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EXHIBIT 10.11
PREMIER SEARCH SERVICES AGREEMENT
This Premier Search Services Agreement (the "Agreement") is entered into and
effective as of the later of the two signature dates below (the "Effective
Date") by and between MICROSOFT CORPORATION, a Washington corporation, located
at Xxx Xxxxxxxxx Xxx, Xxxxxxx, XX 00000 ("Microsoft") and XxXx.xxx, Inc., a
Delaware corporation located at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, XX 00000
("Company").
RECITALS
Company owns and makes available to Internet users a search service enabling
Web users to conduct searches to locate information on the Internet.
Microsoft wishes to provide its end-users of Microsoft Internet Explorer the
ability to access Company's search services in accordance with the terms and
conditions of this Agreement.
AGREEMENT
1. DEFINITIONS
1.1 "Above the Fold" means the placement of particular items within a Web page
in a manner that is visible to an end-user without any scrolling in a
640x480 pixel resolution; provided that if a particular item is too large
to be completely visible to an end-user without scrolling, the placement
may continue below the fold.
1.2 "Click Through" means an end-user action associated with clicking on a
space provided for submitting a search query, which may be preceded by the
insertion of text into a search query space provided for such purpose. The
result of such an action is typically a set of search results.
1.3 "Default Placement" means the recurring placement of a search service on
the IE 3.x Page and/or the Pane which occurs upon specific end-user
selection of such search service as such end-user's default, which
placement may then be utilized by the end-user to initiate a search query
against the such search service. Default Placement alters and overrides
subsequent Rotational Placement unless and until such Default Placement is
disabled. Provided that the Default Placement is enabled, a Default
Placement will generate an Impression each and every time that the
end-user accesses the IE 3.x Page or the Pane subsequent to the Default
Placement.
1.4 "Default Selected Service" means the search service which appears on the
IE 3.x Page and/or the Pane as a result of a Default Placement.
1.5 "Drop Down" means the listing of all of the Premier Providers' search
services with only one Premier Provider visible (without end-user
interaction with the Drop Down) to the end-user at any one time from which
an end-user can initiate a User Placement. The Drop Down may include a
particular Other Search Service Provider solely as a result of a Default
Placement.
1.6 "Impression" means an end-user visible exposure of the Search Service
resulting from a Rotational Placement, Default Placement or User Placement
where such exposure is either delivered by a Microsoft hosted server or
re-directed to the Search Service at the Primary Web Site by a Microsoft
hosted server.
1.7 "IE 3.x, 4.x or 5.x" means the United States versions of Microsoft
Internet Explorer version 3.0, 4.0 or 5.0 (when available) as applicable
and any subsequent updates to such versions, but shall specifically not
include any later versions of Microsoft Internet Explorer (e.g. IE 6.x, IE
7.x, etc.),
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1.8 "IE 3.x Page" means the initial Web page that would be delivered to the
end-user upon clicking the Search Button contained within IE3.x
irrespective of the method utilized by the end-user to access such Web
page.
1.9 "Link" means a link on a Web page that end-users can click on to access
another Web page.
1.10 "Pane" means the section within the Web page which would be delivered to
the end-user upon clicking the Search Button contained within IE 4.x/5.x
irrespective of the method utilized by the end-user to access such Web
page.
1.11 "Premier Provider" means each third party participating in Microsoft's
Premier Search Program.
1.12 "Premier Search Program" means the placement of the Premier Providers'
search services within IE 3.x, 4.x and 5.x.
1.13 "Other Search Service Providers" means third party providers of search
services other than the Premier Providers.
1.14 "Primary Web Site" means the Company Web site currently located at the URL
xxxx://xxx.xxxx.xxx, or any successor site thereof.
1.15 "Rotational Placement" means the automatic placement of a search service
on the IE 3.x Page and/or the Pane without any action taken by the
end-user with respect to the Selection Mechanism, which placement may be
utilized by the end-user to initiate a search query against such search
service. A Rotational Placement will result in an Impression being
delivered.
1.16 "Rotational Selected Service" means the search service which appears on
the IE 3.x Page and/or the Pane as a result of a Rotational Placement.
1.17 "Search Button" means the button featured as part of IE 3.x, 4.x or 5.x
that is accessible to end-users and is labeled "Search" (or similar term)
as shown in Appendices A and B to Exhibit B or such other successor
feature implemented by Microsoft which provides a similar function.
1.18 "Search Service" means Company's search service currently known as
"XxXx.xxx" which performs searches of Company's database and/or the
Internet based on requests submitted over the Internet and is accessible
to end-users at the Primary Web Site.
1.19 "Selection Mechanism" means the Drop Down, Stack or any other similar
mechanism which is implemented by Microsoft on the IE 3.x Page or the Pane
for the purpose of referring a search service to the end-user and
subsequently allowing the end-user to initiate a User Placement.
1.20 "Site" means the United States version of the Microsoft portal Web site
currently located at xxxx://xxxx.xxxxxxxxx.xxx, or such other replacement
site as designated by Microsoft.
1.21 "Stack" means the listing of all of the Premier Providers' search services
such that all are visible with only one clearly demarcated as the selected
search service, from which an end-user can initiate a User Placement.
1.22 "Term" means that period during which Microsoft will deliver Impressions
pursuant to this Agreement, which shall begin on September 1, 1998 (the
"Term Commencement Date") and shall continue through August 31, 1999,
inclusive, unless terminated or extended as provided for elsewhere in this
Agreement. Notwithstanding the immediately preceding sentence, Microsoft
may elect to delay the Term Commencement Date by up to thirty (30) days,
provided that in such event, the
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expiration date of the Term shall be delayed by an equal number of days.
1.23 "Trademarks" means Company's Search Service logos as set forth on
Exhibit C and the Company trade names that are owned by or licensed to
Company and provided by Company to Microsoft under this Agreement.
1.24 "User Placement" means the non-recurring placement of a search service
on the IE 3.x Page and/or the Pane which occurs upon specific end-user
utilization of the Selection Mechanism to change the search service,
provided that subsequent Rotational Placement is not affected. Such
utilization of the Search Mechanism will replace the Rotational Selected
Service with the User Selected Service in a particular instance, which
placement may then be utilized by the end-user to initiate a search
query against the such search service. A User Placement will result in
an Impression being delivered.
1.25 "User Selected Service" means the search service which appears on the IE
3.x Page and/or the Pane as a result of a User Placement.
1.26 "Web" means that portion of the Internet commonly referred to as the
World Wide Web.
2. TERMS
2.1 Provided that company satisfies its obligations as set forth in Exhibit
A as attached hereto and by this reference fully incorporated herein,
Microsoft will place the Search Service by the Term Commencement Date
within IE 3.x, 4.x or 5.x in accordance with the specifications set
forth in Exhibit B (the "Placement Specifications") as attached hereto
and by this reference fully incorporated herein.
2.2 In connection with the placement of the Search Service as described in
this Agreement, Company hereby grants Microsoft a non-exclusive, royalty
free, worldwide limited right to use and display the Trademarks.
3. IMPRESSIONS
3.1 During the Term, Microsoft will deliver no less than 180,000,000
Impressions (the "Guaranteed Impressions").
3.2 Microsoft will make good faith efforts to deliver no less than thirty
percent (30%) of the Guaranteed Impressions during the first six (6)
months of the Term, provided that Microsoft's failure or inability to
deliver such number of Impressions within such time will not be a breach
of this Agreement.
3.3 At any time after Microsoft has completed delivery of the Guaranteed
Impressions Microsoft may, in its sole discretion, discontinue the
rotation of the Search Service as described in Exhibit B, provided that
the Search Service will remain accessible to end-users by means of the
Selection Mechanism.
3.4 Company shall pay for Impressions delivered in excess of the Guaranteed
Impressions at the CPM specified in Section 4.2, provided that the total
amount payable by Company pursuant to this Agreement shall not exceed
the Payment Cap (as defined in Section 4).
3.5 If, at the end of the Term, Microsoft has not delivered the Guaranteed
Impressions, Microsoft will extend the Term for the placement of the
Search Service as described in Exhibit B until the earlier of an
additional three (3) month period or until the Guaranteed Impressions
are delivered. If, at the end of such additional three (3) month
period, Microsoft has not delivered the Guaranteed Impressions,
Microsoft shall have the option, at its sole discretion, to elect to (a)
extend the Term for the placement of the Search Service as described in
Exhibit B until the earlier of an additional three (3) month period (the
"Second Period") or until the Guaranteed Impressions are delivered; (b)
replace such
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shortfall with a program component of equivalent value as mutually approved
by both parties; or (c) refund to Company an amount equal to Thirty Three
dollars and thirty three cents (US $33.33) per one thousand (1,000)
Impressions (the "Refund Rate") times the amount of the shortage of
Impressions (i.e. Guaranteed Impressions less the number of Impressions
delivered). If Microsoft elects option (a) above and has not delivered the
Guaranteed Impressions by the end of the Second Period then Company will
receive a refund in an amount equal to the Refund Rate times the amount of
the shortage of Impressions (i.e. Guaranteed Impressions less the number of
Impressions delivered by Microsoft through the end of the Second Period)
within thirty (30) days of the end of the Second Period).
3.6 During the Term, Microsoft agrees to keep complete records relating to the
delivery of Impressions. Within twenty (20) days after the last day of
each calendar month of the Term, Microsoft shall submit to Company a
report stating the number of Impressions delivered during the applicable
month. Not more than once during the period beginning on the Term
Commencement Date and ending thirty (30) days following the last day of
the Term, Company shall have the right to commence an audit and/or
inspection to be made, at its expense, of the applicable Microsoft records
in order to verify reports on delivered Impressions issued by Microsoft.
Any such audit shall be conducted by a mutually acceptable third party,
provided that such party agrees in advance to maintain all information
obtained during such audit in confidence pursuant to a written agreement
approved in advance by Microsoft. Company acknowledges and agrees that
Microsoft may comply with Company's audit request by providing copies in
electronic form of server logs reflecting the Impressions delivered. All
information received by Company and/or its auditor in connection with such
audit shall be subject to the confidentiality provisions of this
Agreement. If, upon completion of its audit, Company reasonably determines
that there are discrepancies in the number of Impressions reported as
having been delivered and the number of Impressions actually delivered.
Company shall initiate good faith discussions with Microsoft regarding the
nature and scope of Company's concerns with respect to such discrepancies,
indicating each such concern with as much specificity as possible. If an
audit reveals that Company has paid Microsoft for any Impressions that
were not delivered, and Microsoft agrees with such audit, Microsoft shall
at its discretion either (a) offset any over paid amount against any
amounts due and payable by Company, (b) deliver a number of additional
Impressions sufficient to equal the number of Impressions for which
Company has paid Microsoft, or (c) refund to Company an amount equal to
those Impressions reported and paid, but not delivered. In no event shall
Company initiate any legal action with regard to the number of Impressions
delivered hereunder later than sixty (60) days following the last day of
the Term.
4. PAYMENTS
4.1 Company shall pay to Microsoft Six Million dollars (US $6,000,000) in four
equal payments of One Million Five Hundred Thousand dollars (US $1,500,000)
as follows: (a) the first payment shall be due within twenty-four (24)
hours of Company's receipt of a fully executed copy of this Agreement; (b)
the second payment shall be due no later than ninety (90) days following
the Term Commencement Date; (c) the third payment shall be due no later
than one hundred eighty (180) days following the Term Commencement Date;
and (d) the fourth payment shall be due no later than two hundred and
seventy (270) days following the Term Commencement Date.
4.2 If, during the Term, the number of Impressions delivered by Microsoft
exceeds the Guaranteed Impressions, Company shall remit to Microsoft within
thirty (30) days of Company's receipt of the applicable statement an
additional payment for each excess Impression calculated at the rate of
Seventeen dollars (US $17) for each additional one thousand (1,000)
Impressions ("CPM") delivered in excess of the Guaranteed Impressions, as
applicable.
4.3 Notwithstanding the foregoing, in no event shall Company be required to pay
Microsoft more than Nine Million dollars (US $9,000,000) (the "Payment
Cap") in the aggregate for Impressions delivered (Guaranteed Impressions
and excess Impressions) during the Term pursuant to this Agreement.
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4.4 All payments to be made pursuant to this Agreement shall be made via a
wire transfer as directed by Microsoft with a remittance copy faxed to the
attention of Billing Manager Xxxxx Xxxxxxxxx at 000-000-0000.
5. NON-EXCLUSIVITY; CONFIDENTIALITY; PRESS RELEASES
5.1 Nothing in this Agreement will be construed as restricting either party's
ability to acquire, license, develop, manufacture or distribute for
itself, or have others acquire, license, develop, manufacture or
distribute for itself, content, software, news, sites, search services,
search results or the like, which is the same or similar to that
contemplated by this Agreement, or to market, promote and distribute same
in addition to that contemplated by this Agreement.
5.2 The parties acknowledge and agree that the terms and conditions of the
Microsoft Corporation Non-Disclosure Agreement dated as of August 7, 1998
("NDA") entered into by and between the parties are incorporated into this
Agreement as if fully set forth herein and that all of the terms of this
Agreement (including but not limited to its existence) and all discussions
and negotiations related thereto are considered Confidential Information
as defined in the NDA. In the event that any of the incorporated terms of
the NDA are inconsistent with or conflict with this Agreement, then the
terms of this Agreement shall control.
5.3 Notwithstanding Section 5.2 above, each party further agrees that the
incorporated restrictions in the NDA with respect to Confidential
Information shall survive the termination of this Agreement. Each party may
disclose the terms and conditions of this Agreement to its employees,
affiliates and its immediate legal and financial consultants on a need to
know basis as required in the ordinary course of that party's business,
provided that such employees, affiliates and/or legal and/or financial
consultants agree in writing in advance of disclosure to be bound by the
NDA and this Section 5, and may disclose Confidential Information as
required by government or judicial order, provided each party gives the
other party prompt notice of such order and complies with any protective
order (or equivalent) imposed on such disclosure.
5.4 Each party acknowledges that monetary damages may not be a sufficient
remedy for unauthorized disclosure or use of Confidential Information and
that each party may seek, without waiving any other rights or remedies,
such injunctive or equitable relief as may be deemed proper by a court of
competent jurisdiction.
5.5 Microsoft will issue an initial press release relating to the
establishment of the Premier Search Program, which will describe the
relationship between Microsoft and the Premier Providers, including
Company, and which may include an estimate of the total revenue generated
by Microsoft in connection with the Premier Search Program. Company shall
be provided with an opportunity to provide a quote and/or information to be
included in such initial press release. Except as specified above, 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, which consent shall not be unreasonably withheld,
provided that Microsoft may make informational references to the Premier
Search Program and the Company's participation in such program in other
publicity and press releases without obtaining Company's consent.
6. WARRANTIES AND INDEMNIFICATION
6.1 Company. Company warrants and represents that: (i) it has sufficient
authority to enter into this Agreement; (ii) all materials delivered by
Company to Microsoft and/or to end-users accessing the Search Service
through IE 3.x, 4.x and/or 5.x pursuant to this Agreement including
without limitation the Trademarks, Search Service UI, and/or, solely with
respect to its relationship with Microsoft
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under this Agreement, search results do not infringe the copyrights,
trademarks, service marks or any other proprietary right of any third
party; (iii) solely with respect to its relationship with Microsoft under
this Agreement, the search results provided to Microsoft for inclusion in
the Pane do not and will not contain any libelous, or materially false or
misleading statements and do not otherwise infringe on the rights of any
third party; (iv) the Search Service and all actions occurring as a result
of the Search Service are in compliance with all applicable laws; and (v)
Company will not permit to appear in, or be uploaded to any Microsoft
property or equipment, including the Pane, any messages, data, images or
programs, that would violate the property rights of others, including
unauthorized copyrighted text, images, programs or trade secrets or other
confidential and/or proprietary information, or trademarks or service marks
used in an infringing fashion. Company will indemnify Microsoft from and
against any loss, claim, liability, damage, action or cause of action
(including, without limitation, reasonable attorneys' fees) brought against
Microsoft by a third party and arising from or related to any breach by
Company of the foregoing warranties, provided that Microsoft cooperates as
set forth in Section 6.3. Microsoft reserves the right to immediately
discontinue the placement and placement of the Search Service as provided
in this Agreement, pending the satisfactory resolution of such matter, in
the event that Microsoft receives notice which alleges that the Search
Service or any portion thereof or any materials delivered hereunder (a)
violate any applicable laws, and/or (b) infringe the copyrights,
trademarks, service marks or any other proprietary right of any third
party. In the event that Company is in material breach of the warranties
set forth in this Section 6.1(ii), (iii) or (v) and such breach relates
solely to search results that cannot be controlled by Company, then
Microsoft's remedies for such breach shall be limited to (a) requiring
Company to fulfill its indemnity obligation as set forth in this section;
and (b) terminating this Agreement in accordance with Section 8.3 provided
that if Microsoft elects to terminate this Agreement then Company shall
receive a refund in an amount equal to the Refund Rate times the difference
between the number of Impressions delivered through the date of the
termination and the Guaranteed Impressions.
6.2 Microsoft. Microsoft warrants and represents that it has sufficient
authority to enter into this Agreement. Microsoft will indemnify Company
from and against any loss, claim, liability, damage, action or cause of
action (including, without limitation, reasonable attorneys' fees) brought
against Company by a third party and arising from or related to any breach
by Microsoft of the foregoing warranties, provided that Company cooperates
as set forth in Section 6.3.
6.3 Indemnification Process. If any action shall be brought against either
party (the "Claimant") in respect to which indemnity may be sought from the
other party (the "Indemnifying Party") pursuant to the provisions of this
Section 6, the Claimant shall promptly notify the Indemnifying Party in
writing, specifying the nature of the action and the total monetary amount
sought or other such relief as is sought therein. The Claimant shall
cooperate with the Indemnifying Party at the Indemnifying Party's expense
in all reasonable respects in connection with the defense of any such
action. The Indemnifying Party may upon written notice to Claimant
undertake to conduct all proceedings or negotiations in connection
therewith, assume the defense thereof, and if it so undertakes, it shall
also undertake all other required steps or proceedings to settle or defend
any such action, including the employment of counsel which shall be
satisfactory to Claimant, and payment of all expenses. Claimant shall have
the right to employ separate counsel and participate in the defense. The
Indemnifying Party shall reimburse Claimant upon demand for any payments
made or loss suffered by it at any time after the date of tender, 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 to which the foregoing relates.
6.4 THE ABOVE WARRANTIES ARE THE ONLY WARRANTIES MADE BY THE PARTIES. EACH
PARTY DISCLAIMS ANY AND ALL OTHER WARRANTIES OR REPRESENTATION EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES
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OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR
PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY
EXPRESSLY ACKNOWLEDGES AND AGREES THAT MICROSOFT HAS NOT MADE ANY EXPRESS
OR IMPLIED REPRESENTATIONS, ASSURANCES, AND/OR WARRANTIES REGARDING THE
NUMBER OF CLICK THROUGHS OR WEB PAGE VIEWS WHICH MAY BE GENERATED BY THE
IMPRESSIONS DELIVERED HEREUNDER AND THAT COMPANY HAS NOT RELIED ON ANY
STATEMENTS BY MICROSOFT OR ANY THIRD PARTIES IN RELATION THERETO IN
ENTERING INTO THIS AGREEMENT.
7. LIMITATION OF LIABILITIES
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, ARISING OUT OF OR RELATED TO
THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS
PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE,
EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THIS SECTION SHALL NOT APPLY TO EITHER PARTY'S (A) ABILITY TO OBTAIN
INJUNCTIVE OR OTHER EQUITABLE RELIEF; (B) CONFIDENTIALITY OBLIGATIONS UNDER
SECTION 5; AND (C) WARRANTIES AND INDEMNIFICATION OBLIGATIONS UNDER SECTION
6.
8. RENEWAL AND TERMINATION
8.1 Agreement Period. This Agreement shall commence on the Effective Date and
continue through the Term unless earlier terminated as provided in this
Section 8. In the event that Company does not deliver the required
materials in a timely manner as described in Exhibit A, then Microsoft may
elect, in its sole discretion, to extent the Term by a period not to exceed
the number of days by which Company was late in delivering the required
materials.
8.2 Renewal. If either party desires to extend the Term, then such party shall
give written notice to the other party no later than thirty (30) days prior
to the expected expiration date. If such notice is given by either party,
the parties shall negotiate the terms and conditions of such extension in
good faith for a thirty (30) day period beginning on the date the
receiving party receives such notice. If no such notice is given or if the
parties fail to reach an agreement on such extension prior to the
expiration date following the giving of such notice, this Agreement shall
terminate as set forth in Section 8.1.
8.3 Termination For Cause. In addition to any other rights and/or remedies that
either party may have under the circumstances, all of which are expressly
reserved, either party may terminate this Agreement immediately upon
written notice at any time if:
(a) The other party is in material breach of any material warranty,
representation, term, condition or covenant of this Agreement, other
than those contained in Section 5.2 and 5.3, and fails to cure that
breach within seven (7) business days after written notice thereof; or
(b) The other party is in material breach of Section 5.2 or 5.3; or
(c) Either 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 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.
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8.4 Effect of Termination. In the event of termination or expiration of this
Agreement for any reason each and every clause which by its nature is
intended to survive the termination of this Agreement including, without
limitation, Sections 5, 6, 7, 8, and 9 shall survive termination. For the
avoidance of doubt, if Microsoft terminates this Agreement pursuant to
Section 8.3 or 9.3, Company shall nonetheless be required to pay all
amounts set forth in this Agreement. Upon termination both parties shall,
upon written request, return or certify destruction of Confidential
Information of the other party. 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. GENERAL
9.1 Independent Contractors. The parties are independent contractors with
respect to each other, and nothing in this Agreement shall be construed as
creating an employer-employee relationship, a partnership, agency
relationship or a joint venture between the parties.
9.2 Governing Law. This Agreement shall be governed by the laws of the State of
Washington as though entered into by Washington residents and to be
performed entirely within the State of Washington. Company consents to
exclusive jurisdiction and venue in the state and federal courts sitting in
King County, Washington. In any action or suit to enforce any right or
remedy under this Agreement or to interpret any provision of this
Agreement, the prevailing party shall be entitled to recover its costs,
including reasonable attorneys' fees.
9.3 Assignment. This Agreement and any rights and/or obligations hereunder may
be assigned by Microsoft but may not be assigned by Company without
Microsoft's prior written approval, except as stated otherwise in this
Section 9.3. Any attempted assignment, sub-license, transfer, encumbrance
or other disposal without such consent shall be void and shall constitute a
material default and breach of this Agreement. In the event that Company
sells all or substantially all of its assets or stock then the following
shall apply:
(a) If such sale takes place prior to one hundred eighty one (181) days
following the Term Commencement Date, Microsoft shall have the option to
either (i) preapprove in writing the assignment of this Agreement and all
rights and obligations hereunder; or (ii) terminate this Agreement with
immediate effect and Company shall be required to pay all amounts set forth
in this Agreement;
(b) If such sale takes place on or subsequent to one hundred eighty one
(181) days following the Term Commencement Date but prior to two hundred
and seventy one (271) days following the Term Commencement Date, Microsoft
shall have the option to either (i) preapprove in writing the assignment of
this Agreement and all rights and obligations hereunder; or (ii) at
Microsoft's reasonable discretion, terminate this Agreement with immediate
effect and Company shall be relieved of its obligation to make any payment
pursuant to Section 4.1 which is owing subsequent to such termination date
provided that if Microsoft has delivered in excess of 135,000,000
Impressions by the date of termination then Company shall remit to
Microsoft an amount equal to Thirty Three dollars and thirty three cents
(US $33.33) per one thousand Impressions times the number of Impressions
delivered in excess of 135,000,000 Impressions, provided that if the number
of Impressions delivered by Microsoft exceeds the Guaranteed Impressions
the provisions of Section 4.2 shall apply with regard to any Impressions
delivered in excess of the Guaranteed Impressions.
(c) If such sale takes place on or subsequent to two hundred and seventy
one (271) days following the Term Commencement Date, Microsoft shall have
the option to either (i) preapprove in writing the assignment of this
Agreement and all rights and obligations hereunder; or (ii) at Microsoft's
reasonable discretion, terminate this Agreement with immediate effect and,
if Microsoft has not delivered the Guaranteed Impressions by the date of
termination, then Company shall receive a
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refund in an amount to the Refund Rate times the difference between the
number of Impressions delivered through the date of the termination and the
Guaranteed Impressions provided that such refund shall not exceed One
Million Five Hundred Thousand dollars (US $1,500,000) if the date of the
termination is prior to one (1) year after the Term Commencement Date. For
the avoidance of doubt, the amount of the refund, if any, applicable to a
termination which occurs subsequent to one (1) year following the Term
Commencement Date as described in this Section 9.3(c) shall not be subject
to the limitation set forth in the immediately preceding sentence. If the
number of Impressions delivered by Microsoft exceeds the Guaranteed
Impressions the provisions of Section 4.2 shall apply with regard to any
Impressions delivered in excess of the Guaranteed Impressions.
9.4 Construction. In the event that any provision of this Agreement conflicts
with governing law or if any provision is held to be null, void or
otherwise ineffective or invalid by a court of competent jurisdiction, (i)
such provision shall be deemed to be restated to reflect as nearly as
possible the original intentions of the Parties in accordance with
applicable law, and (ii) the remaining terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect. This
Agreement has been negotiated by the parties and their respective counsel
and will be interpreted fairly in accordance with its terms and without
any strict construction in favor of or against either party. The section
headings used in this Agreements are intended for convenience only and
shall not be deemed to affect in any manner the meaning or intent of this
Agreement or any provision hereof.
9.5 Notices. All notices and requests in connection with this Agreement shall
be given in writing and shall be deemed given as of the day they are
received either by messenger, delivery service, or in the United States of
America mails, postage prepaid, certified or registered, return receipt
requested, and addressed as follows:
To Company: To Microsoft:
Xxxx Xxxxxx Microsoft Corporation
Xxxx.xxx One Microsoft Way
000 Xxxx Xxxxx Xx. Xxxxxxx, XX 00000-0000
Xxxxxxxx, XX 00000 Attn:
Phone: (624) 535- Phone:
Fax: (000) 000-0000 Fax:
Copy to:
Law & Corporate Affairs, US Legal
Fax: (000) 000-0000
or to such other address as a party may designate pursuant to this notice
provision.
9.6 Entire Agreement. This Agreement does not constitute an offer by Microsoft
and it shall not be effective until signed by both parties. This Agreement
constitutes the entire agreement between the parties with respect to the
subject matter hereof and supersedes all prior and contemporaneous
agreements or communications. This Agreement shall not be modified except
by a written agreement dated subsequent to the date of this Agreement and
signed on behalf of Company and Microsoft by their respective duly
authorized representatives. 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, and no
waiver shall be effective unless made in writing and signed by an
authorized representative of the waiving party.
Company Search Services Agreement Page 9
10
The parties have caused this Agreement to be executed by their duly
authorized representatives as of the Effective Date.
MICROSOFT CORPORATION XXXX.XXX, INC.
/s/ XXXXX XXXXXXXX /s/ XXXXXXX XXXXXX
------------------------------ ------------------------------
By (signature) By (signature)
XXXXX XXXXXXXX XXXXXXX XXXXXX
------------------------------ ------------------------------
Name (print) Name (print)
Vice President CEO
------------------------------ ------------------------------
Title Title
September 16, 1998 August 27, 1998
------------------------------ ------------------------------
Date Date
Company Search Services Agreement Page 10
11
Microsoft Confidential 09/15/98
AMENDMENT 1
TO THE PREMIER SEARCH SERVICES AGREEMENT
This Amendment No. 1 ("Amendment") to the Premier Search Services Agreement
("Agreement") between the parties hereto dated as of even date herewith, is
made and entered into by and between MICROSOFT CORPORATION, a Washington
corporation, located at Xxx Xxxxxxxxx Xxx, Xxxxxxx, XX 00000 ("Microsoft") and
XXXX.XXX, INC., a Delaware corporation, located at 000 Xxxx Xxxxx Xxxxxx,
Xxxxxxxx, XX 00000 ("Company") as of September 16, 1998.
In consideration of the mutual covenants and representations contained in this
Amendment, the parties hereby agree that notwithstanding anything to the
contrary contained in the Agreement the following shall apply:
1. Section 1.10 shall be deleted and replaced with the following: "Pane"
means, with regard to IE 4.x, the section within the Web page which would
be delivered to the end-user upon clicking the Search Button contained
within IE 4.x and, with regard to IE 5.x, the Web page, section of the Web
page or other mechanism for submitting a search query which would be
accessible to the end-user upon clicking the Search Button contained within
IE 5.x, irrespective of the method utilized by the end-user to access such
Web pages or mechanism.
2. In Exhibit A, Section A.(2), line 1 and line 2: delete "and 5.x".
3. In Exhibit A, Section A.(3) the first sentence shall be deleted and
replaced with the following: URLs: (a) an IE 3.x frame URL, (b) an IE 4.x
search pane URL, and (c) an IE 5.x search URL.
4. In Exhibit A, Section A.(3), line 2: delete "/5.x".
5. In Exhibit A, Section C.(5), add the following at the end of the sentence:
", provided that with respect to IE 5.x, Microsoft may elect to have the
search results delivered to an alternative location".
6. In Exhibit B. Section (1)(b): (I) all references to the "Pane" shall be
revised to "Pane of IE 4.x", (II) the reference to "Panes" in line 3 shall
be revised to "Pane of IE 4.x", and (III) in line 2: delete "and 5.x".
7. In Exhibit B, Section (1): (I) change "(c)" to "(d)"; and (II) add "(c)"
Microsoft will feature the Search Service prominently and Above the Fold in
the Pane of IE 5.x".
8. In Exhibit B, Section (2): (I) in line 1, delete the comma after IE 3.x and
replace with "and"; and (II) in line 2, delete "and IE 5.x".
9. Except as expressly provided herein, the Agreement is not otherwise
modified in any respect and all of its terms and conditions shall remain in
full force and effect. This Amendment will not be effective until signed by
both parties.
MICROSOFT CORPORATION XXXX.XXX, INC.
By (Signature) /s/ XXXXX XXXXXXXX /s/ XXXX XXXXXX
------------------------- ----------------------------
Name: (Print) XXXXX XXXXXXXX XXXX XXXXXX
------------------------- ----------------------------
Title: Vice President CFO
------------------------- ----------------------------
12
Microsoft Confidential 09/15/98
AMENDMENT 2
TO THE PREMIER SEARCH SERVICES AGREEMENT
This Amendment No. 2 ("Amendment") to the Premier Search Services Agreement
("Agreement") between the parties hereto dated as of even date herewith, is made
and entered into by and between MICROSOFT CORPORATION, a Washington corporation,
located at Xxx Xxxxxxxxx Xxx, Xxxxxxx, XX 00000 ("Microsoft") and XXXX.XXX,
INC., a Delaware corporation, located at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, XX
00000 ("Company") as of September 16, 1998.
In consideration of the mutual covenants and representations contained in this
Amendment, the parties hereby agree that notwithstanding anything to the
contrary contained in the Agreement the following shall apply:
1. The following shall be added at the end of Section 3.1: "With regard solely
to the inclusion of the Search Service in IE 5.x, for the purpose of determining
the number of Impressions delivered by Microsoft in IE 5.x, only Click Throughs
shall be deemed to be Impressions (as opposed to Impressions generated as a
result of Rotational Placements, Default Placements or User Placements).
2. Except as expressly provided herein, the Agreement is not otherwise modified
in any respect and all of its terms and conditions shall remain in full force
and effect. This Amendment will not be effective until signed by both parties.
MICROSOFT CORPORATION XXXX.XXX, INC.
By (signature) /s/ XXXXX XXXXXXXX /s/ XXXX XXXXXX
------------------- ----------------
Name: (Print) Xxxxx Xxxxxxxx Xxxx Xxxxxx
Title: Vice President CFO
