{"id":42802,"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-hosting-agreement-inktomi-corp-and-microsoft-corp.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"software-hosting-agreement-inktomi-corp-and-microsoft-corp","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/software-hosting-agreement-inktomi-corp-and-microsoft-corp.html","title":{"rendered":"Software Hosting Agreement &#8211; Inktomi Corp. and Microsoft Corp."},"content":{"rendered":"<pre>\n                          SOFTWARE HOSTING AGREEMENT\n                                        \nThis Software Hosting Agreement (the \"Agreement\") is entered into and effective\nas of the later of the two signature dates below (the \"Effective Date\") INKTOMI\nCORPORATION (\"Inktomi\"), a California corporation, 1900 South Norfolk Street,\nSuite 110, San Mateo, California 94403, and MICROSOFT CORPORATION (\"Microsoft\"),\na Washington Corporation, One Microsoft Way, Redmond, Washington 98052-6399,\nwith 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 a \"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.   Pursuant to that certain Software Development Agreement between the\nparties executed as of the Effective Date (the \"Software Development\nAgreement\"), Inktomi is customizing its Internet search engine software for\nMicrosoft.\n\n     D.   Microsoft desires that Inktomi host and maintain the customized search\nengine on servers owned by Inktomi and located at a facility selected by Inktomi\nin California, and Inktomi desires to provide such hosting and maintenance\nservices, on the terms and conditions contained herein.\n\n                                   Agreement\n\n\nAccordingly, Inktomi and Microsoft hereby agree as follows:\n\n\n     1.   Definitions.\n          -----------  \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 Software Development Agreement of even date\nherewith; (ii) the Information Services Agreement of even date herewith; (iii)\nthe Loan Agreement of even date herewith, and any and all \"Promissory Notes\"\nand\/or \"New Note\" executed pursuant thereto; (iv) the Security Agreement of even\ndate herewith; and (v) the Escrow Agreement of even date herewith.\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          1.2  \"Deployment, Hosting and Maintenance Specifications\" shall mean\nthe specifications for the Services attached to this Agreement as Exhibit A, as\nit may be amended from time to time by mutual agreement of the parties, which\nagreement shall not be unreasonably withheld by either party; if and when the\nDeployment, Hosting and Maintenance Specifications are modified in accordance\nwith Section 2.2 below, the parties shall initial the new Deployment, Hosting\nand Maintenance Specifications or amendments to the existing Deployment, Hosting\nand Maintenance Specifications, and immediately following the last initialing\nsuch new Deployment, Hosting and Maintenance Specifications or amendments shall\nautomatically be deemed to supercede or supplement (as the case may be) Exhibit\nA.\n\n          1.3  \"Hosting Servers\" shall mean those servers (including both the\nsearch engine cluster and the crawling cluster) and other hardware and third\nparty software identified in the Deployment, Hosting and Maintenance\nSpecifications that shall be used to host or service the Microsoft Search Engine\nand Usage Data.\n\n          1.4  \"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          1.5  \"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          1.6  \"Microsoft Search Engine\" will mean those versions of the Product\ndeveloped to Microsoft specifications pursuant to said Software Development\nAgreement and used to generate search results for Microsoft (or for third\nparties requesting searches through Microsoft) under said Information Services\nAgreement.\n\n          1.7  \"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 hereunder (as permitted under the Information Services Agreement), then\nthe site(s) of such Microsoft sublicensee(s) will be deemed to be Microsoft\nSite(s).\n\n          1.8  \"Product\" shall mean that certain customized search engine\nsoftware developed by Inktomi for Microsoft pursuant to the Software Development\nAgreement, as more specifically described in said Software Development\nAgreement.\n\n                                       2\n\n \n          1.9  \"Security Measures\" shall mean those procedures and precautions\ndescribed in Exhibit A, for maintaining the security of the Product and Usage\nData required under this Agreement.\n\n          1.10 \"Services\" shall mean the deployment, hosting and maintenance of\nthe Product as described under this Agreement.\n\n          1.11 \"Term\" means the period of time commencing on the Effective Date\nand continuing thereafter indefinitely until this Agreement is terminated\npursuant to Section 10 below.\n\n          1.12 \"Usage Data\" means such data as Inktomi may collect relating to\nthe usage of (i) the Product by Microsoft and end users, and\/or (ii) the Hosting\nServers.\n\n          1.13 \"Web\" means the so-called World Wide Web, containing, inter alia,\nWeb Pages written in hypertext markup language (HTML) and\/or any similar\nsuccessor technology.\n\n          1.14 \"Web Indexing Data\" means such data as Inktomi may collect\nrelating to the documents crawled by its crawling software in connection with\nits operation of the Product.\n\n          1.15 \"Web Page\" means a document on the Web which may be viewed in its\nentirety without leaving the applicable distinct URL address.\n\n          1.16 \"Web Site\" means a collection of inter-related Web Pages.\n\n     2.   Services.\n          -------- \n\n          2.1  Inktomi shall deploy, host and maintain the Product and Hosting\nServers in accordance with the Deployment, Hosting and Maintenance\nSpecifications and the other terms and conditions contained in this Agreement.\nInktomi agrees that the Services shall be performed in a professional manner and\nshall be of a high grade, nature, and quality.\n\n          2.2  The parties contemplate that there may be additions, deletions or\nother changes which may affect the Deployment, Hosting and Maintenance\nSpecifications from time to time during the Term. Subject to Sections 2.2.1\nthrough 2.2.3 below, any such additions, deletions or other changes to the\nDeployment, Hosting and Maintenance Specifications shall be mutually agreed to\nby Inktomi and Microsoft. Upon such mutual agreement (or, if mutual agreement is\nnot required, upon notice of any such changes desired by Microsoft), Inktomi\nshall alter the Services in order to accommodate the revised Deployment, Hosting\nand Maintenance Specifications.\n\n                                       3\n\n \n               2.2.1  Inktomi and Microsoft will confer not less frequently than\nmonthly regarding the appropriate size (including hardware requirements) and\ncapacity of the Hosting Server cluster, and Inktomi will supply all available\nand relevant usage data it may have; Microsoft will specify its capacity\ndesires, and, notwithstanding anything contained herein to the contrary, any and\nall changes in capacity (including without limitation, number of Hosting Servers\nand connectivity capacity) requested by Microsoft shall be deemed acceptable to\nInktomi, and Inktomi shall conform to such new capacity requirements in\naccordance with the timetable specified by Microsoft.\n\n               2.2.2  Inktomi will deploy the capacity requested by Microsoft\nhereunder within the timeframe specified in the Deployment, Hosting and\nMaintenance Specifications, or as otherwise may be agreed by Microsoft and\nInktomi at such time.\n\n               2.2.3  At each monthly conference referred to above in Section\n2.2.1, Inktomi will state its good faith estimate of the hardware and capacity\nneeds for itself and its other customers. At its sole cost and expense, Inktomi\npromptly will provision for such hardware and capacity needs, and supply\nMicrosoft with a list of the hardware provisioned and an officer's certification\nthat Inktomi has made such provisions. Upon Microsoft's request (but not more\noften than twice in any calendar year), Inktomi will supply Microsoft with\ndocumentation evidencing such provisioning.\n\n          2.3  In accordance with its performance of the Services, Inktomi may\ncollect and\/or possess Web Indexing Data and Usage Data.\n\n               2.3.1  As between Inktomi and Microsoft, Inktomi will own all\nrights in and to Web Indexing Data. However, Inktomi will provide Microsoft with\naccess to the Web Indexing Data solely for purposes of managing, marketing and\npromoting the Microsoft Search Engine.\n\n               2.3.2  All Usage Data shall be owned jointly by Microsoft and\nInktomi, and Inktomi hereby irrevocably assigns to Microsoft an [*]\ninterest therein. However, Inktomi shall not have the right to share any of such\nUsage Data with third parties (except that Inktomi may include Usage Data as\npart of \"gross\" undifferentiated data which it shares with other search engine\ncustomers but does not indicate as Usage Data related to the Microsoft Search\nEngine).\n\n          2.4  Inktomi shall provide to Microsoft all reports described in the\nDeployment, Hosting and Maintenance Specifications, in accordance with the terms\ntherein.\n\n                                       4\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          2.5  Inktomi shall strictly adhere to all Security Measures in\nperforming the Services, including without limitation securing the Usage Data,\nwhich it may possess or have under its control from time to time, from\nunauthorized access and modification.\n\n          2.6  Microsoft will have the right, in its sole and absolute\ndiscretion, to require Inktomi to devote a separate cluster of Hosting Servers\nto servicing Microsoft hereunder, which Servers would not be used to service any\nneeds of Inktomi and\/or any third parties. The Hosting Servers purchased by\nInktomi at Microsoft's request hereunder would be re-deployed to such separate\ncluster.\n\n               2.6.1  If Microsoft notifies Inktomi in writing that it desires\nsuch a separate cluster, Microsoft shall reimburse Inktomi for all actual,\ndirect expenses incurred and paid by Inktomi for equipment (other than Hosting\nServers, which shall be purchased by Inktomi with financing loaned by Microsoft\nas set forth elsewhere herein) and services of necessary subcontractors (but not\nservices of Inktomi employees) required to create and set up such separate\ncluster, but Microsoft's obligations to make any payments to Inktomi pursuant to\nclause (a) of Section 4.1 below will cease and terminate effective on the date\nsuch separate cluster becomes operational.\n\n               2.6.2  Nothing contained in this Agreement will be deemed to\nrequire Microsoft to deploy the Product in Hosting Servers owned by Inktomi, or\nto require Microsoft to continue to utilize Inktomi's services to host the\nProduct at any time during the Term; without limitation, Microsoft will have the\nright to deploy the Product, in whole or in part, at other site(s) (whether\nowned by Microsoft or third parties) during the Term. If Microsoft elects to\ndeploy and operate the Product at other sites, Inktomi will take all steps\nnecessary or appropriate to facilitate such other deployment and operation;\nwithout limitation, Inktomi will move any and all Hosting Servers to any\nlocation(s) designated by Microsoft (costs of relocation, including shipping and\ninsurance, to be borne exclusively by Microsoft), and Inktomi will provide\ntraining to Microsoft personnel and\/or others designated by Microsoft to enable\nthem to satisfactorily operate and maintain the Product and Hosting Servers\nwherever located. Notwithstanding anything to the contrary contained in this\nAgreement, Microsoft will not be obligated to make any payments to Inktomi\npursuant to clauses (a), (e) and\/or (f) of Section 4.1 below if Microsoft\nexercises its rights to move the Hosting Servers under this Section 2.6.2.\n\n          2.7  Inktomi will assign two (2) full-time Inktomi employees\nexclusively dedicated to maintenance duties hereunder. Such employees are\nidentified in Exhibit D attached hereto; and their replacements shall be subject\nto Microsoft's prior written approval (which approval Microsoft will not\nunreasonably withhold). Notwithstanding the foregoing, if Microsoft and Inktomi\nmutually agree in writing, additional Inktomi employees may be required to be\nassigned to maintenance duties hereunder.\n\n                                       5\n\n \n          2.8  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 (i)\nlimit or restrict Inktomi from customizing and providing its software and\ntechnology to other parties for any purpose, including in connection with search\nengine applications, or (ii) in any way affect the rights granted to such other\nparties. Microsoft further acknowledges that in addition to utilizing the\nHosting Servers to host the Product, Inktomi may also use the Hosting Servers to\nservice its own needs and the needs of other third parties, unless Microsoft\nelects to use a separate cluster in accordance with Section 2.6 above (it being\nunderstood that Inktomi will estimate the capacity for servicing the needs of\nitself and its other customers in good faith and provision accordingly, in\naccordance with Section 2.2).\n\n     3.   Hosting Servers.\n          --------------- \n\n          3.1  Inktomi shall own all new Hosting Servers purchased by Inktomi\npursuant to Microsoft's request hereunder.\n\n               3.1.1  To the extent Inktomi is required to do so in order to\nmeet Microsoft's capacity requests under the Deployment, Hosting and Maintenance\nSpecifications (as the same may change from time to time), Inktomi shall\npurchase new Hosting Servers. Prior to purchasing any such new Hosting Servers,\nInktomi will seek bids from third parties, copies of which Inktomi will provide\nto Microsoft, and Microsoft will have the right to approve all such purchases\nand the applicable purchase prices. Inktomi shall use commercially reasonable\nefforts to minimize the purchase prices of such new Hosting Servers, but in any\nevent such purchase prices will not be more than any comparable equipment\npurchased by Inktomi during the same time frame. Inktomi will consult with\nMicrosoft regarding the proposed purchase prices of all new Hosting Servers\nprior to purchasing the same, and if Microsoft is aware of a vendor who is\nwilling to sell Hosting Servers to Inktomi at a lower purchase price than as\nproposed by Inktomi, Inktomi agrees to purchase the applicable new Hosting\nServers from such vendor.\n\n               3.1.2  Notwithstanding Section 3.1.1 above, Inktomi shall have no\nobligation whatsoever to purchase any new Hosting Servers unless Microsoft loans\nInktomi an amount equal to the purchase price thereof pursuant to the Loan\nAgreement between Inktomi and Microsoft of even date herewith (the \"Loan\nAgreement\").\n\n          3.2  Microsoft acknowledges that, pursuant to Inktomi's contractual\narrangement with its subcontractor, Exodus Communications, Inc. (\"Exodus\"),\nInktomi will locate the Hosting Servers at the facilities of Exodus, and Exodus\nwill provide power and Internet telecommunications services to the Hosting\nServers. However, Microsoft will have no obligations or liabilities to Exodus,\nInktomi will remain liable for providing all \n\n                                       6\n\n \nServices to Microsoft notwithstanding its arrangement with Exodus, and Inktomi\nwill [*] and [*] against from any and all [*] to [*] (in accordance with the\nprocedures specified in Section [*] below). A copy of the contract(s) between\nInktomi and Exodus is\/are attached hereto as Exhibit [*], and Inktomi shall not\nmodify said contract(s) or replace Exodus as its subcontractor for the\napplicable services (including without limitation by having Inktomi perform the\nServices directly) without Microsoft's prior written approval (which approval\nMicrosoft agrees to not unreasonably withhold). Inktomi shall provide Exodus\nwith a copy of the Security Measures applicable under this Agreement and will\nuse commercially reasonable efforts to ensure that Exodus strictly adheres to\nall such Security Measures.\n\n          3.3  Subject to Microsoft's rights under Section 2.6.2 above and\/or\nthe Security Agreement between Inktomi and Microsoft of even date herewith,\nexecuted in accordance with the Loan Agreement, Microsoft shall not have any\naccess to the Hosting Servers, except as follows: (i) Microsoft will have\nelectronic read-only access to \"real time\" system data on the status of the\nusage, accessibility and performance of the Microsoft Search Engine (via\nsoftware developed by Inktomi in consultation with Microsoft), and (ii)\nMicrosoft will have the right, upon reasonable notice and during normal business\nhours, to have representatives escorted by Inktomi employees tour the premises\nwhere the Hosting Servers are located as necessary to ensure Microsoft's\nsatisfaction with the operation of the physical plant and equipment. Microsoft\nagrees to comply with the Security Measures at all times when accessing the\nHosting Servers as permitted hereunder.\n\n     4.   Payment For Services.\n          -------------------- \n\n          4.1  As full and complete compensation for the Services, Microsoft\nshall pay to Inktomi the following monthly fees:\n\n               (a)  beginning with the Launch Date, the sum of [*]\n[*] Dollars ($[*]) (attributable to the use during the Term of the Hosting\nServers owned by Inktomi as of the Effective Date), provided that in no event\nwill Microsoft be obligated to make more than [*] ([*]) monthly payments\npursuant to this clause (a), and if the Term extends beyond [*] years after the\nLaunch Date, this clause (a) will be deemed deleted from this Agreement\neffective on the [*] anniversary of the Launch Date notwithstanding anything\nto the contrary contained herein;\n\n               (b)  an amount equal to [*] ([*]) of the [*], [*], [*], [*]\nthereon, incurred by Inktomi to purchase each new Hosting Server required to\nservice Microsoft's needs in accordance with Section 3.1 above (attributable to\nthe use during the Term of such new Hosting Servers); such payments will\ncommence with respect to each new Hosting Server at such time as Inktomi's\nrepayment obligations begin with respect to such new Hosting\n\n                                       7\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 \nServer pursuant to the Loan Agreement and the applicable Promissory Note.\nNotwithstanding section 4.2 below, such payments shall be due in immediately\navailable funds on the first business day of each month. The parties acknowledge\nthat the monthly fee under this clause (b) will increase throughout the Term if\nand to the extent that Microsoft's Hosting Server requirements increase, but,\nnotwithstanding anything contained herein to the contrary, no amounts shall be\npayable under this clause (b) attributable to any Hosting Server which is more\nthan [*] years old;\n\n               (c)  an amount equal to the [*] and [*] of the new Hosting\nServers purchased by Inktomi pursuant to Section 3.1 above ([*] any amounts paid\nby Inktomi to Exodus for such services or attributable to the employees referred\nto in clause (f) below), payable if and when Inktomi pays such maintenance\ncosts; Inktomi will use its commercially reasonable efforts to ensure that the\nannual hardware and software maintenance costs for each such new Hosting Server\nare not more than [*] percent ([*]%) of the purchase price of such New Hosting\nServer, and Microsoft will not be obligated to pay higher maintenance costs than\nsuch [*]% annual estimate without its prior written consent;\n\n               (d)  an amount equal to [*] Percent ([*]%) of the sum of the\namounts payable under clauses (b) and (c) above (attributable as Inktomi's\nmanagement fee for providing the Services);\n\n               (e)  an amount equal to Microsoft's [*] of the [*] [*] by Inktomi\nto Exodus in connection with the applicable Hosting Servers cluster, computed in\naccordance with Exhibit [*], [*] the [*] new Hosting Servers are [*] at Exodus;\nand\n\n               (f)  an amount equal to [*] per month per person identified\nin Section 2.7 above, [*] of the new Hosting Servers.\n\nIn addition, if the number of ADH (as defined in the Software Development\nAgreement and Information Services Agreement) should exceed the capacity\nrequested by Microsoft, or if Inktomi's usage of its estimated capacity\nrequirements should exceed its estimates as communicated to Microsoft in\naccordance with Section 2.2.1 above, then Microsoft's applicable payment(s)\nhereunder will be [*] in [*] with the [*] set forth in Exhibit [*] hereto.\n\n          4.2  Except as set forth in Section 4.1(b) above, Inktomi shall supply\nto Microsoft written invoices for all amounts due under this Agreement, and\npayments will be due net [*] ([*]) days from Microsoft's receipt of such\ninvoice. Inktomi shall bear sole responsibility for all expenses incurred in\nconnection with the performance of the Services, unless otherwise set forth\nherein or agreed to in writing by Microsoft.\n\n                                       8\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          4.3  Inktomi shall keep true and accurate books and records, in\naccordance with Generally Accepted Accounting Principles (\"GAAP\"), relating to\nall costs and expenses for which Inktomi is entitled to charge Microsoft\npursuant to Section 4.1 above, throughout the Term and for eighteen (18)\nadditional months thereafter. Inktomi will permit Microsoft to have access to,\nand to make copies of, all such books and records for purposes of auditing and\nverifying such costs and expenses, provided that Microsoft shall give Inktomi\nreasonable notice prior to each requested audit and shall perform such audit\nduring normal business hours at Inktomi's office(s) where such records are\nnormally kept. If any Microsoft audit should determine that Inktomi overcharged\nMicrosoft by an amount of [*]% or more for the period audited, then in addition\nto any and all other rights and remedies Microsoft may have under the\ncircumstances, Microsoft may require Inktomi to reimburse it for all costs it\nincurred relating to such audit.\n\n          4.4  Taxes.\n               ----- \n\n               4.4.1  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 Microsoft under applicable law\nsolely as a result of entering into this Agreement (ii) are based solely upon\nthe amounts payable under this Agreement, and (iii) are required to be collected\nfrom Microsoft by Inktomi under applicable law, provided, however, that solely\nwith respect to sales tax or use tax payable to those taxing jurisdictions that\nimpose sales or use taxes under applicable law upon the vendor, rather than the\npurchaser, clause (i) above shall be modified to provide \"sales taxes or use\ntaxes that are owed by Inktomi under applicable law solely as a result of\nentering into this Agreement and clause (iii) shall be modified to provide \"are\npermitted to be collected from Microsoft by Inktomi under applicable law.\" (Such\nTaxes as are described in clauses (i), (ii) and (iii) above, the \"Invoiced\nTaxes\".) The Invoiced Taxes shall be stated separately as applicable on\nInktomi's invoices and shall be remitted by Microsoft to Inktomi. Inktomi shall\npromptly provide to Microsoft official tax receipts indicating that such\nInvoiced Taxes have been collected by Inktomi. Microsoft may provide to Inktomi\nan exemption certificate acceptable to Inktomi and to the relevant taxing\nauthority (including without limitation a resale certificate) in which case\nInktomi shall not collect the Taxes covered by such certificate. Inktomi agrees\nto take such steps as are reasonably requested by Microsoft to minimize such\nInvoiced Taxes in accordance with all relevant laws and to reasonably cooperate\nwith and assist Microsoft, at Microsoft's request, in challenging the validity\nof any Invoiced Taxes or other Taxes paid directly by Microsoft to the relevant\ntaxing authority. Inktomi shall indemnify and hold Microsoft\n\n                                       9\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 \nharmless from any Taxes, penalties, interest, or additions to tax arising from\namounts paid by Microsoft to Inktomi under this Agreement that are asserted or\nassessed against Microsoft to the extent such amounts are related to Invoiced\nTaxes paid to Inktomi by Microsoft under this section. Other than the Invoiced\nTaxes, all Inktomi Taxes shall be the responsibility of Inktomi and may not be\npassed on to Microsoft. Inktomi takes full responsibility for all such Inktomi\nTaxes, including penalties, interest and other additions thereon and agrees to\nindemnify, defend and hold Microsoft harmless from any claims, causes of action,\ncosts (including without limitation, reasonable attorneys' fees), penalties,\ninterest charges and other liabilities of any nature whatsoever associated\ntherewith. All Taxes that are imposed on Microsoft under applicable law (the\n\"Microsoft Taxes\") shall be the responsibility of Microsoft and may not be\npassed on to Inktomi. Microsoft takes full responsibility for all such Microsoft\nTaxes, including penalties, interest and other additions thereon and agrees to\nindemnify, defend and hold Inktomi harmless from any claims, causes of action,\ncosts (including without limitation, reasonable attorneys' fees), penalties,\ninterest charges and other liabilities of any nature whatsoever associated\ntherewith.\n\n          4.4.2  In the event that Taxes are required to be withheld on payments\nmade hereunder by any U.S. (state, local or federal) or foreign government,\nMicrosoft may deduct such Taxes from the amount owed Inktomi and pay them to the\nappropriate taxing authority. Microsoft shall in turn promptly secure and\ndeliver to Inktomi an official receipt for any Taxes withheld. Inktomi may\nprovide to Microsoft an exemption certificate acceptable to Microsoft and to the\nrelevant taxing authority (including without limitation a resale certificate) in\nwhich case Microsoft shall not collect the Taxes covered by such certificate.\nMicrosoft agrees to take such steps as are reasonably requested by Inktomi to\nminimize such Taxes in accordance with all relevant laws and to reasonably\ncooperate with and assist Inktomi, at Inktomi's request, in challenging the\nvalidity of any such Taxes.\n\n          4.4.3  Inktomi agrees and acknowledges that it will be responsible for\nall of its federal and state taxes, withholding, social security, unemployment\nand other related taxes, insurance, and other benefits, and all salaries,\nbenefits, and other costs of its employees.\n\n     5.   Ownership of the Product. The parties respective rights in and to the\n          ------------------------                                              \nProduct will be as set forth in the Software Development Agreement and the\nInformation Services Agreement of even date herewith, and nothing contained in\nthis Agreement shall be deemed to modify such rights allocation.\n\n  6.      Confidentiality.\n          --------------- \n\n     6.1  The parties hereby agree that all terms and conditions of that certain\nMicrosoft Corporation Non-Disclosure Agreement between them dated March 18,\n1997, shall govern the disclosure of confidential and proprietary information\nmade under this \n\n                                       10\n\n \nAgreement. In this connection, the parties hereby agree that the terms of this\nAgreement shall be treated as confidential in accordance with the terms of said\nNon-Disclosure Agreement.\n\n          6.2  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          6.3  Inktomi shall use its reasonable commercial efforts to cause\nExodus to execute a non-disclosure agreement with Microsoft which includes\nsubstantially similar restrictions as are contained herein.\n\n          6.4  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     7.   Representations and Warranties.\n          ------------------------------ \n\n          7.1  Microsoft warrants and represents that it has the full power to\nenter into this Agreement and perform its obligations hereunder.\n\n          7.2  Inktomi warrants and represents that:\n\n               7.2.1  It has the full power to enter into this Agreement and\nperform its obligations hereunder, and Inktomi's performance of such obligations\nwill not violate any terms and conditions of other agreements entered into by\nInktomi with [*] ([*]);\n\n               7.2.2  Inktomi's [*] and [*] of the Product shall [*] to the [*]\nand [*],\n                                       11\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 \nprovided, however, that a [*] and [*] to so [*] will not be [*] to be a [*]\nhereunder; and\n\n               7.2.3  Notwithstanding any [*] to [*] hereunder, or to any other\n[*], Inktomi shall remain [*] for the [*] hereunder in accordance with [*].\n\n     8.   Indemnification.\n          --------------- \n\n          8.1  Each party shall, at the expense of such party (the \"Indemnifying\nParty\") and at the request of the other party (the \"Indemnified Party\"), defend\n[*] party claim or action brought against the Indemnified Party, and\/or the\n[*] and [*] which, [*], (i) would constitute a [*] of [*], [*] or [*] made\nby the Indemnifying Party under this Agreement; or (ii) would [*] of the\nIndemnifying Party's [*]; and the Indemnifying Party will [*] and [*] the\nIndemnified Party [*] and [*], [*] and [*] incurred by the Indemnified\nParty, including but [*] to [*] of [*] and [*], that are attributable to such\nclaim. The Indemnified Party shall: (x) provide the Indemnifying Party\nreasonably prompt notice in writing of any such claim or action and [*] the\nIndemnifying Party, through counsel [*] to Microsoft and Inktomi, to [*] and [*]\nsuch claim or action; and (y) provide the Indemnifying Party [*], [*] and [*] at\nthe [*] Party's [*], to [*] the Indemnifying Party to [*] such claim or action.\nThe Indemnifying Party will [*] for [*] made by the [*] Party without the\n[*] Party's [*], which [*] will [*].\n\n          8.2  The Indemnified Party shall have the right to employ separate\ncounsel and participate in the defense of any claim or action. The Indemnifying\nParty shall reimburse the Indemnified Party upon demand for any payments made or\nloss suffered by it at any time after the date hereof, based upon the judgment\nof any court of competent jurisdiction or pursuant to a bona fide compromise or\nsettlement of claims, demands, or actions, in respect to any damages related to\nany claim or action under this Section 8.\n\n          8.3  The Indemnifying Party may [*] any claim or action under this\nSection 8 on the Indemnified Party's behalf [*] the [*], which [*] will [*].\nIn the event Microsoft and Inktomi agree to settle a claim or action, the each\nparty agrees not to publicize the settlement without first obtaining the other\nparty's written permission, which permission will not be unreasonably withheld.\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          9.   LIMITATION OF LIABILITY. EXCEPT FOR [*] CAUSED BY A [*] OF\n               -----------------------\nSECTION [*], NEITHER PARTY SHALL BE [*] (IN [*] 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     10.  Termination and Other Remedies.\n          ------------------------------ \n\n          10.1  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          10.2  Microsoft may terminate this Agreement at any time without cause\nupon [*] ([*]) days prior written notice. Upon receipt of such notice, Inktomi\nwill discontinue all work hereunder. If Microsoft terminates this Agreement\nwithout cause pursuant to this Section 10.2, then Microsoft will pay for all\nservices provided by Inktomi up until the date of termination under this Section\n10.2. Notwithstanding anything contained herein to the contrary, should\nMicrosoft exercise its termination right pursuant to this Section 10.2, then\nInktomi will have the right to elect, in writing within fifteen (15) days after\nreceipt of Microsoft's notice of termination hereunder, either one of the\nfollowing two options for a early termination penalty:\n\n                (a)   Inktomi may require Microsoft to pay to Inktomi, in \n[*] immediately following the effective termination date, an amount equal to [*]\n([*]) of all outstanding principal, interest and other amounts owed or owing to\nMicrosoft by Inktomi on the date of termination under the Loan Agreement (and\noutstanding Promissory Notes issued thereunder); or\n\n               (b)    Inktomi may deliver that portion of the Collateral (as\ndefined in the Loan Agreement) which was purchased with Advances evidenced by\nthe then-outstanding Promissory Notes (as defined in the Loan Agreement) (the\n\"Returned Collateral\") to Microsoft, and assign all right, title and interest in\nand to said Returned Collateral to Microsoft, and promptly upon such delivery\nand assignment Inktomi may require Microsoft to pay to Inktomi, in [*] \nimmediately following the effective date of termination, an amount equal to [*]\n([*]) of all outstanding principal, interest and other amounts owed or owing to\nMicrosoft by Inktomi on the date of termination under the Loan Agreement (and\noutstanding Promissory Notes issued thereunder); provided, however, that the\nfollowing conditions must be satisfied for Inktomi to be entitled to elect this\nalternative (b)-\n\n                                       13\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          (i)    Inktomi then owns all of the Returned Collateral and has [*]\n     the Returned Collateral [*], and [*] other than Lender;\n\n          (ii)   Inktomi obtains any [*] reasonably required by Microsoft from\n     Inktomi's [*];\n\n          (iii)  the Returned Collateral is returned in good condition and\n     repair, without any waste or unusual or unreasonable depreciation of\n     Returned Collateral;\n\n          (iv)   Inktomi has not committed any act for which any portion of the\n     Returned Collateral might be confiscated by any governmental or private\n     entity;\n\n          (v)    Inktomi has paid all taxes, assessments or similar obligations\n     affecting the Returned Collateral that are then due or have then accrued;\n\n          (vi)   Inktomi [*] to Microsoft [*] that [*] of the [*] is [*] and\n     [*]; and\n\n          (vii)  Inktomi, [*], arranges to deliver the Returned Collateral in a\n     manner and to a location designated by Microsoft.\n\nIn the event Inktomi elects this alternative (b), the Security Agreement\nexecuted in connection with the Loan Agreement shall terminate on the business\nday immediately following the date of delivery and assignment of all the\nReturned Collateral to Microsoft.\n\n          10.3   Subject to Section 12.9 below, in the event the Microsoft\nSearch Engine is inaccessible to Microsoft, due to a problem other than one with\nMicrosoft's servers or the telecommunication line from Microsoft to the Hosting\nServers, for twenty-four (24) consecutive hours, or for forty-eight (48) hours\nor more in any seventy-two (72) hour period, or for seventy-two (72) hours or\nmore in any one week period, and such inaccessibility is due to any reason other\nthan Microsoft's breach of its obligations under this Agreement, then Microsoft\nmay suspend performance and\/or terminate this Agreement immediately with no\nfurther obligation.\n\n          10.4   Microsoft may suspend performance and\/or terminate this\nAgreement immediately upon written notice at any time if:\n\n                 (a)  Inktomi is in [*] of this Agreement (excluding Section\n[*]) and fails to cure that breach within [*] ([*]) days after written notice\nthereof; or\n\n                 (b)  Inktomi is in material breach of Section [*]; or\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                 (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          10.5   Inktomi may suspend performance and\/or terminate this Agreement\nimmediately upon written notice at any time if:\n\n                 (a)  Microsoft is in [*] of this Agreement (excluding Section\n[*]) and fails to cure that breach within [*] ([*]) days after written notice\nthereof; 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          10.6   If Inktomi is in material breach of this Agreement, then\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 [*] ([*]) days to cure\nsuch breach prior withholding any such payments.\n\n          10.7   A breach of this Agreement by either party will also constitute\na breach by such party of each and every Ancillary Agreement; and a breach by\neither party of any Ancillary Agreement will also consitute a breach of this\nAgreement by such party.\n\n          10.8   In the event of termination or expiration of this Agreement for\nany reason, Sections 1, 2.3, 4.3, 4.4, 5, 6.1, 7, 8, 9 and 12 shall survive\ntermination. Except as otherwise expressly provided in this Agreement, Inktomi\nshall turn over to Microsoft all work in progress, software, and any other\nmaterials provided by Microsoft to Inktomi under this Agreement promptly\nfollowing termination or expiration. Neither party shall be liable to the other\nfor damages of any sort resulting solely from such party terminating this\nAgreement in accordance with its terms.\n\n                                       15\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          10.9   The rights and remedies given to the parties under this Section\n10 are in addition to any other rights and\/or remedies that the parties may have\nunder the circumstances, all of which are expressly reserved.\n\n     11.  International Deployment, Hosting &amp; Maintenance Obligations of\n          --------------------------------------------------------------\nInktomi. Microsoft will have the right to require Inktomi to purchase new\n-------\nHosting Servers, and\/or to arrange for and perform such deployment, hosting and\nmaintenance services, as Microsoft may determine in connection with\ninternational versions of the Product throughout the Term, on the same terms and\nconditions as applicable hereunder with respect to the original version of the\nProduct directed toward the U.S. market, including without limitation requiring\nInktomi to establish, deploy and maintain a cluster of Hosting Servers anywhere\nin the world (including [*]) designated by Microsoft. If and when Microsoft\nrequires such undertakings by Inktomi, it will so notify Inktomi in writing,\nwhereupon Inktomi will perform such undertakings as requested as expeditiously\nas reasonably possible.\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 determine. 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). The parties' addresses for purposes of\nnotice shall be as set forth above, provided that all notices to Inktomi shall\nbe sent to the \n\n                                       16\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 \nattention of General Counsel; and all notices to Microsoft shall\nbe sent to the attention of Shirish Nadkarni, with a copy to: Law &amp; Corporate\nAffairs, 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, then (i) the parties agree to negotiate in good\nfaith an acceptable alternative provision which reflects as closely as possible\nthe intent of the unenforceable provision and (ii) notwithstanding, and\nregardless of whether the parties reach agreement after the good faith\nnegotiations described in clause (i) immediately above, the validity, legality\nand enforceability of the remaining provisions of this Agreement shall not in\nany way be affected or impaired thereby and shall remain in full force and\neffect. Section and all other headings used herein are provided for convenience\nonly and are not to be given any legal effect or considered in interpreting any\nprovision of this Agreement. No provision of this Agreement shall be interpreted\nagainst any party because such party or its legal representative drafted such\nprovision.\n\n           12.5  Except as expressly permitted hereunder or in Exhibit F 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\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                                       17\n\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          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  The parties acknowledge that there may be instances during the\nTerm when, notwithstanding the Non-Disclosure Agreement referred to in Section\n6.1 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          12.11  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     13.  Insurance. Inktomi will maintain insurance (including but not limited\n          ---------\nto liability and property insurance covering the Hosting Servers and Inktomi's\noperation thereof) in accordance with the requirements set forth in the Software\nDevelopment Agreement and Loan Agreement between the parties of even date\nherewith.\nExecuted as of the Effective Date on the signature dates below.\n\n\n\nINKTOMI CORPORATION                         MICROSOFT CORPORATION\n \n    \/s\/ DAVID C. PETERSCHMIDT                   \/s\/ LAURA JENNINGS \nBy: _________________________               By: _________________________\n \nDavid C. Peterschmidt, CEO                  Laura Jennings \n______________________________              ______________________________\n(printed name and title)                      (printed name and title)\n\n            July 24                                      7\/27\nDate: ____________________, 1997            Date: ____________________, 1997\n\n                                       18\n\n \n                                   EXHIBIT A\n\n   DEPLOYMENT, HOSTING AND MAINTENANCE SPECIFICATIONS AND SECURITY MEASURES\n                                        \n                                        \n                                        \n                               (32 pages follow)\n\n \n                                   EXHIBIT A\n                                   ---------\n\n\nYUKON REQUIREMENTS FOR THE INKTOMI SEARCH SERVICE\nMICROSOFT CONFIDENTIAL\n--------------------------------------------------------------------------------\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                                                                    Page i of 32\n\n \n                               Table of Contents\n\n[*]\n\n\n\n\n                                                                   Page ii 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 \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\na similar organization and provides more detail on the requirements..\n\n\n[*]\n\n                                                                    Page 1 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 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                                                                    Page 3 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 4 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                                                                    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[*]=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                                                                    Page 7 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                                                                    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                                                                   Page 10 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                                                                   Page 11 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 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                                                                   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                                                                   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                                                                   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                                                                   Page 16 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                                                                   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\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                                                                   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                                                                   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                                                                   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                                                                   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                                                                   Page 23 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                                                                   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                                                                   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                                                                   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                                                                   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                                                                   Page 28 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 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                                                                   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                                   EXHIBIT B\n\n                    CONTRACT(S) BETWEEN INKTOMI AND EXODUS\n\n \n                                   EXHIBIT C\n\n                            PRO-RATION METHODOLOGY\n\nALLOCATION OF EXODUS OPERATING COSTS\n\nExodus charges a monthly fee for facility space, fire suppression, air \n   conditioning, security, electricity, support services and Internet\n   connectivity. Inktomi is obliged to contract for this capacity in advance.\n   The connectivity is currently itemized and charged at a current rate of\n   [*].\n\n[*] will be according to the [*] provisioned.\n\nExample: [*] - [*] per day, [*] per day [*]. [*] of Exodus charges, [*] of\n   Exodus charges [*].\n\n[*] will be charged to [*] only for their share of [*]\n\nCurrent estimate is that [*]; this would be [*].\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                                   EXHIBIT D\n\n                         INKTOMI MAINTENANCE EMPLOYEES\n\n\n                                  [*] and [*]\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                                   EXHIBIT E\n\n                          OVER-UTILIZATION ADJUSTMENT\n\nIn the event that one party under-provisions its portion of the shared Inktomi\nhosting cluster such that its [*] are [*] by the [*], there will be a charge\non a [*] levied against the under-provisioned party.\n\nIf [*] for a [*] exceeds its agreed capacity provisioning (as determined in\naccordance with Sections 2.2 and 2.8, then Microsoft's [*] will be [*] ([*]\nif the [*] is by [*], or [*] if such [*] is by [*]) in accordance with the\nfollowing computation: [*] the [*] (\"[*]\") times the [*] of the provisioned\ncapacity (\"[*]\"). Note that the over-utilization could apply to [*] in any [*].\n\n[*] will be calculated each month by taking the [*] of the Inktomi [*] without\nregard to [*] ([*]) [*] ([*]) [*] by the agreed total [*] provisioned.\n\n[*] will be calculated for each party each month by [*] the number of [*] ([*]\nthe [*] in the [*]) from the number of [*] for the [*].\n\nExample:\n\n     Assumptions:\n     1. Microsoft provisioned capacity is [*]\n     2. Inktomi provisioned capacity is [*]\n     3. [*] in [*] is $[*]\n     4. [*] is [*] for a [*]\n     5. [*] is [*] for that [*]\n\n     [*] = $[*] = $[*]\n\n     [*] = [*]  = [*]\n\n     Over-Utilization Adjustment = [*] = $[*]\n             [*] in such [*] payable by [*]\n\nNotwithstanding anything contained herein to the contrary, if a party shall have\n[*] its provisioned capacity by [*] in any month, such party shall be deemed [*]\nfor its [*] during such month as soon as possible.\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                                   EXHIBIT F\n                                   ---------\n\n                              Transfer by Inktomi\n                              -------------------\n\nIf Inktomi requests Microsoft's consent to a transfer as described in clause (a)\nof Section 12.5 of this Software Hosting Agreement to which this Exhibit F is \nappended, 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:\n\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) Inktomi's of, (whichever Microsoft elects) any new\nhosting servers beyond the Hosting Servers purchased by Inktomi under said\nSoftware Hosting Agreement necessary to service Microsoft's reasonably\nanticipated needs as set forth above];\n\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;\n\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);\n\n(iv)  Inktomi will grant to Microsoft an irrevocable, non-exclusive, \nroyalty-free license to use the Product (and all required underlying Inktomi \nTechnology) solely in connection with Microsoft's operation of the Microsoft \nSearch Engine (which license shall include the right to create enhancements and \nother derivative works based thereon for use in conjunction therewith) for such \nperiod as Microsoft may require to transition its search engine services to \nnon-Inktomi technology (the \"Transition Period\"), and Inktomi will waive all \nroyalties otherwise payable pursuant to the Software Development Agreement \nand\/or the Information Services Agreement between the parties of even date \nherewith; for the purposes of this clause (iv), the Transition Period will \ncommence at such time as Microsoft assumes control over said separate cluster \nand begins itself operating the Microsoft Search Engine, and will continue \nthereafter for eighteen months (18) or until the\n\n                                      24\n\n \ntermination of the Software Development Agreement and Information Services \nAgreement (whichever is longer);\n\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;\n\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\n\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.\n\nMicrosoft 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, this Software \nHosting Agreement shall be deemed terminated pursuant to Section 10.1. Upon \nexpiration of the Transition Period, all rights granted to Microsoft to use the \nProduct (other than Microsoft Technology, Joint Derivative Technology and the \nMicrosoft 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.\n\n                                      25\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7859,8221],"corporate_contracts_industries":[9510,9513],"corporate_contracts_types":[9613,9620],"class_list":["post-42802","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-inktomi-corp","corporate_contracts_companies-microsoft-corp","corporate_contracts_industries-technology__programming","corporate_contracts_industries-technology__software","corporate_contracts_types-operations","corporate_contracts_types-operations__services"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42802","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42802"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42802"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42802"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42802"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}