EXHIBIT 10.14
SOFTWARE HOSTING AGREEMENT
This Software Hosting Agreement (the "Agreement") is entered into and effective
as of the later of the two signature dates below (the "Effective Date") INKTOMI
CORPORATION ("Inktomi"), a California corporation, 0000 Xxxxx Xxxxxxx Xxxxxx,
Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000, and MICROSOFT CORPORATION ("Microsoft"),
a Washington Corporation, Xxx Xxxxxxxxx Xxx, Xxxxxxx, Xxxxxxxxxx 00000-0000,
with reference to the facts set forth in the Recitals below.
Recitals
A. Inktomi develops and markets computer software products, including
without limitation a "search engine" software for searching and indexing
information accessible through the Internet.
B. Microsoft develops, manufactures, distributes and markets computer
software products and services.
C. Pursuant to that certain Software Development Agreement between the
parties executed as of the Effective Date (the "Software Development
Agreement"), Inktomi is customizing its Internet search engine software for
Microsoft.
D. Microsoft desires that Inktomi host and maintain the customized search
engine on servers owned by Inktomi and located at a facility selected by Inktomi
in California, and Inktomi desires to provide such hosting and maintenance
services, on the terms and conditions contained herein.
Agreement
Accordingly, Inktomi and Microsoft hereby agree as follows:
1. Definitions.
-----------
1.1 "Ancillary Agreements" shall mean the following agreements
between Inktomi and Microsoft, and all amended versions thereof or successor
agreements thereto: (i) the Software Development Agreement of even date
herewith; (ii) the Information Services Agreement of even date herewith; (iii)
the Loan Agreement of even date herewith, and any and all "Promissory Notes"
and/or "New Note" executed pursuant thereto; (iv) the Security Agreement of even
date herewith; and (v) the Escrow Agreement of even date herewith.
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
1.2 "Deployment, Hosting and Maintenance Specifications" shall mean
the specifications for the Services attached to this Agreement as Exhibit A, as
it may be amended from time to time by mutual agreement of the parties, which
agreement shall not be unreasonably withheld by either party; if and when the
Deployment, Hosting and Maintenance Specifications are modified in accordance
with Section 2.2 below, the parties shall initial the new Deployment, Hosting
and Maintenance Specifications or amendments to the existing Deployment, Hosting
and Maintenance Specifications, and immediately following the last initialing
such new Deployment, Hosting and Maintenance Specifications or amendments shall
automatically be deemed to supercede or supplement (as the case may be) Exhibit
A.
1.3 "Hosting Servers" shall mean those servers (including both the
search engine cluster and the crawling cluster) and other hardware and third
party software identified in the Deployment, Hosting and Maintenance
Specifications that shall be used to host or service the Microsoft Search Engine
and Usage Data.
1.4 "Internet" means any systems for distributing digital electronic
content and information to end users via transmission, broadcast, public
display, or other forms of delivery, whether direct or indirect, whether over
telephone lines, cable television systems, optical fiber connections, cellular
telephones, satellites, wireless broadcast, or other mode of transmission now
known or subsequently developed.
1.5 "Launch Date" will mean that date on which the Microsoft Search
Engine (other than any so-called "beta" version) is first generally available
for use by the public.
1.6 "Microsoft Search Engine" will mean those versions of the Product
developed to Microsoft specifications pursuant to said Software Development
Agreement and used to generate search results for Microsoft (or for third
parties requesting searches through Microsoft) under said Information Services
Agreement.
1.7 "Microsoft Site" means the Microsoft Web Site(s) or Microsoft
application(s) which, when accessed by an end user, will permit the end user to
conduct a search of the Internet (or a portion thereof) using the Product; if
Microsoft sublicenses its rights to use the search results generated by the
Product hereunder (as permitted under the Information Services Agreement), then
the site(s) of such Microsoft sublicensee(s) will be deemed to be Microsoft
Site(s).
1.8 "Product" shall mean that certain customized search engine
software developed by Inktomi for Microsoft pursuant to the Software Development
Agreement, as more specifically described in said Software Development
Agreement.
2
1.9 "Security Measures" shall mean those procedures and precautions
described in Exhibit A, for maintaining the security of the Product and Usage
Data required under this Agreement.
1.10 "Services" shall mean the deployment, hosting and maintenance of
the Product as described under this Agreement.
1.11 "Term" means the period of time commencing on the Effective Date
and continuing thereafter indefinitely until this Agreement is terminated
pursuant to Section 10 below.
1.12 "Usage Data" means such data as Inktomi may collect relating to
the usage of (i) the Product by Microsoft and end users, and/or (ii) the Hosting
Servers.
1.13 "Web" means the so-called World Wide Web, containing, inter alia,
Web Pages written in hypertext markup language (HTML) and/or any similar
successor technology.
1.14 "Web Indexing Data" means such data as Inktomi may collect
relating to the documents crawled by its crawling software in connection with
its operation of the Product.
1.15 "Web Page" means a document on the Web which may be viewed in its
entirety without leaving the applicable distinct URL address.
1.16 "Web Site" means a collection of inter-related Web Pages.
2. Services.
--------
2.1 Inktomi shall deploy, host and maintain the Product and Hosting
Servers in accordance with the Deployment, Hosting and Maintenance
Specifications and the other terms and conditions contained in this Agreement.
Inktomi agrees that the Services shall be performed in a professional manner and
shall be of a high grade, nature, and quality.
2.2 The parties contemplate that there may be additions, deletions or
other changes which may affect the Deployment, Hosting and Maintenance
Specifications from time to time during the Term. Subject to Sections 2.2.1
through 2.2.3 below, any such additions, deletions or other changes to the
Deployment, Hosting and Maintenance Specifications shall be mutually agreed to
by Inktomi and Microsoft. Upon such mutual agreement (or, if mutual agreement is
not required, upon notice of any such changes desired by Microsoft), Inktomi
shall alter the Services in order to accommodate the revised Deployment, Hosting
and Maintenance Specifications.
3
2.2.1 Inktomi and Microsoft will confer not less frequently than
monthly regarding the appropriate size (including hardware requirements) and
capacity of the Hosting Server cluster, and Inktomi will supply all available
and relevant usage data it may have; Microsoft will specify its capacity
desires, and, notwithstanding anything contained herein to the contrary, any and
all changes in capacity (including without limitation, number of Hosting Servers
and connectivity capacity) requested by Microsoft shall be deemed acceptable to
Inktomi, and Inktomi shall conform to such new capacity requirements in
accordance with the timetable specified by Microsoft.
2.2.2 Inktomi will deploy the capacity requested by Microsoft
hereunder within the timeframe specified in the Deployment, Hosting and
Maintenance Specifications, or as otherwise may be agreed by Microsoft and
Inktomi at such time.
2.2.3 At each monthly conference referred to above in Section
2.2.1, Inktomi will state its good faith estimate of the hardware and capacity
needs for itself and its other customers. At its sole cost and expense, Inktomi
promptly will provision for such hardware and capacity needs, and supply
Microsoft with a list of the hardware provisioned and an officer's certification
that Inktomi has made such provisions. Upon Microsoft's request (but not more
often than twice in any calendar year), Inktomi will supply Microsoft with
documentation evidencing such provisioning.
2.3 In accordance with its performance of the Services, Inktomi may
collect and/or possess Web Indexing Data and Usage Data.
2.3.1 As between Inktomi and Microsoft, Inktomi will own all
rights in and to Web Indexing Data. However, Inktomi will provide Microsoft with
access to the Web Indexing Data solely for purposes of managing, marketing and
promoting the Microsoft Search Engine.
2.3.2 All Usage Data shall be owned jointly by Microsoft and
Inktomi, and Inktomi hereby irrevocably assigns to Microsoft an [*]
interest therein. However, Inktomi shall not have the right to share any of such
Usage Data with third parties (except that Inktomi may include Usage Data as
part of "gross" undifferentiated data which it shares with other search engine
customers but does not indicate as Usage Data related to the Microsoft Search
Engine).
2.4 Inktomi shall provide to Microsoft all reports described in the
Deployment, Hosting and Maintenance Specifications, in accordance with the terms
therein.
4
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
2.5 Inktomi shall strictly adhere to all Security Measures in
performing the Services, including without limitation securing the Usage Data,
which it may possess or have under its control from time to time, from
unauthorized access and modification.
2.6 Microsoft will have the right, in its sole and absolute
discretion, to require Inktomi to devote a separate cluster of Hosting Servers
to servicing Microsoft hereunder, which Servers would not be used to service any
needs of Inktomi and/or any third parties. The Hosting Servers purchased by
Inktomi at Microsoft's request hereunder would be re-deployed to such separate
cluster.
2.6.1 If Microsoft notifies Inktomi in writing that it desires
such a separate cluster, Microsoft shall reimburse Inktomi for all actual,
direct expenses incurred and paid by Inktomi for equipment (other than Hosting
Servers, which shall be purchased by Inktomi with financing loaned by Microsoft
as set forth elsewhere herein) and services of necessary subcontractors (but not
services of Inktomi employees) required to create and set up such separate
cluster, but Microsoft's obligations to make any payments to Inktomi pursuant to
clause (a) of Section 4.1 below will cease and terminate effective on the date
such separate cluster becomes operational.
2.6.2 Nothing contained in this Agreement will be deemed to
require Microsoft to deploy the Product in Hosting Servers owned by Inktomi, or
to require Microsoft to continue to utilize Inktomi's services to host the
Product at any time during the Term; without limitation, Microsoft will have the
right to deploy the Product, in whole or in part, at other site(s) (whether
owned by Microsoft or third parties) during the Term. If Microsoft elects to
deploy and operate the Product at other sites, Inktomi will take all steps
necessary or appropriate to facilitate such other deployment and operation;
without limitation, Inktomi will move any and all Hosting Servers to any
location(s) designated by Microsoft (costs of relocation, including shipping and
insurance, to be borne exclusively by Microsoft), and Inktomi will provide
training to Microsoft personnel and/or others designated by Microsoft to enable
them to satisfactorily operate and maintain the Product and Hosting Servers
wherever located. Notwithstanding anything to the contrary contained in this
Agreement, Microsoft will not be obligated to make any payments to Inktomi
pursuant to clauses (a), (e) and/or (f) of Section 4.1 below if Microsoft
exercises its rights to move the Hosting Servers under this Section 2.6.2.
2.7 Inktomi will assign two (2) full-time Inktomi employees
exclusively dedicated to maintenance duties hereunder. Such employees are
identified in Exhibit D attached hereto; and their replacements shall be subject
to Microsoft's prior written approval (which approval Microsoft will not
unreasonably withhold). Notwithstanding the foregoing, if Microsoft and Inktomi
mutually agree in writing, additional Inktomi employees may be required to be
assigned to maintenance duties hereunder.
5
2.8 Microsoft 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 search
engine applications. Except as may be expressly provided to the contrary
elsewhere in this Agreement, nothing in this Agreement will be deemed to (i)
limit or restrict Inktomi from customizing and providing its software and
technology to other parties for any purpose, including in connection with search
engine applications, or (ii) in any way affect the rights granted to such other
parties. Microsoft further acknowledges that in addition to utilizing the
Hosting Servers to host the Product, Inktomi may also use the Hosting Servers to
service its own needs and the needs of other third parties, unless Microsoft
elects to use a separate cluster in accordance with Section 2.6 above (it being
understood that Inktomi will estimate the capacity for servicing the needs of
itself and its other customers in good faith and provision accordingly, in
accordance with Section 2.2).
3. Hosting Servers.
---------------
3.1 Inktomi shall own all new Hosting Servers purchased by Inktomi
pursuant to Microsoft's request hereunder.
3.1.1 To the extent Inktomi is required to do so in order to
meet Microsoft's capacity requests under the Deployment, Hosting and Maintenance
Specifications (as the same may change from time to time), Inktomi shall
purchase new Hosting Servers. Prior to purchasing any such new Hosting Servers,
Inktomi will seek bids from third parties, copies of which Inktomi will provide
to Microsoft, and Microsoft will have the right to approve all such purchases
and the applicable purchase prices. Inktomi shall use commercially reasonable
efforts to minimize the purchase prices of such new Hosting Servers, but in any
event such purchase prices will not be more than any comparable equipment
purchased by Inktomi during the same time frame. Inktomi will consult with
Microsoft regarding the proposed purchase prices of all new Hosting Servers
prior to purchasing the same, and if Microsoft is aware of a vendor who is
willing to sell Hosting Servers to Inktomi at a lower purchase price than as
proposed by Inktomi, Inktomi agrees to purchase the applicable new Hosting
Servers from such vendor.
3.1.2 Notwithstanding Section 3.1.1 above, Inktomi shall have no
obligation whatsoever to purchase any new Hosting Servers unless Microsoft loans
Inktomi an amount equal to the purchase price thereof pursuant to the Loan
Agreement between Inktomi and Microsoft of even date herewith (the "Loan
Agreement").
3.2 Microsoft acknowledges that, pursuant to Inktomi's contractual
arrangement with its subcontractor, Exodus Communications, Inc. ("Exodus"),
Inktomi will locate the Hosting Servers at the facilities of Exodus, and Exodus
will provide power and Internet telecommunications services to the Hosting
Servers. However, Microsoft will have no obligations or liabilities to Exodus,
Inktomi will remain liable for providing all
6
Services to Microsoft notwithstanding its arrangement with Exodus, and Inktomi
will [*] and [*] against from any and all [*] to [*] (in accordance with the
procedures specified in Section [*] below). A copy of the contract(s) between
Inktomi and Exodus is/are attached hereto as Exhibit [*], and Inktomi shall not
modify said contract(s) or replace Exodus as its subcontractor for the
applicable services (including without limitation by having Inktomi perform the
Services directly) without Microsoft's prior written approval (which approval
Microsoft agrees to not unreasonably withhold). Inktomi shall provide Exodus
with a copy of the Security Measures applicable under this Agreement and will
use commercially reasonable efforts to ensure that Exodus strictly adheres to
all such Security Measures.
3.3 Subject to Microsoft's rights under Section 2.6.2 above and/or
the Security Agreement between Inktomi and Microsoft of even date herewith,
executed in accordance with the Loan Agreement, Microsoft shall not have any
access to the Hosting Servers, except as follows: (i) Microsoft will have
electronic read-only access to "real time" system data on the status of the
usage, accessibility and performance of the Microsoft Search Engine (via
software developed by Inktomi in consultation with Microsoft), and (ii)
Microsoft will have the right, upon reasonable notice and during normal business
hours, to have representatives escorted by Inktomi employees tour the premises
where the Hosting Servers are located as necessary to ensure Microsoft's
satisfaction with the operation of the physical plant and equipment. Microsoft
agrees to comply with the Security Measures at all times when accessing the
Hosting Servers as permitted hereunder.
4. Payment For Services.
--------------------
4.1 As full and complete compensation for the Services, Microsoft
shall pay to Inktomi the following monthly fees:
(a) beginning with the Launch Date, the sum of [*]
[*] Dollars ($[*]) (attributable to the use during the Term of the Hosting
Servers owned by Inktomi as of the Effective Date), provided that in no event
will Microsoft be obligated to make more than [*] ([*]) monthly payments
pursuant to this clause (a), and if the Term extends beyond [*] years after the
Launch Date, this clause (a) will be deemed deleted from this Agreement
effective on the [*] anniversary of the Launch Date notwithstanding anything
to the contrary contained herein;
(b) an amount equal to [*] ([*]) of the [*], [*], [*], [*]
thereon, incurred by Inktomi to purchase each new Hosting Server required to
service Microsoft's needs in accordance with Section 3.1 above (attributable to
the use during the Term of such new Hosting Servers); such payments will
commence with respect to each new Hosting Server at such time as Inktomi's
repayment obligations begin with respect to such new Hosting
7
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
Server pursuant to the Loan Agreement and the applicable Promissory Note.
Notwithstanding section 4.2 below, such payments shall be due in immediately
available funds on the first business day of each month. The parties acknowledge
that the monthly fee under this clause (b) will increase throughout the Term if
and to the extent that Microsoft's Hosting Server requirements increase, but,
notwithstanding anything contained herein to the contrary, no amounts shall be
payable under this clause (b) attributable to any Hosting Server which is more
than [*] years old;
(c) an amount equal to the [*] and [*] of the new Hosting
Servers purchased by Inktomi pursuant to Section 3.1 above ([*] any amounts paid
by Inktomi to Exodus for such services or attributable to the employees referred
to in clause (f) below), payable if and when Inktomi pays such maintenance
costs; Inktomi will use its commercially reasonable efforts to ensure that the
annual hardware and software maintenance costs for each such new Hosting Server
are not more than [*] percent ([*]%) of the purchase price of such New Hosting
Server, and Microsoft will not be obligated to pay higher maintenance costs than
such [*]% annual estimate without its prior written consent;
(d) an amount equal to [*] Percent ([*]%) of the sum of the
amounts payable under clauses (b) and (c) above (attributable as Inktomi's
management fee for providing the Services);
(e) an amount equal to Microsoft's [*] of the [*] [*] by Inktomi
to Exodus in connection with the applicable Hosting Servers cluster, computed in
accordance with Exhibit [*], [*] the [*] new Hosting Servers are [*] at Exodus;
and
(f) an amount equal to [*] per month per person identified
in Section 2.7 above, [*] of the new Hosting Servers.
In addition, if the number of ADH (as defined in the Software Development
Agreement and Information Services Agreement) should exceed the capacity
requested by Microsoft, or if Inktomi's usage of its estimated capacity
requirements should exceed its estimates as communicated to Microsoft in
accordance with Section 2.2.1 above, then Microsoft's applicable payment(s)
hereunder will be [*] in [*] with the [*] set forth in Exhibit [*] hereto.
4.2 Except as set forth in Section 4.1(b) above, Inktomi shall supply
to Microsoft written invoices for all amounts due under this Agreement, and
payments will be due net [*] ([*]) days from Microsoft's receipt of such
invoice. Inktomi shall bear sole responsibility for all expenses incurred in
connection with the performance of the Services, unless otherwise set forth
herein or agreed to in writing by Microsoft.
8
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
4.3 Inktomi shall keep true and accurate books and records, in
accordance with Generally Accepted Accounting Principles ("GAAP"), relating to
all costs and expenses for which Inktomi is entitled to charge Microsoft
pursuant to Section 4.1 above, throughout the Term and for eighteen (18)
additional months thereafter. Inktomi will permit Microsoft to have access to,
and to make copies of, all such books and records for purposes of auditing and
verifying such costs and expenses, provided that Microsoft shall give Inktomi
reasonable notice prior to each requested audit and shall perform such audit
during normal business hours at Inktomi's office(s) where such records are
normally kept. If any Microsoft audit should determine that Inktomi overcharged
Microsoft by an amount of [*]% or more for the period audited, then in addition
to any and all other rights and remedies Microsoft may have under the
circumstances, Microsoft may require Inktomi to reimburse it for all costs it
incurred relating to such audit.
4.4 Taxes.
-----
4.4.1 All amounts to be paid by Microsoft to Inktomi herein are
exclusive of any federal, state, local, municipal or other governmental taxes,
including, without limitation, taxes based on, imposed on or measured by net or
gross income or receipts, franchise taxes, taxes on doing business, capital
stock taxes (including any minimum taxes and taxes measured by any item of tax
preference), sales, use, excise, property, withholding or similar taxes, duties,
levies, fees, excises or tariffs (all such taxes and other charges collectively
"Taxes") now or hereafter imposed on Inktomi under applicable law (the "Inktomi
Taxes"). Microsoft is not liable to Inktomi for any Taxes incurred in connection
with this Agreement, unless they are (i) owed by Microsoft under applicable law
solely as a result of entering into this Agreement (ii) are based solely upon
the amounts payable under this Agreement, and (iii) are required to be collected
from Microsoft by Inktomi under applicable law, provided, however, that solely
with respect to sales tax or use tax payable to those taxing jurisdictions that
impose sales or use taxes under applicable law upon the vendor, rather than the
purchaser, clause (i) above shall be modified to provide "sales taxes or use
taxes that are owed by Inktomi under applicable law solely as a result of
entering into this Agreement and clause (iii) shall be modified to provide "are
permitted to be collected from Microsoft by Inktomi under applicable law." (Such
Taxes as are described in clauses (i), (ii) and (iii) above, the "Invoiced
Taxes".) The Invoiced Taxes shall be stated separately as applicable on
Inktomi's invoices and shall be remitted by Microsoft to Inktomi. Inktomi shall
promptly provide to Microsoft official tax receipts indicating that such
Invoiced Taxes have been collected by Inktomi. Microsoft may provide to Inktomi
an exemption certificate acceptable to Inktomi and to the relevant taxing
authority (including without limitation a resale certificate) in which case
Inktomi shall not collect the Taxes covered by such certificate. Inktomi agrees
to take such steps as are reasonably requested by Microsoft to minimize such
Invoiced Taxes in accordance with all relevant laws and to reasonably cooperate
with and assist Microsoft, at Microsoft's request, in challenging the validity
of any Invoiced Taxes or other Taxes paid directly by Microsoft to the relevant
taxing authority. Inktomi shall indemnify and hold Microsoft
9
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
harmless from any Taxes, penalties, interest, or additions to tax arising from
amounts paid by Microsoft to Inktomi under this Agreement that are asserted or
assessed against Microsoft to the extent such amounts are related to Invoiced
Taxes paid to Inktomi by Microsoft under this section. Other than the Invoiced
Taxes, all Inktomi Taxes shall be the responsibility of Inktomi and may not be
passed on to Microsoft. Inktomi takes full responsibility for all such Inktomi
Taxes, including penalties, interest and other additions thereon and agrees to
indemnify, defend and hold Microsoft harmless from any claims, causes of action,
costs (including without limitation, reasonable attorneys' fees), penalties,
interest charges and other liabilities of any nature whatsoever associated
therewith. All Taxes that are imposed on Microsoft under applicable law (the
"Microsoft Taxes") shall be the responsibility of Microsoft and may not be
passed on to Inktomi. Microsoft takes full responsibility for all such Microsoft
Taxes, including penalties, interest and other additions thereon and agrees to
indemnify, defend and hold Inktomi harmless from any claims, causes of action,
costs (including without limitation, reasonable attorneys' fees), penalties,
interest charges and other liabilities of any nature whatsoever associated
therewith.
4.4.2 In the event that Taxes are required to be withheld on payments
made hereunder by any U.S. (state, local or federal) or foreign government,
Microsoft may deduct such Taxes from the amount owed Inktomi and pay them to the
appropriate taxing authority. Microsoft shall in turn promptly secure and
deliver to Inktomi an official receipt for any Taxes withheld. Inktomi may
provide to Microsoft an exemption certificate acceptable to Microsoft and to the
relevant taxing authority (including without limitation a resale certificate) in
which case Microsoft shall not collect the Taxes covered by such certificate.
Microsoft agrees to take such steps as are reasonably requested by Inktomi to
minimize such Taxes in accordance with all relevant laws and to reasonably
cooperate with and assist Inktomi, at Inktomi's request, in challenging the
validity of any such Taxes.
4.4.3 Inktomi agrees and acknowledges that it will be responsible for
all of its federal and state taxes, withholding, social security, unemployment
and other related taxes, insurance, and other benefits, and all salaries,
benefits, and other costs of its employees.
5. Ownership of the Product. The parties respective rights in and to the
------------------------
Product will be as set forth in the Software Development Agreement and the
Information Services Agreement of even date herewith, and nothing contained in
this Agreement shall be deemed to modify such rights allocation.
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
10
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 Microsoft's written
approval (which Microsoft 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 Microsoft, or (ii) otherwise deprecate
Microsoft technology.
6.3 Inktomi shall use its reasonable commercial efforts to cause
Exodus to execute a non-disclosure agreement with Microsoft which includes
substantially similar restrictions as are contained herein.
6.4 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 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. Notwithstanding the foregoing, Microsoft
and Inktomi will cooperate to create a mutually approved joint press release
regarding the non-confidential aspects of this Agreement, which press release
shall be issued by each party on the Launch Date; provided, however, that the
precise timing of such press release shall be subject to the approval of
Microsoft (in its sole and absolute discretion).
7. Representations and Warranties.
------------------------------
7.1 Microsoft warrants and represents that it has the full power to
enter into this Agreement and perform its obligations hereunder.
7.2 Inktomi warrants and represents that:
7.2.1 It has the full power to enter into this Agreement and
perform its obligations hereunder, and Inktomi's performance of such obligations
will not violate any terms and conditions of other agreements entered into by
Inktomi with [*] ([*]);
7.2.2 Inktomi's [*] and [*] of the Product shall [*] to the [*]
and [*],
11
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
provided, however, that a [*] and [*] to so [*] will not be [*] to be a [*]
hereunder; and
7.2.3 Notwithstanding any [*] to [*] hereunder, or to any other
[*], Inktomi shall remain [*] for the [*] hereunder in accordance with [*].
8. Indemnification.
---------------
8.1 Each party shall, at the expense of such party (the "Indemnifying
Party") and at the request of the other party (the "Indemnified Party"), defend
[*] party claim or action brought against the Indemnified Party, and/or the
[*] and [*] which, [*], (i) would constitute a [*] of [*], [*] or [*] made
by the Indemnifying Party under this Agreement; or (ii) would [*] of the
Indemnifying Party's [*]; and the Indemnifying Party will [*] and [*] the
Indemnified Party [*] and [*], [*] and [*] incurred by the Indemnified
Party, including but [*] to [*] of [*] and [*], that are attributable to such
claim. The Indemnified Party shall: (x) provide the Indemnifying Party
reasonably prompt notice in writing of any such claim or action and [*] the
Indemnifying Party, through counsel [*] to Microsoft and Inktomi, to [*] and [*]
such claim or action; and (y) provide the Indemnifying Party [*], [*] and [*] at
the [*] Party's [*], to [*] the Indemnifying Party to [*] such claim or action.
The Indemnifying Party will [*] for [*] made by the [*] Party without the
[*] Party's [*], which [*] will [*].
8.2 The 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 8.
8.3 The Indemnifying Party may [*] any claim or action under this
Section 8 on the Indemnified Party's behalf [*] the [*], which [*] will [*].
In the event Microsoft and Inktomi agree to settle a claim or action, the each
party agrees not to publicize the settlement without first obtaining the other
party's written permission, which permission will not be unreasonably withheld.
12
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
9. LIMITATION OF LIABILITY. EXCEPT FOR [*] CAUSED BY A [*] OF
-----------------------
SECTION [*], NEITHER PARTY SHALL BE [*] (IN [*] WITH OR PURSUANT TO THIS
AGREEMENT AND THE ANCILLARY AGREEMENTS TAKEN AS A WHOLE) FOR ANY [*], [*] OR [*]
[*] (INCLUDING [*]) [*] OF [*] ([*]) [*] OF THE [*] OF [*], EVEN IF [*]
HAD BEEN [*] OF THE [*] OF SUCH [*].
10. Termination and Other Remedies.
------------------------------
10.1 Inktomi may terminate this Agreement without cause upon
[*]'s prior written notice, provided that such notice may not be given prior to
the [*] of the [*].
10.2 Microsoft may terminate this Agreement at any time without cause
upon [*] ([*]) days prior written notice. Upon receipt of such notice, Inktomi
will discontinue all work hereunder. If Microsoft terminates this Agreement
without cause pursuant to this Section 10.2, then Microsoft will pay for all
services provided by Inktomi up until the date of termination under this Section
10.2. Notwithstanding anything contained herein to the contrary, should
Microsoft exercise its termination right pursuant to this Section 10.2, then
Inktomi will have the right to elect, in writing within fifteen (15) days after
receipt of Microsoft's notice of termination hereunder, either one of the
following two options for a early termination penalty:
(a) Inktomi may require Microsoft to pay to Inktomi, in
[*] immediately following the effective termination date, an amount equal to [*]
([*]) of all outstanding principal, interest and other amounts owed or owing to
Microsoft by Inktomi on the date of termination under the Loan Agreement (and
outstanding Promissory Notes issued thereunder); or
(b) Inktomi may deliver that portion of the Collateral (as
defined in the Loan Agreement) which was purchased with Advances evidenced by
the then-outstanding Promissory Notes (as defined in the Loan Agreement) (the
"Returned Collateral") to Microsoft, and assign all right, title and interest in
and to said Returned Collateral to Microsoft, and promptly upon such delivery
and assignment Inktomi may require Microsoft to pay to Inktomi, in [*]
immediately following the effective date of termination, an amount equal to [*]
([*]) of all outstanding principal, interest and other amounts owed or owing to
Microsoft by Inktomi on the date of termination under the Loan Agreement (and
outstanding Promissory Notes issued thereunder); provided, however, that the
following conditions must be satisfied for Inktomi to be entitled to elect this
alternative (b)-
13
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
(i) Inktomi then owns all of the Returned Collateral and has [*]
the Returned Collateral [*], and [*] other than Lender;
(ii) Inktomi obtains any [*] reasonably required by Microsoft from
Inktomi's [*];
(iii) the Returned Collateral is returned in good condition and
repair, without any waste or unusual or unreasonable depreciation of
Returned Collateral;
(iv) Inktomi has not committed any act for which any portion of the
Returned Collateral might be confiscated by any governmental or private
entity;
(v) Inktomi has paid all taxes, assessments or similar obligations
affecting the Returned Collateral that are then due or have then accrued;
(vi) Inktomi [*] to Microsoft [*] that [*] of the [*] is [*] and
[*]; and
(vii) Inktomi, [*], arranges to deliver the Returned Collateral in a
manner and to a location designated by Microsoft.
In the event Inktomi elects this alternative (b), the Security Agreement
executed in connection with the Loan Agreement shall terminate on the business
day immediately following the date of delivery and assignment of all the
Returned Collateral to Microsoft.
10.3 Subject to Section 12.9 below, in the event the Microsoft
Search Engine is inaccessible to Microsoft, due to a problem other than one with
Microsoft's servers or the telecommunication line from Microsoft to the Hosting
Servers, for twenty-four (24) consecutive hours, or for forty-eight (48) hours
or more in any seventy-two (72) hour period, or for seventy-two (72) hours or
more in any one week period, and such inaccessibility is due to any reason other
than Microsoft's breach of its obligations under this Agreement, then Microsoft
may suspend performance and/or terminate this Agreement immediately with no
further obligation.
10.4 Microsoft may suspend performance and/or terminate this
Agreement immediately upon written notice at any time if:
(a) Inktomi is in [*] of this Agreement (excluding Section
[*]) and fails to cure that breach within [*] ([*]) days after written notice
thereof; or
(b) Inktomi is in material breach of Section [*]; or
14
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
(c) Inktomi 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 any 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 part thereof.
10.5 Inktomi may suspend performance and/or terminate this Agreement
immediately upon written notice at any time if:
(a) Microsoft is in [*] of this Agreement (excluding Section
[*]) and fails to cure that breach within [*] ([*]) days after written notice
thereof; or
(b) Microsoft is in material breach of Section [*]; or
(c) Microsoft 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 any 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 part thereof.
10.6 If Inktomi is in material breach of this Agreement, then
Microsoft will have the right to withhold payment of amounts otherwise owed by
Microsoft to Inktomi pursuant to this and/or any Ancillary Agreement; provided,
however, that Microsoft shall give Inktomi not less than [*] ([*]) days to cure
such breach prior withholding any such payments.
10.7 A breach of this Agreement by either party will also constitute
a breach by such party of each and every Ancillary Agreement; and a breach by
either party of any Ancillary Agreement will also consitute a breach of this
Agreement by such party.
10.8 In the event of termination or expiration of this Agreement for
any reason, Sections 1, 2.3, 4.3, 4.4, 5, 6.1, 7, 8, 9 and 12 shall survive
termination. Except as otherwise expressly provided in this Agreement, Inktomi
shall turn over to Microsoft all work in progress, software, and any other
materials provided by Microsoft to Inktomi under this Agreement promptly
following termination or expiration. Neither party shall be liable to the other
for damages of any sort resulting solely from such party terminating this
Agreement in accordance with its terms.
15
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
10.9 The rights and remedies given to the parties under this Section
10 are in addition to any other rights and/or remedies that the parties may have
under the circumstances, all of which are expressly reserved.
11. International Deployment, Hosting & Maintenance Obligations of
--------------------------------------------------------------
Inktomi. Microsoft will have the right to require Inktomi to purchase new
-------
Hosting Servers, and/or to arrange for and perform such deployment, hosting and
maintenance services, as Microsoft may determine in connection with
international versions of the Product throughout the Term, on the same terms and
conditions as applicable hereunder with respect to the original version of the
Product directed toward the U.S. market, including without limitation requiring
Inktomi to establish, deploy and maintain a cluster of Hosting Servers anywhere
in the world (including [*]) designated by Microsoft. If and when Microsoft
requires such undertakings by Inktomi, it will so notify Inktomi in writing,
whereupon Inktomi will perform such undertakings as requested as expeditiously
as reasonably possible.
12. Miscellany.
----------
12.1 Neither party shall represent itself as the agent or legal
representative of the other for any purpose whatsoever, and neither party shall
have the right to create or assume for the other any obligation of any kind.
This Agreement shall not create or be deemed to create an agency, partnership,
franchise, employment relationship or joint venture between the parties. Each
party's employees who perform services related to this Agreement shall remain
under the exclusive direction and control of their respective employer and shall
receive such salaries, compensation and benefits as their respective employer
may from time to time determine. Each party shall have full and sole
responsibility for its employees who perform any service related to this
Agreement with regard to compliance with all applicable laws, rules and
regulations governing such party relating to employment, labor, wages, benefits,
taxes and other matters affecting its employees.
12.2 Any notice required or permitted to be given under this
Agreement shall be made in writing and shall be deemed to have been given or
made if it is in writing and is: (i) delivered in person, (ii) sent by same day
or overnight courier, (iii) mailed by certified or registered mail, return
receipt requested, postage prepaid, addressed to the party at its address set
forth below or at such other address as such party may subsequently furnish to
the other party by notice hereunder, or (iv) delivered by facsimile, the
transmittal of which shall be confirmed by a telephone call to the other party
and by dispatch of a confirming copy of the transmittal by registered or
certified mail, postage prepaid. Notices will be deemed effective on the date of
delivery in the case of personal delivery, or three (3) business days after
mailing, or on the date of dispatch in the case of notification by facsimile
(assuming confirmation of transmission). The parties' addresses for purposes of
notice shall be as set forth above, provided that all notices to Inktomi shall
be sent to the
16
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
attention of General Counsel; and all notices to Microsoft shall
be sent to the attention of Xxxxxxx Xxxxxxxx, with a copy to: Law & Corporate
Affairs, U.S. Legal.
12.3 This Agreement shall be construed, enforced, performed and in
all respects governed by and in accordance with the laws in the State of
Washington. 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.
12.4 In the event any provision of this Agreement is rendered null,
void or otherwise ineffective, then (i) the parties agree to negotiate in good
faith an acceptable alternative provision which reflects as closely as possible
the intent of the unenforceable provision and (ii) notwithstanding, and
regardless of whether the parties reach agreement after the good faith
negotiations described in clause (i) immediately above, the validity, legality
and enforceability of the remaining provisions of this Agreement shall not in
any way be affected or impaired thereby and shall remain in full force and
effect. Section and all other headings used herein are provided for convenience
only and are not to be given any legal effect or considered in interpreting any
provision of this Agreement. No provision of this Agreement shall be interpreted
against any party because such party or its legal representative drafted such
provision.
12.5 Except as expressly permitted hereunder or in Exhibit F hereto,
neither party may transfer, assign or sublicense this Agreement, or any rights
or obligations hereunder, whether by contract or by operation of law, except
with the express written consent of the other party, and any attempted transfer,
assignment or sublicense by a party in violation of this Section shall be void.
For purposes of this Agreement, an "transfer" under this Section shall be deemed
to include, without limitation, the following: (a) a merger or any other
combination of an entity with another party (other than a reincorporation of
Inktomi from the State of California to the State of Delaware), whether or not
the entity is the surviving entity; (b) any transaction or series of
transactions whereby a third party acquires direct or indirect power to control
the management and policies of an entity, whether through the acquisition of
voting securities, by contract, or otherwise; (c) in the case of Inktomi, the
sale or other transfer of Inktomi's search engine business or any other
substantial portion of Inktomi's assets (whether in a single transaction or
series of transactions), or (d) the transfer of any rights or obligations in the
course of a liquidation or other similar reorganization of an entity (other than
a reincorporation of Inktomi from the State of California to the State of
Delaware). Neither party will unreasonably withhold or delay its consent to a
requested transfer, assignment or sublicense. Subject to the provisions of this
Section, this Agreement shall be binding upon and inure to the benefit of each
party and their respective successors and assigns.
12.6 All rights and obligations of the parties hereunder are
personal to them. 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.
17
12.7 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.
12.8 No waiver of any breach of any provision of this Agreement
shall constitute a waiver of any prior, concurrent or subsequent breach of the
same or any other provisions hereof or thereof, and no waiver shall be effective
unless made in writing and signed by an authorized representative of the waiving
party.
12.9 Neither party shall be liable hereunder by reason of any
failure or delay in the performance of its obligations hereunder during any
event of force majeure.
12.10 The parties acknowledge that there may be instances during the
Term when, notwithstanding the Non-Disclosure Agreement referred to in Section
6.1 above, Inktomi will not wish to disclose or have Microsoft become aware
(through inspection or otherwise) of certain confidential and proprietary
information of Inktomi relating to its business and/or technology. In those
instances, the parties agree to work together in a spirit of cooperation to work
around such disclosure so that Inktomi is able to perform the Services to
Microsoft's reasonable satisfaction and otherwise discharge its obligations
under this Agreement without making such disclosure.
12.11 This Agreement, along with the Ancillary Agreements, together
contain the entire agreement of the parties with respect to the premises, and
may not be modified or amended except by a written instrument executed by the
party sought to be charged or bound thereby.
13. Insurance. Inktomi will maintain insurance (including but not limited
---------
to liability and property insurance covering the Hosting Servers and Inktomi's
operation thereof) in accordance with the requirements set forth in the Software
Development Agreement and Loan Agreement between the parties of even date
herewith.
Executed as of the Effective Date on the signature dates below.
INKTOMI CORPORATION MICROSOFT CORPORATION
/s/ XXXXX X. XXXXXXXXXXXX /s/ XXXXX XXXXXXXX
By: _________________________ By: _________________________
Xxxxx X. Xxxxxxxxxxxx, CEO Xxxxx Xxxxxxxx
______________________________ ______________________________
(printed name and title) (printed name and title)
July 24 7/27
Date: ____________________, 1997 Date: ____________________, 1997
18
EXHIBIT A
DEPLOYMENT, HOSTING AND MAINTENANCE SPECIFICATIONS AND SECURITY MEASURES
(32 pages follow)
EXHIBIT A
---------
YUKON REQUIREMENTS FOR THE INKTOMI SEARCH SERVICE
MICROSOFT CONFIDENTIAL
--------------------------------------------------------------------------------
VERSION: 1.0
STABILITY: High
FILENAME: Yukon requirements for Inktomi search service.doc
DATE: 07/07/97 3:57 PM
AUTHOR(S): Xxxxxxx Xxxxx wjones
Page i of 32
Table of Contents
[*]
Page ii of 32
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
1. OVERVIEW
================================================================================
The goal of this document is to provide a reasonably complete list of Yukon
requirements for the Inktomi search service. Note that a number of the
requirements in this document are met by the existing search service but are
included anyway for the sake of completeness.
The Section 2 lists all requirements according to area (Performance and
Scalability, Reliability and Fault Tolerance, ...) together with information on
Target Release and Due Date as defined below. The Appendix (Section 7) follows
a similar organization and provides more detail on the requirements..
[*]
Page 1 of 32
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
[*]
Page 2 of 32
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
[*]
Page 3 of 32
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
[*]
Page 4 of 32
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
[*]
Page 5 of 32
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
[*]
Page 6 of 32
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
[*]
Page 7 of 32
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
[*]
Page 8 of 32
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
[*]
Page 9 of 32
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
[*]
Page 10 of 32
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
[*]
Page 11 of 32
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
[*]
Page 12 of 32
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
[*]
Page 13 of 32
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
[*]
Page 14 of 32
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
[*]
Page 15 of 32
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
[*]
Page 16 of 32
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
[*]
Page 17 of 32
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
[*]
Page 18 of 32
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
[*]
Page 19 of 32
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
[*]
Page 20 of 32
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
[*]
Page 21 of 32
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
[*]
Page 22 of 32
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
[*]
Page 23 of 32
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
[*]
Page 24 of 32
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
[*]
Page 25 of 32
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
[*]
Page 26 of 32
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
[*]
Page 27 of 32
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
[*]
Page 28 of 32
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
[*]
Page 29 of 32
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
[*]
Page 30 of 32
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
EXHIBIT B
CONTRACT(S) BETWEEN INKTOMI AND EXODUS
EXHIBIT C
PRO-RATION METHODOLOGY
ALLOCATION OF EXODUS OPERATING COSTS
Exodus charges a monthly fee for facility space, fire suppression, air
conditioning, security, electricity, support services and Internet
connectivity. Inktomi is obliged to contract for this capacity in advance.
The connectivity is currently itemized and charged at a current rate of
[*].
[*] will be according to the [*] provisioned.
Example: [*] - [*] per day, [*] per day [*]. [*] of Exodus charges, [*] of
Exodus charges [*].
[*] will be charged to [*] only for their share of [*]
Current estimate is that [*]; this would be [*].
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
EXHIBIT D
INKTOMI MAINTENANCE EMPLOYEES
[*] and [*]
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
EXHIBIT E
OVER-UTILIZATION ADJUSTMENT
In the event that one party under-provisions its portion of the shared Inktomi
hosting cluster such that its [*] are [*] by the [*], there will be a charge
on a [*] levied against the under-provisioned party.
If [*] for a [*] exceeds its agreed capacity provisioning (as determined in
accordance with Sections 2.2 and 2.8, then Microsoft's [*] will be [*] ([*]
if the [*] is by [*], or [*] if such [*] is by [*]) in accordance with the
following computation: [*] the [*] ("[*]") times the [*] of the provisioned
capacity ("[*]"). Note that the over-utilization could apply to [*] in any [*].
[*] will be calculated each month by taking the [*] of the Inktomi [*] without
regard to [*] ([*]) [*] ([*]) [*] by the agreed total [*] provisioned.
[*] will be calculated for each party each month by [*] the number of [*] ([*]
the [*] in the [*]) from the number of [*] for the [*].
Example:
Assumptions:
1. Microsoft provisioned capacity is [*]
2. Inktomi provisioned capacity is [*]
3. [*] in [*] is $[*]
4. [*] is [*] for a [*]
5. [*] is [*] for that [*]
[*] = $[*] = $[*]
[*] = [*] = [*]
Over-Utilization Adjustment = [*] = $[*]
[*] in such [*] payable by [*]
Notwithstanding anything contained herein to the contrary, if a party shall have
[*] its provisioned capacity by [*] in any month, such party shall be deemed [*]
for its [*] during such month as soon as possible.
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
EXHIBIT F
---------
Transfer by Inktomi
-------------------
If Inktomi requests Microsoft's consent to a transfer as described in clause (a)
of Section 12.5 of this Software Hosting Agreement to which this Exhibit F is
appended, and Microsoft reasonably withholds its consent to such transfer (an
"Unconsented Transfer"), then Inktomi will nevertheless have the right to
transfer this Agreement in connection with its proposed Unconsented Transfer
subject to the following conditions precedent to the Unconsented Transfer:
(i) Inktomi, at its sole cost and expense, and without any financing supplied
by Microsoft, will create a separate cluster of Hosting Servers for Microsoft
required to service Microsoft's reasonably anticipated needs for a period of
twelve months after the commencement of operation of such new and relocated
cluster [provided however that Microsoft will purchase, or fund (in accordance
with the Loan Agreement) Inktomi's of, (whichever Microsoft elects) any new
hosting servers beyond the Hosting Servers purchased by Inktomi under said
Software Hosting Agreement necessary to service Microsoft's reasonably
anticipated needs as set forth above];
(ii) Inktomi will relocate, at its sole cost and expense (including, without
limitation, indemnifying Microsoft and holding it harmless against any and all
Taxes that arise as a direct or indirect result of the relocation of the Hosting
Servers), all Hosting Servers referred to in clause (i) to a location designated
by Microsoft, in its sole discretion;
(iii) Inktomi, at its sole cost and expense, will provide training to Microsoft
personnel to the extent requested by Microsoft, to enable such personnel to use
and maintain the Microsoft Search Engine, and to create enhancements thereto,
with reasonable competence (all as determined by Microsoft in its sole
discretion);
(iv) Inktomi will grant to Microsoft an irrevocable, non-exclusive,
royalty-free license to use the Product (and all required underlying Inktomi
Technology) solely in connection with Microsoft's operation of the Microsoft
Search Engine (which license shall include the right to create enhancements and
other derivative works based thereon for use in conjunction therewith) for such
period as Microsoft may require to transition its search engine services to
non-Inktomi technology (the "Transition Period"), and Inktomi will waive all
royalties otherwise payable pursuant to the Software Development Agreement
and/or the Information Services Agreement between the parties of even date
herewith; for the purposes of this clause (iv), the Transition Period will
commence at such time as Microsoft assumes control over said separate cluster
and begins itself operating the Microsoft Search Engine, and will continue
thereafter for eighteen months (18) or until the
24
termination of the Software Development Agreement and Information Services
Agreement (whichever is longer);
(v) Inktomi will direct the Escrow Agent to release to Microsoft all
Confidential Materials held by the Escrow Agent, subject to Microsoft's
agreement to use such Confidential Materials only in connection with its
licensed rights under clause (iv) above;
(vi) Inktomi will agree to reimburse Microsoft for all reasonable costs
incurred by Microsoft in transitioning its search engine to non-Inktomi
technology (whether created by Microsoft or by a third party); and
(vii) Inktomi will cause the applicable proposed transferee of this Agreement to
assume, jointly and severally with Inktomi, all of Inktomi's obligations
hereunder.
Microsoft will cooperate with Inktomi and use its reasonable best efforts so as
to enable Inktomi to satisfy the foregoing conditions precedent in a timely
manner. Upon satisfaction of the foregoing conditions precedent, this Software
Hosting Agreement shall be deemed terminated pursuant to Section 10.1. Upon
expiration of the Transition Period, all rights granted to Microsoft to use the
Product (other than Microsoft Technology, Joint Derivative Technology and the
Microsoft Derivative Technology) and/or any Inktomi Technology under the
transitional license referred to in clause (iv) or otherwise shall cease, and
Microsoft shall immediately return to Inktomi all Confidential Materials (and
all copies thereof), provided however that, notwithstanding any provision of the
Ancillary Agreements to the contrary, the undertaking by Inktomi to indemnify
Microsoft and hold it harmless against Taxes as provided in clause (ii) above
shall survive any such terminations.
25
