Affiliate Agreement - GoTo.com Inc. and Pile Inc.
GOTO.COM AND DOGPILE
LETTER OF AGREEMENT
This Agreement is made and entered into as of the 1st day of April, 1999
(the "Effective Date") by and between GoTo.com, Inc., a Delaware corporation
with its principal place of business at 140 West Union Street, Pasadena,
California 91103 ("GoTo.com"), and Pile, Inc., through its division Dogpile,
with its principal place of business at 612 Radcliffe Drive, Davis, California,
1. Services. Dogpile shall position GoTo.com's search results on the first
page of all Dogpile's meta-search results in a manner and format to be mutually
agreed upon by the parties. The First Page is defined as the first page a user
sees after typing a search on Dogpile and requesting to see Dogpile's
(i) So long as Dogpile's First Page of meta-search results consists
of content from three (3) third party providers of search results or other
similar content (herein "Content Providers"), Dogpile guarantees that no other
Content Provider will receive preferential treatment. Preferential treatment is
defined as allowing the order of the other Content Providers on the First Page
to be determined by means other than a fully parallel, first come, first serve
(ii) Should Dogpile grant more than three (3) Content Providers a
position on its First Page of meta-search results, it agrees to give
preferential treatment to GoTo's results by retrieving GoTo's results using
Thunderston's Texis Webscript software in a manner which will guarantee GoTo a
first or second place position unless its return time is longer than the sum of
the response time of any two other Content Providers.
2. Term and Termination. The Agreement shall commence on the Effective
Date and continue indefinitely thereafter (the "Term"). The Agreement shall be
non-terminable for the initial twelve (12) months of the Term, provided,
however, that if Dogpile puts a fourth Content Provider on the First Page,
GoTo.com will have the right to terminate on thirty (30) days written notice.
After the first twelve months of the term, either party may terminate the
Agreement by giving the other party at least thirty (30) days' written notice
of its intention to terminate the Agreement.
3. Reporting and Payment.
(i) Dogpile shall keep accurate records of the number of Impressions
viewed. For purposes of this Agreement, an "Impression" shall mean each time
that a user of Dogpile's web site located at http://www.dogpile.com (the
"Dogpile Site") is shown a Dogpile Site web page listing ten or more GoTo.com
search results where GoTo.com has delivered ten or more results to the Dogpile
Site. In the event that the total number of search results delivered by GoTo.com
for a given subject is less than ten (10) results, an "Impression" shall mean
the display of all available GoTo.com search results.
(ii) No sooner than 15 days after the end of each calendar
month, Dogpile shall calculate the total number of Impressions recorded during
such calendar month, rounded to the nearest thousand (the "Monthly Total") and
shall invoice GoTo.com for the CPM Fees due for such month, as that term is
defined and calculated according to the fee schedule in Exhibit A.
(iii) GoTo.com shall pay to Dogpile those CPM Fees due no later
than fifteen (15) days after receipt of the monthly invoice from Dogpile.
4. Warranty and Indemnity.
(i) Each party shall defend the other party from any claims,
actions or allegations of third parties, the facts of which would constitute a
breach of the warranties in this Section 4 ("Indemnified Claims") and pay all
damages and costs finally awarded or, at the indemnifying party's option, shall
settle such Indemnified Claims and pay the amount of the settlement and all
associated costs. The party seeking indemnification shall notify the
indemnifying party of any action, suit, proceeding or investigation
("Proceeding") for which indemnification is sought, provided that any failure to
notify the indemnifying party will not relieve the indemnifying party from any
liability or obligation which it may have to any indemnified person except to
the extent of any material prejudice to the indemnifying party resulting from
such failure. If any such proceeding is brought against an indemnified person,
the indemnifying party will be entitled to participate therein and to assume the
defense thereof within 30 days after notice shall have been given to it by the
indemnified person pursuant to the preceding sentence. Each indemnified person
will be obligated to cooperate reasonably with the indemnifying party, at the
expense of the indemnifying party, in connection with such defense and the
compromise or settlement of any such Proceeding.
(ii) GoTo.com represents and warrants to Dogpile that as of the
Effective Date, to the best of its knowledge, none of GoTo Marks or Content
fail to comply with applicable laws and regulations (including, for example,
licensing requirements and administrative or professional rules). For purposes
of this Agreement, "Marks" shall mean any trademark, trade name, service marks,
logo, slogan and copyright and proprietary notices associated with a party's
products or services. For purposes of this Agreement, "Content" shall mean the
textual and graphical materials displayed on a certain web site.
(iii) Dogpile represents and warrants to GoTo.com that, to the
best of its knowledge, Dogpile's Marks or Content do not or will not infringe
any trademark, service mark, copyright, right to publicity, right of privacy or
other intellectual property right of a third party, constitute false, deceptive
or unfair advertising or disparagement under applicable law, or fail to comply
with applicable laws and regulations (including, for example, licensing
requirements and administrative or professional rules).
(iv) EXCEPT AS SET FORTH IN SECTIONS 4(ii) AND 4(iii), NEITHER
PARTY MAKES ANY EXPRESS OR IMPLIED WARRANTIES, AND HEREBY DISCLAIMS THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
(i) UNDER NO CIRCUMSTANCES SHALL EITHER PARTY OR ANY OF THEIR
AFFILIATES BE LIABLE TO THE OTHER PARTY FOR (A) INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THE PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM THE USE OR INABILITY TO USE
EITHER PARTY'S SERVICES OR CONTENT OR ANY OTHER PROVISION OF THIS AGREEMENT,
SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST
BUSINESS OR (B) DAMAGES IN EXCESS OF THE AMOUNTS PAID BY GOTO.COM TO DOGPILE
UNDER THIS AGREEMENT.
(ii) This Agreement may not be assigned by either party without the
other party's prior written approval except in the case of a merger or sale of
all or substantially all of a party's assets, in which case the acquired party
shall notify the other party within five (5) days of the announcement of such
merger or asset sale, and the acquired party's successor in interest must assume
all of the acquired party's obligations. Except as otherwise provided, this
Agreement shall be binding upon and inure to the benefit of the parties'
successors and lawful assigns.
(iii) GoTo.com and Dogpile agree that the terms of this Agreement are
confidential and shall not be disclosed to any third party without the prior
written consent of the other party.
(iv) During the Term, and during the 60 day period immediately
following the Term, GoTo.com shall have the right, upon reasonable notice,
during business hours, at GoTo.com's own expense, through an independent auditor
chosen by GoTo.com and subject to Dogpile's approval, to audit Dogpile's
computer generated logs that relate to amounts payable under this Agreement. If
an audit of the appropriate computer generated logs reveals that GoTo.com has
underpaid any CPM Fees due to Dogpile under this Agreement for the period under
audit, then GoTo.com shall promptly pay to Dogpile the amount of the
underpayment. Similarly, if an audit of Dogpile's records reveals that Dogpile
has overcharged any CPM Fees due to Dogpile under this Agreement, then Dogpile
shall promptly pay to GoTo.com the amount of the overcharge. If the amount of
either underpayment or overcharge for the period under audit equals or exceeds
five percent (5.0%) of the total amount owed during such period, then the party
who has underpaid or overcharged shall reimburse the other party for all costs
and expenses incurred in connection with conducting the audit.
(v) THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF CALIFORNIA AND THE PARTIES CONSENT TO JURISDICTION IN THE STATE AND
FEDERAL COURTS IN CALIFORNIA.
(vi) This Agreement constitutes the entire agreement between the
parties with respect to the subject matter superceding any prior written
agreements and communications (oral and written) regarding such subject matter.
It shall not be modified except by a written agreement and signed on behalf of
GoTo.com and Dogpile.
6. Survival. Provisions of Section 4 (Warranty and Indemnity) and Section 5
(General) will survive any termination or expiration of this Agreement.
7. Counterparts. This Agreement may be executed by exchange of signature
pages by facsimile and/or in any number of counterparts, each of which shall be
an original as against any party whose signature appears thereon and all of
which together shall constitute one and the same instrument.
***This Space Intentionally Left Blank***
Whereby the parties execute this Agreement as of the Effective Date.
Signature: /s/ Todd Tappin Signature: /s/ Aaron Flin
Name: Todd Tappin Name: Aaron Flin
Title: CFO Title: CEO
Date: 4/6/99 Date: 4/7/99