{"id":42009,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/affiliate-agreement-goto-com-inc-and-pile-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"affiliate-agreement-goto-com-inc-and-pile-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/affiliate-agreement-goto-com-inc-and-pile-inc.html","title":{"rendered":"Affiliate Agreement &#8211; GoTo.com Inc. and Pile Inc."},"content":{"rendered":"<pre>\n                              GOTO.COM AND DOGPILE\n\n                              LETTER OF AGREEMENT\n                                   AFFILIATE\n\n     This Agreement is made and entered into as of the 1st day of April, 1999 \n(the \"Effective Date\") by and between GoTo.com, Inc., a Delaware corporation \nwith its principal place of business at 140 West Union Street, Pasadena, \nCalifornia 91103 (\"GoTo.com\"), and Pile, Inc., through its division Dogpile, \nwith its principal place of business at 612 Radcliffe Drive, Davis, California, \n95616 (\"Dogpile\").\n\n     1. Services. Dogpile shall position GoTo.com's search results on the first \npage of all Dogpile's meta-search results in a manner and format to be mutually \nagreed upon by the parties. The First Page is defined as the first page a user \nsees after typing a search on Dogpile and requesting to see Dogpile's \nmeta-search results.\n\n          (i)  So long as Dogpile's First Page of meta-search results consists \nof content from three (3) third party providers of search results or other \nsimilar content (herein \"Content Providers\"), Dogpile guarantees that no other \nContent Provider will receive preferential treatment. Preferential treatment is \ndefined as allowing the order of the other Content Providers on the First Page \nto be determined by means other than a fully parallel, first come, first serve \nbasis.\n\n          (ii) Should Dogpile grant more than three (3) Content Providers a \nposition on its First Page of meta-search results, it agrees to give \npreferential treatment to  GoTo's results by retrieving GoTo's results using \nThunderston's Texis Webscript software in a manner  which will guarantee GoTo a \nfirst or second place position unless its return time is longer than the sum of \nthe response time of any two other Content Providers. \n\n     2. Term and Termination. The Agreement shall commence on the Effective \nDate and continue indefinitely thereafter (the \"Term\"). The Agreement shall be \nnon-terminable for the initial twelve (12) months of the Term, provided, \nhowever, that if Dogpile puts a fourth Content Provider on the First Page, \nGoTo.com will have the right to terminate on thirty (30) days written notice. \nAfter the first twelve months of the term, either party may terminate the \nAgreement by giving the other party at least thirty (30) days' written notice \nof its intention to terminate the Agreement.\n\n     3. Reporting and Payment.\n\n          (i) Dogpile shall keep accurate records of the number of Impressions\nviewed. For purposes of this Agreement, an \"Impression\" shall mean each time\nthat a user of Dogpile's web site located at http:\/\/www.dogpile.com (the\n\"Dogpile Site\") is shown a Dogpile Site web page listing ten or more GoTo.com\nsearch results where GoTo.com has delivered ten or more results to the Dogpile\nSite. In the event that the total number of search results delivered by GoTo.com\nfor a given subject is less than ten (10) results, an \"Impression\" shall mean\nthe display of all available GoTo.com search results.\n\n        \n\n              (ii)   No sooner than 15 days after the end of each calendar \nmonth, Dogpile shall calculate the total number of Impressions recorded during \nsuch calendar month, rounded to the nearest thousand (the \"Monthly Total\") and \nshall invoice GoTo.com for the CPM Fees due for such month, as that term is \ndefined and calculated according to the fee schedule in Exhibit A.\n\n              (iii)  GoTo.com shall pay to Dogpile those CPM Fees due no later \nthan fifteen (15) days after receipt of the monthly invoice from Dogpile.\n\n       4.     Warranty and Indemnity.\n\n              (i)    Each party shall defend the other party from any claims,\nactions or allegations of third parties, the facts of which would constitute a\nbreach of the warranties in this Section 4 (\"Indemnified Claims\") and pay all\ndamages and  costs finally awarded or, at the indemnifying party's option, shall\nsettle such Indemnified Claims and pay the amount of the settlement and all\nassociated costs. The party seeking indemnification shall notify the\nindemnifying party of any action, suit, proceeding or investigation\n(\"Proceeding\") for which indemnification is sought, provided that any failure to\nnotify the indemnifying party will not relieve the indemnifying party from any\nliability or obligation which it may have to any indemnified person except to\nthe extent of any material prejudice to the indemnifying party resulting from\nsuch failure. If any such proceeding is brought against an indemnified person,\nthe indemnifying party will be entitled to participate therein and to assume the\ndefense thereof within 30 days after notice shall have been given to it by the\nindemnified person pursuant to the preceding sentence. Each indemnified person\nwill be obligated to cooperate reasonably with the indemnifying party, at the\nexpense of the indemnifying party, in connection with such defense and the\ncompromise or settlement of any such Proceeding.\n\n              (ii)   GoTo.com represents and warrants to Dogpile that as of the \nEffective Date, to the best of its knowledge, none of GoTo Marks or Content \nfail to comply with applicable laws and regulations (including, for example, \nlicensing requirements and administrative or professional rules). For purposes \nof this Agreement, \"Marks\" shall mean any trademark, trade name, service marks, \nlogo, slogan and copyright and proprietary notices associated with a party's \nproducts or services. For purposes of this Agreement, \"Content\" shall mean the \ntextual and graphical materials displayed on a certain web site.\n\n              (iii)  Dogpile represents and warrants to GoTo.com that, to the \nbest of its knowledge, Dogpile's Marks or Content do not or will not infringe \nany trademark, service mark, copyright, right to publicity, right of privacy or \nother intellectual property right of a third party, constitute false, deceptive \nor unfair advertising or disparagement under applicable law, or fail to comply \nwith applicable laws and regulations (including, for example, licensing \nrequirements and administrative or professional rules).\n\n              (iv)   EXCEPT AS SET FORTH IN SECTIONS 4(ii) AND 4(iii), NEITHER \nPARTY MAKES ANY EXPRESS OR IMPLIED WARRANTIES, AND HEREBY DISCLAIMS THE IMPLIED \nWARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.\n\n       5.     General.\n\n\n\n                                      -2-\n\n        (i)    UNDER NO CIRCUMSTANCES SHALL EITHER PARTY OR ANY OF THEIR\nAFFILIATES BE LIABLE TO THE OTHER PARTY FOR (A) INDIRECT, INCIDENTAL,\nCONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THE PARTY HAS BEEN ADVISED\nOF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM THE USE OR INABILITY TO USE\nEITHER PARTY'S SERVICES OR CONTENT OR ANY OTHER PROVISION OF THIS AGREEMENT,\nSUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST\nBUSINESS OR (B) DAMAGES IN EXCESS OF THE AMOUNTS PAID BY GOTO.COM TO DOGPILE\nUNDER THIS AGREEMENT.\n\n        (ii)   This Agreement may not be assigned by either party without the\nother party's prior written approval except in the case of a merger or sale of\nall or substantially all of a party's assets, in which case the acquired party\nshall notify the other party within five (5) days of the announcement of such\nmerger or asset sale, and the acquired party's successor in interest must assume\nall of the acquired party's obligations. Except as otherwise provided, this\nAgreement shall be binding upon and inure to the benefit of the parties'\nsuccessors and lawful assigns.\n\n        (iii)  GoTo.com and Dogpile agree that the terms of this Agreement are\nconfidential and shall not be disclosed to any third party without the prior\nwritten consent of the other party.\n\n        (iv)   During the Term, and during the 60 day period immediately\nfollowing the Term, GoTo.com shall have the right, upon reasonable notice,\nduring business hours, at GoTo.com's own expense, through an independent auditor\nchosen by GoTo.com and subject to Dogpile's approval, to audit Dogpile's\ncomputer generated logs that relate to amounts payable under this Agreement. If\nan audit of the appropriate computer generated logs reveals that GoTo.com has\nunderpaid any CPM Fees due to Dogpile under this Agreement for the period under\naudit, then GoTo.com shall promptly pay to Dogpile the amount of the\nunderpayment. Similarly, if an audit of Dogpile's records reveals that Dogpile\nhas overcharged any CPM Fees due to Dogpile under this Agreement, then Dogpile\nshall promptly pay to GoTo.com the amount of the overcharge. If the amount of\neither underpayment or overcharge for the period under audit equals or exceeds\nfive percent (5.0%) of the total amount owed during such period, then the party\nwho has underpaid or overcharged shall reimburse the other party for all costs\nand expenses incurred in connection with conducting the audit.\n\n        (v)    THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF\nTHE STATE OF CALIFORNIA AND THE PARTIES CONSENT TO JURISDICTION IN THE STATE AND\nFEDERAL COURTS IN CALIFORNIA.\n\n        (vi)   This Agreement constitutes the entire agreement between the\nparties with respect to the subject matter superceding any prior written\nagreements and communications (oral and written) regarding such subject matter.\nIt shall not be modified except by a written agreement and signed on behalf of\nGoTo.com and Dogpile.\n\n     6. Survival. Provisions of Section 4 (Warranty and Indemnity) and Section 5\n(General) will survive any termination or expiration of this Agreement.\n\n\n                                      -3-\n\n\n     7.  Counterparts. This Agreement may be executed by exchange of signature \npages by facsimile and\/or in any number of counterparts, each of which shall be \nan original as against any party whose signature appears thereon and all of \nwhich together shall constitute one and the same instrument.\n\n\n                   ***This Space Intentionally Left Blank***\n\n\n\n\n\n\n                                      -4-\n\n\n     Whereby the parties execute this Agreement as of the Effective Date.\n\n\nGoTo.com                                Dogpile\n\nSignature: \/s\/ Todd Tappin              Signature: \/s\/ Aaron Flin\n           ------------------------                ------------------------\n\nName: Todd Tappin                       Name: Aaron Flin\n\nTitle: CFO                              Title: CEO\n\nDate: 4\/6\/99                            Date: 4\/7\/99\n\n\n\n\n\n\n                                      -5-\n\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7665],"corporate_contracts_industries":[],"corporate_contracts_types":[9613,9619],"class_list":["post-42009","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-gotocom-inc","corporate_contracts_types-operations","corporate_contracts_types-operations__sales"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42009","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42009"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42009"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42009"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42009"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}