EXHIBIT 10.12
INFORMATION SERVICES AGREEMENT
This Information Services Agreement ("Agreement") is made and entered into as of
the later of the two signature dates below (the "Effective Date") by and between
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 "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. Inktomi and Microsoft desire to enter into a business relationship
pursuant to which, among other things, (i) Inktomi would (a) develop software
for Microsoft to implement desired features for a Microsoft search engine, (b)
provide search results for Microsoft using Inktomi's search engine customized
with, among other elements, the features developed for Microsoft, (c) provide
software hosting and maintenance services for Microsoft's benefit, and (d)
purchase additional hardware and software necessary or desirable to service
Microsoft's needs, and (ii) Microsoft would make certain payments to Inktomi,
and provide loans to Inktomi to facilitate Inktomi's purchase of additional
hardware and software necessary or desirable to service Microsoft's needs.
D. This Information Services Agreement is intended to delineate the terms
and conditions applicable to the provision of search results aspects of such
business relationship.
Agreement
Accordingly, Inktomi and Microsoft agree as follows:
1. Definitions. For the purposes of this Agreement, the following terms
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will have the indicated meanings:
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 Software Hosting 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
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thereto; (iv) the Security Agreement of even date herewith; and (v) the Escrow
Agreement referred to in this Agreement.
1.2 The "Average Daily Hits" (or "ADH") for a particular calendar
month means the number of Hits in that month divided by the number of days in
that month.
1.3 "Coupled Cluster Technology" means Inktomi's proprietary computer
software that enables a collection of two or more individual computers to be
connected in such a way as to operate as a single computing system.
1.4 "Deliverables" means the search results requested by Microsoft
from time to time throughout the Term of this Agreement, which shall by
transmitted by Inktomi to Microsoft electronically in accordance with the
Specifications.
1.5 A "Hit" occurs each time an end user accesses a Web page
displaying the [*] of a [*] using the [*] conducted by the end user through a
[*]; the [*] displayed on such [*] is [*] in determining the [*] (for example,
viewing a [*] containing [*] constitutes [*]). A "Hit" does not occur when an
end user [*] or, if different from the applicable [*], the [*] in which the end
user [*], or [*] the [*]. Notwithstanding anything contained herein to the
contrary, no "Hits" will be deemed to [*] or otherwise until the [*] of the [*]
is [*] for [*] by the [*]. The parties acknowledge that access by an end user to
a [*] does not constitute a "Hit."
1.6 "Inktomi Technology" means (a) Inktomi's existing Search Engine
and Coupled Cluster Technology, and any and all future versions thereof and
enhancements, upgrades and modifications thereto other than "Derivative
Technology" (as defined in said Software Development Agreement) created during
the Term, as well as (b) all other computer software and/or technology which is
supplied by Inktomi for use in or in connection with the Product and/or Services
and either is (i) existing as of the Effective Date, (ii) developed by Inktomi
at Microsoft's request but without any Microsoft funding, or (iii) developed by
Inktomi after the Effective Date independently.
1.7 "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.
1.8 "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.
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
1.9 "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 (as permitted hereunder), then the site(s) of such Microsoft
sublicensee(s) will be deemed to be Microsoft Site(s) for the purposes of
computing Hits and Inktomi's service fees under Section 2 below.
1.10 "Product" means computer software for Web-based and/or
application-based end user Internet searches which is an enhanced version of the
Inktomi Search Engine customized to Microsoft's specifications, as more fully
described in the Specifications and the Software Development Agreement between
Microsoft and Inktomi of even date herewith, and all future versions thereof and
enhancements, upgrades and modifications thereto. The Microsoft Search Engine is
a Product, but other versions of the Product may be used by customers of Inktomi
other than Microsoft (subject to the terms and conditions contained in this
Agreement).
1.11 "Search Engine" means computer software which crawls Web Sites,
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 which may or may not include limiting the
fields of data to be searched), locates material accessible in the database, and
presents the results of the search to the end user.
1.11.1 "Inktomi Search Engine" means Inktomi's current Search
Engine as of the Effective Date and all future versions thereof and
enhancements, upgrades and modifications thereto, excluding the Derivative
Technology and Microsoft Technology. The Inktomi Search Engine includes, without
limitation, such aspects of Inktomi's present and future Coupled Cluster
Technology as may be used in connection with the functioning of the Inktomi
Search Engine.
1.11.2 "Microsoft Search Engine" will mean those versions of
the Product used to generate search results for Microsoft hereunder or for third
parties requesting search results through Microsoft.
1.12 "Services" means the delivery of search results generated by the
Product in accordance with the Specifications, as they may be modified from time
to time.
1.13 "Specifications" means the specifications for the Services and
Product, attached to this Agreement as Exhibit A, which includes a product
design and content summary, as well as a detailed specification for all required
features and functionality, and a complete delivery and production schedule.
The parties contemplate that the Specifications may be modified by mutual
consent from time to time during the Term; if and when the Specifications are
modified, the parties shall initial the new Specifications or amendments to the
existing Specifications, and immediately following
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the last initialing such new Specifications or amendments shall automatically be
deemed to supercede or supplement (as the case may be) Exhibit A.
1.14 "Term" means the period of time commencing on the Effective Date
and continuing thereafter indefinitely until this Agreement is terminated
pursuant to Section 9 below.
1.15 "Territory" means the entire universe.
1.16 "User Interface" means any and all visual mechanisms, metaphors
and/or appearance of the Microsoft Search Engine as designed to be seen by the
end user. Microsoft will be responsible for developing all software needed to
implement any User Interface for the Microsoft Search Engine. Microsoft and
Inktomi will cooperate with each other to ensure the seemless interaction of the
Product with the User Interface for the Microsoft Search Engine.
1.17 "Web" means the so-called World Wide Web, containing, inter
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alia, pages written in hypertext markup language (HTML) and/or any similar
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successor technology.
1.18 "Web page" means a document on the Web which may be viewed in
its entirety without leaving the applicable distinct URL address.
1.19 "Web Site" means a collection of inter-related Web pages or
documents accessible through a Web page interface.
2. Service Fees.
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2.1 Microsoft agrees to pay to Inktomi service fees for search
results delivered by Inktomi to Microsoft hereunder, based upon Average Daily
Hits, from the Launch Date throughout the remainder of the Term, calculated by
Microsoft monthly (but reportable and payable in arrears in accordance with
Section 3 below), as follows:
(a) if the number of ADH in the applicable month is not more than
[*] ([*]),then an amount equal to: $[*] times the number of ADH times the number
of [*] in the month [or ($[*])(ADH)(days)];
(b) if the number of ADH in the applicable month is more than
[*] ([*]) but not more than [*] ([*]), then an amount equal to: $[*] times the
number of ADH times the number of [*] in the month, [*] $[*] times the number of
[*] in the month [or ($[*])(ADH)(days) [*] ($[*])([*])(days)]; or
(c) if the number of ADH in the applicable month is more than [*]
([*]), then an amount equal to: $[*] times the number of
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THE OMITTED PORTIONS.
ADH times the number of days in the month, [*] $[*] times the number of days in
the month [($[*])(ADH)(days)[*]($[*])([*])(days)[*] ($[*])([*])(days)].
2.2 As an advance against, and recoupable from, any and all amounts
that may otherwise be payable pursuant to Section 2.1 above, Microsoft agrees to
pay to Inktomi the sum of $[*] promptly after the execution of this Agreement.
Notwithstanding anything contained herein to the contrary, if the Launch Date is
[*], for [*] other than [*] to meet any requirement in the [*], then on
the [*] of each [*] (but attributable to the [*]) beginning on [*], and
continuing until the [*] of [*] or the [*], the [*] portion of [*] shall be
deemed [*] by $[*]. Notwithstanding the foregoing, with respect to the [*] in
which the [*] (if [*]), said $[*] will be [*] by the amount of [*] for such
month pursuant to Section [*].
2.3 In addition to the service fees payable pursuant to Section 2.1
above, Microsoft agrees to pay to Inktomi a [*] (attributable to the [*]) equal
to $[*] per [*], from the [*] throughout the remainder of the [*], calculated by
Microsoft monthly (but [*] and [*] in [*] in accordance with [*] below).
2.4 As an advance against, and recoupable from, any and all amounts
that may otherwise be payable pursuant to Section 2.3 above attributable to the
period from the [*] until the [*] of the [*], Microsoft agrees to pay to Inktomi
the sum of [*] ($[*]) promptly after the execution of this Agreement.
2.5 Notwithstanding anything contained in Section 2.3 to the
contrary, in no event shall Microsoft be required to pay more than $[*] in
any contract year under Section 2.3. For the purposes hereof, a "contract year"
will commence on the Launch Date or an anniversary thereof, and continue for
twelve months thereafter.
2.6 Notwithstanding any other provision of this Agreement, Microsoft
shall have no obligation to use the Product, or to limit the number of search
results on any given Web page in the Microsoft Site. Inktomi acknowledges and
agrees that it is not entitled to any share in any revenue derived by Microsoft
from the Microsoft Site or the Microsoft Search Engine, regardless of how
derived, and that except as may be expressly provided otherwise in this
Agreement (or by subsequent mutual agreement of the parties) the service fees
payable (if any) under Sections 2.1 through 2.4 will be the only payments
required to be made to Inktomi for or in consideration of the rights granted to
Microsoft hereunder, the Services and all results and proceeds thereof. Nothing
in this Agreement will be construed as restricting Microsoft's ability to
acquire, license, develop, manufacture, use or distribute for itself, or have
others acquire, license, develop, manufacture, use or distribute for Microsoft,
similar technology performing the same or
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
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similar functions as the technology contemplated by this Agreement, or to
market, use and distribute such similar technology in addition to, or in lieu
of, the technology contemplated by this Agreement.
2.7 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 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 in any way affect the rights granted to such other parties.
2.8 Notwithstanding anything contained herein to the contrary, in the
event that Inktomi licenses its Search Engine and/or Coupled Cluster Technology,
and/or provides search results derived from the use of such technology, to any
third party (including but not limited to arrangements whereby such technology
is branded by such third party and/or such technology is incorporated by a third
party into its product) pursuant to which such third party pays Inktomi service
fees or other payments substantially on a "per hit" or similar basis, then:
(a) in the event that any of the following is [*] than the [*]
set forth in this Agreement: (i) the [*] of what [*] a [*], and/or (ii) the [*]
(or similar [*]) [*] per [*] to the [*], then this Agreement shall be [*] so
that Microsoft shall [*] such [*]; and
(b) in the event that the [*] (or [*]) [*] per [*] to the [*] is
[*] than the [*] of what is [*] by Microsoft under Section [*] above [*] what is
[*] by Microsoft under Section [*] of the [*] between the parties of even date
herewith, then Section [*] above shall be [*] so that said [*] by Microsoft
under said Sections [*] and [*] is [*] than the [*] by the applicable third
party.
3. Accountings and Audits.
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3.1 Within forty-five (45) days after the end of each calendar month
with respect to which Microsoft owes Inktomi any service fees, Microsoft shall
furnish Inktomi with a statement, together with payment for any amount shown
thereby to be due to Inktomi. The service fee statement shall be based upon the
calculations set forth in Section 2 during the month then ended, and shall
contain information reasonably sufficient to discern how the service fee
payment, if any, was computed. All statements and all other accounts rendered by
Microsoft to Inktomi shall be binding upon Inktomi and not subject to any
objections by Inktomi for any reason unless specific objection in
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
writing, stating the basis thereof, is received by Microsoft within one (1) year
from the date rendered.
3.2 Taxes.
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3.2.1 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 reasonable steps as are 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 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
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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.
3.2.2 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.
3.2.3 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.
3.3 Microsoft agrees to keep, for not less than eighteen (18) months,
all proper records and books of account and all proper entries therein relating
to the calculations made under Section 2. Inktomi may cause an audit to be
made, at its expense, of the applicable records in order to verify statements
rendered hereunder. Any such audit shall be conducted only by a certified
public accountant (other than on a contingency-fee basis) and shall be conducted
during regular business hours at Microsoft's offices and in such a manner as not
to interfere with Microsoft's normal business activities. In no event shall an
audit with respect to any service fee statement commence later than eighteen
(18) months from the date of the statement involved, nor shall the audits be
made hereunder more frequently than once annually, nor shall the records
supporting any statements be audited more than once. Inktomi shall require the
certified public accountant when engaged to execute and deliver to Microsoft a
certificate in substantially the following form:
"I hereby certify that I have been engaged by Inktomi to audit the books and
records of MICROSOFT CORPORATION. Inktomi will not pay me on a contingent-
fee basis. The fees to be received by me for conducting the audit shall be
in no manner variable according to the findings or results of the audit.
Inktomi hereby agrees to make available to Microsoft, upon request, its records
and reports pertaining to the audit and any such records and reports prepared
for Inktomi by third parties (including the work sheets generated by its
auditors) but only in the event that Inktomi makes any claim with respect to
such audit. If any Inktomi audit should determine that Microsoft underpaid
Inktomi by an amount of [*]% or more for the period
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THE OMITTED PORTIONS.
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audited, then in addition to any and all other rights and remedies Inktomi may
have under the circumstances, Inktomi may require Microsoft to reimburse it for
all costs it incurred relating to such audit in addition to paying the amount
otherwise owed.
4. Provision of Services. Inktomi shall perform the Services using the
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Product, and deliver to Microsoft the Deliverables, in accordance with the
Specifications (including the Schedule), as the same may change from time to
time during the Term with the mutual consent of Microsoft and Inktomi, and all
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.
5. Scope of Rights.
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5.1 Product. Microsoft will have the right to use the Deliverables
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and other results and proceeds of the Services, solely in connection with its
provision of search engine services, throughout the Territory during the Term,
if and to the extent that it may determine is appropriate, including without
limitation by way of sublicensing rights to third parties.
5.1.1 However, with respect to such sublicensing: (i) such
sublicensees may operate co-branded and/or "private label" sites accessing the
Deliverables through Microsoft servers, but such sites will not be connected
directly to the applicable hosting servers; (ii) [*] by sublicensees will be [*]
(but [*]) with [*] by Microsoft for purposes of Section [*]; (iii) Microsoft
may only sublicense use of the Deliverables, and any sublicense shall be
effective only, during the Term; and (iv) each sublicensee shall agree to hold
all confidential and proprietary information regarding Inktomi and the Product
in confidence, to use the Deliverables only in connection with providing search
engine services to end users through sites operated by such sublicensee, and not
to reverse engineer, disassemble or decompile the object code version of the
Product or any Inktomi Technology.
5.1.2 Except as provided in this Section 5, Microsoft will have
no other rights in or to any Inktomi Technology. Microsoft shall not reverse
engineer, disassemble or decompile the object code version of any Inktomi
Technology.
5.2 Inktomi Technology. Nothing contained in this Agreement will be
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deemed to transfer any ownership in the Inktomi Technology to Microsoft, and
insofar as Microsoft is concerned, Inktomi will own all rights in and to the
Inktomi Technology.
5.3 No Trademark License. Nothing in this Agreement or its
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performance shall grant either party any right, title, interest, or license in
or to the other's names, logos, logotypes, trade dress, designs, or other
trademarks.
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6. Representations and Warranties.
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6.1 By Inktomi. Inktomi warrants and represents that:
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(a) It has the full power to enter into this Agreement and to
grant the rights set forth herein;
(b) It has not previously and will not grant any rights in the
Inktomi Technology or Deliverables to any third party that are inconsistent with
the rights granted to Microsoft herein; without limiting the generality of the
foregoing, Inktomi represents and warrants that it has the [*] to [*] [*] as
required hereunder, and that providing such search results will not violate any
terms and conditions of other agreements entered into by Inktomi with any third
party (including but not limited to agreements with [*] and [*]); and
(c) The operation of the Product by Inktomi to provide [*] [*]
as required hereunder [*] and [*] [*], or [*] held by [*], and Inktomi has [*]
of [*] of [*] such [*].
6.2 By Microsoft. Microsoft warrants and represents that it has the
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full power to enter into this Agreement.
7. Indemnification.
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7.1 By Inktomi. Inktomi shall, at [*] and Microsoft's request, defend
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[*] or action brought against Microsoft, and [*] and [*], which, [*], would
constitute a [*] of any [*] or [*] made by Inktomi under this Agreement, and
Inktomi will [*] and [*] Microsoft [*] any [*], [*] and [*] incurred by
Microsoft, including but [*] to [*] of [*] and [*], that are attributable to
such claim. Microsoft shall: (i) provide Inktomi reasonably prompt notice in
writing of any such claim or action and [*], through [*] to Microsoft and
Inktomi, to [*] and [*] such claim or action; and (ii) provide Inktomi [*] and
[*], at [*], to [*] Inktomi to [*] such claim or action. Inktomi will [*] for
any [*] by [*] without [*], which [*] will [*].
7.2 By Microsoft. Microsoft shall, at [*] and Microsoft's
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request, defend [*] claim or action brought against Inktomi, and [*] and [*],
which, [*], (i) would constitute a [*] of any [*] or [*] made by Microsoft under
this Agreement, (ii) is [*] in [*] upon [*] to [*] made by [*] Inktomi, or
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
(iii) is [*] in [*] upon [*] of the [*] but is [*] by Section [*] above, and
Microsoft will [*] and hold Inktomi [*] any [*] and [*] by Inktomi, including
but [*] to [*] of [*] and [*], that are attributable to such claim. Inktomi
shall: (i) provide Microsoft reasonably prompt notice in writing of any such
claim or action and [*] through counsel [*] to Inktomi and Microsoft, to
[*] and [*] such claim or action; and (ii) provide Microsoft [*], [*] and [*],
[*], to [*] Microsoft to [*] such claim or action. Microsoft will [*] for any
[*] made by [*] without [*], which [*] will [*].
7.2 Separate Counsel; Reimbursement. An indemnified party shall have
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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 7.
7.3 Settlement. The indemnifying party may [*] any claim or
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action under this Section 7 [*] the [*] written [*], which [*] will [*]. In the
event Microsoft and Inktomi agree to settle a claim or action, each party agrees
not to publicize the settlement without first obtaining the other's written
permission, which permission will not be unreasonably withheld.
7.4 Proprietary Rights Infringement. Without limiting any of
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[*], in the event of any [*] or [*] by [*] of Section [*], [*] shall notify [*]
and shall [*] (i) [*] for [*] so that [*] shall [*] be in [*] of Section
[*], or (ii) [*] the [*] or [*] thereof, or [*] the [*] with [*] having [*]
the same or [*]. If neither of the foregoing is [*] to achieve within a [*] of
time, then, in addition to any [*] available to [*], [*] may [*] this Agreement.
8. LIMITATION OF LIABILITY. EXCEPT FOR [*] CAUSED BY A [*] OF
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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 [*].
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THE OMITTED PORTIONS.
9. Termination and Other Remedies.
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9.1 Termination At Will by Either Party.
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9.1.1 Microsoft may terminate this Agreement without cause upon
[*]'s prior written notice, provided that such notice may not be given
prior to the [*] of the [*].
9.1.2 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 [*].
9.2 In addition to any other rights and/or remedies that Microsoft
may have under the circumstances, all of which are expressly reserved, Microsoft
may suspend performance and/or terminate this Agreement immediately upon written
notice at any time if:
(a) Inktomi is in material breach of [*], [*] or [*] of this
Agreement, other than those contained in Section [*], and fails to cure that
breach within [*]([*]) days after written notice thereof; or
(b) Inktomi is in material breach of Section [*]; or
(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.
9.3 In addition to any other rights and/or remedies that Inktomi may
have under the circumstances, all of which are expressly reserved, Inktomi may
suspend performance and/or terminate this Agreement immediately upon written
notice at any time if:
(a) Microsoft is in material breach of [*], [*] or [*] of this
Agreement, other than those contained in 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
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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.
9.4 In the event of termination or expiration of this Agreement for
any reason, Sections 1, 3, 5.2, 6, 7, 8, 10.1 and 12shall survive termination.
Neither party shall be liable to the other for damages of any sort resulting
solely from terminating this Agreement in accordance with its terms.
9.5 If Inktomi is in material breach of this Agreement, then, in
addition to any other remedies which Microsoft may have under the circumstances,
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.
9.6 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.
9.7 If (a) Microsoft should desire to create a [*] version of the
Microsoft Search Engine pursuant to the Software Development Agreement between
the parties of even date herewith, and/or to deploy such a version via servers
located in [*], and, [*] with Inktomi, [*] to [*] a [*] to [*] from [*] or [*]
such [*] version and (b) Inktomi is unable to [*] of such a [*] by [*] within
[*] ([*]) days after receiving written notice thereof from Microsoft, by
securing [*] from [*] meeting Microsoft's reasonable approval, then Microsoft
will have the right, in recognition of the difficulty of determining Microsoft's
damages with any reasonable specificity or certainty, to elect by written notice
to Inktomi to [*] this [*] to the effect that the [*] by Microsoft pursuant to
Sections [*] and [*] shall [*] be reduced by [*] ([*]%) beginning on the
expiration of said [*] period and continuing thereafter for the [*] of the [*].
Microsoft's rights under this Section 9.7 shall apply notwithstanding anything
contained in this Agreement to the contrary; provided, however, that if
Microsoft elects to so amend this Agreement pursuant to this Section 9.7,
Microsoft may not thereafter terminate this Agreement or any Ancillary Agreement
for cause, or exercise any other remedy, due to or arising from [*] by [*] that
its [*] with Inktomi in effect as of the [*] from creating or deploying a
[*] version of the Microsoft Search Engine; provided that if Microsoft has
incurred [*] under this Agreement or any Ancillary agreement(s) in connection
with development or deployment of a [*] version of the Microsoft Search Engine
prior to such a [*] which [*] such development or deployment, or if [*]
Microsoft, then Inktomi will [*]
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
from its [*] to Microsoft with respect to all such [*] and/or [*].
10. Confidentiality.
---------------
10.1 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 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.
10.2 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.
10.3 Inktomi shall use its commercially reasonable efforts to cause
Exodus to execute a non-disclosure agreement with Microsoft which includes
substantially similar restrictions as are contained herein.
10.4 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).
11. Relocation of Hosting Servers; Technology Escrow.
------------------------------ -----------------
11.1 If Microsoft should exercise its right to cause Inktomi to
relocate the Hosting Servers (as such term is defined in the Hosting Agreement
between the parties of even date herewith) pursuant to Section 2.6.2 of said
Hosting Agreement, then Inktomi will be deemed to automatically have granted to
Microsoft, upon such relocation, a non-exclusive and irrevocable license during
the remainder of the Term and throughout the Territory to use the Product (and
all required underlying Inktomi Technology), but solely to generate search
results for Microsoft (and/or its sublicensees) as otherwise would be required
to be delivered by Inktomi to Microsoft pursuant to this Agreement,
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THE OMITTED PORTIONS.
and to create enhancements to and derivative works for use in connection with
the Product. The exercise by Microsoft of such relocation rights shall not be
deemed to preclude Microsoft from exercising any other rights or remedies
otherwise available to Microsoft if the reason for such relocation is the breach
by Inktomi of any of its obligations under this Agreement.
11.2 To ensure that Microsoft will have access to such technology as
may be necessary or appropriate to permit it to use the Product to generate
search results (and to develop enhancements and other derivative works for use
in connection with the Product) as contemplated by this Agreement and the
Ancillary Agreements, Inktomi agrees to provide to an escrow agent, the identity
of which is satisfactory to Inktomi and Microsoft, a copy of all source code,
binary code and related documentation used in, or in connection with the
development of, the Product or the Deliverables (including all related
enhancements), concurrently with the deployment or delivery of the applicable
Deliverable or Product (including all related enhancements) to Microsoft.
Without limiting the generality of the foregoing, all source code, binary code
and documentation for the Inktomi's Search Engine and relevant Coupled Cluster
Technology will be escrowed hereunder. Said escrow agent will hold such code and
documentation in escrow, and release it if and only if it is permitted to do so
pursuant to the terms and conditions of the Escrow Agreement appended hereto as
Schedule I. The parties shall execute an Escrow Agreement substantially in the
form of Schedule I concurrently with the execution of this Agreement.
11.3 If Microsoft is entitled to receive any source code, binary code
and/or documentation pursuant to said Escrow Agreement, (i) Inktomi will be
deemed to automatically have granted to Microsoft a non-exclusive and
irrevocable license during the remainder of the Term and throughout the
Territory to use the Product (and all required underlying Inktomi Technology)
solely to generate search results (and to create enhancements and derivative
works for use in connection with the Product) as contemplated by this Agreement
and the Ancillary Agreements, and (ii) Inktomi agrees to furnish to Microsoft,
upon Microsoft's request, the services of Inktomi personnel familiar with the
structure and operation of such source code and/or binary code to explain such
code and train Microsoft personnel in its operation. Such services shall
continue for so long as is reasonably required by Microsoft personnel to become
proficient in its use and application, and Inktomi will charge Microsoft only
for its direct, actual, out-of-pocket costs of such services.
11.4 Except as expressly provided herein or in any Ancillary
Agreement, Inktomi shall be under no obligation whatsoever to deliver any source
code to Microsoft.
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
15
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 determines. 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 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 in any given country or any political subdivision
in a given country, 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 which shall apply only with respect to
that portion of the Territory in which the original provision is rendered null,
void or otherwise ineffective 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 with respect to such portion of the
Territory (and of all of the provisions of this Agreement with respect to the
balance of the Territory) 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.
16
12.5 Except as expressly permitted hereunder or in Exhibit B 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.
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 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.
17
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 July 27
Date: ____________________, 1997 Date: ____________________, 1997
18
EXHIBIT A
---------
PRODUCT SPECIFICATIONS
----------------------
(32 pages follow)
19
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
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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..
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EXHIBIT B
---------
Transfer by Inktomi
-------------------
If Inktomi requests Microsoft's consent to a transfer as described in clause (a)
of Section 12.5 of this Information Services Agreement to which this Exhibit B
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 of even date herewith) Inktomi's purchase of, (whichever
Microsoft elects) any new hosting servers beyond the Hosting Servers purchased
by Inktomi under the Software Hosting Agreement of even date herewith 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 of
even date herewith and/or this Information Services Agreement; for the purposes
of this clause (iv), the Transition Period will commence at such time as
Microsoft Search Engine, and will continue thereafter for eighteen months (18)
or until the termination of the Software Development Agreement and Information
Services Agreement (whichever is longer);
20
(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, said Software
Hosting Agreement shall be deemed terminated pursuant to Section 10.1 thereof.
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.
21
SCHEDULE I
----------
ESCROW AGREEMENT
THIS ESCROW AGREEMENT is entered into this ___ day of __________, 1997 by and
among INKTOMI CORPORATION ("Inktomi"), a California corporation, whose address
is 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000, DATA BASE,
INC. ("Escrow Agent"), a Washington corporation, whose address is 000 Xxxxx
000xx Xxxxxx, Xxxxxxx, XX 00000, and MICROSOFT CORPORATION ("Microsoft"), a
Washington corporation whose address is Xxx Xxxxxxxxx Xxx, Xxxxxxx, XX 00000-
6399.
A. Inktomi is the owner of computer programs and supporting documentation
that contain confidential information and are protected under copyright and as
trade secrets. Inktomi authorizes others to use the computer programs and
documentation under written agreements which, among other things, require the
other party to protect the confidentiality of Inktomi's property.
B. Computer programs can be expressed in machine-readable form, called
binary code, and in human-readable form, called source code or source listings.
Generally, parties are unable to modify or correct errors in the binary code
without having the source code.
C. This escrow arrangement is provided to assure Microsoft of access to
the source code, binary code and confidential supporting documentation in the
event that Inktomi (i) discontinues all or substantially all of its search
engine business operations or (ii) ceases to provide software development, error
correction, product enhancements and upgrades, and regular maintenance of the
computer programs (collectively, "Support") under and in accordance with the
Software Development Agreement and/or the Information Services Agreement (the
"Agreements") between Inktomi and Microsoft of even date herewith (as it may be
amended by mutual agreement of Inktomi and Microsoft from time to time).
THEREFORE, in consideration of the mutual covenants set forth in this
Agreement, Inktomi, Microsoft and Escrow Agent agree as follows:
1. Confidential Materials.
----------------------
1.1 Escrow Agent, as escrow agent, agrees to accept from Inktomi, for
storage purposes only, confidential materials in the form of source code and
binary code, program listings, supporting documentation, and other related
materials for certain computer programs owned by Inktomi (collectively,
"Confidential Materials"). Inktomi will furnish to Escrow Agent a list naming
or describing all computer programs for which Confidential Materials are
deposited into escrow. This list shall be certified by Inktomi as complete and
accurate. A list of computer programs for which Confidential Materials are
currently on deposit with Escrow Agent is attached as Exhibit A to this
Agreement. This list will be supplemented and updated by Inktomi with each
future deposit or withdrawal of Confidential Materials. For each deposit,
Escrow Agent will issue receipts to Inktomi.
1.2 Upon each deposit of Confidential Materials, Inktomi shall furnish to
Microsoft a copy of the list provided to Escrow Agent pursuant to this Section
1. Such list shall constitute notice to Microsoft that the Confidential
Materials listed thereon have been deposited with Escrow Agent. Upon the
request of Microsoft, Escrow Agent shall supply to Microsoft copies of all lists
furnished by Inktomi to Escrow Agent hereunder. Escrow Agent shall not be
required to determine the accuracy or completeness of the list(s) furnished by
Inktomi hereunder, nor shall Escrow Agent be responsible for Confidential
Materials not actually deposited with it, whether or not such Confidential
Materials were required to be deposited under the terms of this Agreement, any
license agreement between Inktomi and Microsoft or any other agreement.
2. Retention of Confidential Materials. Escrow Agent agrees to hold in
-----------------------------------
safekeeping the Confidential Materials deposited hereunder, and shall release or
disclose any or all such Confidential Materials only in accordance with the
terms of this Agreement.
3. Release of Confidential Materials. Inktomi authorizes Escrow Agent to
---------------------------------
release Confidential Materials only as follows:
(a) Escrow Agent shall release to Inktomi all Confidential Materials
requested by written demand of both Inktomi and Microsoft, provided that such
Confidential Materials are specifically identified to the satisfaction of Escrow
Agent, and provided that all fees payable to Escrow Agent for performance of its
services hereunder have been fully paid.
(b) Provided that all fees payable to Escrow Agent for the performance of
its services hereunder have been fully paid, all Confidential Materials shall be
returned to Inktomi at any time that Escrow Agent ceases doing business or is
unable to hold the same in accordance with the terms of this Agreement due to
forces beyond its reasonable control; provided however, that Escrow Agent gives
such advance notice to Inktomi and Microsoft as is reasonably practicable, but
in no event less than thirty (30) days.
(c) In the event of (1) a demand by Microsoft pursuant to Subsection 4.1
hereof which is not disputed by Inktomi in the manner and within the time
prescribed in Subsection 4.2 hereof, or (2) a determination by the panel of
arbitrators in accordance with Section 5 hereof that (A) the applicable
Agreement remains in force and effect and (B) Inktomi has discontinued all or
substantially all of its search engine business operations or has ceased to
Support the Confidential Materials on a timely basis as required under the terms
of the applicable Agreement, then Escrow Agent shall, upon the receipt from
Microsoft of full payment for the costs and expenses of duplication, make
duplicate copies of those Confidential Materials which relate to the computer
program or programs with respect to which demand is made and shall deliver such
duplicate copies to Microsoft. Escrow Agent agrees that the "Write-Protect
Ring" on magnetic tape reels furnished to Escrow Agent by Inktomi shall not be
removed at any time.
(d) Escrow Agent shall release such Confidential Materials to such persons
and in such manner as shall be directed by order of any court of competent
jurisdiction pursuant to
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Section 6 or otherwise. Escrow Agent may also release Confidential Materials
pursuant to the provisions of Section 11 below.
4. Demand and Dispute.
------------------
4.1 In the event Microsoft desires release of Confidential Materials
relating to one or more computer programs, Microsoft shall make written demand
on Escrow Agent therefor, specifically designating the computer program or
programs for which Confidential Materials are requested. Such demand must be
accompanied by all of the following documents and certificates, each executed
under oath by an authorized officer or representative of Microsoft:
(a) A certified true copy of a notice that Microsoft has mailed to
Inktomi at the address stated in this Agreement. The notice must contain a
statement that Microsoft has determined that Inktomi has discontinued all or
substantially all of its search engine business operations or has ceased to
Support the Confidential Materials on a timely basis as required under the terms
of the Agreements.
(b) A certificate stating that (i) Microsoft mailed to Inktomi,
registered or certified mail, the notice described in Paragraph 4.1(a) above,
and that ten (10) business days have elapsed from such mailing without response
from Inktomi, and (ii) before mailing the notice, Microsoft made a request upon
Inktomi for support services and Microsoft did not receive a response to such
request or received a response to the effect that Inktomi was unable or
unwilling to provide such services or Inktomi in fact did not timely provide
such services.
(c) A copy of each of the Agreements, as executed by Inktomi and such
Microsoft, together with a statement by Microsoft, certified by Microsoft, that
the copies of the Agreements are true copies, and that the applicable
Agreement(s) is(are) still in force and grants Microsoft the rights to use the
computer program or programs for which Confidential Materials are requested.
(d) A certificate stating that Microsoft will pay in advance for all
expenses and costs of copying the Confidential Materials requested.
(e) A Confidentiality and Use Limitation Certificate, in the form of
Exhibit B attached hereto, for the benefit of Escrow Agent, Inktomi and any
successor of either.
(f) A certificate stating that Microsoft shall indemnify and hold
harmless Escrow Agent from and against any and all losses, damages, and expenses
(including attorney's fees) that may be incurred by Microsoft and/or Escrow
Agent by reason of Escrow Agent's compliance in good faith with the terms of
this Agreement.
4.2 Upon receipt of a demand and all required supporting documents
described in Subsection 4.1 hereof, Escrow Agent shall promptly give notice to
Inktomi of such receipt and transmit with such notice a copy of such demand and
all accompanying documents. Inktomi or its successor may dispute such demand,
at any time within ten (10) business days following
-3-
Escrow Agent's notice to Inktomi hereunder by (i) giving written notice to
Escrow Agent that it continues to conduct all or substantially all of its search
engine business operations and continues to Support the Confidential Materials
on a timely basis as required under the terms of the Agreements, or (ii)
otherwise specifically denying any statements made by Microsoft in one or more
of the documents described in Paragraphs 4.1(a), (b) or (c) hereof. Such notice
shall be accompanied by a certificate to Escrow Agent stating that Inktomi will
submit to arbitration under the terms and conditions described in Section 5
hereof and abide by any decision rendered by the arbitrators in connection
therewith.
4.3 Upon receipt of Inktomi's notice of dispute as provided in Subsection
4.2 hereof, Escrow Agent shall promptly give notice to Microsoft of such receipt
and transmit with such notice a copy of such documents received from Inktomi
relating to such dispute. Subject to the last sentence of this Subsection 4.3,
Microsoft shall, within thirty (30) days following receipt of Inktomi's notice
of dispute, furnish Escrow Agent with a certificate stating that Microsoft will
submit to Arbitration under the terms and conditions described in Section 5
hereof and abide by any decision rendered by the arbitrators in connection
therewith. Microsoft may withdraw its demand for release of the Confidential
Materials at any time by giving Escrow Agent and Inktomi written notice of such
withdrawal.
5. Arbitration. Upon the earlier of the expiration of the thirty (30) day
-----------
period described in Subsection 4.3 or the receipt by Escrow Agent of Microsoft's
certificate described in Subsection 4.3, the matter shall be submitted to
arbitration proceedings in Seattle, Washington, which proceedings shall be
conducted under the commercial rules then prevailing of the American Arbitration
Association, by a panel of not less than three professional experts in the field
of computer software technology. Each party will choose one arbitrator and the
two arbitrators so chosen will choose a third. If the two designated
arbitrators do not so choose a third within thirty (30) days, either party may
apply to the local Superior Court to appoint a third arbitrator. The sole issue
for arbitration shall be whether the Agreements remain in force and effect and
whether Inktomi has discontinued all or substantially all of its search engine
business operations or has ceased to Support the Confidential Materials on a
timely basis as required under the terms of either or both of the Agreements.
If the arbitrators determine that Inktomi has discontinued all or substantially
all of its search engine business operations or has ceased to Support the
Confidential Materials on a timely basis, the arbitrators shall order the
release of Confidential Materials. The prevailing party in the arbitration
proceedings shall be awarded reasonable attorneys' fees, expert and non-expert
witness costs and expenses, and all other costs and expenses incurred directly
or indirectly in connection with the proceedings, unless the arbitrators for
good cause determine otherwise. The decision of the arbitrators shall be final
and binding on the Inktomi and Microsoft and may be entered and enforced in any
court of competent jurisdiction.
6. Interpleader. Notwithstanding any other provisions of this Agreement, if
------------
Escrow Agent receives a written demand from Microsoft for release of
Confidential Materials and Escrow Agent is uncertain whether Inktomi's exercise
of its right to dispute such demand pursuant to Subsection 4.2 hereof was timely
or otherwise effective, then Escrow Agent may, in its sole discretion, begin an
interpleader action, pursuant to applicable law, and deposit the Confidential
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Materials with the clerk of the court or withhold release of the Confidential
Materials until instructed otherwise by the court order.
7. Fees. Microsoft shall pay to Escrow Agent, in advance, fees at the standard
----
rate prescribed from time to time by Escrow Agent for performance of services
hereunder. Prices will be revised annually in accordance with Escrow Agent's
regular schedule of fees.
8. No Duty to Inquire into Truth, Authenticity or Authority; Right to Require
--------------------------------------------------------------------------
Additional Documents. Escrow Agent shall not be required to inquire into the
--------------------
truth of any statements or representatives contained in any notices,
certificates or other documents required or otherwise provided hereunder, and
shall be entitled to assume that the signatures on such documents are genuine,
that the persons signing on behalf of any party thereto are duly authorized to
execute the same, and that all actions necessary to render any such documents
binding on the party purportedly executing the same have been duly undertaken.
Without in any way limiting the foregoing, Escrow Agent may in its discretion
require from Inktomi or Microsoft additional documents which it deems to be
necessary or desirable in the course of performing its obligations hereunder.
9. Waiver of Claims.
----------------
(a) Inktomi hereby waives any claim for damages or otherwise which it may
have against Escrow Agent for any acts undertaken by Escrow Agent pursuant to
Microsoft's direction in Escrow Agent's good faith compliance with the terms of
this Agreement.
(b) Microsoft hereby waives any claim for damages or otherwise which it may
have against Escrow Agent for any acts undertaken by Escrow Agent pursuant to
Inktomi's direction in Escrow Agent's good faith compliance with the terms of
this Agreement.
10. Notices. Notices under this Agreement shall be in writing, addressed to
-------
the parties at the addresses listed in this Agreement, or to such other
addresses as a party shall have designated by notice to the other parties, and
shall be delivered by registered or certified mail, return receipt requested, to
the intended recipient. Notices shall be deemed to have been given and received
(i) when signed for on the return receipt, or (ii) if the party to receive
notice refuses to sign the return receipt or cannot be located after the
exercise of due diligence, three (3) business days after deposit of the notice
in the U.S. mail, properly addressed, with postage prepaid.
11. Termination.
-----------
(a) This Agreement shall terminate upon termination of both the Agreements.
Upon such termination, Inktomi shall give written notice to Escrow Agent, and
provide a copy of such notice to Microsoft in the manner set forth in applicable
notice provisions of the Agreements. Unless Microsoft disputes such notice by
written notice to that effect to Escrow Agent and Inktomi within ten (10)
business days (the "Objection Period") after Microsoft's receipt of said notice
from Inktomi, and provided that all fees payable to Escrow Agent for the
performance of
-5-
its services hereunder have been fully paid, Escrow Agent shall release and
return all Confidential Materials to Inktomi promptly after the expiration of
the Objection Period.
(b) Except as provided in Subsection 11(a) above or Section 1 hereof with
respect to modification of Exhibit A hereto, this Agreement may not be
terminated or modified except in writing signed by Escrow Agent, Inktomi and
Microsoft. Escrow Agent may, at any time, terminate this Agreement by resigning
as escrow agent hereunder. Escrow Agent shall provide Inktomi and Microsoft
ninety (90) days advance written notice of its intention to resign. Unless
within such period Escrow Agent receives written notice from the Inktomi and
Microsoft instructing Escrow Agent to deliver the Confidential Materials to one
or both of the parties, or to a third party, Escrow Agent shall deliver the
Confidential Materials to Inktomi.
(c) Upon the delivery of the Confidential Materials to one or both of the
parties, or to a third party, as permitted hereunder, all obligations of Escrow
Agent under this Agreement shall cease.
12. Bankruptcy. In the event of the commencement of a case by or against
----------
Inktomi pursuant to 11 U.S.C. Sections 301, 302, or 303, Microsoft may elect to
retain its right under this Agreement pursuant to 11 U.S.C. Section 365 (n). In
this regard, the Confidential Materials shall be deemed to be "intellectual
property" within the meaning of 11 U.S.C. Section 101. Inktomi's obligations
under this Agreement shall be binding on Inktomi's successors, including any
trustee or debtor in possession that may succeed to Inktomi's rights under this
Agreement.
13. Miscellany.
----------
13.1 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.
13.2 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.
13.3 Subject to such rights as Microsoft and/or Inktomi may have under the
Agreements, no party hereto shall voluntarily or by operation of law assign,
sublicense, transfer, encumber or otherwise dispose of all or any part of its
interest in this Agreement without the prior written consent of the non-
assigning party. Any attempted assignment, sub-license,
-6-
transfer, encumbrance or other disposal without such consent shall be void and
shall constitute a material default and breach of this Agreement. 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.
13.4 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.
13.5 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.
13.6 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.
13.7 This Escrow Agreement (and, as between Inktomi and Microsoft, the
Agreements) contains 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.
13.8 For the purposes of this Agreement, Inktomi and Microsoft hereby
designate the following individuals (and such additional individuals or
substitutes therefor as may hereafter be designated by written notice from
Inktomi or Microsoft, whichever is applicable) as having the authority to
provide directions to Escrow Agent hereunder:
Inktomi designates: Xxxxx Xxxxxxxxxxxx, Xxxxx Xxxxxxxx
Microsoft designates: ____________________________________________
Executed as of the date first written above.
Escrow Agent: DATA BASE, INC.
-------------
By:______________________
Data Base, Inc.
000 Xxxxx 000xx Xxxxxx Print Name:______________
Xxxxxxx, XX 00000
Title:___________________
Date:____________________
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Inktomi: INKTOMI CORPORATION
-------
By:____________________
Inktomi Corporation
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000 Print Name:____________
Xxx Xxxxx, XX 00000
ATTN: General Counsel Title:_________________
Date___________________
Microsoft: MICROSOFT CORPORATION
---------
Microsoft Corporation By:____________________
Xxx Xxxxxxxxx Xxx
Xxxxxxx, XX 00000-0000 Print Name:____________
ATTN: Law & Corporate Affairs, U.S. Legal
Title:_________________
Date:__________________
-8-
EXHIBIT A
---------
COMPUTER PROGRAMS FOR WHICH CONFIDENTIAL MATERIALS ARE DEPOSITED WITH ESCROW
AGENT
-9-
EXHIBIT B
---------
CONFIDENTIALITY AND USE LIMITATION CERTIFICATE
STATE OF WASHINGTON )
)
COUNTY OF KING )
The undersigned, being first duly sworn upon oath, does state as follows:
1. The undersigned has certain rights in and to certain computer programs and
data, under a Software Development Agreement and Search Results Agreement(the
"Agreements") between the undersigned and Inktomi Corporation, a California
corporation ("Inktomi").
2. The undersigned has demanded, and expects to receive, source listings
and/or other related documentation for such computer programs ("Confidential
Materials"). These materials are the confidential and proprietary information of
Inktomi, and Inktomi claims protection thereof under applicable of copyright and
trade secret law.
3. Upon receipt of the Confidential Materials, the undersigned shall limit the
use thereof solely for purposes of installation, operation, maintenance,
modification and enhancement of the computer programs. The Confidential
Materials, and any copies thereof, shall be used by the undersigned for internal
purposes only, and the undersigned shall not make any use of the binary/object
codes translated from the Confidential Materials, except as expressly permitted
under the Agreements. At all times that the undersigned is entitled to use the
Confidential Materials, the undersigned shall continue to pay to Inktomi all
royalties and other amounts which Inktomi is entitled to receive under the
Agreements.
4. The Confidential Materials shall at all times remain the sole and exclusive
property of Inktomi, and the delivery thereof to the undersigned shall not be
deemed a grant or transfer of such proprietary interests to the undersigned. The
undersigned accepts the Confidential Materials in strict confidence, and shall
not make available, provide or otherwise allow or permit the provision, directly
or indirectly, of the Confidential Materials, or any part or portion thereof, in
any form, representation, or medium, to any person or entity other than the
authorized personnel or consultants of the undersigned.
5. The undersigned agrees that Inktomi and DATA BASE, INC. ("Escrow Agent"), a
Washington corporation, and any successor thereto or employees or agents
thereof, may rely upon this Certificate and the representations made herein for
the delivery of the Confidential Materials to the undersigned, and the
undersigned agrees to indemnify and hold harmless such persons and entities from
and against any and all losses, damages and expenses (including attorneys' fees)
arising out of the undersigned's failure to use the Confidential Materials in
accordance with this Certificate or the Agreements, or otherwise as a result of
any release of any Confidential Materials by Escrow Agent in response to the
undersigned's request.
6. Notwithstanding anything to the contrary, this Certificate shall not limit
or enlarge the rights or obligations of the parties under the Agreements.
DATED this _____ day of ____________, 19___.
MICROSOFT CORPORATION
By:________________________________
Print Name:________________________
Title:_____________________________
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