THIRD\nADDENDUM TO OVERTURE SEARCH SERVICES AGREEMENT<\/b><\/p>\n\n\n\n
This Third Addendum (the\n\u0093Third Addendum\u0094) is effective as of April 25, 2003 (the \u0093Third Addendum\nEffective Date\u0094) and entered into by and between Overture Services, Inc.\n(\u0093Overture\u0094), a Delaware corporation with offices at 74 North Pasadena Avenue,\n3d Floor, Pasadena, CA 91103, and Yahoo! Inc. (\u0093Yahoo\u0094), a Delaware corporation\nwith offices at 701 First Avenue, Sunnyvale, CA 94089, in connection with the\nOverture Search Services Agreement effective as of May 1, 2002 and entered into\nby and between Overture and Yahoo, as amended by the First Addendum to Overture\nSearch Services Agreement effective as of October 1, 2002 and the Second\nAddendum to Overture Search Services Agreement effective as of January 10, 2003\n(collectively referred to as the \u0093Agreement\u0094).<\/p>\n\n\n\n
RECITALS<\/p>\n\n\n\n
WHEREAS, the Agreement\nprovides for, among other things, the delivery by Overture and the display by\nYahoo of sponsored search results in response to search queries conducted\nthrough Yahoo\u0092s principal, U.S. targeted directory to the World Wide Web.<\/p>\n\n\n\n
WHEREAS, the parties\nanticipate expanding their strategic relationship such that Overture will\nprovide Yahoo with [*] sponsored search results (the \u0093[*] Results\u0094) in response\nto [*] search queries (the \u0093[*] Queries\u0094) conducted on http:\/\/www.yahoo.com or\non any Yahoo Foreign Property as determined by Yahoo and Overture, and the\nparties will share revenue generated from these [*] Results in accordance with\nthis Third Addendum, as further described herein.<\/p>\n\n\n\n
NOW, THEREFORE, in consideration of the mutual\npromises and conditions contained herein, and for good and valuable\nconsideration, the parties agree as follows:<\/p>\n\n\n\n
AGREEMENT<\/p>\n\n\n\n
1. Capitalized terms\nnot defined herein have the meanings set forth in the Agreement.<\/p>\n\n\n\n
2. Section 4.2(a) in\nthe Agreement is deleted and replaced with the following:<\/p>\n\n\n\n
(a) [*] Overture Results<\/u>.<\/p>\n\n\n\n
(i) Provision of <\/u>[*] Results;\nImplementation<\/u>. Commencing upon\ndelivery of five days prior written notice to Overture of Yahoo\u0092s intention to\nimplement the [*] Results on Yahoo Search (the \u0093[*] Launch Date\u0094), upon receipt\nby Overture of a Yahoo Search Query that (a) Overture determines to be an [*]\nQuery and (b) contains a [*] provided by Yahoo that indicates the [*]\nResults, Overture will deliver [*] Results to Yahoo for implementation on Yahoo\nSearch in accordance with subpart (ii) below. \n\nThe manner of implementation of [*] Results on Yahoo Search will be determined\nby [*], and will not be subject to [*] or specifications regarding [*]). Without limiting the foregoing, Yahoo will,\non the [*] Launch Date only, display Yahoo Search Results Pages containing [*]\nResults in a manner substantially similar to the U.S. Implementation as of the\n[*] Launch Date. Upon the mutual\nagreement of the parties, Yahoo may implement the [*] Results in other areas of\nthe Yahoo Network. Overture will\ndeliver [*] Results solely for [*] Queries unless otherwise instructed by Yahoo\nin writing. Overture will send Yahoo an\nupdated list of proposed modifications to the [*] keyword list on a regular\nbasis during the Term as mutually determined by the parties (but no less\nfrequently than on a monthly basis), and Yahoo will have the opportunity to\napprove such modifications prior to implementation by Overture. Yahoo will have final editorial review over\nany modifications to the [*] keyword list that is used to deliver [*]\nResults. Such editorial review shall be\nexercised consistently with Yahoo\u0092s company-wide [*] concerning [*] content.<\/p>\n\n\n\n
(ii) [*]. \nYahoo will include a [*] on each Yahoo Search Query which indicates\nwhether the [*] Results. If the [*]\nindicates that a [*] Results, then Overture will suppress [*] Results, at a\nminimum, to the same degree as the [*] that appear on the Overture Site as of\nthe Third Addendum Effective Date and will send to<\/p>\n\n\n\n
* Certain\ninformation on this page has been omitted and filed separately with the\nCommission. Confidential treatment has\nbeen requested with respect to the omitted portions.<\/p>\n\n
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Yahoo such [*] Overture\nResults. If the [*] indicates that a\n[*] Results, Overture will determine whether to return [*] Results for such\nYahoo Search Query in accordance with subpart (i) above.<\/p>\n\n
(iii) Separate Feed; Reporting; Guaranteed\nImpressions<\/u>. As of the Third\nAddendum Effective Date, Overture will account for the [*] Results as a\nseparate line item in any reports required hereunder. Any reports for [*] Results will include CTR in the aggregate by\nsearch result position. Yahoo will\nprovide Overture with the same information at the time-of-search for each [*]\nQuery as it does for the U.S. Implementation, and Overture will be entitled to\nuse and disclose that information subject to the use and disclosure\nrestrictions set forth in this Agreement. \nOverture will include a [*] identifying each [*] Result as provided by\neither an [*] Advertiser or a [*] Advertiser. \nFinally, Yahoo will have no obligation to deliver Guaranteed Impressions\npursuant to Section 9 of this Agreement with respect to the [*] Results. Impressions delivered pursuant to the Third\nAddendum shall not count towards the number of Guaranteed Impressions delivered\nby Yahoo under Section 9 of this Agreement.<\/p>\n\n
(iv) Cancellation; Suspension of <\/u>[*]\nService<\/u>. Yahoo has the right to\ncancel the delivery or suspend the display of [*] Results at any time upon\nwritten notice provided to Overture (which notice can be via email to\nlegal@overture.com) within one business day of such cancellation or suspension. In the event that Yahoo either has cancelled\ndelivery or suspended its display of [*] Results, then Overture will suppress\n[*] Results, at a minimum, to the same degree as the [*] that appear on the\nOverture Site as of the Third Addendum Effective Date. Upon receipt by Overture of an [*] Query for\nwhich Overture has [*] Overture Results, Overture will send to Yahoo such [*]\nOverture Results. For all other [*]\nQueries, Overture shall not return any [*] Results, and if Overture does send\nan [*] Result, then Yahoo shall be entitled to [*] such [*] Result from being\ndisplayed pursuant to Section 4.5(a) of this Agreement.<\/p>\n\n
(v) Other <\/u>[*] Service Providers<\/u>. The parties acknowledge and agree that,\nsubject to Section 7.1(b), which Section shall apply to [*] Queries, [*].<\/p>\n\n
3. The following\nsubsection is added to the end of Section 4.5 (\u0093Removal by Yahoo; Potential\nLiability; Excluded Terms; Contextual Relevance<\/u>\u0094) of the Agreement:<\/p>\n\n\n\n
(c) [*] Results<\/u>. As it consistently administers its\ncompany-wide [*] concerning [*] content, Yahoo will have the right to prevent\nthe display of [*] Results in response to [*] Queries at any time during the\nTerm.<\/p>\n\n\n\n
4. Payment<\/u>. <\/b>Overture will make payments to\nYahoo for Gross Revenue earned pursuant to this Third Addendum in accordance\nwith the following:<\/p>\n\n\n\n
4.1 Revenue Share Payments<\/u>. Overture will make Quarterly revenue share\npayments to Yahoo based on Gross Revenue earned from [*] Results (the \u0093[*]\nGross Revenue\u0094) in the applicable Quarter according to the schedule set forth\nbelow. For purposes of calculating [*]\nGross Revenue, in determining the amount for subpart (i) in the definition of\nGross Revenue, the parties shall use Overture\u0092s actual amounts for bad debt and\ncredit card processing fees, which amounts will not exceed [*]%. In calculating the [*] Gross Revenue, the\nremainder of the definition of Gross Revenue remains unchanged. For clarity, for all Gross Revenue other\nthan [*] Gross Revenue, the definition of Gross Revenue remains unchanged. Payments are due and payable to Yahoo within\n[*] days after the end of the applicable Quarter.<\/p>\n\n\n\n
[*]<\/p>\n\n\n\n
Overture will retain all\nrevenue that it derives from the [*] Results, except as specifically set forth\nin this Third Addendum.<\/p>\n\n\n\n4.2 Payment Mechanics<\/u>. Overture will make payments to Yahoo in U.S.\ndollars via wire transfer into Yahoo\u0092s main account according to the\ninstructions set forth below:\n
* Certain\ninformation on this page has been omitted and filed separately with the\nCommission. Confidential treatment has\nbeen requested with respect to the omitted portions.<\/p>\n\n
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4.3 Late Payments<\/u>. Any undisputed payment that is paid more\nthan [*] days late will bear interest at the rate of [*]% per month.<\/p>\n\n\n\n
4.4 Audit Rights and Data\nRights<\/u>. Except as expressly set\nforth herein or as otherwise agreed by the parties in writing, the audit rights\nand data rights and obligations for the [*] Results will mirror the rights and\nobligations set forth in Sections 8.4 (including Exhibit F<\/u>) and 8.5 of\nthe Agreement.<\/p>\n\n\n\n
4.5 No Payment Adjustments<\/u>. The parties acknowledge and agree that the\ndelivery of [*] Results will be tracked separately from the delivery of all\nother Overture Results in Yahoo Search, and that the [*] Results will not be\nincluded in the calculation of Impressions, Coverage, PPC, CTR or of\nadjustments to the Estimated Yahoo Payment or the Guaranteed Fixed Payment\nunder the Agreement.<\/p>\n\n\n\n
5. Term and\n Termination<\/u>.<\/p>\n
5.1 Term<\/u>. This Third Addendum will become effective as\n of the Third Addendum Effective Date and, unless terminated as set forth\n herein, will remain effective for the same period as the Agreement remains\n effective.<\/p>\n
5.2 Termination\n in connection with Agreement<\/u>. \n This Third Addendum will terminate to the extent that the Agreement is\n terminated in accordance with its terms, effective as of the effective date of\n termination of the Agreement.<\/p>\n
5.3 Termination\n with Cause<\/u>. If either\n party breaches this Third Addendum in any material respect, and that party does\n not cure its breach within [*] after written notice by the non-breaching party\n of its breach, then the non-breaching party will be entitled to terminate this\n Third Addendum immediately upon written notice to the breaching party after\n failure to cure within those [*]. The\n parties acknowledge and agree that a breach under this Third Addendum will not\n affect the Agreement, regardless of whether the breach gives rise to\n termination of this Third Addendum.<\/p>\n
5.4 Termination\n by Overture<\/u>. Overture may\n terminate this Third Addendum for [*] upon providing Yahoo with [*] prior\n written notice.5.5 Effect of\n Termination<\/u>. Sections 1,\n 4 (with respect to payments accrued during the Term), and 6 through 8 of this\n Third Addendum will survive termination or expiration of this Third Addendum.<\/p>\n
6. Notice of <\/u>[*]\nContent<\/u>. Yahoo will use\ncommercially reasonable efforts to provide prompt written notice (as set forth\nin Section 16.1 of the Agreement) to Overture whenever a third party has\nnotified Yahoo that any content appearing on the Yahoo Search Results Pages\nthat include [*] Results or the content of [*] Advertiser web sites linked to\nfrom [*] Results contains content that violates any applicable law, rule or\nregulation or infringes the rights of any third party, including but not\nlimited to intellectual property rights, privacy and publicity rights, claims\nof defamation, false or deceptive advertising claims, consumer fraud or would\notherwise violate Yahoo\u0092s company-wide [*] concerning [*] content.<\/p>\n\n\n\n
7. Overture\nWarranties<\/u>. As of this Third\nAddendum Effective Date, Overture represents and warrants that it has\nimplemented a screening policy whereby it screens the Advertiser web page that\nis directly linked to from the [*] Result as part of the initial registration\nprocess in an effort to exclude from [*] Results web sites that contain the\nfollowing [*].<\/p>\n\n\n\n
8. Overture\nScreening Policy Covenant<\/u>. \nOverture\u0092s screening policies are subject to change during the Term;\nhowever, (1) Overture will provide Yahoo with prompt written notice of any\nchange to its [*] content screening policy, and (2) during the Term, Overture\nwill use commercially reasonable efforts to exclude [*] Results (at the point\nin time such [*] Results go through the initial registration process described\nin Section 7) that directly link<\/p>\n\n\n\n\n
* Certain\ninformation on this page has been omitted and filed separately with the\nCommission. Confidential treatment has\nbeen requested with respect to the omitted portions.<\/p>\n\n\n\n
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to a web page that\ncontains the [*] content listed in Section 7. \nTo the extent that Yahoo does not approve of a change to Overture\u0092s [*]\nscreening policy, then Yahoo may exercise its right of cancellation as set\nforth in Section 4.2(a)(iv) of this Agreement. \n\nIf Yahoo has not exercised this cancellation right after receiving\nnotice from Overture as described in this Section, then Overture shall be\ndeemed to have complied with its continuing obligations to use commercially\nreasonable efforts to exclude [*] Results that would otherwise violate this\nSection.<\/p>\n\n\n\n
9. Press Release\nand Public Statements<\/u>. Each party\nis expressly prohibited from making any press release or public statement\nrelated to either party\u0092s performance under this Third Addendum without the\nother party\u0092s prior written approval.<\/p>\n\n\n\n
10. Replacement of\n\u0093Fraudulent Clicks\u0094 with \u0093Invalid Clicks\u0094<\/u>. \nAll instances of \u0093Fraudulent Clicks\u0094 in this Agreement is hereby\nreplaced with the term \u0093Invalid Clicks\u0094.<\/p>\n\n\n\n
11. Exclusion of Certain\nProvisions of the Agreement<\/u>. For\npurposes of clarity, Sections 2.5, 3.2, 4.3(a) and (b), 5.1, 5.2, 7.1(a), 8.1\nthrough 8.3, 8.6 through 8.9 and 9 of the Agreement will not apply to this\nThird Addendum solely to the extent that such provisions apply to [*] Queries\nand the display of [*] Results within the Yahoo Network.<\/p>\n\n\n\n
[signature page\nfollows]<\/p>\n\n\n\n
* Certain\ninformation on this page has been omitted and filed separately with the\nCommission. Confidential treatment has\nbeen requested with respect to the omitted portions.<\/p>\n\n\n\n
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IN WITNESS WHEREOF, the\nparties have caused this Third Addendum to be executed by their duly authorized\nrepresentatives as of the Third Addendum Effective Date.<\/p>\n\n\n\n\n\n<\/pre>\n
| \n YAHOO! INC.<\/b><\/p>\n<\/td>\n | \n OVERTURE SERVICES, INC.<\/b><\/p>\n<\/td>\n<\/tr>\n By:<\/p>\n<\/td>\n \/s\/ Jeff Weiner<\/p>\n<\/td>\n By:<\/p>\n<\/td>\n \/s\/ Bill Demas<\/p>\n<\/td>\n Name:<\/p>\n<\/td>\n Jeff Weiner<\/p>\n<\/td>\n Name:<\/p>\n<\/td>\n Bill Demas<\/p>\n<\/td>\n<\/tr>\n Title:<\/p>\n<\/td>\n Senior Vice President, Title:<\/p>\n<\/td>\n Senior Vice President \n 5<\/p>\n |