LICENSE AGREEMENT
This Agreement, dated as of January 31, 1997, is made and entered into by
and between Netbot, Inc. ("Netbot") and go2net, Inc. ("Go2net"). Netbot and
Go2net agree as follows:
SECTION 1. DEFINITIONS
Whenever used in this Agreement with initial letters capitalized, the
following terms will have the following specified meanings:
"AVERAGE DAILY QUERIES" means the daily average of the number of queries
made through the Metacrawler Service during any Month of the Term, excluding any
day that any Go2net Internet server is not available at least 95% of the time
during the period from 5:00 a.m. to 6:00 p.m. Pacific Standard Time.
"FISCAL QUARTER" means any of the successive periods of three consecutive
Months commencing after the date of this Agreement, except that the first Fiscal
Quarter will be the two Months of February and March 1997. The second Fiscal
Quarter will be the Months of April, May and June 1997. The third Fiscal Quarter
will be the Months of July, August and September 1997. The fourth Fiscal Quarter
will be the Months of October, November and December 1997.
"GO2NET TECHNOLOGIES" means any and all features and functions that Go2net
may integrate with, or incorporate into, the Metacrawler Service or the
Metacrawler Site and that are not based upon or derived from any of the Licensed
Technologies.
"GROSS REVENUES" means the gross revenues (whether in cash, barter,
property or other consideration) received by Go2net from the Metacrawler Service
(including, without limitation, any revenues from advertisements or other
displays at the Metacrawler Site) after deducting any commissions paid by Go2net
to third parties (e.g., not employees of Go2net) for selling advertisements or
other displays at the Metacrawler Site; provided that any gross revenues
received in a form other than cash will be included in Gross Revenues at only
fifty percent (50%) of fair market value and provided further that Go2net may
give away for free or barter up to twenty-five percent (25%) of the total number
of advertising displays on the Metacrawler Site and exclude the same from the
determination of Gross Revenues hereunder. Gross Revenues do not include any
retail sales, use or similar taxes collected for remittance to any governmental
authority. Gross Revenues will be determined in accordance with generally
accepted accounting principles.
"LICENSE" means the license granted under paragraph 2.1.
"LICENSED TECHNOLOGIES" means the Metacrawler Search Engine, the
Metacrawler Site and the Metacrawler URL. The Licensed Technologies do not
include:
(a) any of the Shopbot, Ahoy! or Occam software technologies referred
to in the UW License Agreement; or
(b) any of the Go2net Technologies.
"METACRAWLER SEARCH ENGINE" means the computer programs comprising the
meta-search engine utilized by Netbot in providing the Metacrawler Service as of
the date of this Agreement, together with any modifications of such computer
programs made pursuant to the License. The files included in the Metacrawler
Search Engine as of the date of this Agreement are listed in the attached
Exhibit A.
"METACRAWLER SERVICE" means the World Wide Web search service provided
through the Metacrawler Site by Netbot as of the date of this Agreement, as the
same may be modified and provided by Go2net after the date of this Agreement.
"METACRAWLER SITE" means the HTML page (i.e., screen displays and HTML
files that generate the screen displays) operated by Netbot at the Metacrawler
URL as of the date of this Agreement, as the same may be modified and operated
by Go2net after the date of and pursuant to this Agreement.
"METACRAWLER URL" means the URL for the Metacrawler Site (i.e.,
www.metacrawler.com), as the same may be modified pursuant to the License.
"MONTH" means a calendar month.
"TERM" means the period of time described in Section 5.
"UW" means the University of Washington.
"UW LICENSE AGREEMENT" means the provisions of the Exclusive License
Agreement between the UW and Netbot (formerly known as Softbots, Inc.) attached
as Exhibit B.
SECTION 2. THE LICENSE
2.1 GRANT
Netbot hereby grants to Go2net an exclusive, worldwide license to provide
the Metacrawler Service during the Term. Subject to the restrictions and other
provisions set forth in Section 4, Go2net may modify the Metacrawler Service
during the Term according to its own discretion. As part of the License, Go2net
will have the exclusive right to operate, modify and reproduce the Metacrawler
Site (including, without limitation, the exclusive right to use, modify and
reproduce the name "Metacrawler" and the Metacrawler URL in connection with the
operation of the Metacrawler Site) during the Term. Further, the License
includes the nonexclusive right to use, modify and reproduce the Metacrawler
Search Engine as reasonably required in connection with the provision of the
Metacrawler Service during the Term.
2.2 RESTRICTION ON SUBLICENSING
Go2net will not sublicense any of the Licensed Technologies or rights under
the License without the prior written consent of Netbot.
2.3 RESERVATION OF RIGHTS
The License sets forth all of the rights granted by Netbot to Go2net with
respect to the Metacrawler Service and the Licensed Technologies. Except for the
License, Netbot reserves all patent, copyright, trade secret, trademark and
other proprietary rights in the Metacrawler Service and the Licensed
Technologies. Without limitation of the foregoing, Netbot reserves the right to
use, modify, reproduce and license the Metacrawler Search Engine for any purpose
other than the provision of the Metacrawler Service. Further, Netbot reserves
the right for the UW to use, modify and reproduce the Metacrawler Search Engine
and derivatives of the Metacrawler Site to operate Internet sites for internal
purposes within the UW domain and to use, modify and reproduce any of the
Licensed Technologies for research, instructional and academic purposes and as
otherwise provided in the UW License Agreement. Go2net hereby assigns to Netbot
any and all patent, copyright, trade secret, trademark and other proprietary
rights that it may have in any modification to the Licensed Technologies made
pursuant to the License; provided that this assignment will not apply to any
Go2net trademark or Go2net Technologies; and provided, further, that Go2net will
not be obligated to deliver any such modification to Netbot until the end of the
Term as provided for in paragraph 5.4. Go2net will take such additional action
(including, without limitation, the execution and delivery of separate
assignments or other documents) as Netbot may reasonably request to effect,
perfect or evidence any such assignment. Go2net reserves all patent, copyright,
trade secret, trademark and other proprietary rights in the "go2net" name, the
go2net URL (i.e. WWW.go2search.com) and the Go2net Technologies.
2.4 THE UW LICENSE AGREEMENT
The License, as applied to any Licensed Materials licensed by Netbot from
the UW pursuant to the UW License Agreement, is subject to any applicable
provisions of the UW License Agreement. However, the parties desire and intend
for Go2net's rights with respect to the Metacrawler Service and the Licensed
Technologies to be determined and governed by this Agreement to the fullest
extent possible. To that end:
(a) Netbot will not amend, breach or terminate the UW License
Agreement in any manner that may adversely affect any of Go2net's rights
under this Agreement; and
(b) to the fullest extent possible, this Agreement will survive any
termination of the UW License Agreement.
SECTION 3. COMPENSATION
3.1 INITIAL LICENSE FEE
Upon execution of this Agreement, Go2net will pay Netbot an initial
license fee of $100,000.
3.2 FEES BASED UPON AVERAGE DAILY QUERIES
3.2.1 If the Average Daily Queries during the first Fiscal Quarter
exceed 100,000, then Go2net will pay Netbot an additional fee of $20,000 within
thirty (30) days after the end of such Fiscal Quarter.
3.2.2 If the Average Daily Queries during the second Fiscal Quarter
exceed 125,000, then Go2net will pay Netbot an additional fee of $20,000 within
thirty (30) days after the end of such Fiscal Quarter. If the Average Daily
Queries during the second Fiscal Quarter exceed 100,000 but not 125,000, then
Go2net will pay Netbot an additional fee of $10,000 within thirty (30) days
after the end of such Fiscal Quarter.
3.2.3 If the Average Daily Queries during the third Fiscal Quarter
exceed 150,000, then Go2net will pay Netbot an additional fee of $20,000 within
thirty (30) days after the end of such Fiscal Quarter. If the Average Daily
Queries during the third Fiscal Quarter exceed 125,000 but not 150,000, then
Go2net will pay Netbot an additional fee of $10,000 within thirty (30) days
after the end of such Fiscal Quarter.
3.2.4 If the Average Daily Queries during the fourth Fiscal Quarter
exceed 200,000, then Go2net will pay Netbot an additional fee of $20,000 within
thirty (30) days after the end of such Fiscal Quarter. If the Average Daily
Queries during the fourth Fiscal Quarter exceed 175,000 but not 200,000, then
Go2net will pay Netbot an additional fee of $10,000 within thirty (30) days
after the end of such Fiscal Quarter.
3.3 FEES BASED UPON ACCESS TO THIRD PARTY SEARCH ENGINES
If each of the following five Internet search engines are available (i.e.,
not filtered or otherwise blocked by the third-party provider of such search
engines such that they are less available to the Metacrawler Service than they
are generally available to the public) to the Metacrawler Service after the
first anniversary of the date of this Agreement, then Go2net will pay to Netbot
an additional fee of $50,000 within thirty (30) days after the date of such
anniversary:
*
If any of the foregoing search engines is not generally available to the public
(e.g., because the provider of such search engine is no longer in business or
for any other reason), then such search engine will nonetheless be considered to
be available to the Metacrawler Service for purposes of this paragraph.
3.4 ROYALTIES
Go2net will pay Netbot royalties based upon a percentage of the Gross
Revenues received by Go2net as follows:
Percentage
Period
Prior to April 1997 40%
April - June 1997 20%
July - September 1997 15%
October - December 1997 10%
1998 10%
After 1998 7.5%
* Information omitted for confidential treatment.
Go2net will pay Netbot the royalties payable with respect to any Gross Revenues
received during any Fiscal Quarter within thirty (30) days after the end of the
Fiscal Year. Each royalty payment will be accompanied by a written statement of
the Gross Revenues and calculation of royalties for the applicable Fiscal
Quarter. Each statement will be supported by such documentation and information
as Netbot may reasonably request to verify the same. Go2net will keep current,
complete and accurate records regarding the Gross Revenues and calculation of
royalties under this Agreement in accordance with generally accepted accounting
principles. Go2net will provide Netbot or its designated representative access
to such records for examination, reproduction and audit upon Netbot's reasonable
advance request.
3.5 ANNUAL FEE BEGINNING JANUARY 1, 1999
On or before January 1 of each year during the Term beginning January 1,
1999, Go2net will pay Netbot a nonrefundable annual fee of $25,000. Go2net may
apply the annual fee under this paragraph as a credit against the royalties
payable under paragraph 3.4 with respect to the Gross Revenues received during
the year for which the annual fee is paid (e.g. the annual fee payable on or
before January 1, 1999 is for the calendar year 1999), but not any other
payments under this Agreement (e.g. the annual fee for 1999 may not be applied
against royalties payable with respect to Gross Revenues received during any
subsequent year).
3.6 CUMULATIVE PAYMENTS
The payments described in paragraphs 3.1, 3.2, 3.3, 3.4 and 3.5 are
cumulative. Except as specifically provided in paragraph 3.5, no payment under
paragraph 3.1, 3.2, 3.3, 3.4 or 3.5 will be applied to offset or reduce any
payment due under any other provision of this Agreement.
3.7 INTEREST ON LATE PAYMENTS
Any amount not paid when due under this Section 3 will bear interest at the
rate of 12% per annum or the highest rate permitted by applicable usury law,
whichever is less, calculated on a daily basis from the date due until the date
paid.
SECTION 4. PROVISION OF METACRAWLER SERVICE DURING THE TERM
4.1 GENERAL
The parties will cooperate to effect an orderly, expeditious and efficient
transfer of the Metacrawler Service to Go2net as soon as practicable after the
date of this Agreement. Without limitation of the foregoing, Netbot will deliver
the Licensed
Technologies to Go2net via encrypted email or other mutually acceptable means
upon Netbot's receipt of the initial license fee described in paragraph 3.1.
Netbot will continue to operate and maintain the Metacrawler Service in
substantially the same manner as it has operated and maintained the Metacrawler
Service prior to the date of this Agreement until the earlier of the date upon
which Go2net begins to operate the Metacrawler Service or March 3, 1997. Go2net
will use its best efforts to commercially exploit the Metacrawler Service and
generate Gross Revenues throughout the Term.
4.2 NETBOT SUPPORT
During the first six Months of the Term, Netbot will make available to
Go2net free of charge up to twelve hours of consultation with respect to the
Metacrawler Service and Licensed Technologies; provided that Netbot will not be
obligated to provide more than four hours of consultation in any Month. Netbot
will provide such additional consultation for such compensation and upon such
terms and conditions as may be agreed upon from time to time by the parties.
Such consultation will be provided via electronic mail or other mutually
acceptable means of communication.
4.3 BANNER ADVERTISING
During the first twelve Months of the Term, Go2net will make available to
Netbot for Netbot's use (but not for resale by Netbot) free of charge up to
* of the total of number banner advertising impressions made
available at the Metacrawler Site (e.g., one out of every twenty banner
advertisements will be made available to Netbot). The position, size, prominence
and other details of such banner advertising will be determined by mutual
agreement of the parties and not less favorable to Netbot than offered by Go2net
to any other advertiser.
4.4 NETBOT LINK
Throughout the Term prior to January 1, 1998, Go2net will make available to
Netbot free of charge space on the Metacrawler Site for a link to one other
Internet site to be designed by Netbot. Unless otherwise agreed by the parties,
the position, size, prominence and other details of such space will be
substantially as described in the attached Exhibit C. Netbot will provide and be
responsible for the content of this space. Netbot will indemnify Go2net from any
claims arising out of such content as provided for in paragraph 6.2.
4.5 REFERENCES
Netbot may include references to the Metacrawler Site and the Licensed
Technologies in its advertising, promotional and other materials so long as any
* Information omitted for confidential treatment.
reference to the Metacrawler Site includes the Metacrawler URL, as the same may
be modified from time to time by Go2net during the Term. Further, Netbot and the
UW may maintain pointers and links to the Metacrawler Site from other Internet
sites operated by Netbot or the UW.
4.6 DEVELOPER CREDIT
Go2net will prepare and maintain as part of the Metacrawler Site a mutually
acceptable history page or other display providing appropriate credit to the
developers of the Licensed Technologies. Unless and until such display is
implemented, attribution to such developers will be provided in substantially
the same manner, position, size and prominence as is provided in the Licensed
Technologies as of the date of this Agreement.
4.7 PROTECTION OF METACRAWLER SEARCH ENGINE CODES
The source and object codes to the Metacrawler Search Engine involve
valuable trade secrets and other proprietary rights of Netbot. Go2net will
protect such codes from any unauthorized use, disclosure, copying, dissemination
or distribution. Without limitation of the foregoing, Go2net will restrict
access to such codes to those of its employees who need access to provide the
Metacrawler Service and have agreed to protect such codes from unauthorized use,
disclosure, copying, dissemination and distribution. Further, Go2net will use,
modify and copy the Metacrawler Search Engine solely for the provision of the
Metacrawler Service in accordance with this Agreement. Go2net will not use,
modify or copy any of the Metacrawler Search Engine for any other purpose (e.g.,
to develop or provide any other Internet search service).
SECTION 5. TERM AND TERMINATION
5.1 GENERAL
The Term will commence as of the date of this Agreement and will continue
in perpetuity, unless and until terminated in accordance with paragraphs 5.2 or
5.3.
5.2 OPTIONAL TERMINATION BY GO2NET
Go2net may terminate the Term by giving Netbot written notice of such
termination, provided that no termination under this paragraph will be effective
prior to the later of:
(a) the expiration of ninety (90) days after Netbot's receipt of
Go2net's written notice of termination; or
(b) the expiration of one year after the date of this Agreement.
5.3 TERMINATION FOR DEFAULT
Either party may terminate the Term by giving the other party written
notice of termination if:
(a) the other party commits a material breach of or default under this
Agreement and fails to cure such breach or default within thirty (30) days
after the terminating party gives the other party written notice of its
intent to terminate the Term if the breach or default is not cured within
thirty (30) days; or
(b) any of the following take place with regard to the other party:
(i) such party makes a general assignment or general arrangement for the
benefit of its creditors; (ii) the filing by or against such party of a
petition to have it adjudged bankrupt or of a petition for reorganization
or arrangement of such party under any law relating to bankruptcy or
insolvency unless, in the case of a filing against such party, the same is
dismissed within thirty (30) days; (iii) the appointment of a trustee or a
receiver to take possession of substantially all of such party's assets or
its interests in this Agreement, where such possession is not restored
within thirty (30) days; or (iv) the attachment, execution or other
judicial seizure of substantially all of such party's assets or its
interests in this Agreement, where such seizure is not discharged within
thirty (30) days.
5.4 EFFECT OF TERMINATION
Upon any termination of the Term pursuant to paragraph 5.2 or 5.3, the
following will apply, except as otherwise specifically provided in paragraph
5.5:
(a) the License will terminate;
(b) Go2net will not have any license or other right to the Metacrawler
Service or the Licensed Technologies;
(c) Go2net will cooperate to effect an orderly, expeditious and
efficient transfer of the Metacrawler Service to Netbot;
(d) Go2net will deliver to Netbot any and all copies of any of the
Licensed Technologies (including, without limitation, any modifications
made pursuant to the License) in the possession or control of Go2net;
(e) the parties' respective obligations under paragraph 2.3, 4.7, 5.4
and 5.5 and Sections 3, 6, 7 and 8 will survive; and
(f) Go2net will retain its rights in the "go2search" name, the go2net
URL (i.e., www.go2search.com) and the Go2net Technologies.
5.5 TERMINATION BY GO2NET FOR NETBOT'S DEFAULT
In the event of any termination of the Term by Go2net pursuant to paragraph
5.3, the following will apply, notwithstanding any provision of paragraph 5.4 to
the contrary:
(a) Go2net will have a nonexclusive, royalty-free, perpetual license
to use, modify and reproduce any and all modifications to the Metacrawler
Service or Licensed Technologies made by Go2net pursuant to the License;
(b) Go2net may refer www.metacrawler.com to a URL of Go2net's
designation; and
(c) as to the Metacrawler URL Go2net will be obligated to return
"www.metacrawler.com" only.
5.6 OTHER SEARCH SITES
This Agreement will not be interpreted or construed to prohibit or restrict
Go2net from operating an Internet search service, site and/or search engine
independent of the Licensed Technologies. Without limitation of the foregoing,
upon any termination of the Term, Go2net may operate an Internet search service,
site and/or search engine that are virtually or substantially identical in
function to the Licensed Technologies; provided that such other Internet search
service, site and/or search engine:
(a) are not based upon or derived from any of the Licensed
Technologies; and
(b) do not infringe, misappropriate or otherwise violate any patent,
copyright, trade secret, trademark or other proprietary right of Netbot or
the UW.
SECTION 6. WARRANTIES AND REMEDIES
6.1 WARRANTY
Netbot warrants that:
(a) Netbot has the right to grant the License as it applies to the
Licensed Technologies as of the date of this Agreement (e.g., Netbot does
not warrant any modifications made by Go2net or any third party pursuant to
the License or otherwise after the date of this Agreement); and
(b) the grant of the License does not conflict with, violate or
constitute a breach or default under any contract or other obligation of
Netbot.
6.2 REMEDY
Netbot will defend and indemnify Go2net and its directors, officers,
employees and representatives from any claim of any third party arising out of
(i) any breach of Netbot's warranties under paragraph 6.1 or (ii) the content
provided by Netbot for the space linking the Metacrawler Site to a site
designated by Netbot pursuant to paragraph 4.4; provided that: Go2net gives
Netbot prompt written notice of the claim; Go2net cooperates with Netbot in
connection with the defense, compromise and settlement of the claim; and Go2net
does not compromise or settle the claim without the prior written consent of
Netbot, which consent will not be unreasonably withheld.
6.3 EXCLUSIVITY
THE WARRANTIES SET FORTH IN PARAGRAPH 6.1 AND THE REMEDIES SET FORTH IN
PARAGRAPH 6.2 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OF NETBOT AND
REMEDIES OF GO2NET. WITHOUT LIMITATION OF THE FOREGOING, THE METACRAWLER SERVICE
AND THE LICENSED TECHNOLOGIES ARE LICENSED TO GO2NET "AS IS" AND WITH ALL
DEFECTS, ERRORS AND DEFICIENCIES. NETBOT DOES NOT MAKE ANY WARRANTY WHATSOEVER
WITH REGARD TO THE FEATURES, FUNCTIONS, PERFORMANCE, QUALITY OR OTHER
CHARACTERISTICS OF THE METACRAWLER SERVICE OR THE LICENSED TECHNOLOGIES. NETBOT
DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO THE
METACRAWLER SERVICE OR THE LICENSED TECHNOLOGIES (INCLUDING, WITHOUT LIMITATION,
ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ANY
IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE
OF TRADE, AND ANY IMPLIED WARRANTY WITH REGARD TO TITLE OR INFRINGEMENT).
WITHOUT LIMITATION OF THE FOREGOING, NETBOT DOES NOT MAKE ANY WARRANTY WITH
RESPECT TO, AND WILL NOT BE RESPONSIBLE FOR,
ANY INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER
PROPRIETARY RIGHT BY THE METACRAWLER SERVICE OR ANY LICENSED TECHNOLOGIES.
6.4 SPECIFIC PERFORMANCE
The parties acknowledge that the obligations undertaken by Netbot and
Go2net hereunder are unique and extraordinary and require specific expertise and
relationships. Accordingly, in the event of a default by either party hereto,
the other party shall be entitled to specific performance by the defaulting
party of its obligations hereunder.
SECTION 7. LIMITATIONS OF LIABILITY
7.1 NO CONSEQUENTIAL DAMAGES
NEITHER PARTY WILL BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR ANY
INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT
LIMITATION, ANY LOSS OF REVENUE, PROFIT OR USE) ARISING OUT OF THIS AGREEMENT,
THE EXERCISE OF THE LICENSE OR ANY BREACH OF OR DEFAULT UNDER THIS AGREEMENT.
7.2 LIMITATION OF NETBOT'S LIABILITY
Netbot's total liability arising out of this Agreement, the License or any
breach of or default under this Agreement will not exceed the total compensation
paid by Go2net to Netbot under Section 3.
7.3 GO2NET INDEMNITY
Except as otherwise provided in paragraphs 6.1 and 6.2, Go2net will defend
and indemnify Netbot and its directors, officers, employees and representatives
from and against any claim arising out of Go2net's provision of the Metacrawler
Service during the Term or the exercise of the License, provided that: Netbot
gives Go2net prompt written notice of the claim; Netbot cooperates with Go2net
in connection with the defense, compromise and settlement of the claim; and
Netbot does not compromise or settle the claim without the prior written consent
of Go2net, which consent will not be unreasonably withheld. This paragraph will
not apply to any claims of infringement arising out of Netbot's development of
the Licensed Technologies or provision of the Metacrawler Service prior to the
date of this Agreement.
SECTION 8. MISCELLANEOUS
8.1 NOTICES
Any notice required or permitted under this Agreement will be given in
writing and will be deemed effective upon receipt (whether given by personal
delivery, mail, telecopy, electronic mail or other means) by the party for whom
it is intended as follows:
If to Netbot, Inc. Netbot, Inc.
Union Bay Plaza, Suite 208
4530 Union Bay N.E.
Seattle, WA 98105
Attn: President
Telecopy: (206) 522-9980
E-mail: _______________
If to Go2net: go2net, Inc.
1301 FIFTH AVENUE, SUITE 3320
Seattle, WA 98101
Attn: President
Telecopy: (206) 447-1946
E-mail: mgmt@go2net.com
Either party may change its address for notices under this Agreement by
giving the other party notice of such change in accordance with this paragraph.
8.2 NONWAIVER
Any failure by either party to insist upon or enforce any provision of this
Agreement or to exercise any right or remedy under this Agreement or applicable
law will not be construed as a waiver or relinquishment to any extent of such
party's right to assert or rely upon any such provision, right or remedy in that
or any other instance; rather the same will be and remain in full force and
effect.
8.3 ASSIGNMENT
Go2net will not assign or otherwise transfer the License, this Agreement or
any of its rights under the License or this Agreement without the prior written
consent of Netbot. Subject to the foregoing, this Agreement will be enforceable
by, inure to the benefit of and be binding upon each of the parties and their
respective successors and assigns.
8.4 APPLICABLE LAW AND VENUE
This Agreement will be interpreted, construed and enforced in accordance
with the laws of the State of Washington, without reference to its choice of law
principles. Neither party will commence or prosecute any action, suit,
proceeding or claim arising under this Agreement other than in the state or
federal courts located in King County, Washington. Each party irrevocably
consents to the jurisdiction of the state or federal courts located in King
County, Washington in connection with any action, suit, proceeding or claim
arising under this Agreement.
8.5 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement, and supersedes any and all
prior agreements, between Netbot and Go2net with respect to the Metacrawler
Service and Licensed Technologies. No amendment, modification or waiver of this
Agreement will be valid unless set forth in a written instrument signed by the
party to be bound thereby.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
date first set forth above.
Netbot: Go2net:
------ ------
NETBOT, INC. GO2NET, INC.
By By
ItsPresident ItsPresident
EXHIBIT B
Exclusive License Agreement
The University of Washington, a public institution of higher education
having administrative offices in Seattle, Washington 98195 ("UW") and Softbots,
Inc., a Delaware corporation having a place of business in Seattle, Washington
("Company"), agree as follows:
1. Background
1.1 UW through the agency of certain faculty members, a post-doctoral
employee, and graduate students has developed various software agent
technologies capable of enhancing utilization of internet resources, including
search engines.
1.2 Research leading to the development of certain of these software agent
technologies has been supported, at least in part, by contracts with agencies of
the United States Government, as follows:
-------------------------------------------------------------------------------
Software Agency Grant Number
-------------------------------------------------------------------------------
Shopbot 1.0 Office of Naval Research N00014-9101-0060
-------------------------------------------------------------------------------
Advanced Projects Research F30602-95-1-0024
Agency
-------------------------------------------------------------------------------
Ahoy! 1.0 Office of Naval Research 92-J-1946
-------------------------------------------------------------------------------
Occam 1.0 Office of Naval Research N00014-9101-0060
-------------------------------------------------------------------------------
1.3 UW desires to transfer these software agent technologies to a
commercial concern for use in the public benefit.
1.4 Company desires to obtain an exclusive commercial license to these
technologies.
2. Definitions
2.1 "Agreement" shall mean this agreement, together with any Exhibits
referenced by this agreement.
2.2 "Effective Date" shall be May 28, 1996.
2.3 "Faculty Developers" shall mean *
of the UW's Department of Computer Science and Engineering.
2.4 *
* Information omitted for confidential treatment.
2.5 "Developers" shall mean Faculty Developers and Non-Faculty Developers.
2.6 "UW Personnel" shall mean Developers and other faculty, students, and
employees and other personnel with obligations to UW acting within the scope of
their normal duties and obligations to UW.
2.7 "Software" shall mean, individually or collectively, as the context
requires, the MetaCrawler 1.0, Shopbot 1.0, Occam 1.0, and Ahoy! 1.0 software
technologies as set forth on Exhibit A, together with any and all prior versions
of the same.
2.8 "Modification" shall mean any work based on or derived from the
Software. Modifications may include, but are not limited to, corrections of
program errors, translations and stylistic restructuring of the Software,
addition or deletion of functions of the Software, enhancement of existing
functions of the Software, changes required to operate the Software into other
applications, preparations of derivative works, and other adaptions of the
Software.
2.12 "Software Identifiers" shall mean any and all names, logos, graphics,
and other identifiers under which the Software has been fielded for general
public access on UW equipment, or are employed by the Software to distinctively
identify services performed by the Software, but excluding any personal names or
marks and identifiers specific to the University of Washington (such as
"University of Washington", "UW", the UW seal, UW department and research
project names).
2
2.13 "Internet Domain Names" shall mean any and all domain designations
obtained by UW for use in fielded versions of the Software and having a .com
extension, and in particular, the domain "metacrawler.com" and the subdomain
"metacrawler.cs.washington.edu".
2.14 "Documentation" shall mean any and all written documents and recorded
technical data pertaining to the structure, function and operation of the
Software and in the possession and control of UW, including but not restricted
to databases and performance data.
2.15 "Licensed Products" shall mean the Software, Minor Modifications, and
Documentation prepared by UW or UW Personnel, and any Major Modifications or
Collateral Developments (including patent rights) licensed to or developed by
Company under this Agreement.
2.17 "Sale" (and related words such as "Sell" and "Sold") shall mean the
sale, lease, rental, loan, licensing, or other transfer of a copy of Licensed
Products to an end user or other customer, of the Sale of advertising space on
world wide web pages, internet sites, or other network sites directly offering
services provided by Licensed Products.
3. Grant
3.1 UW hereby grants to Company and Company accepts an exclusive, worldwide
license, with the right to sublicense, to copy, reproduce, modify, prepare
Modifications, distribute, make, have made, use, and Sell, and otherwise exploit
Licensed Products. UW reserves the non-exclusive right to make, use, and modify
the Software and Documentation for
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research and instructional purposes, and to operate the Software within the UW
domain and as otherwise provided in this Agreement.
3.2 UW hereby assigns to Company any and all rights it may hold in Software
Identifiers, and specifically the identifiers "MetaCrawler", "Shopbot", "Occam",
and "Ahoy!", together with any and all goodwill associated with Software
Identifiers. Company grants to UW and UW accepts a limited, non-exclusive,
non-transferable license to use Software Identifiers in conjunction with the
rights reserved by UW in 3.1 above and elsewhere in this Agreement.
3.3 Sublicenses granted by Company to end users of Licensed Products shall
include such terms and conditions as are consistent with Company's obligations
to UW under this Agreement.
4. Delivery
4.1 UW shall deliver promptly to Company all source code and Documentation
for the Software and any Modifications or Collateral Developments licensed to
Company under this Agreement.
4.2 UW may operate public access world wide web sites using the Software
until the sooner of such time as Company notifies UW that Company has
established a commercial site and that the public UW site is no longer desired.
Thereafter, UW may maintain pointers and links to Company's site and UW may
continue to operate Software web sites for internal purposes within the UW
domain.
4.3 UW shall maintain for a period of at least three (3) years the
subdomain address "metacrawlers.cs.washington.edu" and point all requesters to
Company's internet domain address as specified by Company.
5. Modifications
5.1 Modifications delivered by UW or UW Personnel shall be controlled by
UW, and Modifications developed by Company shall be controlled by Company.
6. Patents
6.1 If Company or UW identifies any patentable subject matter pertaining to
the Software, the identifying party will promptly notify the other party for a
determination of ownership, U.S. Government rights, if any, and disposition of
any such rights.
6.2 If any UW Personnel are determined to be inventors of patent rights
pertaining to the Software or any Modification or Collateral Development by the
UW or UW Personnel as of the Effective Date or any Modifications or Collateral
Developments by UW or UW Personnel,
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UW shall have control of any preparation, filing, and prosecution of any patent
applications, including divisionals, continuations, and continuations-in-part,
in U.S. and foreign jurisdictions, unless UW agrees in writing to transfer such
control to Company. However, upon Company's request, UW shall prepare, file and
prosecute an application for, and otherwise use its best efforts to secure and
maintain, any such patent rights controlled by UW; provided that the Company
pays or reimburses all reasonable costs incurred by UW in preparing, filing, and
prosecuting any such patent application or to secure and maintain any patents
that may issue on any such application.
6.3 For any patent rights licensed to Company pursuant to this Agreement,
UW shall make an express grant (or confirmation of rights) to Company under a
separate Patent License Agreement. Licenses which apply to a field of use beyond
internet and intranet software agent technology and to patent rights in Major
Modifications and Collateral Developments may include reasonable license fee and
royalty provisions consistent with the scope of claims in the licensed patent
rights and in excess of the maximum license fee anticipated in 5.4. However,
Company shall not in any event be obligated to pay any additional license fees,
royalties, or other compensation for any patent rights within the scope of the
license granted under paragraph 3.1.
6.4 UW may restrict at the time of licensing any license granted to Company
in any UW patent right to a field of use consistent with the rights granted in
this Agreement and including internet or intranet software agent technology, if
Company is unwilling or unable to undertake diligence obligations with regard to
all fields of use anticipated for the patent upon issuance.
7. Use of Names
7.1 Nothing in this Agreement shall be construed as conferring any right to
use in advertising, publicity or other promotional activities any name, trade
name, trademark or other designation of a party hereto including any
contraction, abbreviation or simulation of any of the foregoing, unless the
express written permission of the other party has been obtained. Company agrees
not to use "University of Washington" in any advertising, publicity, or
promotional activities without the express written consent of UW. Company may
identify the UW affiliations of Developers, and to provide to third parties
factual information regarding this Agreement and Company's relationship to UW.
7.2 UW agrees that it will make no press releases or otherwise release
information regarding this Agreement or the Company prior to May 1, 1997, unless
approved by Company or required by state or federal law.
8. Publication
8.1 UW and Developers reserve the right to prepare and publish scholarly
articles and other scholarly publications and to make presentations concerning
the Software, including
5
discussion and inclusion of source code statements and operating
characteristics, elements of design and algorithms employed by the Software,
descriptions and screen displays of the user interface of the Software;
provided, however, that UW and Developers shall take reasonable steps to
preserve and protect the license and other rights granted to Company under this
Agreement. Without limitation of the foregoing, UW and Developers shall not be
entitled to publish any trade secret of Company or take any other action in
derogation of the rights granted hereunder.
8.2 Company may receive copies of any manuscripts pertaining to the
Software, Major Modifications, or Collateral Developments prior to their
publication or presentation. Without limiting the generality of the foregoing,
UW and Developers shall not be entitled to include more than twenty-five (25)
lines of source code in any publication or presentation.
8.3 The right of publication set forth in this Agreement shall not extend
to subject matter developed exclusively within and by Company and provided to UW
under provisions of confidentiality.
8.4 Company and UW shall cooperate to provide to the fullest extent
possible, within the scope of rights granted, the opportunity for Developers to
use, publish reports concerning, and associate their names with the Software as
originally licensed to Company.
9. Fees and Royalties
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10. Diligence
10.1 Company shall utilize its commercially reasonable efforts in
proceeding with the development, manufacture, Sale, and other commercial
exploitation of Licensed Products, and in creating demand for Licensed Products.
10.2 Company shall use its commercially reasonable efforts to have Licensed
Products available for commercial use or Sale no later than the following dates,
and available in commercial versions thereafter:
Metacrawler December 31, 1996
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13. Product Marking and Licensing
13.1 Company shall affix proper copyright and other legal notice to all
copies of Licensed Products distributed or made available for public use.
13.2 Company shall affix the appropriate restricted rights legend to all
copies of Licensed Products prepared for delivery to the U.S. Government, using
such language as is then required to ensure any Licensed Products delivered to
the U.S. Government is received with "restricted rights" or similar rights as
defined in the relevant Federal Acquisition Regulations, such as DFARS
252.227-7013 and FAR 52.227-19.
13.3 Company shall display in fielded versions of the Software attribution
to the appropriate Developers in such form as is reasonably acceptable to such
Developers. With regard to Metacrawler and Ahoy!, Company shall display the
names of the present Developers of such Software, and require the display of
such names in any sublicensed versions, in such position, size, and prominence
substantially as displayed in the presently fielded UW version, unless changes
in such attribution are authorized in writing by the Developers.
14. Record Keeping
14.1 Company shall keep complete and accurate records and books of account
containing all information necessary for the computation and verification of the
amounts to be paid hereunder. Said records and books shall be kept for a period
of three (3) years following the end of the accounting period to which the
information pertains.
14.2 Company agrees, at the request of UW, upon reasonable advance written
notice, to permit one or more accountants selected by UW to have access during
ordinary working hours to such records and books of account, and access to such
premises, as may be necessary to audit with respect to any payment period ending
prior to such request, the correctness of any report or payment made under this
Agreement, or to obtain information as to the payments due for any such period
in the case of failure of the Company to report or make payment pursuant to the
terms of this Agreement. UW will not undertake any audit unless it has
reasonable cause to believe Company is materially under reporting amounts owed
to UW. Such accountant shall agree to sign Company's standard non-disclosure
agreement and agree to keep all information confidential and shall not disclose
to UW any information relating to the business of Company except that which in
accountant's reasonable judgment, after notification of Company, is necessary to
inform UW of (a) the accuracy or inaccuracy of Company's reports and payments;
(b) compliance or noncompliance by Company with the terms and conditions of this
Agreement; and (c) the extent of any such inaccuracy or noncompliance.
14.3 Should any such accountant discover information indicating material
inaccuracy in any of the Company's payments or material noncompliance by the
Company with any of such
8
terms and conditions, the accountant shall have the right to make and retain
copies (including photocopies) of any pertinent portions of the records and
books of account.
14.4 In the event that Company's royalties calculated for any semi-annual
period are under reported by more than ten percent (10%), the costs of any audit
and review initiated by UW will be borne by Company; otherwise, UW shall bear
the cost of any audit initiated by UW.
15. Term and Termination
15.1 The term of this Agreement shall commence on the Effective Date and
shall continue for the term of the last to expire of the UW's intellectual
property right controlling Licensed Products, unless sooner terminated as set
forth in this Agreement.
15.2 In the event of any material breach of this Agreement by either party
(other than any breach of Company's obligations under Paragraphs 10.2, 10.3, or
10.4), then the other party shall be entitled to terminate this Agreement by
giving the breaching party written notice of such termination, provided that:
(a) the terminating party has given the other party written notice of
such breach and its intent to terminate this Agreement if the breach is not
cured within thirty (30) days after the date of such notice or such later date
as may be specified by the terminating party; and
(b) the breach is not cured within the cure period specified in the
terminating party's notice and (a) above or, if the breach cannot reasonably be
cured within such cure period, the party in breach commences to cure the breach
within such cure period and thereafter diligently pursues the same to
completion; and
(c) the notice of termination is given prior to completion of the
cure.
15.3 Company shall have a right to terminate this Agreement or any license
granted herein, with or without cause, upon ninety (90) days' prior written
notice to UW.
15.4 Except as otherwise provided in Paragraph 10.5, the provisions under
which this Agreement or any licenses, options, or obligations may be terminated
or suspended shall be in addition to any and all other legal remedies which
either party may have for the enforcement of any and all terms hereof, and do
not in any way limit any other legal remedy such party may have.
15.5 Termination of this Agreement shall terminate all rights and licenses
granted to Company relating to Licensed Products. Further, in such event,
Company shall assign to UW and/or to any of the Developers as appropriate any
and all Software Identifiers and Internet Domain Names, together with any
goodwill if used as a trademark or service mark, previously assigned or
transferred to Company by UW and/or Developers. Company may with the prior
9
approval of UW fulfill any outstanding orders for the Licensed Products, and
distribute any copies of Licensed Products remaining in its inventory for a
period of ninety (90) days from the date of termination of this Agreement.
15.6 Termination of any license granted herein shall terminate all rights
granted by UW to Company under this Agreement relating to Licensed Products
except that Company may fulfill any outstanding order for the Licensed Products,
and distribute any copies of Licensed Products remaining in its inventory for a
period of ninety (90) days from the date of termination of license.
15.7 Termination by UW or Company under the options set forth in this
Agreement shall not relieve Company from any financial obligation to UW accruing
prior to or after termination or from performing according to any and all other
provisions of this Agreement expressly agreed to survive termination.
16. Notices
16.1 Any notice or other communication required or permitted to be given by
either party hereto shall be deemed to have been properly given and be effective
upon the date of delivery if delivered in writing to the respective addresses
set forth below, or to such other address as either party shall designate by
written notice given to the other party. If notice or other communication is
given by facsimile transmission, said notice shall be confirmed by prompt
delivery of the hardcopy original.
In the case of Company:
Softbots, Inc.
c/o Richard R. Rohde
Perkins Coie
One Bellevue Center, Suite 1800
411 - 108th Avenue N.E.
Bellevue, WA 98004-5584
Facsimile Address: (206) 453-7350
10
In the case of UW:
Director of Technology Transfer
University of Washington
Office of Technology Transfer
1107 N.E. 45th Street, Suite 200
Seattle, WA 98105-4631
Facsimile Address: (206) 685-4767
17. Infringement
17.1 Company and UW shall promptly inform the other of any alleged
infringement of any rights granted by UW to Company by a third party, and
provide any available evidence thereof.
17.2 Company shall have the first right, in cooperation with UW, to address
any alleged infringement of exclusively licensed rights.
17.3 If Company chooses to institute suit against an alleged infringer,
Company may bring such suit in its own name (or, if required by law, in its and
UW's name) and at its own expense, and UW shall, but at Company's expense for
UW's direct associated expenses, fully and promptly cooperate and assist Company
in connection with any such suit. Any net recoveries from settlements of
infringement claims shall be shared Ninety percent (90%) to Company and Ten
percent (10%) to UW.
17.4 If UW chooses to institute suit against an alleged infringer, UW may
do so in Company's name (if required by law, otherwise, in UW's name) but at
UW's expense, and Company shall fully and promptly cooperate and assist UW in
connection with any such suit. Any net recoveries from settlements of
infringement claims shall be shared Ninety percent (90%) to UW and Ten percent
(10%) to Company.
17.5 Neither Company nor UW is obligated under this Agreement to institute
a suit against an alleged infringer.
18. Representations, Warranties, and Risk
18.1 UW represents and warrants that:
(a) it has the right to grant the licenses as set forth in this
Agreement;
(b) to the best of its knowledge, UW has acquired all right, title and
interest (including, without limitation, any patent or copyright) of the
Developers in the Software;
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(c) to the best of UW's knowledge (i) the Software includes all
versions of the Software in existence as of the Effective Date other than
certain Modifications which may be under development and not yet complete, (ii)
the Developers are the sole authors, creators and inventors of the Software and
(iii) UW has received no notice of any claim that the Software as developed and
used at UW infringes, misappropriates or otherwise violates any proprietary
right of any third party;
(d) except for Mr. Selberg's claim with respect to "Metacrawler", UW
has not received notice of any claim that any of the Software Identifiers
infringes, misappropriates or otherwise violates any trademark, trade name or
similar proprietary right of any third party.
18.2 The Software is experimental in nature and is supplied "AS IS",
without obligation by the UW to provide accompanying services or support. The
entire risk as to the quality and performance of Licensed Products is with
Company. Should Licensed Products prove defective, Company agrees to assume the
cost of all necessary servicing, repair, or other corrective action.
18.3 UW EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES REGARDING LICENSED
SUBJECT MATTER, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO
WARRANTIES PERTAINING TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
18.4 Company agrees to indemnify, hold harmless and defend UW, its
officers, developers, employees, students, and agents, against any and all
claims, suits, losses, damages, costs, fees and expenses resulting from or
arising out of the Company's exercise of its licenses under this Agreement,
including but not limited to any damages, losses, or liabilities whatsoever with
respect to death or injury to any person and damage to any property arising from
the possession, use, or operation of Licensed Products by Company or any
customers, users, or others affected by Licensed Products copies, distributed,
modified or otherwise commercially exploited by Company in any manner
whatsoever. This indemnification clause shall survive the termination of this
Agreement. However, Company shall not have any obligation under this Paragraph
18.4 with respect to any claim, suit, loss, damage, cost, fee or expense
resulting from or arising out of any breach of Paragraph 18.1 or any other
provision of this Agreement by UW.
19. General
19.1 This Agreement shall be construed in accordance with, and its
performance shall be governed by, the laws of the State of Washington.
19.2 Any suit, action, or proceeding arising out of or relating to this
Agreement shall be decided in King County, Washington or Thurston County,
Washington. Company accepts the venue and jurisdiction of the Federal District
Court of Western Washington, Seattle, or the King or Thurston County Superior
Courts.
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19.3 If any provision of this Agreement shall be held to be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not be in any way affected or impaired thereby.
19.4 If any dispute shall arise under this Agreement, the prevailing party
shall be entitled to its reasonable attorney's fees and costs of litigation and
appeal.
19.5 No omission or delay of either party hereto in requiring due and
punctual fulfillment of the obligations of any other party hereto shall be
deemed to constitute a waiver by such party of its rights to require such due
and punctual fulfillment, or of any other of its remedies hereunder.
19.6 No amendment or modification hereof shall be valid or binding upon the
parties unless it is made in writing, cites this Agreement, and is signed by
duly authorized representatives of UW and Company.
19.7 This Agreement and the rights and benefits conferred upon Company
hereunder may not be assigned or transferred by Company without the prior
written consent of UW. However UW hereby consents to any assignment or transfer
to a successor of Company's business (whether by way of any sale or transfer of
assets or any merger, consolidation or other corporate reorganization); provided
that the successor assumes or is otherwise bound by all of the Company's
obligations under this Agreement.
19.8 The headings of the several sections of this Agreement are inserted
for convenience and reference only, and are not intended to be a part of or to
affect the meaning or interpretation of this Agreement.
19.9 This Agreement embodies the entire understanding of the parties and
supersedes all previous communications, representations, or understandings,
either oral or written, between the parties relating to the subject matter
hereof.
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IN WITNESS WHEREOF, UW and Company have executed this Agreement, in
duplicate originals but collectively evidencing only a single contract, by their
respective duly authorized officers, on the dates hereinafter written.
Softbots, Inc. University of Washington
By:______________________________ By:_______________________________
Name:____________________________ Name:_____________________________
Title:_____________________________ Title:______________________________
Date:_____________________________ Date:______________________________
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License Agreement - Netbot Inc. and Go2Net Inc.
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