PORTAL SERVICES AGREEMENT
This Portal Services Agreement (this "Agreement") is entered into as of
February 3, 2000 (the "Effective Date"), by and between Inktomi Corporation, a
Delaware corporation with its principal place of business at 0000 Xxxx Xxxxx
Xxxxxx, Xxxxxx Xxxx, Xxxxxxxxxx 00000 ("Inktomi") and GPC Acquisition Corp. with
its principal place of business at 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxxxx 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.
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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 upon execution, shall become binding between the 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 will be deemed to limit or restrict Inktomi from customizing and
providing its software and technology to other parties for any purpose or
in any way affect the rights granted to such other parties. Inktomi
reserves the right to notify other customers of the signing of this
Agreement but agrees not to provide such notice before a public
announcement by Customer of its business relationship with Inktomi or
before commercial launch of a Service provided by Inktomi under this
Agreement, whichever is earlier. Customer may not make any public
announcement involving Inktomi without Inktomi approval, provided however,
Customer may disclose information concerning this Agreement in order to
comply with a valid order by a court or other governmental body, or as
otherwise required by law, rule, or regulation.
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
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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 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 owns all right,
title and interest in and to the Inktomi Technology, and any portions and
components thereof, including but not limited to, copyrights, patents,
trade secrets and trademarks; and (iii) 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 (iv)
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. If Inktomi fails
to do so, then Customer shall have the right to immediately terminate this
Agreement. In addition, Customer may receive as a sole
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remedy, a refund of all amounts actually paid by Customer under that
Exhibit for Services of this Agreement giving rise to Inktomi's failure to
meet the foregoing warranty.
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 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 Schedule.
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 unreasonably
interfere with the conduct of the audited party's business. If any such
examination indicates that the audited party has underpaid by more than
five percent (5%) of the aggregate payments due for the period subject to
such examination, the audited party shall reimburse the other party for
reasonable costs of such examination.
5.3. Taxes. Customer shall be responsible for all sales taxes, use
taxes, withholding taxes, value added taxes and any other similar taxes
imposed by any federal, state, provincial or local governmental entity on
the transactions contemplated by this Agreement, excluding taxes based upon
Inktomi's net income. When Inktomi has the legal obligation to pay or
collect such taxes, the appropriate amount shall be invoiced to and paid by
Customer unless Customer provides Inktomi with a valid tax exemption
certificate authorized by the appropriate taxing authority.
5.4. Payment. All fees quoted and payments made hereunder shall be in
U.S. Dollars. Customer shall pay all amounts due under this Agreement to
Inktomi at the address indicated at the beginning of this Agreement or such
other location as Inktomi 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 as confidential information 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.
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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 Agreement and that it will not
divulge, transfer, sell, license, lease, or otherwise disclose or release
any such information or documents except to release to: (i) 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; and
(iii) a governmental body or in response to a valid court order or as
otherwise required by law, rule, or regulation. 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: (i) developed by the receiving party independently and without
the benefit, use of, or reference to 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 EITHER THE TOTAL ANNUAL FEES PAID
BY CUSTOMER FOR THE YEAR IN WHICH THE LIABILITY ARISES, OR IN THE FIRST YEAR
$125,000, THE SECOND YEAR $150,000, AND THE THIRD YEAR $175,000, WHICHEVER IS
GREATER. 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
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DAMAGE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
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 as specified in Schedule 2.
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 or if such
breach cannot be cured within thirty (30) days, and such party fails to
commence and continue meaningful steps to cure such breach within thirty
(30) days.
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 one hundred and twenty (120) 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 and 10 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 non-breaching party may be legally entitled, the
non-breaching party shall have the right to seek immediately injunctive
relief in the event of a breach of such confidentiality or service/license
restrictions by the other party or any of its officers, employees,
consultants or other agents.
10. Miscellaneous.
10.1. Understanding. Each party acknowledges that it has read this
Agreement, understands it and agrees to be bound by it. Each party
acknowledges that it has not been induced to enter into such agreements by
any representations or statements, oral or written, not expressly contained
herein or expressly incorporated by reference.
10.2. Notice. Any notice required under 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
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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.
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.
Notwithstanding the above, Customer may assign its rights and delegate its
obligations under this Agreement to XxXxxx.xxx or any other entity in which
Customer controls at least eighty percent (80%) or more of the outstanding
securities, provided however, that XxXxxx.xxx or any successor company
thereto and such entity or any successor company thereto shall be held
liable under the terms and conditions of this Agreement for any breach
thereof by any assignee.
10.4. No Third Party Beneficiaries. All rights and obligations of the
parties hereunder are personal to the party that holds the rights or has
the obligation. 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 its 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 Laws and Export Regulations. Each party shall be
responsible for compliance with all applicable laws, rules and regulations,
if any, related to the performance of its obligations under this Agreement.
Customer acknowledges that Inktomi is not the originator or exporter of any
information the Services return as the result of queries submitted by any
user of Customer's system. Customer is responsible for ensuring that the
export of any information provided by the Services is exported in
accordance with all applicable U.S. laws and regulations, including U.S.
export control laws. Additionally, Customer acknowledges that Inktomi is
not the exporter of any products or information sold by Customer through
the Services. Customer is responsible for ensuring that the export of any
products
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facilitated for sale through the Services are exported in accordance with
all applicable U.S. laws and regulations, including U.S. export control
laws. Customer agrees to provide adequate safeguards including on line
disclaimers on Customer's site to ensure compliance with these provisions.
10.9. Waiver. The failure of either party to require performance by
the other party of any provision shall not affect the full right to require
such performance at any time thereafter; nor shall the waiver by either
party of a breach of any provision hereof be taken or held to be a waiver
of the provision itself.
10.10. Conflicts. In the event of a conflict between the terms of this
Agreement and an Exhibit attached hereto, the terms of the Exhibit shall
prevail.
10.11. Severability. If any provision of this Agreement is held by a
court of competent jurisdiction to be contrary to law, the parties agree
that such provision shall be changed and interpreted so as to best
accomplish the objectives of the original provision to the fullest extent
allowed by law and the remaining provisions of this Agreement shall remain
in full force and effect.
10.12. Headings. The section headings appearing in this Agreement are
inserted only as a matter of convenience and in no way define, limit,
construe or describe the scope or extent of such paragraph, or in any way
affect such agreements.
10.13. Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, each of which will be considered an original, but
all of which together will constitute one and the same instrument.
10.14. Entire Agreement. This Agreement, Exhibits, Attachments and
Schedules hereto, constitute the entire agreement between the parties with
respect to the subject matter hereof. This Agreement supersedes, and the
terms of this Agreement govern, any other prior or collateral agreements
with respect to the subject matter hereof. Any amendments to this Agreement
must be in writing and executed by an officer of the parties.
IN WITNESS WHEREOF, the parties have caused this Portal Services Agreement
to be signed by their duly authorized representatives.
GPC ACQUISITION CORP. INKTOMI CORPORATION
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxx Xxxxxxxx
------------------- ----------------------
Name: Xxxx Xxxxxx Name: Xxxxx Xxxxxxxx
----------------- --------------------
Title: CEO Title: Chief Financial Officer
---------- ------------------------------
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EXHIBIT A-1
TO THE
PORTAL SERVICES AGREEMENT
GENERAL SEARCH SERVICES
Customer Site or Sites ("Site") shall be designated as follows: xxx.xxxxxx.xxx
or any another site as Customer may determine in its sole discretion.
This Exhibit to the Portal Services Agreement (this "Exhibit"), in conjunction
with the terms of the Portal Services Agreement (the "Agreement") shall
constitute the terms and conditions pursuant to which Inktomi shall provide
General Search Services to Customer at the Site set forth above:
1. Definitions. In addition to any terms defined in this Exhibit, the
following terms shall have the meanings set forth below. Any other terms not
otherwise defined in this Exhibit shall have the meanings prescribed to them in
the Agreement.
1.1. "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. "General 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 Inktomi 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 Inktomi Search Engine, the Inktomi
Data Protocol, the Interface Construction Tools and all other computer
software, technology and/or documentation which is supplied by Inktomi for
use in or in connection with delivery of the General Search Services,
including, without limitation, all source code and object code therefor and
all algorithms, ideas and Intellectual Property Rights therein.
1.8. "Interface" means the editorial and graphical content, and
functionality (which is not otherwise Inktomi Technology hereunder), of the
Web and other pages served to end users of Customer,
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including without limitation all Search Pages, Inktomi 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 end- users directly as a result of accessing the query
mechanisms of the Inktomi Search Engine or indirectly through a cache
controlled or influenced by Customer.
1.11. "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 Inktomi 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), disk storage, server capacity
and other hardware and software required to run the Inktomi 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.
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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
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 50 x 160 pixels and shall provide a link to a
page of Inktomi's choice on Inktomi's Web site located at xxx.xxxxxxx.xxx.
The Inktomi Icon shall be visible "above the fold" and shall be in the form
found at the Inktomi Icon site, currently located at
xxxx://xxx.xxxxxxx.xxx/xxxx/XxxXxXxxXxx.xxx.
4. Intellectual Property Licenses/Ownership.
4.1. Inktomi Data Protocol. Inktomi grants to Customer a
nontransferable, nonexclusive license during the Term (as defined below) to
use the Inktomi Data Protocol and the Interface Construction Tools solely
to create and maintain the Interface to the Inktomi Search Engine for the
Site. The license granted hereunder shall include the right to use the
Interface Construction Tools or to develop an Interface to the Inktomi
Search Engine for use on 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.
AA1-11
4.3. Usage Data. Inktomi and Customer shall jointly own the Usage
Data, excluding the Web index data which shall remain the sole property of
Inktomi. Usage Data shall constitute Confidential Information (as defined
below) of the parties hereunder; provided, that advertiser-specific Usage
Data may be provided to advertising clients under non-disclosure agreements
in connection with Customer's provision of advertising sales services; and
provided further that Inktomi may use Usage Data (without separately
identifying the source of the Usage Data) in providing search services to
its customers. Customer shall cooperate with Inktomi to develop and
implement procedures to capture Usage Data. Additional uses of the Usage
Data shall require the mutual consent of the parties.
5. Payments.
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 this
Section 5.2, 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 U.S. 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.
IN WITNESS WHEREOF, the parties have caused this Exhibit to the Agreement
to be signed by their duly authorized representatives.
GPC ACQUISITION CORP. INKTOMI CORPORATION
By:/s/ Xxxx Xxxxxx By: /s/ Xxxxx Xxxxxxxx
------------------ ----------------------
Name:Xxxx Xxxxxx Name: Xxxxx Xxxxxxxx
---------------- --------------------
Title: CEO Title: Chief Financial Officer
------ --- ------------------------------
AA1-12
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:
Inktomi will operate the Inktomi Search Engine so as to enable end users of
the Site to run queries against the General Search Database with the following
functionality:
- Ability to search by keyword, file type, domain (up to three levels),
document title, modification dates, document contents, depth and
metaword
- 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.
- 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
- Search on included file type, by file extension
- Search on specific script language, covering Javascript and Vbscript
- Limit search to pages containing links to a specified domain
- Limit search to words in the HTML "title" field
- Grammatical stemming
- Search by language
- Case sensitivity support
- Pornography filtration
- 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
- Size of Database - MInimum 54 million documents for all queries and a
minimm of 110 million documents that may be accessed for up to 20% of
daily queries
AA1-1
- Database Freshness - Objective is minimum 13 updates per year
(approximately every 4 weeks, may vary depending on operational
circumstances
- Uptime / Downtime - Minimum 99% uptime (1% downtime) over monthly
windows. Downtime = any 1 minute period in which Inktomi Search Engine
processes no requests.
- Query / Response Speed - Average speed < = 750 milliseconds
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.
EXHIBIT A-3
TO THE
PORTAL SERVICES AGREEMENT
GENERAL DIRECTORY SERVICES
Site or Sites ("Site"): xxx.xxxxxx.xxx or any other site as Customer may
determine in its sole discretion.
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 Directory 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. "Directory" means Inktomi's Taxonomy and associated database of
Web pages accessible by end users of the Site at any given time. The
Directory includes the Inktomi version of Netscape Open Directory ("Open
Directory").
1.2. "General Directory Services" means the Internet Directory Engine
services to be provided by Inktomi for Customer under this Exhibit, as more
fully described on Attachment A to this Exhibit.
1.3. "Inktomi Data Protocol" means the written specification on how an
Interface communicates and interacts with the Inktomi Directory Engine.
1.4. "Inktomi Directory Engine" means Inktomi's current Directory
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 Inktomi from time to time at its sole
discretion. The Inktomi Directory 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.
1.5. "Inktomi Technology" means the Inktomi Directory 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 Directory
Services, including, without limitation, all source code and object code
therefor and all algorithms, ideas and Intellectual Property Rights
therein.
1.6. "Interface" means the editorial and graphical content and design
of the Web pages served to end users of the Site, including without
limitation any and all Default Category Pages, Search Page, Directory
Results Pages, instruction pages, frequently asked questions pages and any
Site end user terms and guidelines.
1.7. "Interface Construction Tools" means all software tools, if any,
in object code or source code form, provided by Inktomi to assist Customer
to build the Interface to the Inktomi Directory Engine, including without
limitation Inktomi's application server currently known as Forge.
A3-1
1.8. "Default Category Page" means the default first page of the
Inktomi Directory Engine that is generated without a query to the Inktomi
Directory Engine.
1.9. "Directory Results Pages" means all Web pages displaying
categories and/or results presented to end-users directly as a result of
accessing the query mechanisms of the Inktomi Directory Engine. "Directory
Results Pages" shall not include the Default Category Page.
1.10. "Directory Results Set" means a set of results consisting of
between zero (0) and ten (10) records presented in response to a query to
the Inktomi Directory Engine.
1.11. "Directory Engine" means computer software which crawls the
Internet, downloads and analyzes text and other data, sorts and organizes
the data in accordance with Inktomi's Taxonomy, creates an index of
accessible data, and, after receiving a particular request, locates
material accessible in the database, and presents the corresponding
categories and/or results of the search.
1.12. "Search Pages" means all Web pages which enable end users of the
Site to initiate and send search queries to the Inktomi Directory Engine,
including the Default Category Page and Directory Results Pages.
1.13. "Taxonomy" means the series of categories developed by Inktomi
that sets forth an organizational structure for categorizing, searching and
accessing Web pages.
1.14. "Usage Data" means the demographic, psychographic, statistical
and other end user data generated by operation of the Inktomi Directory
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
Directory.
2. Provision of General Directory Services; Site Implementation.
2.1. General Directory Services and Site Implementation. Subject to
the terms and conditions of this Exhibit and the Agreement, Inktomi shall
provide the General Directory 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), disk storage,
server capacity and other hardware and software required to run the Inktomi
Directory Engine and maintain the Directory. Customer, at its own expense,
shall create the Interface to the Inktomi Directory 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 Directory Engine. Customer, at its
own expense, shall provide all data transmission capacity (bandwidth)
required to connect to and receive information from the Inktomi Directory
Engine. Customer may only utilize the General Directory 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 Directory Services or any information
(including the Default Category Page or Directory Results Sets) generated
therefrom to any other third party. Customer may not cache the Default
Category Page or Directory 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
AA3-2
Customer will first agree on appropriate Customer reporting requirements to
ensure proper accounting of payments hereunder.
2.2. Test Cluster. During the development period for the Interface,
Customer shall only have access through the Inktomi Data Protocol to a
non-production version of the Inktomi Directory 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 be 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 Directory 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 Default Category Pages, 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 50 x 160 pixels and shall provide a
link to a page of Inktomi's choice on Inktomi's Web site located at
xxx.xxxxxxx.xxx. The Inktomi Icon shall be visible "above the fold" and
shall be in the form indicated on the Inktomi Icon website, currently
located at xxxx://xxx.xxxxxxx.xxx/xxxx/XxxXxXxxXxx.xxx.
3.3. Open Directory License Agreement. Customer agrees to comply with
all terms of the Netscape Open Directory License Agreement found at
xxxx://xxx.xxxx.xxx/xxxxxxx and attached hereto as Attachment B to Exhibit
A-3.
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 Directory Engine for
the Site.
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
AA3-3
regarding the use and functionality of the Inktomi Directory 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.
4.3. Usage Data. Inktomi and Customer shall jointly own the Usage
Data, excluding the Web index data which shall remain the sole property of
Inktomi. Usage Data shall constitute Confidential Information (as defined
below) of the parties hereunder; provided, that advertiser-specific Usage
Data may be provided to advertising clients under non-disclosure agreements
in connection with Customer's provision of advertising sales services; and
provided further that Inktomi may use Usage Data (without separately
identifying the source of the Usage Data) in providing search services to
its customers. Customer shall cooperate with Inktomi to develop and
implement procedures to capture Usage Data., Additional uses of the Usage
Data shall require the mutual consent of the parties.
5. Payments.
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 Directory 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 Directory 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 Directory Services provided
pursuant to this Exhibit.
IN WITNESS WHEREOF, the parties have caused this Exhibit to the Agreement
to be signed by their duly authorized representatives.
GPC ACQUISITION CORP. INKTOMI CORPORATION
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxx Xxxxxxxx
------------------- ----------------------
Name: Xxxx Xxxxxx Name: Xxxxx Xxxxxxxx
----------------- --------------------
Title:CEO Title:Chief Financial Officer
--------- -----------------------------
Date: 2/4/00 Date:_______________________
------------
AA3-4
ATTACHMENT A
TO
EXHIBIT A-3
GENERAL DIRECTORY SERVICES
General Directory Services
Inktomi shall provide directory services to Customer through the Inktomi
Directory Engine during the Term of the Agreement. The functionality
specifications and performance criteria applicable to such services are as
follows:
Functionality Specifications:
The functionality specifications and performance criteria applicable to
such services are as follows:
1. Inktomi version of Netscape Open Directory.
- An Inktomi version of Netscape Open Directory containing an estimated
twenty-five thousand (25,000) categories and an estimated eight
hundred thousand (800,000) documents.
- Additional categories and documents from the Open Directory Project
will continue to be included in the Inktomi version of the Netscape
Open Directory.
- Directory categories may be accessed via the Inktomi Data Protocol.
2. Crawling and Indexing.
- The objective is a minimum of twelve (12) updates per year
(approximately every four (4) weeks which may vary depending upon
operational circumstances).
SCHEDULE 1
TO THE
PORTAL SERVICES AGREEMENT
SUPPORT GUIDELINES FOR
SEARCH SERVICES
1. Definitions.
(a) Hours of Operation. Inktomi will provide Customer with 7 x 24 support
as set forth herein.
(b) Problem. Any error, bug, or malfunction that makes any feature of the
Inktomi Search Engine perform unpredictably or to otherwise become
intermittently unavailable, or that causes the Inktomi Search Engine
to have a material degradation in response time performance.
(c) Severe Problem. Any error, bug, or malfunction that causes the Inktomi
Search Engine to become inaccessible to Customer and its Site end
users, or that causes any feature of the Inktomi Search Engine to
become continuously unavailable.
(d) Enhancement Request. A request by Customer to incorporate a new
feature or enhance an existing feature of the Inktomi Search Engine.
(e) Fix. A correction, fix, alteration or workaround that solves a Problem
or a Severe Problem.
2. Contact points.
(a) Customer Technical Support Personnel. Customer will designate no more
than three Customer employees as qualified to contact Inktomi 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 Pager") for contacting the
Inktomi Technical Support Personnel no later than one week prior to
the Launch Date. Inktomi will also provide Customer with contact
information for executive escalation personnel no later than one week
prior to the Launch Date. Inktomi may change its designated Technical
Support Personnel and executive escalation personnel at its discretion
with reasonable notice to Customer.
3. Support procedures.
(a) All Problems reported by Customer Technical Support Personnel to
Inktomi must be submitted via web site or email to the Support
Address.
(b) If Customer believes it is reporting a Severe Problem, Customer will
accompany its email request with a page via the Support Pager.
(c) Upon receiving a report from Customer, Inktomi will 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 effort to inform Customer
Technical Support Personnel of Fixes.
4. Support levels.
(a) Customer will provide technical support to end users of the Sites who
email or otherwise contact Customer directly with questions about the
Sites. Customer will use its commercially reasonable efforts to Fix
any Problems without escalation to Inktomi.
(b) Inktomi will provide the following technical support solely to
Customer Technical Support Personnel:
Receipt of email Type of email Target response Target Fix Time and Reporting
request request Time from email
receipt
------------------------- -------------------- ------------------------ -----------------------------------------------
During business Problem Within one Commercially reasonable best efforts
hours or other business day with weekly status reports to Customer
times
------------------------- -------------------- ------------------------ -----------------------------------------------
During the hours Severe Within two hours Commercially reasonable best efforts
between 6:00 a.m. Problem with daily status reports to Customer
and 9:00 p.m.
Pacific time
------------------------- -------------------- ------------------------ -----------------------------------------------
During other times Severe Within four hours Commercially reasonable best efforts
Problem with daily status reports to Customer
------------------------- -------------------- ------------------------ -----------------------------------------------
During business Enhancement Within five At Inktomi's discretion
hours or other Requests business days
times
------------------------- -------------------- ------------------------ -----------------------------------------------
(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 Xxxxxx - COO
Xxxx Xxxxxxxxxxxx - CEO
ATTACHMENT B
TO
EXHIBIT A-3
GENERAL DIRECTORY SERVICES
Open Directory License
The Open Directory is a compilation of many different editors' contributions.
Netscape Communications Corporation (`Netscape') owns the copyright to the
compilation of the different contributions, and makes the Open Directory
available to you to use under the following license agreement terms and
conditions (`Open Directory License'). For purposes of this Open Directory
License, `Open Directory' means only the Open Directory Project currently hosted
at xxxx://xxxx.xxx (or at another site as may be designated by Netscape in the
future), and does not include any other versions of directories, even if
referred to as an `Open Directory,' that may be hosted by Netscape on other web
pages (e.g., Netscape Netcenter).
1. Basic License. Netscape grants you a non-exclusive, royalty-free license to
use, reproduce, modify and create derivative works from, and distribute and
publish the Open Directory and your derivative works thereof, subject to all of
the terms and conditions of this Open Directory License. You may authorize
others to exercise the foregoing rights; provided, however, that you must have
an agreement with your sublicensees that passes on the requirements and
obligations of Sections 2 and 4 below and which must include a limitation of
liability provision no less protective of Netscape than Section 6 below. Due to
the nature of the content of the Open Directory, many third parties' trade names
and trademarks will be identified within the content of the Open Directory
(e.g., as part of URLs and description of link). Except for the limited license
to use the Netscape attribution in Section 2 below, nothing herein shall be
deemed to grant you any license to use any Netscape or third party trademark or
tradename.
2. Attribution Requirement. As a material condition of this Open Directory
License, you must provide the below applicable attribution statements on (1) all
copies of the Open Directory, in whole or in part, and derivative works thereof
which are either distributed (internally or otherwise) or published (made
available on the Internet and/or internally over any internal network/intranet
or otherwise), whether distributed or published electronically, on hard copy
media or by any other means, and (2) on any program/web page from which you
directly link to/access any information contained within the Open Directory, in
whole or in part, or any derivative work thereof:
(a) If the Open Directory in whole or in part, or any derivative work
thereof, is made available via the Internet or internal network/intranet
and/or information contained therein is directly accessed or linked via the
Internet or internal network/intranet then you must provide the Netscape
attribution statement as described in the page(s) at the URL
xxxx://xxxx.xxx/xxxxxx_xx_xxxxxx.
(b) If the Open Directory in whole or in part, or any derivative work
thereof, is made available on any hard copy media (e.g., CD-ROM, diskette),
you must place on the packaging a notice providing Netscape attribution as
described in the page(s) at the URL xxxx://xxxx.xxx/xxxxxx_xx_xxxxxx. If
there is no `packaging', the previous attribution notice should be placed
conspicuously such that it would be reasonably viewed by the recipient of
the Open Directory.
(c) If you are using or distributing the Open Directory in modified
form (i.e., with additions or deletions), you must include a statement
indicating you have made modifications to it. Such statement should be
placed with the attribution notices required by Sections 2(a) and 2(b)
above. Netscape grants you the non-exclusive, royalty-free license to use
the above identified Netscape attribution statements solely for the purpose
of the above attribution requirements, and such use must be
in accordance with the usage guidelines that may be published by Netscape
from time to time as part of the above URLs.
3. Right To Identify Licensee. You agree that Netscape has the right to publicly
identify you as a user/licensee of the Open Directory.
4. Errors and Changes. From time to time Netscape may elect to post on the
page(s) at the URL xxxx://xxxx.xxx/xxxxxx_xx_xxxxxx certain specific changes to
the Open Directory and/or above attribution statements, which changes may be to
correct errors and/or remove content alleged to be improperly in the Open
Directory. So long as you are exercising the license to Open Directory
hereunder, you agree to use commercially reasonable efforts to check the page(s)
at the URL xxxx://xxxx.xxx/xxxxxx_xx_xxxxxx from time to time, and to use
commercially reasonable efforts to make the changes/corrections/deletion of
content from the Open Directory and/or attribution statements as may be
indicated at such URL. Any changes to the Open Directory content posted at the
page(s) at the URL xxxx://xxxx.xxx/xxxxxx_xx_xxxxxx are part of Open Directory.
5. No Warranty/Use At Your Risk. THE OPEN DIRECTORY AND ANY NETSCAPE TRADEMARKS
AND LOGOS CONTAINED WITH THE REQUIRED ATTRIBUTION STATEMENTS ARE MADE AVAILABLE
UNDER THIS OPEN DIRECTORY LICENSE AT NO CHARGE. ACCORDINGLY, THE OPEN DIRECTORY
AND THE NETSCAPE TRADEMARKS AND LOGOS ARE PROVIDED `AS IS,' WITHOUT WARRANTY OF
ANY KIND, INCLUDING WITHOUT LIMITATION THE WARRANTIES THAT THEY ARE
MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR NON-INFRINGING. YOU ARE SOLELY
RESPONSIBLE FOR YOUR USE, DISTRIBUTION, MODIFICATION, REPRODUCTION AND
PUBLICATION OF THE OPEN DIRECTORY AND ANY DERIVATIVE WORKS THEREOF BY YOU AND
ANY OF YOUR SUBLICENSEES (COLLECTIVELY, `YOUR OPEN DIRECTORY USE'). THE ENTIRE
RISK AS TO YOUR OPEN DIRECTORY USE IS BORNE BY YOU. YOU AGREE TO INDEMNIFY AND
HOLD NETSCAPE, ITS SUBSIDIARIES AND AFFILIATES HARMLESS FROM ANY CLAIMS ARISING
FROM OR RELATING TO YOUR OPEN DIRECTORY USE.
6. Limitation of Liability. IN NO EVENT SHALL NETSCAPE, ITS SUBSIDIARIES OR
AFFILIATES, OR THE OPEN DIRECTORY CONTRIBUTING EDITORS, BE LIABLE FOR ANY
INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT
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