{"id":42796,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/software-development-agreement-inktomi-corp-and-microsoft.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"software-development-agreement-inktomi-corp-and-microsoft","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/software-development-agreement-inktomi-corp-and-microsoft.html","title":{"rendered":"Software Development Agreement – Inktomi Corp. and Microsoft Corp."},"content":{"rendered":"\n SOFTWARE DEVELOPMENT AGREEMENT\n\nThis Software Development Agreement (\"Agreement\") is made and entered into as of\nthe later of the two signature dates below (the \"Effective Date\") by and between\nINKTOMI CORPORATION (\"Inktomi\"), a California corporation, 1900 South Norfolk\nStreet, Suite 110, San Mateo, California 94403, and MICROSOFT CORPORATION\n(\"Microsoft\"), a Washington Corporation, One Microsoft Way, Redmond, Washington\n98052-6399, with reference to the facts set forth in the Recitals below.\n\n Recitals\n\n A. Inktomi develops and markets computer software products, including\nwithout limitation \"search engine\" software for searching and indexing\ninformation accessible through the Internet.\n\n B. Microsoft develops, manufactures, distributes and markets computer\nsoftware products and services.\n\n C. Inktomi and Microsoft desire to enter into a business relationship\npursuant to which, among other things, (i) Inktomi would (a) develop software\nfor Microsoft to implement desired features for a Microsoft search engine, (b)\nprovide search results for Microsoft using Inktomi's search engine customized\nwith, among other elements, the features developed for Microsoft, (c) provide\nsoftware hosting and maintenance services for Microsoft's benefit, and (d)\npurchase additional hardware and software necessary or desirable to service\nMicrosoft's needs, and (ii) Microsoft would make certain payments to Inktomi,\nand provide loans to Inktomi to facilitate Inktomi's purchase of additional\nhardware and software necessary or desirable to service Microsoft's needs.\n\n D. This Software Development Agreement is intended to delineate the terms\nand conditions applicable to the software development aspects of such business\nrelationship.\n\n Agreement\n\nAccordingly, Inktomi and Microsoft agree as follows:\n\n 1. Definitions. For the purposes of this Agreement, the following terms\n ----------- \nwill have the indicated meanings:\n\n 1.1 \"Ancillary Agreements\" shall mean the following agreements\nbetween Inktomi and Microsoft, and all amended versions thereof or successor\nagreements thereto: (i) the Information Services Agreement of even date\nherewith; (ii) the Software Hosting Agreement of even date herewith; (iii) the\nLoan Agreement of even date herewith, and any and all \"Promissory Notes\" and\/or\n\"New Note\" executed pursuant\n\n 1\n\n\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \nthereto; (iv) the Security Agreement of even date herewith; and (v) the Escrow\nAgreement of even date herewith.\n\n 1.2 The \"Average Daily Hits\" (or \"ADH\") for a particular calendar\nmonth means the number of Hits in that month divided by the number of days in\nthat month.\n\n 1.3 \"Coupled Cluster Technology\" means Inktomi's proprietary computer\nsoftware that enables a collection of two or more individual computers to be\nconnected in such a way as to operate as a single computing system.\n\n 1.4 \"Deliverables\" means the software code in object and\/or source\nformat (as set forth in the Specifications, provided that (i) if not specified,\ndelivery shall be in object code format, except (ii) in all cases, delivery of\ncode relating to Joint Derivative Technology and Microsoft Derivative Technology\nshall be in both object code and source code format), documentation, and other\nmaterials required to be delivered by Inktomi to Microsoft hereunder, as more\nfully described in the Specifications. Unless otherwise set forth in this\nAgreement (including the Specifications), or unless otherwise agreed by the\nparties, all code to be delivered to Microsoft will be transmitted by Inktomi to\nMicrosoft electronically in accordance with such security measures as may be\nmutually agreed by the parties.\n\n 1.5 \"Derivative Technology\" means any and all technology created or\ndeveloped by Inktomi pursuant to this Agreement based upon Inktomi Technology\nand\/or Microsoft Technology, which development is funded in whole or in\nsubstantial part by Microsoft, including without limitation the following: (i)\nfor copyrightable or copyrighted material, any translation (including\ntranslation into other computer languages), portation, modification, correction,\naddition, extension, upgrade, improvement, compilation, abridgment or other form\nin which an existing work may be recast, transformed or adapted; (ii) for\npatentable or patented material, any improvement thereon; and (iii) for material\nwhich is protected by trade secret, any new material derived from such existing\ntrade secret material, including new material which may be protected by\ncopyright, patent and\/or trade secret. Derivative Technology shall be\ncategorized as one of the following three distinct types:\n\n 1.5.1 \"Inktomi Derivative Technology\" means Derivative\nTechnology which is, for functionality reasons, inseparably integrated with the\nInktomi Search Engine (as distinguished, for example, from technology which\ncould be linked to the Inktomi Search Engine through a programming interface).\n\n 1.5.2 \"Microsoft Derivative Technology\" means Derivative\nTechnology which is (i) based on Microsoft Technology and (ii) separable from\nthe Inktomi Search Engine.\n\n 1.5.3 \"Joint Derivative Technology\" means Derivative Technology\nwhich is (i) separable from the Inktomi Search Engine and (ii) based on an \n\n 2\n\n\n \nidea supplied by Inktomi or Microsoft which idea theretofore was not developed\nin any significant manner (such as by developing algorithms or substantial\nportions of code toward implementation of the idea).\n\n 1.6 \"Error(s)\" means defect(s) in the Product or a Deliverable which\nprevent(s) it from performing in accordance with the Specifications and\/or a\nSeverity Level 1, 2 or 3 error, as such errors are defined in Exhibit B.\n\n 1.7 A \"Hit\" occurs each time an end user accesses a Web page\ndisplaying the [*] of a [*] using the [*] conducted by the end user through a\n[*]; the [*] displayed on such [*] is [*] in determining the [*] (for example,\nviewing a [*] containing [*] constitutes [*]. A \"Hit\" does not occur when an end\nuser [*] or, if different from the applicable [*], the [*] in which the end user\n[*], or [*] the [*]. Notwithstanding anything contained herein to the contrary,\nno \"Hits\" will be deemed to [*] or otherwise until the [*] of the [*] is [*] for\n[*] by the [*]. The parties acknowledge that access by an end user to a [*] does\nnot constitute a \"Hit.\"\n\n 1.8 \"Inktomi Technology\" means (a) Inktomi's existing Search Engine\nand Coupled Cluster Technology, and any and all future versions thereof and\nenhancements, upgrades and modifications thereto, other than Derivative\nTechnology created during the Term, as well as (b) all other computer software\nand\/or technology which is supplied by Inktomi for use in or in connection with\nthe Product and\/or Services and either is (i) existing as of the Effective Date,\n(ii) developed by Inktomi at Microsoft's request but without any Microsoft\nfunding, or (iii) developed by Inktomi after the Effective Date independently.\n\n 1.9 \"Internet\" means any systems for distributing digital electronic\ncontent and information to end users via transmission, broadcast, public\ndisplay, or other forms of delivery, whether direct or indirect, whether over\ntelephone lines, cable television systems, optical fiber connections, cellular\ntelephones, satellites, wireless broadcast, or other mode of transmission now\nknown or subsequently developed.\n\n 1.10 \"Launch Date\" will mean that date on which the Microsoft Search\nEngine (other than any so-called \"beta\" version) is first generally available\nfor use by the public.\n\n 1.11 \"Microsoft Site\" means the Microsoft Web Site(s) or Microsoft\napplication(s) which, when accessed by an end user, will permit the end user to\nconduct a search of the Internet (or a portion thereof) using the Product; if\nMicrosoft sublicenses its rights to use the search results generated by the\nProduct (as permitted under said Information Services Agreement), then the\nsite(s) of such Microsoft sublicensee(s) will \n\n 3\n\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \nbe deemed to be Microsoft Site(s) for the purposes of computing Hits and\nInktomi's royalties under Section 2.1.2 below.\n\n 1.12 \"Microsoft Technology\" means all computer software and other\ntechnology supplied by Microsoft for use in or in connection with the Product\nand\/or Services.\n\n 1.13 \"Product\" means computer software for Web-based and\/or\napplication-based end user Internet searches which is an enhanced version of the\nInktomi Search Engine customized to Microsoft's specifications, as more fully\ndescribed in the Specifications, and all future versions thereof and\nenhancements, upgrades and modifications thereto. The Microsoft Search Engine is\na Product, but other versions of the Product may be used by customers of Inktomi\nother than Microsoft (subject to the terms and conditions contained in this\nAgreement).\n\n 1.14 \"Schedule\" means the schedule(s) for completion of the Services,\nas set forth in the Specifications.\n\n 1.15 \"Search Engine\" means computer software which crawls Web Sites,\ndownloads and analyzes text and other data, sorts and organizes the data,\ncreates an index of accessible data, and, after receiving a particular search\nrequest (in the form of a word query which may or may not include limiting the\nfields of data to be searched), locates material accessible in the database, and\npresents the results of the search to the end user.\n\n 1.15.1 \"Inktomi Search Engine\" means Inktomi's current Search\nEngine as of the Effective Date and all future versions thereof and\nenhancements, upgrades and modifications thereto. The Inktomi Search Engine\nincludes, without limitation, such aspects of Inktomi's present and future\nCoupled Cluster Technology as may be used in connection with the functioning of\nthe Inktomi Search Engine.\n\n 1.15.2 \"Microsoft Search Engine\" will mean those versions of the\nProduct used to generate search results for Microsoft under said Information\nServices Agreement or for third parties requesting search results through\nMicrosoft.\n\n 1.16 \"Services\" means the customization and enhancement of the Product\n(including the design and development of the Derivative Technology) in\naccordance with the Specifications and delivery of the Deliverables, as they may\nbe modified from time to time, and all other services performed by Inktomi\npursuant to this Agreement.\n\n 1.17 \"Specifications\" means the specifications for the Services and\nProduct, attached to this Agreement as Exhibit A, which includes a product\ndesign and content summary, as well as a detailed specification for all required\nfeatures and functionality, and a complete delivery and production schedule.\nThe parties contemplate that the Specifications may be modified by mutual\nconsent from time to time during the \n\n 4\n\n\n \nTerm; if and when the Specifications are modified, the parties shall initial the\nnew Specifications or amendments to the existing Specifications, and immediately\nfollowing the last initialing such new Specifications or amendments shall\nautomatically be deemed to supercede or supplement (as the case may be) Exhibit\nA.\n\n 1.18 \"Term\" means the period of time commencing on the Effective Date\nand continuing thereafter indefinitely until this Agreement is terminated\npursuant to Section 9 below.\n\n 1.19 \"Territory\" means the entire universe.\n\n 1.20 \"User Interface\" means any and all visual mechanisms, metaphors\nand\/or appearance of the Microsoft Search Engine as designed to be seen by the\nend user. Microsoft will be responsible for developing all software needed to\nimplement the User Interface for the Microsoft Search Engine. Microsoft and\nInktomi will cooperate with each other to ensure the seemless interaction of the\nProduct with the User Interface for the Microsoft Search Engine.\n\n 1.21 \"Web\" means the so-called World Wide Web, containing, inter alia,\n ----- ---- \npages written in hypertext markup language (HTML) and\/or any similar successor\ntechnology.\n\n 1.22 \"Web page\" means a document on the Web which may be viewed in its\nentirety without leaving the applicable distinct URL address.\n\n 1.23 \"Web Site\" means a collection of inter-related Web pages or\ndocuments accessible through a Web page interface.\n\n 2. Compensation: Development Costs Plus Royalties.\n ---------------------------------------------- \n\n 2.1 Microsoft shall pay Inktomi for all Inktomi's services hereunder\nrelating to the development and delivery of the Derivative Technology as\nfollows:\n\n 2.1.1 Microsoft will reimburse Inktomi for such development\nservices, computed [*], in accordance with the following payment schedule: [*]\nupon [*]; [*] upon [*] of the [*]; and [*] upon [*] of the [*]. However, prior\nto undertaking any such development activities, Inktomi shall obtain Microsoft's\nwritten approval of a budget for such activities, and Inktomi shall not charge\nMicrosoft for [*] of the approved budget without Microsoft's prior written\napproval.\n\n 2.1.2 In addition, Microsoft agrees to pay to Inktomi royalties\nin connection with certain uses Microsoft makes of the Joint Derivative\nTechnology and the Microsoft Derivative Technology based upon Average Daily\nHits, from the Launch Date \n\n 5\n\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \nthroughout the remainder of the Term, calculated by Microsoft monthly (but\nreportable and payable in arrears in accordance with Section 3 below), as\nfollows:\n\n (a) if the number of ADH in the applicable month is not\nmore than [*] ([*]), then an amount equal to: $[*] times the number of ADH times\nthe number of days in the month [or ($[*])(ADH)(days)];\n\n (b) if the number of ADH in the applicable month is more\nthan [*] ([*]) but not more than [*] ([*]), then an amount equal to: $[*] times\nthe number of ADH times the number of days in the month, [*] $[*] times the\nnumber of days in the month [or ($[*])(ADH)(days) [*] ($[*])([*])(days)]; or\n\n (c) if the number of ADH in the applicable month is more\nthan [*] ([*]), then an amount equal to: $[*] times the number of ADH times the\nnumber of days in the month, [*] $[*] times the number of days in the month\n[($[*])(ADH)(days)[*]($[*])([*])(days)[*] ($[*])([*]) (days)].\n\n 2.2 As an advance against, and recoupable from, any and all amounts\nthat may otherwise be payable pursuant to Section 2.1.2 above, Microsoft agrees\nto pay to Inktomi the sum of $[*] promptly after the execution of this\nAgreement. Notwithstanding anything contained herein to the contrary, if the\nLaunch Date is [*], for [*] other than [*] to meet any requirement in the [*],\nthen on the [*] of each [*] (but attributable to the [*]) beginning on [*], and\ncontinuing until the [*] of [*] or the [*], the [*] portion of [*] shall be\ndeemed by [*]. Notwithstanding the foregoing, with respect to the [*] in which\nthe [*] (if [*]), [*] will be reduced by the amount of [*] for such month\npursuant to Section [*].\n\n 2.3 Notwithstanding any other provision of this Agreement, Microsoft\nshall have no obligation to use the Product, or to limit the number of search\nresults on any given Web page in the Microsoft Site. Inktomi acknowledges and\nagrees that it is not entitled to any share in any revenue derived by Microsoft\nfrom the Microsoft Site or the Microsoft Search Engine, regardless of how\nderived, and that except as may be expressly provided otherwise in this\nAgreement (or by subsequent mutual agreement of the parties) the royalties\npayable (if any) under Sections 2.1 and 2.2 will be the only payments required\nto be made to Inktomi for or in consideration of the development and use of the\nDerivative Technology and\/or rights granted to Microsoft hereunder, the Services\nand all results and proceeds thereof. Nothing in this Agreement will be\nconstrued as restricting Microsoft's ability to acquire, license, develop,\nmanufacture or distribute for itself, or have others acquire, license, develop,\nmanufacture or distribute for Microsoft, similar technology performing the same\nor similar functions as the technology contemplated by \n\n 6\n\n\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \nthis Agreement, or to market and distribute such similar technology in addition\nto, or in lieu of, the technology contemplated by this Agreement.\n\n 2.4 Microsoft acknowledges that Inktomi has customized and provided,\nand will continue to customize and provide, its software and technology to other\nparties for use in connection with a variety of applications, including Search\nEngine applications. Except as may be expressly provided to the contrary\nelsewhere in this Agreement, nothing in this Agreement will be deemed to limit\nor restrict Inktomi from customizing and providing its software and technology\nto other parties for any purpose, including in connection with Search Engine\napplications, or in any way affect the rights granted to such other parties.\n\n 2.5 Notwithstanding anything contained herein, in the event that\nInktomi licenses its Search Engine, and\/or search results derived from the use\nof such technology, to any third party (including but not limited to\narrangements whereby such technology is branded by such third party and\/or such\ntechnology is incorporated by a third party into its product) pursuant to which\nsuch third party pays Inktomi [*], and in the event the [*] to the third\nparty than the [*] forth in this Agreement, then this Agreement shall be [*]\nso that Microsoft shall [*] such [*].\n\n 3. Accountings and Audits.\n ---------------------- \n\n 3.1 Within forty-five (45) days after the end of each calendar month\nwith respect to which Microsoft owes Inktomi any royalties, Microsoft shall\nfurnish Inktomi with a statement, together with payment for any amount shown\nthereby to be due to Inktomi. The royalty statement shall be based upon the\ncalculations set forth in Section 2 during the month then ended, and shall\ncontain information reasonably sufficient to discern how the royalty payment, if\nany, was computed. All statements and all other accounts rendered by Microsoft\nto Inktomi shall be binding upon Inktomi and not subject to any objections by\nInktomi for any reason unless specific objection in writing, stating the basis\nthereof, is received by Microsoft within one (1) year from the date rendered.\n\n 3.2 Taxes.\n ----- \n\n 3.2.1 All amounts to be paid by Microsoft to Inktomi herein are\nexclusive of any federal, state, local, municipal or other governmental taxes,\nincluding, without limitation, taxes based on, imposed on or measured by net or\ngross income or receipts, franchise taxes, taxes on doing business, capital\nstock taxes (including any minimum taxes and taxes measured by any item of tax\npreference), sales, use, excise, property, withholding or similar taxes, duties,\nlevies, fees, excises or tariffs (all such taxes and other charges collectively\n\"Taxes\") now or hereafter imposed on Inktomi under applicable law (the \"Inktomi\nTaxes\"). Microsoft is not liable to Inktomi for any Taxes incurred in connection\nwith this Agreement, unless they are (i) owed by\n\n 7\n\n\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \nMicrosoft under applicable law solely as a result of entering into this\nAgreement (ii) are based solely upon the amounts payable under this Agreement,\nand (iii) are required to be collected from Microsoft by Inktomi under\napplicable law, provided, however, that solely with respect to sales tax or use\ntax payable to those taxing jurisdictions that impose sales or use taxes under\napplicable law upon the vendor, rather than the purchaser, clause (i) above\nshall be modified to provide \"sales taxes or use taxes that are owed by Inktomi\nunder applicable law solely as a result of entering into this Agreement and\nclause (iii) shall be modified to provide \"are permitted to be collected from\nMicrosoft by Inktomi under applicable law.\" (Such Taxes as are described in\nclauses (i), (ii) and (iii) above, the \"Invoiced Taxes\"). The Invoiced Taxes\nshall be stated separately as applicable on Inktomi's invoices and shall be\nremitted by Microsoft to Inktomi. Inktomi shall promptly provide to Microsoft\nofficial tax receipts indicating that such Invoiced Taxes have been collected by\nInktomi. Microsoft may provide to Inktomi an exemption certificate acceptable to\nInktomi and to the relevant taxing authority (including without limitation a\nresale certificate) in which case Inktomi shall not collect the Taxes covered by\nsuch certificate. Inktomi agrees to take such steps as are reasonably requested\nby Microsoft to minimize such Invoiced Taxes in accordance with all relevant\nlaws and to reasonably cooperate with and assist Microsoft, at Microsoft's\nrequest, in challenging the validity of any Invoiced Taxes or other Taxes paid\ndirectly by Microsoft to the relevant taxing authority. Inktomi shall indemnify\nand hold Microsoft harmless from any Taxes, penalties, interest, or additions to\ntax arising from amounts paid by Microsoft to Inktomi under this Agreement that\nare asserted or assessed against Microsoft to the extent such amounts are\nrelated to Invoiced Taxes paid to Inktomi by Microsoft under this section. Other\nthan the Invoiced Taxes, all Inktomi Taxes shall be the responsibility of\nInktomi and may not be passed on to Microsoft. Inktomi takes full responsibility\nfor all such Inktomi Taxes, including penalties, interest and other additions\nthereon and agrees to indemnify, defend and hold Microsoft harmless from any\nclaims, causes of action, costs (including without limitation, reasonable\nattorneys' fees), penalties, interest charges and other liabilities of any\nnature whatsoever associated therewith. All Taxes that are imposed on Microsoft\nunder applicable law (the \"Microsoft Taxes\") shall be the responsibility of\nMicrosoft and may not be passed on to Inktomi. Microsoft takes full\nresponsibility for all such Microsoft Taxes, including penalties, interest and\nother additions thereon and agrees to indemnify, defend and hold Inktomi\nharmless from any claims, causes of action, costs (including without limitation,\nreasonable attorneys' fees), penalties, interest charges and other liabilities\nof any nature whatsoever associated therewith.\n\n 3.2.2 In the event that Taxes are required to be withheld on\npayments made hereunder by any U.S. (state, local or federal) or foreign\ngovernment, Microsoft may deduct such Taxes from the amount owed Inktomi and pay\nthem to the appropriate taxing authority. Microsoft shall in turn promptly\nsecure and deliver to Inktomi an official receipt for any Taxes withheld.\nInktomi may provide to Microsoft an exemption certificate acceptable to\nMicrosoft and to the relevant taxing authority (including without limitation a\nresale certificate) in which case Microsoft shall not collect the Taxes covered\nby such certificate. Microsoft agrees to take such steps as are reasonably\nrequested by Inktomi to minimize such Taxes in accordance with all relevant \n\n 8\n\n\n \nlaws and to reasonably cooperate with and assist Inktomi, at Inktomi's request,\nin challenging the validity of any such Taxes.\n\n 3.2.3 Inktomi agrees and acknowledges that it will be\nresponsible for all of its federal and state taxes, withholding, social\nsecurity, unemployment and other related taxes, insurance, and other benefits,\nand all salaries, benefits, and other costs of its employees.\n\n 3.3 Microsoft agrees to keep, for not less than eighteen (18) months,\nall proper records and books of account and all proper entries therein relating\nto the calculations made under Section 2. Inktomi may cause an audit to be\nmade, at its expense, of the applicable records in order to verify statements\nrendered hereunder. Any such audit shall be conducted only by a certified\npublic accountant (other than on a contingency-fee basis) and shall be conducted\nduring regular business hours at Microsoft's offices and in such a manner as not\nto interfere with Microsoft's normal business activities. In no event shall an\naudit with respect to any royalty statement commence later than eighteen (18)\nmonths from the date of the statement involved, nor shall the audits be made\nhereunder more frequently than once annually, nor shall the records supporting\nany statements be audited more than once. Inktomi shall require the certified\npublic accountant when engaged to execute and deliver to Microsoft a certificate\nin substantially the following form:\n\n \"I hereby certify that I have been engaged by Inktomi to audit the books and\n records of MICROSOFT CORPORATION. Inktomi will not pay me on a contingent-\n fee basis. The fees to be received by me for conducting the audit shall be\n in no manner variable according to the findings or results of the audit.\n\nInktomi hereby agrees to make available to Microsoft, upon request, its records\nand reports pertaining to the audit and any such records and reports prepared\nfor Inktomi by third parties (including the work sheets generated by its\nauditors) but only in the event that Inktomi makes any claim with respect to\nsuch audit. If any Inktomi audit should determine that Microsoft underpaid\nInktomi by an amount of 5% or more for the period audited, then in addition to\nany and all other rights and remedies Inktomi may have under the circumstances,\nInktomi may require Microsoft to reimburse it for all costs it incurred relating\nto such audit in addition to paying the amount otherwise owed.\n\n 4. Product Development.\n ------------------- \n\n 4.1 In General. Inktomi shall perform the Services, and deliver to\n ----------\nMicrosoft the Deliverables, in accordance with the Specifications (including the\nSchedule), as the same may change from time to time during the Term with the\nmutual consent of Microsoft and Inktomi, and all other terms and conditions\ncontained in this Agreement. Inktomi will use its best efforts to meet each\nmilestone in the Schedule for delivering the Product and the Deliverables.\nInktomi agrees that the Services shall be performed in a professional manner and\nshall be of a high grade, nature and quality. Throughout the Term:\n\n 9\n\n\n \n 4.1.1 Inktomi will assign human and financial resources to\nmaintain the Inktomi Search Engine and the Product, and develop enhancements\nthereof, of at least the same quality and quantity as allocated to the\ndevelopment and maintenance of the Inktomi Search Engine prior to the Effective\nDate. Without limiting the generality of the foregoing, Inktomi agrees that, for\nso long as he is an employee of Inktomi, [*] shall (i) be substantially\nresponsible for the guidance and direction of the Inktomi Search Engine and the\nProduct, including the development and enhancement thereof, and (ii) devote such\ntime and effort with respect to the Inktomi Search Engine and Product as may be\nrequired to reasonably ensure the maintenance of their quality, functionality\nand reliability. Inktomi further agrees that Microsoft will have the right to\napprove [*] successor as \"leader\" of the Inktomi Search Engine team, if [*]\nshould cease to be an employee of Inktomi. Inktomi shall use its commercially\nreasonable efforts to [*] within the Inktomi Search Engine development team, and\nto ensure that the [*] is [*] than [*].\n\n 4.1.2 Inktomi will monitor the reliability and accessibility of\nthe Product, and ensure that it continues to perform in accordance with the\nSpecifications. Without limiting the generality of Section 4.1.3 below, if\nInktomi is contemplating any modifications to the Inktomi Search Engine or\nCoupled Cluster Technology which might materially affect the performance of the\nProduct, Inktomi will confer in good faith with Microsoft regarding the\nappropriateness of such modifications and mutually agree whether or not to make\nsuch modifications; provided, however, that such consultation will not be deemed\nto relieve Inktomi from its obligations to ensure that the Product continues to\nmeet the Specifications and operational cost estimates as specified in Exhibit C\nat all times during the Term.\n\n 4.1.3 Prior to customization of the Inktomi Search Engine in\naccordance with the Specifications, and thereafter throughout the Term, Inktomi\nwill keep Microsoft informed, in writing, of all planned enhancements to the\nInktomi Search Engine, and the status of development thereof, provided Inktomi\nhas the right to do so. Unless requested otherwise by Microsoft, Inktomi will\nincorporate any or all such other planned enhancements into the Product,\nprovided Inktomi has the right to do so, in which case the Specifications shall\nbe deemed to be amended to include such enhancements.\n\n 4.1.4 From time to time, Microsoft may request that Inktomi\nundertake to develop certain enhancements to the Product. Upon such request,\nInktomi shall confer in good faith with Microsoft regarding the feasibility of\ndeveloping such enhancements and the time frame for developing, testing and\nincorporating such enhancements (giving due consideration to the status of\nMicrosoft as a primary licensee of Inktomi). Then, Inktomi and Microsoft shall\nmutually agree as to whether Inktomi should pursue development of such\nenhancements, and, if so, which of Inktomi and\/or Microsoft will fund such\ndevelopment, and, if funded in substantial part by Microsoft, whether the\nenhancement will be Inktomi Derivative Technology, Microsoft Derivative\nTechnology, or Joint Derivative Technology. Upon mutual agreement, the\nSpecifications shall be deemed amended to include such enhancements.\n\n 10\n\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \n 4.2 Acceptance. The terms and conditions contained in this Section\n ----------\n4.2 will apply to the initial release of the Product, as well as to each\nsubsequent release, upgrade, enhancement and version thereof.\n\n 4.2.1 Inktomi agrees to thoroughly test the Product (including\nwithout limitation each and every release, version, and enhancement thereof), as\nappropriate under the circumstances, at all appropriate stages of development,\nand shall document its testing by written test documents delivered to Microsoft.\nInktomi will submit its test plans to Microsoft for review, so as to ensure that\nMicrosoft's standards of quality are maintained, and Inktomi agrees to\nsubsequently modify the test plans to accommodate Microsoft's requests if\nMicrosoft reasonably deems any changes to be necessary or appropriate. Such test\ndocuments shall include a detailed description of the tests as conducted, and\ntest results (including, without limitation, resulting bug list and outstanding\nissues list). Notwithstanding anything contained in this Agreement to the\ncontrary, Inktomi will not deploy the Product, and\/or any enhancement thereof,\nunless and until Microsoft authorizes such deployment in writing.\n\n 4.2.2 If either party is aware or becomes aware of a delay that\nwill prevent Inktomi from meeting a scheduled milestone for any Deliverable\nunder the Schedule, such party will promptly inform the other party of such\ndelay, and the reason therefor, in writing. If such delay is caused by\nMicrosoft, the Schedule will automatically be deemed extended, for the\napplicable Deliverable and for subsequent deliverables, if and to the extent\nminimally necessitated by the original delay. If such delay is caused by\nInktomi, Inktomi will be given a reasonable period (up to thirty (30) days,\ndepending on the circumstances) to cure the unmet Deliverable Schedule. However,\nInktomi acknowledges that timely meeting the Schedule is of critical importance\nunder this Agreement, and that time is of the essence in curing a delayed\ndelivery.\n\n 4.2.3 Microsoft shall evaluate the beta and final version of\neach Deliverable and shall submit an acceptance or rejection to Inktomi within\nten (10) days after Microsoft's receipt of the engineering prototype and beta\nversions and fifteen (15) calendar days after receipt of the final version of\nthe Deliverable. If Microsoft identifies Errors in any Deliverable prior to\nacceptance, then Inktomi shall correct, at its sole expense, such Errors, and\nuse its best efforts to effect such correction within the applicable time\nspecified in Exhibit B.\n\n 4.2.4 If Inktomi fails to deliver any Deliverable within the\ndates specified in the Schedule (after application of the applicable reasonable\ncure period) and if any Errors discovered during the acceptance process cannot\nbe eliminated in the correction period specified in the Specifications or\nExhibit B (whichever is applicable) then Microsoft may, at its option: (i)\nextend the correction period; or (ii) suspend its performance until the problem\nis corrected to Microsoft's reasonable satisfaction and\/or, if the failure to\ndeliver or uncorrected Error is material, terminate this Agreement for cause\npursuant to Section 9.\n\n 11\n\n\n \n 4.2.5 Notwithstanding anything contained herein to the contrary,\nInktomi shall at all times hereunder be responsible for ensuring that the\nProduct meets all Specifications, and if any Error is discovered after\nacceptance, Inktomi shall remain obligated to correct such Error in accordance\nwith the applicable timetable determined by Microsoft and Inktomi as set forth\nin the Specifications or Exhibit B, or as otherwise may be mutually agreed under\nthe circumstances.\n\n 4.3 Specific Enhancements. Without limiting the foregoing, Inktomi\n ---------------------\nand Microsoft acknowledge that at some time during the Term they contemplate the\nfollowing enhancements to the Product:\n\n (a) [*] to the [*]. In this connection, as soon as practicable\nfollowing execution of this Agreement, Inktomi will undertake a study (using one\nor more neutral, independent third party consultants the identity of whom will\nbe subject to Microsoft's reasonable prior approval) to determine the cost,\ntiming and other feasibility aspects [*]. Following completion of this\nfeasibility study, unless said mutually approved consultant(s) indicate(s) that\n[*] is impossible or would require more than [*] ([*]) [*], Inktomi and\nMicrosoft will meet and mutually determine a timetable and milestones for\nInktomi to accomplish [*], with Inktomi using its commercially reasonable\nefforts to complete the [*] by no later than [*].\n\n (b) development of international versions of the Product, in any\nand all languages desired by Microsoft, upon timetables and in accordance with\ntechnical specifications as are mutually agreed by Microsoft and Inktomi from\ntime to time during the Term.\n\nUnless otherwise agreed by the parties, Inktomi's Services hereunder will\ninclude, without limitation, all development services required with respect to\n[*]. However, with respect to the port, Microsoft will provide such [*]\n(including the services of Microsoft's [*]) as may be reasonably available\nto Microsoft and reasonably requested by Inktomi.\n\n 5. Scope of Rights.\n --------------- \n\n 5.1 Inktomi Technology. Nothing contained in this Agreement will\n ------------------ \nbe deemed to transfer any ownership in the Inktomi Technology to Microsoft, and\ninsofar as Microsoft is concerned, Inktomi will own all rights in and to the\nInktomi Technology.\n\n 5.2 Microsoft Technology.\n -------------------- \n\n 5.2.1 Microsoft hereby grants to Inktomi a non-exclusive license\nto incorporate Microsoft Technology into the Product, as contemplated by the\ndevelopment process hereunder, provided that Inktomi may not itself use, nor\nauthorize \n\n 12\n\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \nany third party's use of, the Microsoft Technology portion of the Product\nwithout Microsoft's prior written approval (which Microsoft may give or withhold\nin its sole and absolute discretion, and which may be conditioned, without\nlimitation, upon a royalty or other fee being payable to Microsoft).\n\n 5.2.2 Subject to Section 5.2.1 above, as between Microsoft and\nInktomi, Microsoft will own all rights in and to Microsoft Technology.\n\n 5.3 Derivative Technology.\n --------------------- \n\n 5.3.1 Inktomi Derivative Technology will be owned exclusively\nby Inktomi and treated in the same manner as Inktomi Technology under this\nSection 5, except as follows:\n\n (a) Inktomi will not make available any Inktomi\nDerivative Technology or any search engine features implemented thereby to any\nthird party search engine customer for a period of not less than [*] ([*]) years\ncommencing on the incorporation of the final (not \"beta\") version of the Inktomi\nDerivative Technology into the Microsoft Search Engine. After the expiration of\nsaid [*] ([*]) year exclusivity period, Inktomi will have the right to use the\nInktomi Derivative Technology in other versions of the Inktomi Search Engine,\nbut if Inktomi so uses any Inktomi Derivative Technology it will pay to\nMicrosoft, in [*], an amount equal to [*] of the amounts Microsoft paid for\ndevelopment of such Inktomi Derivative Technology pursuant to Section 2.1.1\nabove, but except for such payments Inktomi will not owe any royalties or other\namounts to Microsoft for any use of the Inktomi Derivative Technology; and\n\n (b) Inktomi hereby grants to Microsoft a non-exclusive\nand irrevocable, fully paid-up, license under any and all patents that Inktomi\nmay own related to any portion of the Inktomi Derivative Technology, throughout\nthe Territory for the applicable life of the respective patent; provided,\nhowever, that nothing contained in this clause (b) shall be deemed to require\nInktomi to deliver any code to Microsoft.\n\n 5.3.2 Each of Inktomi and Microsoft will own an [*] ([*])\ninterest in and to all Joint Derivative Technology, at all stages of\ndevelopment, and the parties hereby assign to each other such individual rights\ntherein as necessary to effectuate said [*] ownership relationship. Subject to\nthe other rest of this Section 5.3.2, each party shall have the right to use\nJoint Derivative Technology as each may determine (including creating other\nderivative works based thereon) without any limitation or necessity to account\nto the other. However, Inktomi will not make available any Joint Derivative\nTechnology or any search engine features implemented thereby to any third party\nsearch engine customer for a period of not less than [*] ([*]) years commencing\non the incorporation of the final (not \"beta\") version of the Joint Derivative\nTechnology into the Microsoft Search Engine. After the expiration of said [*]\n([*]) year exclusivity period, Inktomi will have the right to use the Joint\nDerivative Technology in other versions of the Inktomi Search Engine, but if\nInktomi so uses any Joint Derivative\n\n 13\n\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \nTechnology it will pay to Microsoft, in [*], an amount equal to [*] of the\namounts Microsoft paid for development of such Joint Derivative Technology\npursuant to Section 2.1.1 above, but except for such payments by Inktomi to\nMicrosoft, and the payments by Microsoft to Inktomi pursuant to Section 2.1.2\nabove, neither Microsoft nor Inktomi will owe any royalties or other amounts to\nthe other for any of their respective uses of the Joint Derivative Technology.\nEach party will have the right to file registrations, and prosecute\ninfringements, relating to the Joint Derivative Technology, but will consult\nwith the other party before doing so, and will cooperate with the other should\nit desire joint filings or prosecutions.\n\n 5.3.3 Subject to Section 5.3.4 below, as between Microsoft and\nInktomi, Microsoft will own all rights in and to the Microsoft Derivative\nTechnology.\n\n (a) Inktomi acknowledges and agrees that, insofar as Inktomi is\n concerned, the Microsoft Derivative Technology has been specially ordered\n and commissioned by Microsoft and are \"works made for hire\" for copyright\n purposes, with all copyrights in the Microsoft Derivative Technology owned\n by Microsoft.\n\n (b) To the extent (if any) that any Microsoft Derivative Technology\n does not qualify as a work made for hire under applicable law, and to the\n extent that the Microsoft Derivative Technology includes material subject\n to copyright, patent, trade secret, or other proprietary right protection,\n Inktomi hereby assigns to Microsoft, its successors and assigns, all right,\n title and interest in and to the Microsoft Derivative Technology,\n including, but not limited to, all rights in and to any inventions and\n designs embodied in the Microsoft Derivative Technology or developed in the\n course of Inktomi's creation of the Microsoft Derivative Technology. The\n foregoing assignment includes a license under any current and future\n patents owned or licensable by Inktomi to the extent necessary to combine\n the Microsoft Derivative Technology with any hardware and software.\n\n (c) Inktomi hereby irrevocably transfers and assigns to Microsoft any\n and all \"moral rights\" that Inktomi may have in the Microsoft Derivative\n Technology. Inktomi also hereby forever waives and agrees never to assert\n any and all \"moral rights\" it may have in the Microsoft Derivative\n Technology, even after termination of the Services.\n\n 5.3.4 Microsoft hereby grants to Inktomi a non-exclusive\nlicense to incorporate Microsoft Derivative Technology into the Product, as\ncontemplated by the development process hereunder, provided that Inktomi may not\nitself use, nor authorize any third party's use of, the Microsoft Derivative\nTechnology portion of the Product without Microsoft's prior written approval\n(which Microsoft may give or withhold in its sole and absolute discretion, and\nwhich may be conditioned, without limitation, upon a royalty or other fee being\npayable to Microsoft).\n\n 14\n\n\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \n 5.4 User Interface. Microsoft intends to develop a User Interface(s)\n -------------- \nfor the Product; accordingly, any such User Interface would be Microsoft\nTechnology. If and to the extent that any User Interface for the Product is\ndeveloped by Inktomi, Inktomi acknowledges that it would be Microsoft Derivative\nTechnology. In either event, subject only to Section 5.2.2 or 5.3.3 (whichever\nis applicable), as between Microsoft and Inktomi, Microsoft will own all rights\nin and to any User Interface.\n\n 5.5 Deliverables.\n ------------ \n\n 5.5.1 Microsoft will own all tangible materials (such as disks,\nCD-ROMs, tapes and the like) delivered by Inktomi to Microsoft in connection\nwith this Agreement, and Inktomi hereby transfers all right, title and interest\nin and to the same to Microsoft (subject to the other provisions in this Section\n5).\n\n 5.5.2 Without limitation, and notwithstanding anything\ncontained in or omitted from the Specifications, all object code, source code\nand related documentation for Joint Derivative Technology and Microsoft\nDerivative Technology, and all data derived from testing the same, will be\ndeemed to be Deliverables under this Agreement, and Inktomi agrees to provide\nMicrosoft with copies thereof promptly after creation.\n\n 5.6 Assistance. Each party shall execute and deliver such\n ---------- \ninstruments and take such other action as may be requested by the other to\nperfect, protect, evidence or effectuate their respective rights in the Product,\nDerivative Technology or any other technology referenced herein. In case one\nparty requests the other to execute and deliver any such instrument necessary to\nperfect, protect, evidence or effectuate its rights and such other party fails\nto accommodate any reasonable such request within thirty (30) days, such other\nparty hereby appoints and constitutes the requesting party as its attorney-in-\nfact to execute, acknowledge and file all such instruments and to take such\nother steps in its name as the requesting party, in its reasonable judgment, may\ndeem necessary or desirable to secure and\/or protect its rights, such\nappointment being a right coupled with an interest and irrevocable.\n\n 5.7 No Trademark License. Nothing in this Agreement or its\n -------------------- \nperformance shall grant either party any right, title, interest, or license in\nor to the other's names, logos, logotypes, trade dress, designs, or other\ntrademarks.\n\n 6. Representations and Warranties.\n ------------------------------ \n\n 6.1 By Inktomi. Inktomi warrants and represents that:\n ---------- \n\n (a) It has the full power to enter into this Agreement and to\ngrant the rights set forth herein;\n\n 15\n\n\n \n (b) It has not previously and will not grant any rights in\nthe Inktomi Technology, the Product, the Derivative Technology or Deliverables\nto any third party that are inconsistent with this Agreement (including without\nlimitation pursuant to agreements with [*]);\n\n (c) Except for the portion thereof consisting of Microsoft\nTechnology (if any), (i) the Deliverables and Derivative Technology [*], or [*]\nheld by [*], and Inktomi has [*] of [*] of any [*], and (ii) the operation of\nthe Deliverables and Derivative Technology as part of the Product as intended\nunder this Agreement and\/or the Information Services Agreement of even date\nherewith [*], or [*] held by any third party, and Inktomi has [*] of [*] of any\n[*];\n\n (d) The Deliverables, Product and Derivative Technology will\n[*] throughout the Term; provided, however, that a [*] and [*] to so perform\nwill not be deemed to be a material breach hereunder;\n\n (e) The Product [*] to the extent Microsoft requires throughout\nthe Term, [*] with the [*] set forth in [*] (which is appended hereto and\nincorporated herein by this reference); and\n\n (f) The Derivative Technology, Deliverables and Product will\nbe created by employees of Inktomi within the scope of their employment and\nunder obligation to assign inventions to Inktomi, and\/or by independent\ncontractors under written obligations to assign all rights in the Derivative\nTechnology, Deliverables and Product to Inktomi.\n\n 6.2 By Microsoft. Microsoft warrants and represents that it has the\n ------------ \nfull power to enter into this Agreement.\n\n 6.3 Exclusions. Inktomi's warranties under Section [*] above will\n ---------- \n[*] to [*]: (i) use by Microsoft of the [*]; (ii) [*], or [*], the Product made\nby Microsoft, unless such [*] or [*] and [*] by Microsoft; (iii) use by\nMicrosoft of the [*] with data or software or hardware which is [*] with the\nProduct [*] was [*] in writing; or (iv) [*] made to the [*] purported to be made\nby [*] without the [*] of Inktomi.\n\n 7. Indemnification.\n --------------- \n\n 16\n\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \n 7.1 By Inktomi. Inktomi shall, [*] and Microsoft's request, defend\n ----------\n[*] claim or action brought against Microsoft, and [*] and [*], which, [*],\nwould constitute a [*] of any [*] or [*] made by Inktomi under this Agreement,\nand Inktomi will [*] and [*] Microsoft [*] any [*], [*] and [*] by Microsoft,\nincluding but [*] to [*] of [*] and [*], that are attributable to such claim.\nMicrosoft shall: (i) provide Inktomi reasonably prompt notice in writing of any\nsuch claim or action and [*], through [*] to Microsoft and Inktomi, to [*] and\n[*] such claim or action; and (ii) provide [*] and [*], at [*], to [*] Inktomi\nto [*] such claim or action. Inktomi will [*] for any [*] by [*] without [*],\nwhich [*] will [*].\n\n 7.2 By Microsoft. Microsoft shall, at [*] and Microsoft's request,\n ------------\ndefend [*] or action brought against Inktomi, [*] and [*], which, [*], (i)\nwould constitute a [*] of any [*] or [*] made by Microsoft under this Agreement,\n(ii) is [*] in [*] upon [*] to [*] made by [*] by Inktomi, (iii) is [*] in [*]\nupon [*] of the [*] is [*] by Section [*] above, and\/or (iv) is based in [*] on\n[*], and Microsoft will [*] and [*] Inktomi [*] any [*] and [*] incurred by\nInktomi, including but [*] to [*] of [*] and [*], that are attributable to such\nclaim. Inktomi shall: (i) provide Microsoft reasonably prompt notice in writing\nof any such claim or action and [*], through counsel [*] to Inktomi and\nMicrosoft, to [*] and [*] such claim or action; and (ii) provide Microsoft [*]\nand [*], at [*], to [*] Microsoft to [*] such claim or action. [*] will [*] for\nany [*] by [*] without [*], which [*] will [*].\n\n 7.2 Separate Counsel; Reimbursement. An indemnified party shall \n ------------------------------- \nhave the right to employ separate counsel and participate in the defense of any\nclaim or action. The indemnifying party shall reimburse the indemnified party\nupon demand for any payments made or loss suffered by it at any time after the\ndate hereof, based upon the judgment of any court of competent jurisdiction or\npursuant to a bona fide compromise or settlement of claims, demands, or actions,\nin respect to any damages related to any claim or action under this Section 7.\n\n 7.3 Settlement. The indemnifying party may [*] any claim or action\n ----------\nunder this Section 7 [*] the [*] written [*], which [*] will [*]. In the event\nMicrosoft and Inktomi agree to settle a claim or action, each party agrees not\nto publicize the\n\n\n 17\n\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \nsettlement without first obtaining the other's written permission, which\npermission will not be unreasonably withheld.\n\n 7.4 Proprietary Rights Infringement. Without limiting any of\n ------------------------------- \n[*], in the event of any [*] or [*] by [*] of Section [*]([*]), [*] shall notify\n[*] and shall [*] (i) [*] for [*] so that [*] shall [*] be in [*] of Section\n[*]([*]), or (ii) [*] the [*] or [*] thereof, or [*] the [*] with [*] having [*]\nthe same or [*]. If neither of the foregoing is [*] to achieve within a [*] of\ntime, then, in addition to any [*] available to [*], [*] may [*] this Agreement.\n\n 8. LIMITATION OF LIABILITY. EXCEPT FOR [*] CAUSED BY A [*] OF\n ----------------------- \nSECTION [*], NEITHER PARTY SHALL BE [*] (IN CONNECTION WITH OR PURSUANT TO THIS\nAGREEMENT AND THE ANCILLARY AGREEMENTS TAKEN AS A WHOLE) FOR ANY [*], [*] OR [*]\n(INCLUDING [*]) [*] OF [*] ([*]), [*] OF THE [*] OF [*], EVEN IF [*]\nHAD BEEN [*] OF THE [*] OF SUCH [*].\n\n 9. Termination and Other Remedies.\n ------------------------------ \n\n 9.1 Termination At Will by Either Party.\n ----------------------------------- \n\n 9.1.1 Microsoft may terminate this Agreement without cause upon\n[*]'s prior written notice, provided that such notice may not be given prior to\nthe [*] of the [*].\n\n 9.1.2 Inktomi may terminate this Agreement without cause upon\n[*]'s prior written notice, provided that such notice may not be given prior to\nthe [*] of the [*].\n\n 9.2 In addition to any other rights and\/or remedies that Microsoft\nmay have under the circumstances, all of which are expressly reserved, Microsoft\nmay suspend performance and\/or terminate this Agreement immediately upon written\nnotice at any time if:\n\n (a) Inktomi is in material breach of [*] or [*] of this\nAgreement, other than those contained in Section 10.1, and fails to cure that\nbreach within [*] ([*]) days after written notice thereof; or\n\n (b) Inktomi is in material breach of Section [*]; or\n\n 18\n\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \n (c) Inktomi becomes insolvent or makes any assignment for the\nbenefit of creditors or similar transfer evidencing insolvency; or suffers or\npermits the commencement of any form of insolvency or receivership proceeding;\nor has any petition under any bankruptcy law filed against it, which petition is\nnot dismissed within sixty (60) days of such filing; or has a trustee or\nreceiver appointed for its business or assets or any part thereof.\n\n 9.3 In addition to any other rights and\/or remedies that Inktomi may\nhave under the circumstances, all of which are expressly reserved, Inktomi may\nsuspend performance and\/or terminate this Agreement immediately upon written\nnotice at any time if:\n\n (a) Microsoft is in material breach of [*] or [*] of this\nAgreement, other than those contained in Section [*], and fails to cure that\nbreach within [*] ([*]) days after written notice thereof; or\n\n (b) Microsoft is in material breach of Section [*]; or\n\n (c) Microsoft becomes insolvent or makes any assignment for\nthe benefit of creditors or similar transfer evidencing insolvency; or suffers\nor permits the commencement of any form of insolvency or receivership\nproceeding; or has any petition under any bankruptcy law filed against it, which\npetition is not dismissed within sixty (60) days of such filing; or has a\ntrustee or receiver appointed for its business or assets or any part thereof.\n\n 9.4 In the event of termination or expiration of this Agreement for\nany reason, Sections 1, 3, 5.1, 5.2.2, 5.3.1(a), 5.3.2, 5.3.3, 5.3.4, 5.4, 5.5,\n5.6, 5.7, 6, 7, 8, 10.1 and 12 (other than Section 12.12) shall survive\ntermination. Neither party shall be liable to the other for damages of any sort\nresulting solely from terminating this Agreement in accordance with its terms.\n\n 9.5 If Inktomi is in material breach of this Agreement, then, in\naddition to any other remedies which Microsoft may have under the circumstances,\nMicrosoft will have the right to withhold payment of amounts otherwise owed by\nMicrosoft to Inktomi pursuant to this and\/or any Ancillary Agreement; provided,\nhowever, that Microsoft shall give Inktomi not less than forty-five (45) days to\ncure such breach prior withholding any such payments.\n\n 9.6 A breach of this Agreement by either party will also constitute a\nbreach by such party of each and every other Ancillary Agreement; and a breach\nby either party of any Ancillary Agreement will also consitute a breach of this\nAgreement by such party.\n\n 9.7 Except as expressly provided herein, upon expiration of the Term\nor upon any termination of this Agreement, Microsoft shall have no further\nrights with\n\n 19\n\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \nrespect to the Product or Inktomi Technology, and will promptly return to\nInktomi or destroy all copies of Inktomi Technology then in its possession or\nunder its control.\n\n 10. Confidentiality.\n --------------- \n\n 10.1 The parties hereby agree that all terms and conditions of that\ncertain Microsoft Corporation Non-Disclosure Agreement between them dated March\n18, 1997, shall govern the disclosure of confidential and proprietary\ninformation made under this Agreement. In this connection, the parties hereby\nagree that the terms of this Agreement, the Specifications, the Derivative\nTechnology and all Microsoft-requested enhancements to the Inktomi Search Engine\nshall be treated as confidential in accordance with the terms of said Non-\nDisclosure Agreement.\n\n 10.2 Without having first sought and obtained Microsoft's written\napproval (which Microsoft may withhold in its sole and absolute discretion),\nInktomi shall not, directly or indirectly, (i) trade upon this transaction or\nany aspect of Inktomi's relationship with Microsoft, or (ii) otherwise deprecate\nMicrosoft technology.\n\n 10.3 Neither party will issue any press release or make any public\nannouncement(s) relating in any way whatsoever to this Agreement or the\nrelationship established by this Agreement without the express prior written\nconsent of the other party. However, the parties acknowledge that this\nAgreement, or portions thereof, may be required under applicable law to be\ndisclosed, as part of or an exhibit to a party's required public disclosure\ndocuments. If either party is advised by its legal counsel that such disclosure\nis required, it will notify the other in writing and the parties will jointly\nseek confidential treatment of this Agreement to the maximum extent reasonably\npossible, in documents approved by both parties and filed with the applicable\ngovernmental or regulatory authorities. Notwithstanding the foregoing, Microsoft\nand Inktomi will cooperate to create a mutually approved joint press release\nregarding the non-confidential aspects of this Agreement, which press release\nshall be issued by each party on the Launch Date; provided, however, that the\nprecise timing of such press release shall be subject to the approval of\nMicrosoft (in its sole and absolute discretion).\n\n 11. Technology Escrow.\n ----------------- \n\n 11.1 To ensure that Microsoft will have access to such technology as\nmay be necessary or appropriate to permit it to use the Product to generate\nsearch results (and to develop enhancements and other derivative works for use\nin connection with the Product) as contemplated by this Agreement and the\nAncillary Agreements, Inktomi agrees to provide to an escrow agent, the identity\nof which is satisfactory to Inktomi and Microsoft, a copy of all source code,\nbinary code and related documentation used in, or in connection with the\ndevelopment of, the Product or the Deliverables (including all related\nenhancements), concurrently with the deployment or delivery of the applicable\nDeliverable or Product (including all related enhancements) to Microsoft.\nWithout limiting the generality of the foregoing, all source code, binary code\nand documentation for the Inktomi's Search Engine and relevant Coupled Cluster\nTechnology will be \n\n 20\n\n\n \nescrowed hereunder. Said escrow agent will hold such code and documentation in\nescrow, and release it if and only if it is permitted to do so pursuant to the\nterms and conditions of the Escrow Agreement appended hereto as Schedule I. The\nparties shall execute an Escrow Agreement substantially in the form of Schedule\nI concurrently with the execution of this Agreement.\n\n 11.2 If Microsoft is entitled to receive any source code, binary code\nand\/or documentation pursuant to said Escrow Agreement, (i) Inktomi will be\ndeemed to automatically have granted to Microsoft a non-exclusive and\nirrevocable license during the remainder of the Term and throughout the\nTerritory to use the Product (and all required underlying Inktomi Technology)\nsolely to generate search results (and to create enhancements and derivative\nworks for use in connection with the Product) as contemplated by this Agreement\nand the Ancillary Agreements, and (ii) Inktomi agrees to furnish to Microsoft,\nupon Microsoft's request, the services of Inktomi personnel familiar with the\nstructure and operation of such source code and\/or binary code to explain such\ncode and train Microsoft personnel in its operation. Such services shall\ncontinue for so long as is reasonably required by Microsoft personnel to become\nproficient in its use and application, and Inktomi will charge Microsoft only\nfor its direct, actual, out-of-pocket costs of such services.\n\n 12. Miscellany.\n ---------- \n\n 12.1 Neither party shall represent itself as the agent or legal\nrepresentative of the other for any purpose whatsoever, and neither party shall\nhave the right to create or assume for the other any obligation of any kind.\nThis Agreement shall not create or be deemed to create an agency, partnership,\nfranchise, employment relationship or joint venture between the parties. Each\nparty's employees who perform services related to this Agreement shall remain\nunder the exclusive direction and control of their respective employer and shall\nreceive such salaries, compensation and benefits as their respective employer\nmay from time to time determines. Each party shall have full and sole\nresponsibility for its employees who perform any service related to this\nAgreement with regard to compliance with all applicable laws, rules and\nregulations governing such party relating to employment, labor, wages, benefits,\ntaxes and other matters affecting its employees.\n\n 12.2 Any notice required or permitted to be given under this\nAgreement shall be made in writing and shall be deemed to have been given or\nmade if it is in writing and is: (i) delivered in person, (ii) sent by same day\nor overnight courier, (iii) mailed by certified or registered mail, return\nreceipt requested, postage prepaid, addressed to the party at its address set\nforth below or at such other address as such party may subsequently furnish to\nthe other party by notice hereunder, or (iv) delivered by facsimile, the\ntransmittal of which shall be confirmed by a telephone call to the other party\nand by dispatch of a confirming copy of the transmittal by registered or\ncertified mail, postage prepaid. Notices will be deemed effective on the date of\ndelivery in the case of personal delivery, or three (3) business days after\nmailing, or on the date of dispatch in the case of notification by facsimile\n(assuming confirmation of transmission). \n\n 21\n\n\n \nThe parties' addresses for purposes of notice shall be as set forth above,\nprovided that all notices to Inktomi shall be sent to the attention of General\nCounsel; and all notices to Microsoft shall be sent to the attention of Shirish\nNadkarni, with a copy to: Law & Corporate Affairs, U.S. Legal.\n\n 12.3 This Agreement shall be construed, enforced, performed and in\nall respects governed by and in accordance with the laws in the State of\nWashington. In any action or suit to enforce any right or remedy under this\nAgreement the prevailing party shall be entitled to recover its reasonable\nattorneys' fees and costs.\n\n 12.4 In the event any provision of this Agreement is rendered null,\nvoid or otherwise ineffective in any given country or any political subdivision\nin a given country, then (i) the parties agree to negotiate in good faith an\nacceptable alternative provision which reflects as closely as possible the\nintent of the unenforceable provision and which shall apply only with respect to\nthat portion of the Territory in which the original provision is rendered null,\nvoid or otherwise ineffective and (ii) notwithstanding, and regardless of\nwhether the parties reach agreement after the good faith negotiations described\nin clause (i) immediately above, the validity, legality and enforceability of\nthe remaining provisions of this Agreement with respect to such portion of the\nTerritory (and of all of the provisions of this Agreement with respect to the\nbalance of the Territory) shall not in any way be affected or impaired thereby\nand shall remain in full force and effect. Section and all other headings used\nherein are provided for convenience only and are not to be given any legal\neffect or considered in interpreting any provision of this Agreement. No\nprovision of this Agreement shall be interpreted against any party because such\nparty or its legal representative drafted such provision.\n\n 12.5 Except as expressly permitted hereunder or in Exhibit D hereto,\nneither party may transfer, assign or sublicense this Agreement, or any rights\nor obligations hereunder, whether by contract or by operation of law, except\nwith the express written consent of the other party, and any attempted transfer,\nassignment or sublicense by a party in violation of this Section shall be void.\nFor purposes of this Agreement, an \"transfer\" under this Section shall be deemed\nto include, without limitation, the following: (a) a merger or any other\ncombination of an entity with another party (other than a reincorporation of\nInktomi from the State of California to the State of Delaware), whether or not\nthe entity is the surviving entity; (b) any transaction or series of\ntransactions whereby a third party acquires direct or indirect power to control\nthe management and policies of an entity, whether through the acquisition of\nvoting securities, by contract, or otherwise; (c) in the case of Inktomi, the\nsale or other transfer of Inktomi's search engine business or any other\nsubstantial portion of Inktomi's assets (whether in a single transaction or\nseries of transactions), or (d) the transfer of any rights or obligations in the\ncourse of a liquidation or other similar reorganization of an entity (other than\na reincorporation of Inktomi from the State of California to the State of\nDelaware). Neither party will unreasonably withhold or delay its consent to a\nrequested transfer, assignment or sublicense. Subject to the provisions of this\nSection, this Agreement shall be binding upon and inure to the benefit of each\nparty and their respective successors and assigns.\n\n 22\n\n\n \n 12.6 All rights and obligations of the parties hereunder are\npersonal to them. Except as otherwise specifically stated herein, this Agreement\nis not intended to benefit, nor shall it be deemed to give rise to, any rights\nin any third party.\n\n 12.7 Each party shall be responsible for compliance with all\napplicable laws, rules and regulations, if any, related to the performance of\nits obligations under this Agreement.\n\n\n 12.8 No waiver of any breach of any provision of this Agreement\nshall constitute a waiver of any prior, concurrent or subsequent breach of the\nsame or any other provisions hereof or thereof, and no waiver shall be effective\nunless made in writing and signed by an authorized representative of the waiving\nparty.\n\n 12.9 Neither party shall be liable hereunder by reason of any\nfailure or delay in the performance of its obligations hereunder during any\nevent of force majeure.\n\n 12.10 This Agreement, along with the Ancillary Agreements, together\ncontain the entire agreement of the parties with respect to the premises, and\nmay not be modified or amended except by a written instrument executed by the\nparty sought to be charged or bound thereby.\n\n 12.11 The parties acknowledge that there may be instances during the\nTerm when, notwithstanding the Non-Disclosure Agreement referred to in Section\n10.1 above, Inktomi will not wish to disclose or have Microsoft become aware\n(through inspection or otherwise) of certain confidential and proprietary\ninformation of Inktomi relating to its business and\/or technology. In those\ninstances, the parties agree to work together in a spirit of cooperation to work\naround such disclosure so that Inktomi is able to perform the Services to\nMicrosoft's reasonable satisfaction and otherwise discharge its obligations\nunder this Agreement without making such disclosure.\n\n 12.12 Inktomi will notify Microsoft of all meetings of Inktomi's\nBoard of Directors (and all meetings of any executive committee of such Board),\nwith such notice being given at the same time and in the same manner as Inktomi\nnotifies the members of such Board (or executive committee, if applicable).\nMicrosoft shall have the right to designate one individual to attend (at\nMicrosoft's sole expense) each such meeting in a non-voting, observer capacity,\nand in this connection, Inktomi will provide to such individual copies of all\ninformation packages, slides and other review and\/or presentation materials (if\nany) made available to members of such Board relating to Inktomi's search engine\nbusiness; provided, however, that Inktomi shall have the right without prior\nwritten notice to exclude the Microsoft representative from any part of the\ndiscussion (and\/or refrain from delivering copies of materials) if the Board\ndetermines in good faith that the material to be discussed is privileged or of\nsuch a sensitive nature that such representative should not be present. In\naddition, Inktomi shall provide such representative with copies of all written\nmaterials supplied by Inktomi to potential third party investors during the\nTerm. All information learned by the representative by\n\n 23\n\n\n \nattending such meeting and all written materials delivered to the representative\nshall be treated as Confidential Information in accordance with the Non-\nDisclosure Agreement.\n \n 13. Insurance.\n --------- \n\n 13.1 Throughout the term of this Agreement, Inktomi shall\nprocure and maintain insurance coverage. Such insurance shall be in a form and\nwith insurers reasonably acceptable to Microsoft, and shall comply with the\nfollowing minimum requirements:\n\n (i) [*] Liability insurance with policy limits of not\nless than [*] Dollars (US$[*]) [*] each occurrence for [*] and [*] combined.\nSuch policy shall be the [*] including coverage for [*].\n\n (ii) [*] Liability Insurance with policy limits of not\nless than [*] (US$[*]) each claim with a [*] of not more than [*] Dollars\n(US$[*]). Such insurance shall include coverage for [*] (other than [*]) of [*]\n[*] including without limitation [*] and [*] as related to Inktomi's performance\nunder this Agreement.\n\n (iii) [*]. Inktomi shall at all times comply with all\napplicable workers' compensation, occupational disease, and occupational health\nand safety laws, statutes, and regulations to the full extent applicable. Such\nworkers' compensation and occupational disease requirements shall include\ncoverage for all employees of Inktomi, and for all [*] by Inktomi, [*]\n(including [*]) by [*] which arises out of or in connection with the performance\nof this Agreement by Inktomi. Satisfaction of these requirements shall include,\nbut shall not be limited to:\n\n a. full participation in any required governmental\n occupational injury and\/or disease insurance program, to the extent\n participation in such program is mandatory in any jurisdiction, and\n\n b. purchase of [*] and [*] insurance providing\n benefits to employees in full compliance with all applicable laws,\n statutes, and regulations (but only to the extent such coverage is not\n provided under a mandatory government program as in a. above), and\/or\n\n c. maintenance of a legally permitted and\n governmentally approved program of self insurance for [*] and [*].\n\n 24\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \nExcept to the extent prohibited by law, the program of Inktomi's compliance with\n[*] laws, statutes, and regulations in a., b., or c. above shall provide for a\nfull waiver of rights of subrogation against Microsoft, its directors, officers,\nand employees. If Inktomi, or any subcontractor retained by Inktomi, fails to\neffect and maintain a program of compliance with applicable [*] laws, statutes,\nand regulations, and Microsoft incurs liability or fines or is required by law\nto provide benefits to such employees, or to obtain coverage for such employees,\nInktomi shall indemnify Microsoft for such fines, payment of benefits to Inktomi\nor subcontractor employees or their heirs or legal representatives, and\/or the\ncost of effecting coverage on behalf of such employees. Any amount owed to\nMicrosoft by Inktomi pursuant to this indemnity may be deducted from any\npayments owed by Microsoft to Inktomi for performance of this Agreement.\n\n 13.2 Promptly following execution of this Agreement, Inktomi\nshall provide to Microsoft proof evidencing full compliance with the insurance\nrequirements set forth herein. Inktomi shall notify Microsoft in writing at\nleast fifteen (15) days in advance if Inktomi's insurance coverage is to be\ncanceled or materially altered so as not to comply with the requirements of this\nsection. In the event Inktomi fails to provide such proof or fails to provide\nsuch notice as requested herein, and in the event of liability or expense\nincurred by Microsoft as a result of such failure by Inktomi, Inktomi hereby\nagrees to indemnify Microsoft for all liability and expense (including\nreasonable attorneys' fees and expenses associated with establishing the right\nto indemnity) incurred by Microsoft as a result of such failure by Inktomi.\n\n 13.3 Inktomi agrees that Microsoft will not be responsible for\nloss of or damage to any personal property located on Microsoft premises\nbelonging to Inktomi or any subcontractor retained by Inktomi. This Section 13.3\nwill not apply to the moved Hosting Servers (as defined in the Software Hosting\nAgreement of even date herewith) if Microsoft exercises its right to require\nInktomi to move the Hosting Servers pursuant to Section 2.6.2 of said Software\nHosting Agreement.\n\n 13.4 Upon termination of this Agreement, Inktomi will maintain\nan extended reporting period providing that the claims first made and reported\nto the insurance company within one year after the end of this Agreement will be\ndeemed to have been made during the applicable policy period.\n\n 25\n\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \nExecuted as of the Effective Date on the signature dates below.\n\n\nINKTOMI CORPORATION MICROSOFT CORPORATION\n \n \nBy: \/s\/ David C. Peterschmidt By: \/s\/ Laura Jennings \n -------------------------- -------------------------\n \nDavid C. Peterschmidt, CEO Laura Jennings \n----------------------------- ----------------------------\n(printed name and title) (printed name and title)\n \nDate: July 24, 1997 Date: July 27, 1997 \n\n 26\n\n\n \n EXHIBIT A\n ---------\n\n PRODUCT SPECIFICATIONS\n ----------------------\n\n (32 pages follow)\n\n 27\n\n\n \n EXHIBIT A\n ---------\n\n\nYUKON REQUIREMENTS FOR THE INKTOMI SEARCH SERVICE\nMICROSOFT CONFIDENTIAL\n-----------------------------------------------------------------------\nVERSION: 1.0\nSTABILITY: High\nFILENAME: Yukon requirements for Inktomi search service.doc\nDATE: 07\/07\/97 3:57 PM\nAUTHOR(S): William Jones wjones\n-----------------------------------------------------------------------\n\n Page i of 32\n\n\n \n . Table of Contents\n\n[*]\n\n\n\n Page ii of 32\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \n1. OVERVIEW\n================================================================================\n\nThe goal of this document is to provide a reasonably complete list of Yukon\nrequirements for the Inktomi search service. Note that a number of the\nrequirements in this document are met by the existing search service but are\nincluded anyway for the sake of completeness.\n\nThe Section 2 lists all requirements according to area (Performance and\nScalability, Reliability and Fault Tolerance, ...) together with information on\nTarget Release and Due Date as defined below. The Appendix (Section 7) follows a\nsimilar organization and provides more detail on the requirements..\n\n[*]\n\n\n\n Page 1 of 32\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \n[*]\n\n\n\n\n Page 2 of 32\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \n[*]\n\n\n\n\n Page 3 of 32\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \n[*]\n\n\n \n Page 4 of 32\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \n[*]\n\n\n\n \n Page 5 of 32\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \n[*]\n\n\n\n Page 6 of 32\n\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \n[*]\n\n\n\n\n Page 7 of 32\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \n[*]\n\n\n\n\n Page 8 of 32\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \n[*]\n\n\n\n\n Page 9 of 32\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \n[*]\n\n\n\n\n Page 10 of 32\n\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \n[*]\n\n\n\n\n Page 11 of 32\n\n\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \n[*]\n\n\n\n\n\n Page 12 of 32\n\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \n[*]\n\n\n\n Page 13 of 32\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \n[*]\n\n\n\n Page 14 of 32\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \n[*]\n\n\n\n\n Page 15 of 32\n\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \n[*]\n\n\n\n\n Page 16 of 32\n\n\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \n[*]\n\n\n\n\n Page 17 of 32\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \n[*]\n\n\n\n Page 18 of 32\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \n[*]\n\n\n\n\n Page 19 of 32\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \n[*]\n\n\n\n\n Page 20 of 32\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \n[*]\n\n\n\n Page 21 of 32\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \n[*]\n\n\n\n\n Page 22 of 32\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \n[*]\n\n\n\n\n Page 23 of 32\n\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \n[*]\n\n\n\n Page 24 of 32\n\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \n[*]\n\n\n\n\n page 25 of 32\n\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \n[*]\n\n\n\n\n Page 26 of 32\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \n[*]\n\n\n\n\n Page 27 of 32\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \n[*]\n\n\n\n\n\n Page 28 of 32\n\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \n[*]\n\n\n\n\n Page 29 of 32\n\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \n[*]\n\n\n\n\n Page 30 of 32\n\n\n[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \n EXHIBIT B\n ---------\n\n\n[*]\n----------------\n\n. [*]: A \"[*]\" is a [*] which causes the system or a major component to [*]\n or renders it otherwise [*] (e.g. [*]; [*]; [*]; [*]).\n\n. [*]: A \"[*]\" is a [*] in which [*] of a component [*] from the behavior as\n [*] in the [*] of [*] or causes a component to [*] without [*] the [*]\n (e.g. [*] with [*]; [*]; [*] in [*]).\n\n. [*]: A \"[*]\" is a [*] in which a component [*] from [*] in a [*] or [*]\n (e.g. an [*]; [*] with [*]; [*]; [*]).\n\n[*]\n---------------\n\n[*] are determined by the [*] which shall determine the [*] and [*] of [*]. For\ninstance, a [*] that causes the system to [*] but the user is [*], might be [*].\nThe [*] includes representatives from [*], and [*].\n\nThe criteria used for determining [*] is as follows:\n\n. [*]: A \"[*]\" is a [*] for which a [*] is [*]. For all releases, this would\n be a [*] by which the [*] is [*]. For an [*], this [*] may also indicate a\n [*] that is [*] or [*] to [*]\n\n. [*]: A \"[*]\" is a [*] for which a [*] is [*], but [*].\n\n. [*]: A \"[*]\" is a [*] for which a [*] is [*].\n\nTIMETABLE FOR [*] AND [*]\/1\/\n-----------------------------------------------------------------\n\n\n<\/pre>\n
\n\n——————————————————————————————————–
\n[*] Plan \/2\/ [*] [*] [*]
\n——————————————————————————————————–<\/p>\n
\n
\n
\n
\n
\n[*] [*] [*] [*] [*]
\n——————————————————————————————————–
\n[*] [*] [*] [*] [*]
\n——————————————————————————————————–
\n[*] [*] [*] [*] [*]
\n——————————————————————————————————–<\/p>\n<\/c><\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
\/1\/ For each cell in the timetable, the time should be met for [*] or more of
\nthe [*].
\n\/2\/ Time within which Inktomi must provide a [*] and, if possible, a [*]
\n\/3\/Software that includes the [*] is [*] on the [*].
\n\/4\/ Software that includes the [*] is [*] in the [*].<\/p>\n
28<\/p>\n
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
\nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
\nTHE OMITTED PORTIONS.<\/p>\n
EXHIBIT C
\n ———<\/p>\n
SCALABILITY COST PROJECTIONS
\n —————————-<\/p>\n
\n\n GROSS
\n CAPITAL $<\/p>\n Size of Database<\/p>\n
50M 75M 100M<\/p>\n
\n
\n
\n
\n
\n 2M $ [*] $ [*] $ [*]
\n 4M $ [*] $ [*] $ [*]
\n [*] 6M $ [*] $ [*] $ [*]
\n 8M $ [*] $ [*] $ [*]
\n 10M $ [*] $ [*] $ [*]
\n 12M $ [*] $ [*] $ [*]
\n 14M $ [*] $ [*] $ [*]
\n 20M $ [*] $ [*] $ [*] <\/p>\n<\/c><\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
* [*] relating to [*] by the Product at [*] with (i) an [*] of less than [*] and
\n(ii) [*] than [*] containing [*] and (iii) [*] than [*] being [*] (i.e.,
\n[*]) [*].<\/p>\n
29<\/p>\n
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
\nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
\nTHE OMITTED PORTIONS.<\/p>\n
EXHIBIT D
\n ———<\/p>\n
Transfer of Control by Inktomi
\n ——————————<\/p>\n
If Inktomi requests Microsoft’s consent to a transfer as described in clause (a)
\nof Section 12.5 of this Software Development Agreement to which this Exhibit D
\nis appended, and Microsoft reasonably withholds its consent to such transfer (an
\n“Unconsented Transfer”), then Inktomi will nevertheless have the right to
\ntransfer this Agreement in connection with its proposed Unconsented Transfer
\nsubject to the following conditions precedent to the Unconsented Transfer:<\/p>\n
(i) Inktomi, at its sole cost and expense, and without any financing supplied
\nby Microsoft, will create a separate cluster of Hosting Servers for Microsoft
\nrequired to service Microsoft’s reasonably anticipated needs for a period of
\ntwelve months after the commencement of operation of such new and relocated
\ncluster (provided however that Microsoft will purchase, or fund (in accordance
\nwith the Loan Agreement of even date herewith) Inktomi’s purchase of, (whichever
\nMicrosoft elects) any new hosting servers beyond the Hosting Servers purchased
\nby Inktomi under the Software Hosting Agreement of even date herewith necessary
\nto service Microsoft’s reasonably anticipated needs as set forth above);<\/p>\n
(ii) Inktomi will relocate, at its sole cost and expense (including, without
\nlimitation, indemnifying Microsoft and holding it harmless against any and all
\nTaxes that arise as a direct or indirect result of the relocation of the Hosting
\nServers), all Hosting Servers referred to in clause (i) to a location designated
\nby Microsoft, in its sole discretion;<\/p>\n
(iii) Inktomi, at its sole cost and expense, will provide training to Microsoft
\npersonnel to the extent requested by Microsoft, to enable such personnel to use
\nand maintain the Microsoft Search Engine, and to create enhancements thereto,
\nwith reasonable competence (all as determined by Microsoft in its sole
\ndiscretion);<\/p>\n
(iv) Inktomi will grant to Microsoft an irrevocable, non-exclusive, royalty-
\nfree license to use the Product (and all required underlying Inktomi Technology)
\nsolely in connection with Microsoft’s operation of the Microsoft Search Engine
\n(which license shall include the right to create enhancements and other
\nderivative works based thereon for use in conjunction therewith) for such period
\nas Microsoft may require to transition its search engine services to non-Inktomi
\ntechnology (the “Transition Period”), and Inktomi will waive all royalties
\notherwise payable pursuant to this Software Development Agreement and\/or the
\nInformation Services Agreement of even date herewith; for the purposes of this
\nclause (iv), the Transition Period will commence at such time as Microsoft
\nassumes control over said separate cluster and begins itself operating the
\nMicrosoft Search Engine, and will continue thereafter for eighteen months (18)
\nor until the termination of said Software Development Agreement and Information
\nServices Agreement (whichever is longer);<\/p>\n
30<\/p>\n
(v) Inktomi will direct the Escrow Agent to release to Microsoft all
\nConfidential Materials held by the Escrow Agent, subject to Microsoft’s
\nagreement to use such Confidential Materials only in connection with its
\nlicensed rights under clause (iv) above; <\/p>\n
(vi) Inktomi will agree to reimburse Microsoft for all reasonable costs
\nincurred by Microsoft in transitioning its search engine to non-Inktomi
\ntechnology (whether created by Microsoft or by a third party); and<\/p>\n
(vii) Inktomi will cause the applicable proposed transferee of this Agreement to
\nassume, jointly and severally with Inktomi, all of Inktomi’s obligations
\nhereunder.<\/p>\n
Microsoft will cooperate with Inktomi and use its reasonable best efforts so as
\nto enable Inktomi to satisfy the foregoing conditions precedent in a timely
\nmanner. Upon satisfaction of the foregoing conditions precedent, said Software
\nHosting Agreement shall be deemed terminated pursuant to Section 10.1 thereof.
\nUpon expiration of the Transition Period, all rights granted to Microsoft to use
\nthe Product (other than Microsoft Technology, Joint Derivative Technology and
\nthe Microsoft Derivative Technology) and\/or any Inktomi Technology under the
\ntransitional license referred to in clause (iv) or otherwise shall cease, and
\nMicrosoft shall immediately return to Inktomi all Confidential Materials (and
\nall copies thereof), provided however that, notwithstanding any provision of the
\nAncillary Agreements to the contrary, the undertaking by Inktomi to indemnify
\nMicrosoft and hold it harmless against Taxes as provided in clause (ii) above
\nshall survive any such terminations.<\/p>\n
31<\/p>\n
SCHEDULE I
\n ———-<\/p>\n
ESCROW AGREEMENT<\/p>\n
THIS ESCROW AGREEMENT is entered into this ___ day of __________, 1997 by and
\namong INKTOMI CORPORATION (“Inktomi”), a California corporation, whose address
\nis 1900 South Norfolk Street, Suite 110, San Mateo, California 94403, DATA BASE,
\nINC. (“Escrow Agent”), a Washington corporation, whose address is 307 South
\n140th Street, Seattle, WA 98168, and MICROSOFT CORPORATION (“Microsoft”), a
\nWashington corporation whose address is One Microsoft Way, Redmond, WA 98052-
\n6399.<\/p>\n
A. Inktomi is the owner of computer programs and supporting documentation
\nthat contain confidential information and are protected under copyright and as
\ntrade secrets. Inktomi authorizes others to use the computer programs and
\ndocumentation under writtenagreements which, among other things, require the
\nother party to protect the confidentiality of Inktomi’s property.<\/p>\n
B. Computer programs can be expressed in machine-readable form, called
\nbinary code, and in human-readable form, called source code or source listings.
\nGenerally, parties are unable to modify or correct errors in the binary code
\nwithout having the source code.<\/p>\n
C. This escrow arrangement is provided to assure Microsoft of access to
\nthe source code, binary code and confidential supporting documentation in the
\nevent that Inktomi (i) discontinues all or substantially all of its search
\nengine business operations or (ii) ceases to provide software development, error
\ncorrection, product enhancements and upgrades, and regular maintenance of the
\ncomputer programs (collectively, “Support”) under and in accordance with the
\nSoftware Development Agreement and\/or the Information Services Agreement (the
\n“Agreements”) between Inktomi and Microsoft of even date herewith (as it may be
\namended by mutual agreement of Inktomi and Microsoft from time to time).<\/p>\n
THEREFORE, in consideration of the mutual covenants set forth in this
\nAgreement, Inktomi, Microsoft and Escrow Agent agree as follows:<\/p>\n
1. Confidential Materials.
\n ———————- <\/p>\n
1.1 Escrow Agent, as escrow agent, agrees to accept from Inktomi, for
\nstorage purposes only, confidential materials in the form of source code and
\nbinary code, program listings, supporting documentation, and other related
\nmaterials for certain computer programs owned by Inktomi (collectively,
\n“Confidential Materials”). Inktomi will furnish to Escrow Agent a list naming
\nor describing all computer programs for which Confidential Materials are
\ndeposited into escrow. This list shall be certified by Inktomi as complete and
\naccurate. A list of computer programs for which Confidential Materials are
\ncurrently on deposit with Escrow Agent is attached as Exhibit A to this
\nAgreement. This list will be supplemented and updated by Inktomi with each
\nfuture deposit or withdrawal of Confidential Materials. For each deposit,
\nEscrow Agent will issue receipts to Inktomi.<\/p>\n
1.2 Upon each deposit of Confidential Materials, Inktomi shall furnish to
\nMicrosoft a copy of the list provided to Escrow Agent pursuant to this Section
\n1. Such list shall constitute notice to Microsoft that the Confidential
\nMaterials listed thereon have been deposited with Escrow Agent. Upon the
\nrequest of Microsoft, Escrow Agent shall supply to Microsoft copies of all lists
\nfurnished by Inktomi to Escrow Agent hereunder. Escrow Agent shall not be
\nrequired to determine the accuracy or completeness of the list(s) furnished by
\nInktomi hereunder, nor shall Escrow Agent be responsible for Confidential
\nMaterials not actually deposited with it, whether or not such Confidential
\nMaterials were required to be deposited under the terms of this Agreement, any
\nlicense agreement between Inktomi and Microsoft or any other agreement.<\/p>\n
2. Retention of Confidential Materials. Escrow Agent agrees to hold in
\n ———————————–
\nsafekeeping the Confidential Materials deposited hereunder, and shall release or
\ndisclose any or all such Confidential Materials only in accordance with the
\nterms of this Agreement.<\/p>\n
3. Release of Confidential Materials. Inktomi authorizes Escrow Agent to
\n ———————————
\nrelease Confidential Materials only as follows:<\/p>\n
(a) Escrow Agent shall release to Inktomi all Confidential Materials
\nrequested by written demand of both Inktomi and Microsoft, provided that such
\nConfidential Materials are specifically identified to the satisfaction of Escrow
\nAgent, and provided that all fees payable to Escrow Agent for performance of its
\nservices hereunder have been fully paid.<\/p>\n
(b) Provided that all fees payable to Escrow Agent for the performance of
\nits services hereunder have been fully paid, all Confidential Materials shall be
\nreturned to Inktomi at any time that Escrow Agent ceases doing business or is
\nunable to hold the same in accordance with the terms of this Agreement due to
\nforces beyond its reasonable control; provided however, that Escrow Agent gives
\nsuch advance notice to Inktomi and Microsoft as is reasonably practicable, but
\nin no event less than thirty (30) days.<\/p>\n
(c) In the event of (1) a demand by Microsoft pursuant to Subsection 4.1
\nhereof which is not disputed by Inktomi in the manner and within the time
\nprescribed in Subsection 4.2 hereof, or (2) a determination by the panel of
\narbitrators in accordance with Section 5 hereof that (A) the applicable
\nAgreement remains in force and effect and (B) Inktomi has discontinued all or
\nsubstantially all of its search engine business operations or has ceased to
\nSupport the Confidential Materials on a timely basis as required under the terms
\nof the applicable Agreement, then Escrow Agent shall, upon the receipt from
\nMicrosoft of full payment for the costs and expenses of duplication, make
\nduplicate copies of those Confidential Materials which relate to the computer
\nprogram or programs with respect to which demand is made and shall deliver such
\nduplicate copies to Microsoft. Escrow Agent agrees that the “Write-Protect
\nRing” on magnetic tape reels furnished to Escrow Agent by Inktomi shall not be
\nremoved at any time.<\/p>\n
(d) Escrow Agent shall release such Confidential Materials to such persons
\nand in such manner as shall be directed by order of any court of competent
\njurisdiction pursuant to <\/p>\n
-2-<\/p>\n
Section 6 or otherwise. Escrow Agent may also release Confidential Materials
\npursuant to the provisions of Section 11 below.<\/p>\n
4. Demand and Dispute.
\n —————— <\/p>\n
4.1 In the event Microsoft desires release of Confidential Materials
\nrelating to one or more computer programs, Microsoft shall make written demand
\non Escrow Agent therefor, specifically designating the computer program or
\nprograms for which Confidential Materials are requested. Such demand must be
\naccompanied by all of the following documents and certificates, each executed
\nunder oath by an authorized officer or representative of Microsoft:<\/p>\n
(a) A certified true copy of a notice that Microsoft has mailed to
\nInktomi at the address stated in this Agreement. The notice must contain a
\nstatement that Microsoft has determined that Inktomi has discontinued all or
\nsubstantially all of its search engine business operations or has ceased to
\nSupport the Confidential Materials on a timely basis as required under the terms
\nof the Agreements.<\/p>\n
(b) A certificate stating that (i) Microsoft mailed to Inktomi,
\nregistered or certified mail, the notice described in Paragraph 4.1(a) above,
\nand that ten (10) business days have elapsed from such mailing without response
\nfrom Inktomi, and (ii) before mailing the notice, Microsoft made a request upon
\nInktomi for support services and Microsoft did not receive a response to such
\nrequest or received a response to the effect that Inktomi was unable or
\nunwilling to provide such services or Inktomi in fact did not timely provide
\nsuch services.<\/p>\n
(c) A copy of each of the Agreements, as executed by Inktomi and such
\nMicrosoft, together with a statement by Microsoft, certified by Microsoft, that
\nthe copies of the Agreements are true copies, and that the applicable
\nAgreement(s) is(are) still in force and grants Microsoft the rights to use the
\ncomputer program or programs for which Confidential Materials are requested.<\/p>\n
(d) A certificate stating that Microsoft will pay in advance for all
\nexpenses and costs of copying the Confidential Materials requested.<\/p>\n
(e) A Confidentiality and Use Limitation Certificate, in the form of
\nExhibit B attached hereto, for the benefit of Escrow Agent, Inktomi and any
\nsuccessor of either.<\/p>\n
(f) A certificate stating that Microsoft shall indemnify and hold
\nharmless Escrow Agent from and against any and all losses, damages, and expenses
\n(including attorney’s fees) that may be incurred by Microsoft and\/or Escrow
\nAgent by reason of Escrow Agent’s compliance in good faith with the terms of
\nthis Agreement.<\/p>\n
4.2 Upon receipt of a demand and all required supporting documents
\ndescribed in Subsection 4.1 hereof, Escrow Agent shall promptly give notice to
\nInktomi of such receipt and transmit with such notice a copy of such demand and
\nall accompanying documents. Inktomi or its successor may dispute such demand,
\nat any time within ten (10) business days following <\/p>\n
-3-<\/p>\n
Escrow Agent’s notice to Inktomi hereunder by (i) giving written notice to
\nEscrow Agent that it continues to conduct all or substantially all of its search
\nengine business operations and continues to Support the Confidential Materials
\non a timely basis as required under the terms of the Agreements, or (ii)
\notherwise specifically denying any statements made by Microsoft in one or more
\nof the documents described in Paragraphs 4.1(a), (b) or (c) hereof. Such notice
\nshall be accompanied by a certificate to Escrow Agent stating that Inktomi will
\nsubmit to arbitration under the terms and conditions described in Section 5
\nhereof and abide by any decision rendered by the arbitrators in connection
\ntherewith.<\/p>\n
4.3 Upon receipt of Inktomi’s notice of dispute as provided in Subsection
\n4.2 hereof, Escrow Agent shall promptly give notice to Microsoft of such receipt
\nand transmit with such notice a copy of such documents received from Inktomi
\nrelating to such dispute. Subject to the last sentence of this Subsection 4.3,
\nMicrosoft shall, within thirty (30) days following receipt of Inktomi’s notice
\nof dispute, furnish Escrow Agent with a certificate stating that Microsoft will
\nsubmit to Arbitration under the terms and conditions described in Section 5
\nhereof and abide by any decision rendered by the arbitrators in connection
\ntherewith. Microsoft may withdraw its demand for release of the Confidential
\nMaterials at any time by giving Escrow Agent and Inktomi written notice of such
\nwithdrawal.<\/p>\n
5. Arbitration. Upon the earlier of the expiration of the thirty (30) day
\n ———–
\nperiod described in Subsection 4.3 or the receipt by Escrow Agent of Microsoft’s
\ncertificate described in Subsection 4.3, the matter shall be submitted to
\narbitration proceedings in Seattle, Washington, which proceedings shall be
\nconducted under the commercial rules then prevailing of the American Arbitration
\nAssociation, by a panel of not less than three professional experts in the field
\nof computer software technology. Each party will choose one arbitrator and the
\ntwo arbitrators so chosen will choose a third. If the two designated
\narbitrators do not so choose a third within thirty (30) days, either party may
\napply to the local Superior Court to appoint a third arbitrator. The sole issue
\nfor arbitration shall be whether the Agreements remain in force and effect and
\nwhether Inktomi has discontinued all or substantially all of its search engine
\nbusiness operations or has ceased to Support the Confidential Materials on a
\ntimely basis as required under the terms of either or both of the Agreements.
\nIf the arbitrators determine that Inktomi has discontinued all or substantially
\nall of its search engine business operations or has ceased to Support the
\nConfidential Materials on a timely basis, the arbitrators shall order the
\nrelease of Confidential Materials. The prevailing party in the arbitration
\nproceedings shall be awarded reasonable attorneys’ fees, expert and non-expert
\nwitness costs and expenses, and all other costs and expenses incurred directly
\nor indirectly in connection with the proceedings, unless the arbitrators for
\ngood cause determine otherwise. The decision of the arbitrators shall be final
\nand binding on the Inktomi and Microsoft and may be entered and enforced in any
\ncourt of competent jurisdiction.<\/p>\n
6. Interpleader. Notwithstanding any other provisions of this Agreement, if
\n ————
\nEscrow Agent receives a written demand from Microsoft for release of
\nConfidential Materials and Escrow Agent is uncertain whether Inktomi’s exercise
\nof its right to dispute such demand pursuant to Subsection 4.2 hereof was timely
\nor otherwise effective, then Escrow Agent may, in its sole discretion, begin an
\ninterpleader action, pursuant to applicable law, and deposit the Confidential<\/p>\n
-4-<\/p>\n
Materials with the clerk of the court or withhold release of the Confidential
\nMaterials until instructed otherwise by the court order.<\/p>\n
7. Fees. Microsoft shall pay to Escrow Agent, in advance, fees at the standard
\n —-
\nrate prescribed from time to time by Escrow Agent for performance of services
\nhereunder. Prices will be revised annually in accordance with Escrow Agent’s
\nregular schedule of fees.<\/p>\n
8. No Duty to Inquire into Truth, Authenticity or Authority; Right to Require
\n ————————————————————————–
\nAdditional Documents. Escrow Agent shall not be required to inquire into the
\n——————–
\ntruth of any statements or representatives contained in any notices,
\ncertificates or other documents required or otherwise provided hereunder, and
\nshall be entitled to assume that the signatures on such documents are genuine,
\nthat the persons signing on behalf of any party thereto are duly authorized to
\nexecute the same, and that all actions necessary to render any such documents
\nbinding on the party purportedly executing the same have been duly undertaken.
\nWithout in any way limiting the foregoing, Escrow Agent may in its discretion
\nrequire from Inktomi or Microsoft additional documents which it deems to be
\nnecessary or desirable in the course of performing its obligations hereunder.<\/p>\n
9. Waiver of Claims.
\n —————- <\/p>\n
(a) Inktomi hereby waives any claim for damages or otherwise which it may
\nhave against Escrow Agent for any acts undertaken by Escrow Agent pursuant to
\nMicrosoft’s direction in Escrow Agent’s good faith compliance with the terms of
\nthis Agreement.<\/p>\n
(b) Microsoft hereby waives any claim for damages or otherwise which it
\nmay have against Escrow Agent for any acts undertaken by Escrow Agent pursuant
\nto Inktomi’s direction in Escrow Agent’s good faith compliance with the terms of
\nthis Agreement.<\/p>\n
10. Notices. Notices under this Agreement shall be in writing, addressed to
\n ——-
\nthe parties at the addresses listed in this Agreement, or to such other
\naddresses as a party shall have designated by notice to the other parties, and
\nshall be delivered by registered or certified mail, return receipt requested, to
\nthe intended recipient. Notices shall be deemed to have been given and received
\n(i) when signed for on the return receipt, or (ii) if the party to receive
\nnotice refuses to sign the return receipt or cannot be located after the
\nexercise of due diligence, three (3) business days after deposit of the notice
\nin the U.S. mail, properly addressed, with postage prepaid.<\/p>\n
11. Termination.
\n ———– <\/p>\n
(a) This Agreement shall terminate upon termination of both the
\nAgreements. Upon such termination, Inktomi shall give written notice to Escrow
\nAgent, and provide a copy of such notice to Microsoft in the manner set forth in
\napplicable notice provisions of the Agreements. Unless Microsoft disputes such
\nnotice by written notice to that effect to Escrow Agent and Inktomi within ten
\n(10) business days (the “Objection Period”) after Microsoft’s receipt of said
\nnotice from Inktomi, and provided that all fees payable to Escrow Agent for the
\nperformance of <\/p>\n
-5-<\/p>\n
its services hereunder have been fully paid, Escrow Agent shall release and
\nreturn all Confidential Materials to Inktomi promptly after the expiration of
\nthe Objection Period.<\/p>\n
(b) Except as provided in Subsection 11(a) above or Section 1 hereof with
\nrespect to modification of Exhibit A hereto, this Agreement may not be
\nterminated or modified except in writing signed by Escrow Agent, Inktomi and
\nMicrosoft. Escrow Agent may, at any time, terminate this Agreement by resigning
\nas escrow agent hereunder. Escrow Agent shall provide Inktomi and Microsoft
\nninety (90) days advance written notice of its intention to resign. Unless
\nwithin such period Escrow Agent receives written notice from the Inktomi and
\nMicrosoft instructing Escrow Agent to deliver the Confidential Materials to one
\nor both of the parties, or to a third party, Escrow Agent shall deliver the
\nConfidential Materials to Inktomi.<\/p>\n
(c) Upon the delivery of the Confidential Materials to one or both of the
\nparties, or to a third party, as permitted hereunder, all obligations of Escrow
\nAgent under this Agreement shall cease.<\/p>\n
12. Bankruptcy. In the event of the commencement of a case by or against
\n ———-
\nInktomi pursuant to 11 U.S.C. Sections 301, 302, or 303, Microsoft may elect to
\nretain its right under this Agreement pursuant to 11 U.S.C. Section 365 (n). In
\nthis regard, the Confidential Materials shall be deemed to be “intellectual
\nproperty” within the meaning of 11 U.S.C. Section 101. Inktomi’s obligations
\nunder this Agreement shall be binding on Inktomi’s successors, including any
\ntrustee or debtor in possession that may succeed to Inktomi’s rights under this
\nAgreement.<\/p>\n
13. Miscellany.
\n ———- <\/p>\n
13.1 This Agreement shall be construed, enforced, performed and in all
\nrespects governed by and in accordance with the laws in the State of Washington.
\nIn any action or suit to enforce any right or remedy under this Agreement the
\nprevailing party shall be entitled to recover its reasonable attorneys’ fees and
\ncosts.<\/p>\n
13.2 In the event any provision of this Agreement is rendered null, void
\nor otherwise ineffective, then (i) the parties agree to negotiate in good faith
\nan acceptable alternative provision which reflects as closely as possible the
\nintent of the unenforceable provision and (ii) notwithstanding, and regardless
\nof whether the parties reach agreement after the good faith negotiations
\ndescribed in clause (i) immediately above, the validity, legality and
\nenforceability of the remaining provisions of this Agreement shall not in any
\nway be affected or impaired thereby and shall remain in full force and effect.
\nSection and all other headings used herein are provided for convenience only and
\nare not to be given any legal effect or considered in interpreting any provision
\nof this Agreement. No provision of this Agreement shall be interpreted against
\nany party because such party or its legal representative drafted such provision.<\/p>\n
13.3 Subject to such rights as Microsoft and\/or Inktomi may have under the
\nAgreements, no party hereto shall voluntarily or by operation of law assign,
\nsublicense, transfer, encumber or otherwise dispose of all or any part of its
\ninterest in this Agreement without the prior written consent of the non-
\nassigning party. Any attempted assignment, sub-license, <\/p>\n
-6-<\/p>\n
transfer, encumbrance or other disposal without such consent shall be void and
\nshall constitute a material default and breach of this Agreement. Subject to the
\nprovisions of this Section, this Agreement shall be binding upon and inure to
\nthe benefit of each party and their respective successors and assigns.<\/p>\n
13.4 All rights and obligations of the parties hereunder are personal to
\nthem. Except as otherwise specifically stated herein, this Agreement is not
\nintended to benefit, nor shall it be deemed to give rise to, any rights in any
\nthird party.<\/p>\n
13.5 Each party shall be responsible for compliance with all applicable
\nlaws, rules and regulations, if any, related to the performance of its
\nobligations under this Agreement.<\/p>\n
13.6 No waiver of any breach of any provision of this Agreement shall
\nconstitute a waiver of any prior, concurrent or subsequent breach of the same or
\nany other provisions hereof or thereof, and no waiver shall be effective unless
\nmade in writing and signed by an authorized representative of the waiving party.<\/p>\n
13.7 This Escrow Agreement (and, as between Inktomi and Microsoft, the
\nAgreements) contains the entire agreement of the parties with respect to the
\npremises, and may not be modified or amended except by a written instrument
\nexecuted by the party sought to be charged or bound thereby.<\/p>\n
13.8 For the purposes of this Agreement, Inktomi and Microsoft hereby
\ndesignate the following individuals (and such additional individuals or
\nsubstitutes therefor as may hereafter be designated by written notice from
\nInktomi or Microsoft, whichever is applicable) as having the authority to
\nprovide directions to Escrow Agent hereunder:<\/p>\n
Inktomi designates: David Peterschmidt, Jerry Kennelly<\/p>\n
Microsoft designates: ____________________________________________<\/p>\n
Executed as of the date first written above.<\/p>\n
-7-<\/p>\n
Escrow Agent: DATA BASE, INC.
\n————<\/p>\n
Data Base, Inc. By:____________________________
\n307 South 140th Street
\nSeattle, WA 98168 Print Name:____________________<\/p>\n
Title:_________________________<\/p>\n
Date:__________________________<\/p>\n
INKTOMI CORPORATION
\nInktomi:
\n——-<\/p>\n
Inktomi Corporation By:____________________________
\n1900 South Norfolk Street, Suite 110
\nSan Mateo, CA 94403 Print Name:____________________
\nATTN: General Counsel
\n Title:_________________________<\/p>\n
Date:__________________________<\/p>\n
MICROSOFT CORPORATION
\nMicrosoft:
\n———<\/p>\n
Microsoft Corporation By:____________________________
\nOne Microsoft Way
\nRedmond, WA 98053-6399 Print Name:____________________
\nATTN: Law & Corporate Affairs, U.S. Legal
\n Title:_________________________<\/p>\n
Date:__________________________<\/p>\n
-8-<\/p>\n
EXHIBIT A
\n ———
\n COMPUTER PROGRAMS FOR WHICH CONFIDENTIALMATERIALS ARE DEPOSITED
\n WITH ESCROW AGENT<\/p>\n
-9-<\/p>\n
EXHIBIT B
\n ———
\n CONFIDENTIALITY AND USE LIMITATION CERTIFICATE<\/p>\n
STATE OF WASHINGTON )
\n )
\nCOUNTY OF KING )<\/p>\n
The undersigned, being first duly sworn upon oath, does state as follows:<\/p>\n
1. The undersigned has certain rights in and to certain computer programs and
\ndata, under a Software Development Agreement and Search Results Agreement(the
\n“Agreements”) between the undersigned and Inktomi Corporation, a California
\ncorporation (“Inktomi”).<\/p>\n
2. The undersigned has demanded, and expects to receive, source listings
\nand\/or other related documentation for such computer programs (“Confidential
\nMaterials”). These materials are the confidential and proprietary information of
\nInktomi, and Inktomi claims protection thereof under applicable of copyright and
\ntrade secret law.<\/p>\n
3. Upon receipt of the Confidential Materials, the undersigned shall limit the
\nuse thereof solely for purposes of installation, operation, maintenance,
\nmodification and enhancement of the computer programs. The Confidential
\nMaterials, and any copies thereof, shall be used by the undersigned for internal
\npurposes only, and the undersigned shall not make any use of the binary\/object
\ncodes translated from the Confidential Materials, except as expressly permitted
\nunder the Agreements. At all times that the undersigned is entitled to use the
\nConfidential Materials, the undersigned shall continue to pay to Inktomi all
\nroyalties and other amounts which Inktomi is entitled to receive under the
\nAgreements.<\/p>\n
4. The Confidential Materials shall at all times remain the sole and exclusive
\nproperty of Inktomi, and the delivery thereof to the undersigned shall not be
\ndeemed a grant or transfer of such proprietary interests to the undersigned. The
\nundersigned accepts the Confidential Materials in strict confidence, and shall
\nnot make available, provide or otherwise allow or permit the provision, directly
\nor indirectly, of the Confidential Materials, or any part or portion thereof, in
\nany form, representation, or medium, to any person or entity other than the
\nauthorized personnel or consultants of the undersigned.<\/p>\n
5. The undersigned agrees that Inktomi and DATA BASE, INC. (“Escrow Agent”), a
\nWashington corporation, and any successor thereto or employees or agents
\nthereof, may rely upon this Certificate and the representations made herein for
\nthe delivery of the Confidential Materials to the undersigned, and the
\nundersigned agrees to indemnify and hold harmless such persons and entities from
\nand against any and all losses, damages and expenses (including attorneys’ fees)
\narising out of the undersigned’s failure to use the Confidential Materials in
\naccordance with this Certificate or the Agreements, or otherwise as a result of
\nany release of any Confidential Materials by Escrow Agent in response to the
\nundersigned’s request.<\/p>\n
6. Notwithstanding anything to the contrary, this Certificate shall not limit
\nor enlarge the rights or obligations of the parties under the Agreements.<\/p>\n
DATED this _____ day of ____________, 19___.<\/p>\n
MICROSOFT CORPORATION<\/p>\n
By:___________________________<\/p>\n
Print Name:___________________<\/p>\n
Title:________________________<\/p>\n
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