xxxxxxxxxxx - Search Engine Technical Operations
Xxxx Xxxxx - Director of Partner Services
Xxxx Xxxxxxxxx - General Manager, Search Business Unit
Xxxx Xxxxxx - Vice President Marketing
Xxxx Xxxxxxxxxxxx - CEO
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SCHEDULE 2
TO THE
PORTAL SERVICES AGREEMENT
SERVICE FEES
1. Information Service Fee. Customer shall pay Inktomi a base information
services fee of $50,000 per year. For the first year under the Agreement, the
base information services fee shall be paid as follows: 1/4 of the fee shall be
paid within thirty (30) days of execution of the Agreement and 1/4 of the fee
shall be paid on the last day of each full calendar quarter thereafter. For
subsequent years, the base information services fee shall be paid in equal
monthly installments on the last day of each month.
2. 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 during the month for search
queries. 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 500,000 Average Daily
Results Sets Served $.0034 per Results Sets Served
For the next 500,000 Average Daily
Results Sets Served $.0032 per Results Sets Served
For all Average Daily
Results Sets Served over 1 million $.0030 per Results Sets Served
(C) multiplied by the total number of days in such month.
(D) The Average Daily Result Set shall consist of 20 results per set.
The total per-query service fees payable by Customer shall not be less than
$130,000 for the first Year of the Term: $150,000 for the second Year of the
Term; and $170,000 for the third year of the Term. For the first year under the
Agreement, this minimum shall be paid as follows: 1/4 of the annual minimum fee
shall be paid within seven (7) days of execution of the Agreement and 1/4 of the
fee shall be paid on the last day of each full calendar quarter thereafter. For
subsequent years, the annual per-query minimums shall be paid in equal monthly
installments on the last day of each month. All such minimum payments shall be
credited against monthly per-query service fees otherwise due and payable.
3. All Services. The service fees set forth above are for General Search
Services provided by Inktomi as such Services are contemplated in the applicable
Exhibit. The total aggregate annual minimum fees due to Inktomi as set forth
above, shall be $180,000 for the first year of the Term, $200,000 for the second
year of the Term; and $220,000 for the third year of the Term.
S1-4
