INFORMATION SERVICES AGREEMENT
This Information Services Agreement ("Agreement") is entered into as of
4/30, 1998 (the "Effective Date"), by and between Inktomi Corporation, a
Delaware corporation with its principal place of business at 1900 South Norfolk
Street, Suite 310, San Mateo, California, 94403 ("Inktomi") and GOTO.COM, a
Delaware Corporation with its principal place of business at 130 W. Union St.,
Pasadena, CA 91103 ("Customer").
A. Inktomi provides services utilizing certain technology for searching
and indexing the Internet (the "Inktomi Search Engine," as more fully defined
B. Customer wishes Inktomi to provide search engine services using the
Inktomi Search Engine in accordance with the terms and conditions of this
In consideration of the foregoing and the mutual promises contained herein
the parties agree as follows:
1. Definitions. For purposes of this Agreement, the following terms
will have the indicated meanings:
1.1. "Database" means Inktomi's full text index database of Web
pages accessible by end users of the Site at any given time.
1.2. A "Results Set" means the data set presented to an end-user of
the Site consisting of between zero and one hundred records on a page in
response to a search query.
1.3. "Initial Search Page" means the first Web page, accessible on
the Site, which enables end-users of the Site to initiate and send search
queries to the Inktomi Search Engine.
1.4. "Inktomi Data Protocol" means the written specification on how
an Interface communicates and interacts with the Inktomi Search Engine.
1.5. "Inktomi Search Engine" means Inktomi's current Search Engine
as of the Effective Date, inclusive of the Database, as the same may be
upgraded, modified, changed, or enhanced by Inktomi at its sole discretion. The
Inktomi Search Engine does not and will not include features, options and
modules developed and customized specifically for third parties and provided to
such third parties on an exclusive basis, or features, options, modules and
future products which Inktomi licenses or provides separately.
1.6. "Inktomi Technology" means the Inktomi Search Engine, the
Inktomi Data Protocol, the Interface Construction Tools and all other computer
software, technology and/or documentation which is supplied by Inktomi for use
in or in connection with delivery of the Services, including without limitation
all source code and object code therefor and all algorithms, ideas and
Intellectual Property Rights therein.
1.7. "Intellectual Property Rights" means any and all rights
existing from time to time under patent law, copyright law, semiconductor chip
protection law, moral rights law, trade secret law, trademark law, unfair
competition law, publicity rights law, privacy rights law, and any and all other
proprietary rights, and any and all applications, renewals, extensions and
restorations thereof, now or hereafter in force and effect worldwide.
1.8. "Interface" means the editorial and graphical content and
design of the Web pages served to end users of the Site, including without
limitation the Initial Search Page, all Results Pages, instruction pages,
frequently asked questions pages and any Site end user terms and guidelines.
1.9. "Interface Construction tools" means all software tools, if
any, in object code form, provided by Inktomi to assist Customer to build the
Interface to the Inktomi Search Engine, including without limitation Inktomi's
application server currently known as Forge.
1.10. "Results Pages" means all Web pages displaying search results
presented to end-users directly as a result of accessing the query mechanisms of
the Inktomi Search Engine.
1.11. "Search Engine" means computer software which crawls the
Internet, downloads and analyzes text and other data, sorts and organizes the
data, creates an index of accessible data, and, after receiving a particular
search request (in the form of a word query), locates material accessible in the
database, and presents the results of the search.
1.12. "Site" means a single, primary Web site established and
maintained by Customer through which end-users may access the Inktomi Search
Engine and run searches against the Database. "Site" includes sites linked to
Customer's primary Web site so as to access the Inktomi Search Engine as
authorized under Section 2.2.
1.13. "Services" means the Internet search engine services to be
provided by Inktomi for Customer under this Agreement, as more fully described
on Exhibit A.
1.14. "Term" shall have the meaning indicated in Section l0.
1.15. "Web" means the so-called World Wide Web, containing, inter
alia, pages written in hypertext markup language (HTML) and/or any similar
1.16. "Web Page" means a document on the Internet which may be
viewed in its entirety without leaving the applicable distinct URL address.
1.17. "Web site" means a collection of inter-related Web pages.
2. Provision of Services, Site Implementation.
2.1. Services and Site Implementation. Subject to the terms and
conditions of this Agreement, Inktomi shall provide the Services to Customer for
use in the Site, such services to be provided substantially in accordance with
the functionality specifications, performance criteria and limitations specified
on Exhibit A. Throughout the Term, the Inktomi Search Engine used to provide the
Services as described in Exhibit A hereunder will be substantially the same
Search Engine used by Inktomi to provide similar services to its other general
search customers and will include substantially the same features and
functionality then offered by Inktomi to its other general search customers.
Inktomi, at its own expense, shall provide all data transmission capacity
(bandwidth), disk storage, server capacity and other hardware and software
required to run the Inktomi Search Engine and maintain the Database. Customer,
at its own expense, shall create the Interface to the Inktomi Search Engine for
the Site, and shall provide all disk storage, server capacity and other hardware
and software required to run and maintain the Site and the Interface, and to
serve advertisements on the Interface. Inktomi shall provide reasonable
assistance (through telephone, e-mail, the Web, or fax) to Customer during
regular business hours regarding development of the Interface and integration of
the same with the Inktomi Search Engine. Customer, at its own expense, shall
provide all data transmission capacity (bandwidth) required to connect to and
receive information from the Inktomi Search Engine. Customer may not cache
Results Pages or any other information obtained from the Database.
2.2. Distribution of Customer Engine. Customer may make the Results
Sets available to end-users of third party sites subject to the provisions of
this Section and all other terms and conditions of this Agreement. Customer may
make the Results Sets available only in connection with the distribution of
Customer's search engine services to such third party sites and may not resell
or distribute the Inktomi Services. No Inktomi Technology may be provided to
such sites but the Results Sets shall be made available only through links to
Customer's site or similar means which prevent direct access to the Inktomi
Search Engine by such third party end users. Customer will provide such services
only pursuant to a written agreement which is at least as protective of the
Inktomi Technology as the terms of this Agreement and which contains a
disclaimer of all warranties and limitations of liability on behalf of Inktomi
in a form reasonably acceptable to Inktomi.
2.3. Test Cluster. During the development period for the Interface,
Customer shall only have access through the Inktomi Data Protocol to a
non-production version of the Inktomi Search Engine (the "Test Cluster"). Upon
completion of the Interface and all desired testing against the Test Cluster,
Customer shall present the Interface to Inktomi for review and testing against
the production version of the Inktomi Search Engine. Inktomi shall promptly
notify Customer of any problems or issues discovered by Inktomi regarding the
Interface. Once cleared by Inktomi, Inktomi shall provide access to Customer to
the production version of the Inktomi Search Engine. Customer may run reasonable
tests against the Test Cluster and the production version of the Inktomi Search
Engine, provided however that Customer may not conduct any load testing (prior
to commercial launch of its search service) without the prior
consent of Inktomi. Load testing as used herein means the generation and
delivery of more than five queries per second.
2.4. Inktomi Data Protocol. Promptly following execution of this
Agreement, Inktomi shall provide the Inktomi Data Protocol and the Interface
Construction Tools to Customer. Inktomi grants to Customer a nontransferable,
nonexclusive license during the Term to use the Inktomi Data Protocol and the
Interface Construction Tools solely to create and maintain the Interface to the
Inktomi Search Engine for the Site.
2.5. Other Services. Upon request, and provided that Customer is
current with service fees due under this Agreement, Inktomi may provide
additional services beyond the services set forth herein. Any such service shall
be mutually agreed by the parties, shall be provided at Inktomi's then
applicable consulting rates and charges and, unless a separate written agreement
is entered into shall be deemed rendered pursuant to this Agreement.
Authorizations, issued under this Agreement shall be sequentially numbered and
2.6. Inktomi Technology. As between Customer and Inktomi, Customer
acknowledges that Inktomi owns all right, title and interest in and to the
Inktomi Technology (except for any software licensed by third parties to
Inktomi), and that Customer shall not acquire any right, title, and interest in
or to the Inktomi Technology, except as expressly set forth in this Agreement.
Customer shall not modify, adapt, translate, prepare derivative works from,
decompile, reverse engineer, disassemble or otherwise attempt to derive source
code from any Inktomi software or documentation. Customer will not remove,
obscure, or alter Inktomi's copyright notice, trademarks, or other proprietary
rights notices affixed to or contained within any Inktomi software or
2.7. Interface. As between Inktomi and Customer, Inktomi
acknowledges that Customer owns all right, title and interest, including without
limitation all Intellectual Property Rights, in and to the Interface (except for
any software licensed by third parties to Customer and except for editorial
content regarding the use and functionality of the Inktomi Search Engine
provided by Inktomi to Customer for incorporation into the Site, which content
shall be and remain Inktomi Technology), and that Inktomi shall not acquire any
right, title or interest in or to the Interface, except as expressly set forth
in this Agreement.
2.8. Nonexclusive Services. Customer understands that Inktomi will
provide the Services on a nonexclusive basis. Customer acknowledges that Inktomi
has customized and provided, and will continue to customize and provide, its
software and technology to other parties for use in connection with a variety of
applications, including search engine applications. Nothing in this Agreement
will be deemed to limit or restrict Inktomi from customizing and providing its
software and technology to other parties for any purpose, including in
connection with search engine applications, or in any way affect the rights
granted to such other parties. Inktomi reserves the right to notify other
customers of the signing of this Agreement, but agrees not to provide such
notice earlier than two weeks before a public announcement by Customer of its
business relationship with Inktomi or two weeks before commercial launch of its
search service, whichever is later.
3. Attribution; Trademark License; House Ads.
3.1. Attribution. The Initial Search Page and all Results Pages
shall conspicuously display a graphic to be provided by Inktomi that indicates
that Inktomi's technology is being used. This graphic shall measure at least 120
X 30 pixels, and may provide a link to Inktomi's Web site located at
www.inktomi.com. Inktomi will provide Customer with appropriate graphics for the
Inktomi icon. Such phrasing and the Inktomi icon shall be visible on all pages
but may appear "below the fold".
3.2. Trademark License. Inktomi hereby grants Customer a
nontransferable, nonexclusive license under Inktomi's trademarks during the Term
to display the Inktomi icon and to advertise the availability of Inktomi
software on the Site. Customer hereby grants to Inktomi a nontransferable,
nonexclusive license under Customer's trademarks during the Term to advertise
that Customer is using Inktomi's Services. Each party will submit advertising
materials containing the other party's trademarks to the other party before
release to the public for inspection, and such other party will have the right
to modify any such advertisements. Except as set forth in this Section, nothing
in this Agreement shall grant or shall be deemed to grant to one party any
right, title or interest in or to the other party's trademarks. All use of
Customer's trademarks by Inktomi shall inure to the benefit of Customer and all
uses of Inktomi trademarks by Customer shall inure to the benefit of Inktomi. At
no time during or after the term of this Agreement shall one party challenge or
assist others to challenge the trademarks of the other party (except to the
extent such restriction is prohibited by applicable law) or the registration
thereof or attempt to register any trademarks, marks or trade names confusingly
similar to those of the other party.
4. Warranties and Disclaimer.
4.1. Inktomi Warranties. Inktomi warrants that during the Term (i)
it has full power and authority to enter into this Agreement, (ii) it has not
previously and will not grant any rights in the Inktomi Technology to any third
party that are inconsistent with the rights granted to Customer hereunder, and
(iii) the software comprising the Inktomi Search Engine does not impermissibly
include any trade secrets or copyrighted subject matter owned by a third party.
Inktomi does not warrant that the Services will meet all of Customer's
requirements or that performance of the Services will be uninterrupted or
error-free. INKTOMI MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS,
IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, AND NONINFRINGEMENT.
4.2. Inktomi Obligations. Inktomi's sole obligation and Customer's
sole remedy under the foregoing Warranties is to use its reasonable efforts to
correct any nonconformity within a reasonable period of time.
4.3. Customer Warranties. Customer warrants that: (i) it has full
power and authority to enter into this Agreement, (ii) it will seek all
necessary governmental approvals required to effectuate this Agreement; and
(iii) it shall perform the on-line services provided by
Customer through the Site in accordance with all federal, state and local laws,
including all professional registration requirements related thereto.
5. End-User Support. Customer, at its own expense shall provide first
level customer support services to end-users of the Site. Inktomi, at its own
expense, shall provide second level technical support services to Customer
regarding the operation of the Inktomi Search Engine. Such support services will
be provided as set forth in Exhibit C.
6.1. Service Fees. Customer shall pay Inktomi service fees in the
amount and on terms specified on Exhibit B attached hereto.
6.2. Records. Customer shall keep complete and accurate records
pertaining to use of the Services in connection with the Site and with respect
to its distribution activities under Section 2.2. Such records shall be
maintained for a two-year period following termination or expiration of this
Agreement. Inktomi shall have the right to examine Customer's records from time
to time but no more than once every six (6) months to determine compliance with
this Agreement. Such examination shall be conducted at reasonable times during
Customer's normal business hours and upon at least ten (10) business days'
advance notice and in a manner so as not to interfere unreasonably with the
conduct of Customer's business. If any such examination indicates that Customer
has underpaid by more than five percent (5%) of the aggregate payments due for
the period subject to such examination, Customer shall reimburse Inktomi for
reasonable costs of such examination.
6.3. Taxes. Customer shall be responsible for all sales taxes and
other similar taxes imposed by any federal, state or local governmental entity
on the transactions contemplated by this Agreement, excluding taxes based upon
Inktomi's net income. When Inktomi has the legal obligation to pay or collect
such taxes, the appropriate amount shall be invoiced to and paid by Customer
unless Customer provides Inktomi with a valid tax exemption certificate
authorized by the appropriate taxing authority.
6.4. Payment. All fees quoted and payments made hereunder shall be
in U.S. Dollars. Customer shall pay all amounts due under this Agreement to
Inktomi at the address indicated at the beginning of this Agreement or such
other location as Inktomi designated in writing.
7.1. Definition of Confidential Information. All information and
documents disclosed or produced by either party in the course of this Agreement
which are disclosed in written form and identified by a marking thereon as
proprietary, or oral information which is defined at the time of disclosure and
confirmed in writing within ten (10) business days of its disclosure, shall be
deemed the "Confidential Information" of the disclosing party. Notwithstanding
the above, the parties agree that any information (in any form, whether in
tangible or intangible) relating to the Inktomi Search Engine, the Inktomi
Technology, the Inktomi Data Protocol, the Interface Construction Tools is
considered Confidential Information.
7.2. Treatment of Confidential Information. Each party agrees to
protect the other party's Confidential Information in the same manner as such
party protects its own Confidential Information of substantially similar
proprietary value, but in no case less than reasonable care. Each party agrees
that it will use the Confidential Information of the other party only for the
purposes of this Agreement and that it will not divulge, transfer, sell,
license, lease, or otherwise disclose or release any such information or
documents to third parties, with the exception of (i) its employees or
subcontractors who require access to such for purposes of carrying out such
party's obligation hereunder and (ii) persons who are employed as auditors by a
public accounting firm or by a federal or state agency. Each party will use
reasonable efforts to advise any person obtaining Confidential Information that
such information is proprietary and to obtain a written agreement obligating
such person to maintain the confidentiality of any Confidential Information
belonging to the party or its suppliers.
7.3. No Other Confidential Information. Neither party shall have
any obligation under this Section 7 for information of the other party which the
receiving party can substantiate with documentary evidence that has been or is
(i) developed by the receiving party independently and without the benefit of
information disclosed hereunder by the disclosing party; (ii) lawfully obtained
by the receiving party from a third party without restriction and without breach
of this Agreement; (iii) publicly available without breach of this Agreement;
(iv) disclosed without restriction by the disclosing party to a third party; or
(v) known to the receiving party prior to its receipt from the disclosing party.
8.1. Inktomi Indemnification. Inktomi shall defend and/or settle,
and pay damages awarded pursuant to, any third party claim brought against
Customer which, if true, would constitute a breach of any warranty,
representation or covenant made by Inktomi under this Agreement; provided that
Customer promptly notifies Inktomi in writing of any such claim and promptly
tenders the control of the defense and settlement of any such claim to Inktomi
at Inktomi's expense and with Inktomi's choice of counsel. Customer shall
cooperate with Inktomi, at Inktomi's expense, in defending or settling such
claim and Customer may join in defense with counsel of its choice at its own
expense. Inktomi shall not reimburse Customer for any expenses incurred by
Customer without the prior written approval of Inktomi.
8.2. Customer Indemnification. Customer shall defend and/or settle,
and pay damages awarded pursuant to, any third party claim brought against
Inktomi (a) related to the services provided by Customer through the Site or
representations, claims or statements pertaining thereto, and (b) which, if
true, would constitute a breach of any warranty, representation or covenant made
by Customer under this Agreement; provided that Inktomi promptly notifies
Customer in writing of any such claim and promptly tenders the control of the
defense and settlement of any such claim to Customer at Customer's expense and
with Customer's choice of counsel. Inktomi shall cooperate with Customer, at
Customer's expense, in defending or settling such claim and Inktomi may join in
defense with counsel of its choice at its own expense. Customer shall not
reimburse Inktomi for any expenses incurred by Inktomi without the prior written
approval of Customer.
9. Limitation of Liability. EXCEPT FOR LIABILITY ARISING OUT OF OR
RELATED TO BREACH OF THE CONFIDENTIALITY PROVISIONS OR SERVICE/LICENSE
RESTRICTIONS HEREIN, NEITHER PARTY WILL BE LIABLE FOR ANY LOST PROFITS OR COSTS
OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OF FOR ANY INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOST DATA, HOWEVER
CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT,
PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE, AND WHETHER OR NOT IT WAS
OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. EXCEPT
FOR AMOUNTS INKTOMI MAY BE REQUIRED TO PAY UNDER SECTION 8.1 ABOVE, IN NO EVENT
WILL INKTOMI'S LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE NET AMOUNT
INKTOMI HAS ACTUALLY RECEIVED FROM CUSTOMER UNDER THIS AGREEMENT. THE PARTIES
AGREE THAT THIS SECTION 9 REPRESENTS A REASONABLE ALLOCATION OF RISK.
10. Term and Termination.
10.1. Term. The term of this Agreement (the "Term") shall commence
on the Effective Date and shall continue in force for a period of two years
thereafter, unless earlier terminated as provided herein.
10.2. Termination for Breach. Either party may suspend performance
and/or terminate this Agreement if the other party materially breaches any term
or condition of this Agreement and fails to cure that breach within thirty (30)
days after receiving written notice of the breach.
10.3. Termination due to Insolvency. Either party may suspend
performance and/or terminate this Agreement if the other party becomes insolvent
or makes any assignment for the benefit of creditors or similar transfer
evidencing insolvency, or suffers or permits the commencement of any form of
insolvency or receivership proceeding, or has any petition under bankruptcy law
filed against it, which petition is not dismissed within sixty (60) days of such
filing, or has a trustee or receiver appointed for its business or assets or any
10.4. Effect of Termination. Upon the termination of this Agreement
for any reason (i) all license rights granted herein shall terminate, (ii)
Customer shall immediately pay to Inktomi all amounts due and outstanding as of
the date of such termination and (iii) each party shall return to the other
party, or destroy and certify the destruction of, all Confidential Information
of the other party.
10.5. Survival. In the event of any termination or expiration of
this Agreement for any reason, Sections 1, 2.6, 2.7, 4, 6, 7, 8, 9, 10 and 11
shall survive termination. Neither party shall be liable to the other party for
damages of any sort resulting solely from terminating this Agreement in
accordance with its terms.
10.6. Remedies. Each party acknowledges that its breach of the
confidentiality or service/license restrictions contained herein may cause
irreparable harm to the other party, the extent of which would be difficult to
ascertain. Accordingly, each party agrees that, in addition to any other
remedies to which the other party may be legally entitled, such party shall have
the right to seek immediately injunctive relief in the event of a breach of such
sections by the other party or any of its officers, employees, consultants or
11.1. Capacity. Each party warrants that it has full power to enter
into and perform this Agreement, and the person signing this Agreement on either
party's behalf has been duly authorized and empowered to enter in such
agreement. Each party further acknowledges that it has read this Agreement,
understands it and agrees to be bound by it. Each party acknowledges that such
party has not been induced to enter into such agreements by any representations
or statements, oral or written, not expressly contained herein or expressly
incorporated by reference.
11.2. Notice. Any notice required for or permitted by this
Agreement shall be in writing and shall be delivered as follows with notice
deemed given as indicated: (i) by personal delivery when delivered personally,
(ii) by overnight courier upon written verification of receipt, (iii) by
telecopy or facsimile transmission when confirmed by telecopier or facsimile
transmission report, or (iv) by certified or registered mail, return receipt
requested, upon verification of receipt. All notices must be sent to the
addresses first described above or to such other address that the receiving
party may have provided for the purpose of notice in accordance with this
11.3. Assignment. Neither party may assign its rights or delegate
its obligations under this Agreement without the other party's prior written
consent, except to the surviving entity in a merger or consolidation in which it
participates or to a purchaser of all or substantially all of its assets, so
long as such surviving entity or purchaser shall expressly assume in writing the
performance of all of the terms of this Agreement.
11.4. No Third Party Beneficiaries. All rights and obligations of
the parties hereunder are personal to them. This Agreement is not intended to
benefit, nor shall it be deemed to give rise to, any rights in any third party.
11.5. Governing Law. This Agreement will be governed and construed,
to the extent applicable, in accordance with United States law, and otherwise,
in accordance with California law, without regard to conflict of law principles.
Any dispute or claim arising out of or in connection with this Agreement shall
be finally settled by binding arbitration in San Mateo County, California under
the Commercial Rules of the American Arbitration Association by one arbitrator
appointed in accordance with said rules. Judgment on the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof.
11.6. Independent Contractors. The parties are independent
contractors. Neither party shall be deemed to be an employee, agent, partner or
legal representative of the other for any purpose and neither shall have any
right, power or authority to create any obligation or responsibility on behalf
of the other.
11.7. Force Majeure. Neither party shall be liable hereunder by
reason of any failure or delay in the performance of its obligations hereunder
(except for the payment of money) on account of strikes, shortages, riots,
insurrection, fires, flood, storm, explosions, earthquakes, acts of God, war,
governmental action, or any other cause which is beyond the reasonable control
of such party.
11.8. Compliance with Law. Each party shall be responsible for
compliance with all applicable laws, rules and regulations, if any, related to
the performance of its obligations under this Agreement.
11.9. Waiver. The failure of either party to require performance by
the other party of any provision shall not affect the full right to require such
performance at any time thereafter; nor shall the waiver by either party of a
breach of any provision hereof be taken or held to be a waiver of the provision
11.10. Severability. If any provision of this Agreement is held by a
court of competent jurisdiction to be contrary to law, such provision shall be
changed and interpreted so as to best accomplish the objectives of the original
provision to the fullest extent allowed by law and the remaining provisions of
this Agreement shall remain in full force and effect.
11.11. Headings. The section headings appearing in this Agreement
are inserted only as a matter of convenience and in no way define, limit,
construe or describe the scope or extent of such paragraph, or in any way affect
11.12. Counterparts. This Agreement may be executed simultaneously
in two or more counterparts, each of which will be considered an original, but
all of which together will constitute one and the same instrument.
11.13. Entire Agreement. This Agreement, and the Exhibits hereto,
constitute the entire agreement between the parties with respect to the subject
matter hereof. This Agreement supersedes, and the terms of this Agreement
govern, any other prior or collateral agreements with respect to the subject
matter hereof. Any amendments to this Agreement must be in writing and executed
by an officer of the parties.
IN WITNESS WHEREOF, the parties have caused this Information Services
Agreement to be signed by their duly authorized representatives.
CUSTOMER INKTOMI CORPORATION
By: /s/ JEFFREY BREWER By: /s/
Name: Jeffrey Brewer Name:
Title: CEO Title: