Digital Envoy Inc., v. Google Inc.,

Filing 220

Attachment 9
Declaration Sam S. Han In Support of Digital Envoy's Motion for Partial Summary Judgment on Contract Issues filed byDigital Envoy,Inc.,. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H Part 1# 9 Exhibit H Part 2# 10 Exhibit I# 11 Exhibit J# 12 Exhibit K# 13 Exhibit L)(Blackman, Brian) (Filed on 7/6/2005)

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A h 7 Ca(Form : 1 0-Q, Received : 08/14/2002 15 :13 :57) 220-10 ahoo Filed.e07/06/2005 /EFPage DGofR14 .dll?FetchF. . . Document .brand dgar-online .com X_dll/E 1 A pro ASK JEEVES INC se 5:04-cv-01497-RS ttp ://y Agreement . Customer shall not modify, adapt, tr anslate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to de ri ve source code of the GSLP serv ice, the Google Data Protocol, Google Brand Features, or any other software, or documentation associated wi th the Services . Customer will not remove, obscure, or alter Google's copyright notice, trademarks, or o ther proprietary rights notices affixed to or contained within any Google Se rv ices, software, or documentation . Notwithstanding anything to the contrary in this section, to the extent that Customer owns Intellectual Property Rights, th is Agreement is not a [***] INDICATES THAT CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 20-2 . CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS . 7 grant of license to Google of any of those rights, nor does anything in this Agreement serve as a waiver of those rights. Furthermore, except as expressly provided for in this Agreement, Customer shall not crawl, index or in any non-transitory manner store or cache information obtained from the Services . Any rights not expressly granted herein are deemed withheld . 6 .2 Customer Rights. As between Google and Customer, Google agrees that it will not claim ownership, based on this Agreement or provision of the Services hereunder, in any right, title and interest, including without limitation Intellectual Property Rights associated with the Content . Google shall not acquire any right, title or interest in or to such Content, except for the limited use rights expressly set forth in this greement . Notwithstanding anything to the contrary in this section, to the extent that Google owns Intellectual Property Rights, this Agreement is not a grant of license to Customer of any of those rights except as expressly provided for herein, nor does anything in this Agreement serve as a waiver of those rights . 6 .3 Brand Feature License. Google hereby grants Customer a nontransferable, nonexclusive license during the Term to display Google's Brand Features for the purpose of promoting or advertising that Customer uses and syndicates the Services . Notwithstanding the foregoing, Customer shall not be obligated to include Google Brand Features anywhere on the Site, and unless otherwise permitted in advance by Customer in writing, Google shall not include any Google Brand Features in any Result Set or any Google Sponsored Link . Customer hereby grants to Google a nontransferable, nonexclusive license during the Term to use Customer's Brand . Features to: (i) advertise that Customer is using the Services and (ii) include Customer 's logo in presentations, marketing materials, customer lists, and website listing of partners ; provided that Customer provides its advance written approval of all such advertising a nd messaging activities, including without limitation press releases . For purposes of clarification, except for the right to include the Ask Jeeves and Ask.com names on a list of customers who use the Services, Google shall not reference or use the Ask Jeeves, Ask .corn or Teoma name in any manner whatsoever unless Customer has provided its prior written approval . For avoidance of doubt, Google shall not post any Customer name on the Google web site without Customer's prior written approval . Customer's license to Google shall be expressly limited to Google specifically referencing Customer as a customer only of the Google Sponsored Links Program and shall not include any reference that Customer utilizes any other Google product (including without limitation any Google search product) or any reference that is ambiguous enough to cause confusion as to whether Customer uses any other Google product other than pursuant to this Agreement. Each party will submit all materials of any kind containing the other party's Brand Features to the other party before release to the public for inspection, and such other party will have the right to approve such material prior to each distribution. Except as set forth in this Section, nothing in this Agreement shall grant or shall be deemed to grant to one party any right, title or interest in or to the other party's Brand Features . All use by Google of Customer's Brand Features (including any goodwill associated therewith) shall inure to the benefit of Customer and all use by Customer of Google's Brand Features (including any goodwill associated therewith) shall inure to the benefit of Google . At no time during or after the Term of this Agreement shall one party assert rights in the Brand Features of the other party (except to the extent this restriction is prohibited by applicable law) or the registration thereof by the other party, nor shall either party attempt to register any Brand Features or domain names that are confusingly similar to those of the other party . Notwithstanding anything to the contrary herein, the parties may work together to either unilaterally or jointly issue an initial press release regarding the existence and aggregate financia l 48 of 61 /6/2005 1 0 :02 AM i ASK JEEVES INC (Form : 10-Q, Received: 08/14/2002 15 :13 :57) h 7 Case 5:04-cv-01497-RS Document 220-10 ahoo .Filed. e07/06/2005 /EFX dll/EDGofR14 .dll?FetchF. . . ttp://y brand dgar-online .com Page 2 A pro [***] INDICATES THAT CERTAIN INFORMATION IN T HI S EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24b-2 . CON FIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS . 8 impact of this Agreement, provided that any such press release has been reviewed and approved in advance by both parties. Neither party shall issue any additional press re le ases in connection with this Agreement without the other party's prior review and approval of such p ress releases . 7. Warranties and Disclaimer. 7.1 Google. Google warrants that: (i) it has full power and authority to enter into this Agreement and perform its obligations here under, and (ii) it neither has made, nor will make any repre sentations, warranties or promises on behalf of Customer, or any that exceed the scope ofthis Agreement . GOOGLE MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, AND NONINFRINGEMEN'T . 7 .2 Customer. Customer warrants that : (i) it has full power and authority to enter into this Agreement and perform its obligations hereunder ; and (ii) it shall use information provided by Google (including Results Sets) in a manner that complies with applicable laws; and (iii) duri ng the th ree (3) consecutive months preceding the Effective Date, the [***] (as defined in Schedule B) of the [***] in the area entitled [***] on the pages that would have be en [***] had this Agreement been in place during such period was at least [***] . CUSTOMER MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR . USE, AND NONINFRINGEMENT . 8. Indemnification . 8 .1 Google Intellectual Property Indemnification . Google will defend, indemnify and hold harmless Customer and its affiliates and their respective directors, officers, vendors, employees and agents from and against any action, claim, demand or liability, including attomey's fees and enhanced damages, from a third party lawsuit or proceeding brought against Customer based upon a claim that the Services or Google Brand Features infringe any patent, copyright, trade secret, trademark or other proprietary right of a third party (an "IP Claim"), including but not limited to any intellectual property claim brought against Customer by Overture Services, Inc. ("Overture IP Suit") . The foregoing obligations shall exist only if Customer (1) promptly notifies Google of any such claim of infringement, (2) provides Google, at Google's expense, with reasonable nformation, assistance and cooperation in defending the lawsuit or proceeding, and (3) gives Google full control and sole authority over the defense and settlement of such claim. Customer may join in defense with counsel of its choice at its own expense . Google shall not reimburse Customer for any expenses incurred by Customer without the prior written approval of Google. With the exception of an Overture IP Suit, Google shall have no liability for any claim of infringement based on the combination or use of the Services or Google Brand Features with materials not furnished by Google if such infringement would have been avoided but for such combination . Without limiting the foregoing indemnity obligation, following notice of an IP Claim or any facts which may give rise to such IP Claim, Google may, in its sole discretion and at its option, (a) procure for Customer the right to continue to use the Services or Google Brand Features, or (b) modify the Services or Google Brand Features to make them non-infringing with the same level of functionality and quality as prior to the IP Claim . If Google determines that it is not commercially reasonable to perform any of these alternatives, Google shall have the option to terminate this Agreement, subject to Section 10.6 herein . [***] INDICATES THAT CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24b-2. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS . 9 49 of 61 /6/2005 10 :02 AM h ASK JEEVES INC (Form : 10-Q, Received: 08/14/2002 15 :13 :57) 7 Case 5:04-cv-01497-RS Document 220-10 ahoo .Filed. e07/06/2005 /EFX_dll/EDGofR14 .dll?FetchF . . . ttp ://y brand dgar-online .com Page 3 A pro 8 .2 Customer Intellectual Property Indemnification . Customer will defend, indemnify an d hold harmless Google an d its affiliates and their respective directors, officers, vendors, employees and agents from and against any action, claim, demand or liability, including attorney's fees an d enhanced damages, from a third party lawsuit or proceeding brought against Google based upon a claim that the Content, Site, or Customer Brand Features infringe any copyright, trade secret or trademark of the third party . Customer's indemnificati on will include (1) all damages and costs finally awarded, or (ii) se ttlement costs approved by Customer . The foregoing obligations shall exist only if Google (1) promptly noti fies Customer of any such claim of infringement, (2) provides Customer, at Customer's expense, with re asonable informati on, assistance and cooperation in defending the lawsuit or proceeding, and (3) gives Customer full control and sole authority over th e defense and settlement of such claim. Google may join in defense with counsel of its choice at its own expense . Customer shall not reimburse Google for any expenses incurred by Google without th e pri or written approval of Customer . 9. Limitation of Liability. EXCEPT FOR (A) INDEMNIFICATION UNDER SECTION 8, A VIOLATION OF EITHER PARTY'S INTELLECTUAL PROPERTY RIGHTS, OR BREACHES OF CONFIDENTIALITY UNDER SECTION 5, AND (B) LIABILITY DESCRIBED IN SECTION 10 .6, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST DATA OR LOST PROFITS, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT SUCH PARTY WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. EXCEPT FOR (A) INDEMNIFICATION UNDER SECTION 8, A VIOLATION OF EITHER PARTY'S INTELLECTUAL PROPERTY RIGHTS, OR BREACHES OF CONFIDENTIALITY UNDER SECTION 5, AND (B) LIABILITY DESCRIBED IN SECTION 10 .6, IN NO EVENT SHALL EITHER PARTY'S LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED GOOGLE'S SHARE OF THE NET AD REVENUE EARNED UNDER THIS AGREEMENT. THE PARTIES AGREE THAT THIS SECTION 9 REPRESENTS A REASONABLE ALLOCATION OF RISK . 10. Term and Termination. 10.1 Term. The term of this Agreement (the "Term") shall commence on the Effective Date and shall continue in force for a period of three (3) years after the A sk.co m Launch Date, unless earlier terminated as ` provided herein . 10 .2 Termination . Either party may suspend performance and/or terminate this Agreement: (a) if the other party materially breaches any term or condition of this Agreement and fails to cure that breach within thirty (30) calendar days ([***] if the breach relates to the Service Level Agreement set forth in Schedule H) after receiving written notice of the breach ; or (b) if the other party becomes insolvent or makes any assignment for the benefit of creditors or similar transfer evidencing insolvency, or suffers or permits the commencement of any form of insolvency or receivership proceeding, or has any petition under bankruptcy law filed against it, which petition is not dismissed within sixty (60) days of such filing, or has a trustee or receiver appointed for its business or assets or any party thereof; or (c) for convenience, after providing sixty (60) days advance written notice in the case of Google, or thirty (30) days written notice in the case of Customer, such notice to be delivered at any time during the sixty (60) day period commencin g [***] INDICATES THAT CERTA IN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 20-2 . CONFID ENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS . 10 two (2) years from the A sk .co m Launch Date . Additionally, Customer (or if applicable, the acquiring or surviving entity) may terminate this Agreement for convenience upon the acquisition or merger of Customer or Customer's web properties division, upon sixty (60) days prior written notice, provided that such notice must be 50 of 61 /6/2005 10:02 AM A E 5 A h 7 ASK JEEVES INC (Form : 10-Q, Received : 08/14/2002 15 :13 :57) Case 5:04-cv-01497-RS Document 220-10 ttp://yahoo . brand . edgar-online .com/EFX_dll/EDGAPpro .dll?FetchF . . . Filed 07/06/2005 Page 4 of 14 given no later than thirty (30) days after the consummation of such transaction . In the event Customer merges with, acquires or is acquire d by [***] th en either party shall have the right to terminate this Agreement at its convenience immediately upon written notice to the other party, provided that such notice must be given no later than thirty (30) days after the consummation of such transaction . Notwithstanding the foregoing, Google may terminate this Agreement upon [***] written notice to Customer if Customer a ttempts to modify, adapt, translate, prepare de rivative works from, decompile, reverse engineer, disassemble or o therwise attempt to derive source code of the GSLP service, the Google Data Protocol, Google Brand Features, or any other software, or documentation associated wi th the Services or otherwise intentionally and mate ri ally breaches Google's Intellectual Property Rights, and Customer fails to cure such breach within such [***] period. 10.3 Effect of Termination. Upon th e termination of this Agreement for any reason (i) all license ri ghts granted herein shall terminate, and (ii) each party shall return to the other party, or destroy and certify the destruction of, all Confidential Information of the other party . 10.4 Survival. In the event of any termination or expiration of this Agreement for any reason, Articles 1, 2 .1 .1, 4 (for a period of one year after the date of termination or expiration), 5, 6, 7, 8, 9, 10.3, 10 .4, 10.5, 11, and 12 shall surv ive termination. Ne ither party shall be liable to the other party for damages of any sort re sulting solely from terminating this Agreement in accord ance with its terms. 10 .5 Injunctive Relief. Each party ag rees that, in addition to any other remedies to which the other party may be legally entitled, such pa rty shall have the right to seek immediate injunctive re lief in the event of a breach of such secti ons by the other party or any of its officers, employees, consultants or other agents . 10.6 Remedy. Notwith standing anything to the contrary herein, should Customer terminate th is Agreement, (a) purs u ant to clause 10.2(a) for Google's failure to pro vide the Services in accordance w ith the terms and conditions of this Agreement or for a breach of Sections 2 .7, 2 .9 or 3 . 1, or (b) pursuant to clause 10.2(b) ; or if Google terminates this Agreement pursuant to paragraph 8 .1, Google shall be required to promptly pay Customer an amount equal to the [***] pri or to such breach, insolvency or assignment, [***] by the [***] during th e Term; provided that Google shall not be obligated to pay any amount for [***] included in the Term if Google exercised its termina tion right set forth in clause 102(c), unless such termination ri ght has expired; and [***] . If the applicable breach, insolvency or assignment occurs p rior to the completion of a complete calendar month after the Ask.com Launch Date, then Google shall promptly [***] . The foregoing states Google's entire liability and Customer's sole and exclusive remedy for a par ty's terminati on of this greement pursuant to the first sentence of this Section 10 .6 . Notwithstanding the foregoing, such remedy shall be in addition to any payments due and owing to Customer as of the effective date of termination. [***] INDICATES THAT CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24b-2 . CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS . 11 11 Addresses. All payments, correspondence, and notices shall be sent to the following addresses : Google Inc . 2400 Bayshore Parkway Mountain View CA 94043 sk Jeeves, Inc . 858 Horton Street, Suite 350 meryville, CA 94608 Unless specified otherwise by the receiving party in writing, al l invoices or payments shal l be sent to the attenti on of Fi nance, all legal notices shall be sent to the attention of Le g al, and all other correspondence shall be sent, in the case of Customer to the attention of General Manager, Web Prope rties, and in the case of Google to the representati ve indicated in the signature block below. 51 of 61 /6/2005 10 :02 AM D N B G ASK JEEVES INC (Form : 10-Q, Received : 08/14/2002 15 :13 :57) h 7 Case 5:04-cv-01497-RS Document 220-10ahoo .Filed.e07/06/2005 /EFX dll/EDGofR14 .dll?FetchF . . . ttp://y brand dgar-online .com Page 5 A pro Any notice required for or permitted by this Agreement shall be in writing and shall be 12 . Miscellaneous. delivered as follows with notice deemed given as indicated : (i) by personal delivery when delivered personally, (ii) by overnight courier upon written verification of receipt, (iii) by telecopy or facsimile transmission when confirmed by telecopier or facsimile transmission report, or (iv) by certified or registered mail, return receipt requested, upon verification of receipt . All notices must be sent to the addresses first described above or to such other address that the receiving party may have provided in writing for the purpose of notice in accordance with this Section . Neither party may assign its rights or delegate its obligations under this Agreement (by operation of law or otherwise) without the other party's prior written consent, except to person(s) or entity(s) that acquire, through merger or otherwise , (i) ownership of a majority of such parties' securities or voting securities or an amount of such party's securities that provide such acquiring person(s) or entity(s) with the power to elect a majority of the members of such party's board of directors (in all cases, other than any such acquisition of Google securities in connection with a private or public securities offering), (ii) all or substantially all of such party' s assets or (iii) with respect to Customer only, all of substantially all of the assets related to Customer's Web Properties division . This Agreement is not intended to benefit, nor shall it be deemed to give rise to, any rights in any third party . This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to conflict of law principles . Any dispute or claim arising out of or in connection with this Agreement shall brought in the state or federal courts located in Santa Clara County, California. The parties are independent contractors . Neither party shall be deemed to be an employee, agent, partner or legal representative of the other for any purpose and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other . Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, earthquakes, acts of God, war or governmental action. Each party shall be responsible for compliance with all applicable laws, rules and regulations, if any, related to the performance of its obligations under this Agreement . The failure of either party to require performance by the other party of any provision shall not affect the full right to require such performance at any time thereafter ; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect. THIS AGREEMENT, AND SCHEDULES HERETO, CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER [***] INDICATES THAT CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24b-2 . CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS . 12 HEREOF . THIS AGREEMENT SUPERSEDES, AND THE TERMS OF THIS AGREE MENT GOVERN, ANY OTHER PRIOR OR COLLATERAL AGREEMENTS WITH RESPECT TO THE SUBJECT MATTER HEREOF. ANY AMENDMENTS TO THI S AGREEMENT MUST BE IN WRITING AND EXECUTED BY AN OFFICER OF THE PARTIES . IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by their duly authorized representatives . ASK JEEVES, INC. By: /s/ A. GEORGE BATTLE OOGLE INC . y : /s/ ERIC SCHMID T Name: A. George Battle ame: Eric Schmidt Date : July 17, 2002 ate : July 16, 2002 52 of 61 /6 /2005 10 :02 AM 5 F 6 h 7 Ca (Form : 10-Q, Received : 08/14/2002 15 :13 :57) 220-10 ahoo Filed.e07/06/2005 /EFPage DGofR14 .dll?FetchF . . . Document ASK JEEVES INC se 5:04-cv-01497-RS ttpJ/y .brand dgar-online.com X dll/E 6 A pro Fax : 10- 9895-7507 ax : 50-618-183 5 [***] INDICATES THAT CERT AIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24 b-2 . CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS . 13 SCHEDULE A-CUSTOMER SITES A) List of initial domains for which the first Results Pages shall be (***] : 1) Customer domains: Ask.com A skJeeves .com AJ .com 2) Syndicated Sites: [***] B) List of initial domains for which the first Results Pages shall not be 1) Customer domains: Teoma .com D irectHit.com 2) Syndicated Sites: (*** ] [***] INDICATES THAT CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24b-2 . CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS . 14 SCHEDULE B--SER VICE FEES I. DefwMa A) Implementation A means an implementation on [***] in which : (a) the Google Sponsored Links are displayed in a placement substantially similar to or better than the placement in the [* **] (as defined be low); (b) the display of Google Sponso red Links included in Results Sets is [***] with [***] or other Customer content; and (c) Customer does not include [***] or [***] are defined as [***] other than pursuant to existing contractual commitments relating to the area on Customer's site which, as of the date hereof, offers multiple search engine options (the "Metasearch Area") . For purposes of this Agreement, the [***] shall mean a placement of the Google Sponsore d Links in a [***] (i) [***] responses from Customer's [***] (ii) [***] (currently known as [***]) (the [***]) and (iii) up to [***], substantially as shown in [***] attached hereto, or higher to the extent that any such Customer advertising units are not displayed on a pa rticular [***] for a particular Query . For purposes of clarification, any implementation in which any of the above-desc ribe d Customer advertising units are removed from a [***] or moved further up or down a [***], shall not cause the 53 of 61 /6/2005 10:02 AM o ASK JEEVES INC (Form : 10-Q, Received : 08/14/2002 15 :13 :57) h 7 Case 5:04-cv-01497-RS Document 220-10 ahoo .Filed.e07/06/2005 /EFX_dll/EDGofR14 .dil?FetchF . .. ttp://y brand dgar-online.com Page 7 A pro implementation to deviate from an implementation that is considered to be substantially similar to or be tter than the placement in th e [***], as long as placement of Google's Sponsored Links is substantially similar to or better than in the [***] . B) Implementation B means an implementation on [***] in which : (a) the Google Sponsored Links are not displayed in a placement substantially similar to or better than the placement in the [***] ; (b) the display of Google Sponsored Links included in Results Sets is integrated with [***] or other Customer content; or (c) Customer includes [***] or [***] (in accordance wi th Section 2 .10) of a [***] other than pursuant to existing contractual commitments relating to the Metasearch Area. C) [***] means, unless otherwise agreed to by the parties, the [***] which is displayed in response to e [***] and [***], on the applicable [***] that Customer hosts and maintains fro m time to time, and a [***] on th n any other domains mutually designated by the parties from time to time, provided, however, that a [***] shall only be considered a [***] if the [***] (as defined in [***]) for such [***] is [***] of : a) the [***] ; or b) [***] . Notwithstanding the foregoing, if (i) any [***] that Customer hosts and maintains requires that the implementation of the Results Set on a Results Page be worse than the implementation on other [* **] or (ii) the implementation of a Results Page would cause [***] to be in effect for such page, then Customer shall have the option to designate any such Results Page as a [***] (and to later re- designate any such page as a [***]). An initial list of domains for which the [***] Results Pages shall be considered [***] pursuant to this Agreement is attached hereto in Schedule A, and Customer shall provide Google with an updated list of such domains on at least a monthly basis (to the extent that the re are changes the reto). D) [***] means: a) any Results Page other than the [***] which is displayed in response to a [***] on the [***] on the applicable [***] descri bed in the definition of [***], and on any other domains or pages mutually designated by the parties from time to time; and b) any Results Page on the [***], on the [***] domain, and on the domains of [***], and on other Sites, domains or pages, in each case not desc ri bed in the de finition of [***], and on any other domains or pages mutually designated by the part ies from time to time. An initial list of domains for which the [***] shall be considered[***] pursuant to this Agreement is attached hereto i n Schedule A, and [***] INDICATES THAT CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24b-2 . CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS . 15 Customer shall provide Google wi th an updated list of such domains on at least on mon thly basis (to the extent th at there are changes th ereto). H. Paymentfor Google Sponsored Links. Payment: Customer and Google agree that Google shall pay to Customer the amounts described below. 1) Subject to paragraph 4 below, for each calendar month duri ng which only Implementation A is in effect : A) [***] Paymen t Google shall pay Customer the [***] : i) [***] of the Net Ad Revenue (where "NetAd Revenue " means, with re spect to a calendar month during the Term, the gross revenue generated by the [***] on the [***] (e .g . revenue for [***] and revenue for [***]) du ring a calendar mon th minus the total amount of Deductions for the [***] for such month; provided, that gross revenue generated shall be maintained and tracked separately for [***] ; an d provided further that the total amount of Deductions shall not exceed [***] of the total gross revenue generated duri ng such mon th on [***] for which the [***] is not in effect) derived from the Google Sponsored Links appearing on the [***] during such month ; or ii) [***] served by or on behalf of Customer during such month (for purposes of this Section I (A), [* **] . For purposes of this Agreement, " Deductions " shall mean the aggregate amount of [***] each calendar month during the Term with respect to the Services pro vided herein. 54 of 61 /6/2005 10:02 AM S [ [ h 7 ASK JEEVES INC (Form : 10-Q, Received: 08/14/2002 15 :13 :57) Case 5:04-cv-01497-RS Document 220-10 ahoo.Filededgar-online .com/EFX dll/EDGof pro .dll?FetchF . . . 07/06/2005 Page 8 AR 14 ttp ://y brand. B) [***] Paymen t Google shall pay Customer [***] of the Net Ad Revenue (and Google shall retain [***] of the Net Ad Revenue derived from [***] appearing on the [***] during such month . 2) ubject to paragraph 4 below, for each calendar month during which only [***] is in effect: A) [***] Payment Subject to the next paragraph, Google shall pay Customer [***] : i) [***] ofthe Net Ad Revenue derived from the [***] during such month ; or ii) [***] served by or on behalf of Customer during such mo nth (for purposes of this Section 2(A), the [***]). In the event that the [***] of the Google Sponsored Links (where [***] is [***] on the [***] in a given calendar month, then the [***] described in Section 2(AXii) for such month shall equal the product of : (1) [***] multiplied by the quotient determined by dividing (a) the [***] for the Google Sponsored Links displayed on the [***] during such month by (b) the [***] displayed on the [***] during the entire period during the Term prior to such month during which Customer uses [***] on [***], provided that under no circumstances will the [***] ever be greater than [***] . [***] INDICATES THAT CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 20-2 . CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS . 16 Examples : 1) Example 1 2) Example 2 3) Example 3 [**s ] B) ***] Payment Google shall pay Customer [***] of the Net Ad Revenue (and Google shall retain [***] of the Net Ad Revenue) derived from Google Sponsored Links appearing on the [***] during such month. 3) Subject to paragraph 4 below, for months during which both [***] are in effect : A) ***] Payment Google shall pay Customer an amount equal to the amounts described in sections 1(A) and 2(A) above of this Section I of Schedule B, [***] . If Customer changes the implementation, the new implementation will not b e 55 of 61 /6/2005 10 :02 AM ( T [ h 7 ASK JEEVES INC (Form : 10-Q, Received : 08/14/2002 15 :13 :57) Case 5:04-cv-01497-RS Document 220-10 ahoo.Filededgar-online .com/EFX dll/EDGofR14 .dll?FetchF .. . Page 9 A pro ttp://y brand. 07/06/2005 deemed to be in effect until the first complete calendar day that such implementation is in effect. B) ***] Payment Google shall pay Customer [***] of the Net Ad Revenue (and Google shall retain [***] of the Net Ad Revenue) derived from Google Sponsored Links appearing on the [***] . 4) esting Right. Notwithstanding anything in this Agreement to the contrary, each month during the Term while in [***], Customer shall be permitted to test new implementations that would otherwise be considered [***] implementations on up to [***] of the total number of [***] during such month, and such testing shall not cause the effective implementation to change to [***] . M. Timing of Payments : 1) Subject to the second sentence of this section, Google shall [***], no later than the [***], an amount equal to the product of the [***] and the [***] (as determined in Section I of this Schedule B above) . For the calendar month which includes the Ask.com Launch Date, Google shall [***] (such amount being the [***]), and Google shall pay Customer such amount on the [***] . In the event that the [***] that Google owes to Customer with respect to any month is [***], Google will pay the [***] . In the event that the payment amount that Google owes to Customer with respect to any month is [***] for such month, Google shall be entitled to [* **], provided that, if this Agreement terminates or expires and Google has[***] to which Customer is entitled, then [***] within [***] of this Agreement. [***] INDICATES THAT CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN O MI TTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 20-2 . CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS . 17 2) All payments shall be made by wire transfer to an account( s) (or addresses) designated by Customer from time to time . Spam Queries and[***] : IV. With respect to the [***] and the [***], Results Pages from Spam Queries ("Spam Pages") for a given calendar month shall be included in the monthly count of [***] served by Customer . Notwithstanding the foregoing sentence, if such Spam Pages are greater than [***] of such month's total number of [***], then Google shall have the option to : a) continue to count all Spam Pages in the total number of [***] ; or (b) notify Customer that Spam Pages exceed [***] of the total number of [***], in which case the parties shall mutually determine whether Google's processes for counting Spam are accurate, and if Google and Customer agree that such processes are accurate, then Google shall have the right to [***] from the total number of [***] for such month . [***] INDICATES THAT CERTAIN INFORMATION IN T HIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24b-2 . CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE O MITTED PORTIONS . 18 SCHEDULE C-SUPPORT GUIDELINES 1 . Definitions. (a) "Customer Contacts" means no more than two employees designated by Customer in writing who are qualified to contact Google for technical support . (b) "Consulting Requests" means any request made by Customer to Google Technical Support Personnel that is unique to Customer and is unrelated to a Fix, Minor Problem, or Severe Problem . This includes requests by Customer to incorporate a new feature or enhance an existing feature of the Services . 56 of 61 /6/2005 10 :02 AM " ASK JEEVES INC (Form : 10-Q, Received: 08/14/2002 15 :13 :57) h 7 Case 5:04-cv-01497-RS Document 220-10yahooFiled. edgar-online.com/EFPageE10ARp14dll?FetchF. . . 07/06/2005 X_dll/ DG of ro . ttp :// .brand (c) F ix" means a correction, fix, alteration or workaround that solves a Minor Problem or a Severe Problem . "Google Technical Support Personnel" means the employees at Google responsible for handling technical support calls . Google will provide Customer with a web interface or an email address (the "Support Address"), as well as an email pager address (the "Support Pager") for contacting the Google technical support personnel, and an escalation telephone suppo rt number. Google will provide Customer wi th technical contacts . Google may change its designated technical support personnel at its discretion with reasonable notice to Customer. "Hours of Operation" means 24 / 7 for Severe Problems and Monday to Friday 9 :00 a .m .-7 :00 p .m . Pacific Time for Minor Problems . Google may, at its reasonable discretion, change or expand the hours of operation with reasonable notice to Customer. "Minor Problem" means any error, bug, or malfunction that makes any feature of the Services perform unpredictably or to o therwise become intermittently unavailable . "Severe Problem" means any error, bug, or malfunction that causes the Se rv ices to become inaccessible to Customer and its Site end users, or that causes any feature of the Services become continuously unavailable, or that causes the Services to have a mate rial degradation in accuracy or response time perform ance. (d) (e) (f) (g) 2 . Support procedures. Customer will use reasonable efforts to fix any Minor Problems without escalati on to Google . All Minor and Severe Problems and Consulting Requests must be submitted to Google via the Support Address. (a) If Customer believes it is reporting a Severe Problem, Customer will accompany its request with a page via the Support Pager. Upon receiving a request from Customer, Google will determine in its re asonable discreti on whether the request is a Minor Problem, a Severe Problem, or a Consulting Request. If the request is a Severe Problem, Google will attempt to respond to the request within one hour. Google will then use commercially reasonable efforts to fix the Severe Problem and will provide daily status reports to Customer (upon request by Customer) . On resolution of the problem and at Customer's request, Google will provide Customer a problem summa ry including the nature of the problem and steps taken to resolve the problem. If the re quest is a Minor Problem, Google will attempt to respond to the re quest within one business day . Google will then use commercially reasonable efforts to fix the Minor Problem and will provide weekly status reports to Customer (upon request by Customer) . (b) (c) (d) [***] INDICATES THAT CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24b-2 . CONFIDENTIAL THE ATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS . 19 If th e request is a Consulting Request, Google will a ttempt to re spond to the request within ten business days . Should Customer and Google agree to have Google take further action pursuant to the Consulting Request, Customer and Google will negotiate a separate agreement setting forth the terms and conditions for Google's performance of such fu rther action . All time spent by Google in responding to a Consulting Request will be billed to the Customer at Google's then applicable consulting rates and charges. 57 of 61 /6/2005 10 :02 AM s ASK JEEVES INC (Form : 10-Q, Received: 08/14/2002 15 :13 :57) h 7 Case 5:04-cv-01497-RS Document 220-10yahoo.brand.edgar-online .com/EFX_dll/E11 ARp14.dll?FetchF. . . Filed 07/06/2005 Page DG of ro ttp:// 3 . Enhancements and Updates. Google will use commercially reasonable efforts to provide Customer with advance notice of any enhancements and updates to th e Se rv ices that Google may develop . Upon receipt of such notice, Customer will use commercially reas onable efforts to implement the latest enhancement and/or update (and Google hall assist Customer in any such implementation) or continue use of the current Services. In either event, Google shal l continue to support Customer's service requirements as necessary . [***] INDICATES THAT CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24b-2 . CONFIDENTIAL THE ATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS . 20 SCHEDULE D [This schedule intentionally omitted in original agreement] [***] INDICATES THAT CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24b-2 . CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS . 21 SCHEDULE E-BRAND FEATURES Google Brand Features : The Google Brand Features include GOGGLE, the Google logo, other marks that incorporate the word "GOOGLE", PAGERANK, and such other trademarks as Google may secure during the Term . Customer Brand Features : The Customer Brand Features include Ask Jeeves, the Ask Jeeves logo, Ask .com, AskJeeves .com, the Teoma logo, and Teoma com, and other trademarks that Customer may provide to Google during the Term. [***] INDICATES THAT CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24b-2. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS . 22 SCHEDULE F-CUSTOMER IMPLEMENTATIONA Sample Page 58 of 61 /6/2005 10:02 AM M t h 7 Document Filed edg ar-online .co Page 12 of 14 ASK JEEVES Cas(Form: 10-Q, Received: 08/14/2002 15 :13 :57) 220-10/yahoo .brand . 07/06/2005m/EFX_dll/EDGARpro .dll?FetchF. . . INC e 5:04-cv-01497-RS ttp:/ *W ow" swo to,*Wljl~ l~raie:~;tM~int+~nai Fiji ~ :6Nt h ~t1i1;1~~ar sed tae ~r~twuwaoa b rset"A"Wom. tar :liot Nait a a~'int a~t~ . t~ nir~i [***] INDICATES THAT CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 2 0-2. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS . 23 SCHEDULE G- -COMPETITORS LIST 1) [*s* ] 2) [***] INDICATES THAT CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24 b -2 . CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS . 24 59 of 61 /6/2005 10 :02 AM h 7 Document Page 13 of ro . ASK JEEVES Case 5:04-cv-01497-RS INC (Form: 10-Q, Received : 08/14/2002 15 :13 :57) 220-10yahooFiled . edgar-online .com/EFX dIVEDGARp14dll?FetchF . . . ttp:// .brand 07/06/2005 SCHEDULE H-SER VICE LEVEL AGREEMENT Google shall comply with the service levels set forth below ("Service Levels") for the Google Sponsored Links Program provided to Customer under the Ag reement. Service Levels: "Fully Processed and Served Queries" shall mean Queri es that are fully processed, from the time sent by Customer to Google to the time received back by Customer from Google (including a Complete http response, with a complete set of Google Service Results or a "no results" set result served in XML format). Technical Require ments (with respect to Customer domestic US properties ) 1 . Speed ofResults. Google shall maintain the following two latency guarantees (here after "Query/Response Speed Performance Requirement") : (a) (b) [***]- the [***] and initiated transmission of the Sponso red Links. Google shall not [***]. [***]- Customer may send an [***] between two computers in communications hereunder, measured between the [***] handling [***] and the applicable [***], to test the [***]. The [***] shall not exceed an [***] provided Customer installs a [***] at one of [***] . Customer may send queries to Google to test [***] as measured between the [***] handling [***] and the applicable [***] sending such [***]. 2 . Availability. Google will provide [***] "Service Availability", defined as the percentage of Que ries that are Fully Processed And Served within [***], over a [***] (excluding any time of outage caused by equipment or software that is not under the direct control of Google). ` 3 . Implementation of Technical Specifications . The [***] in this Schedule shall only apply provided that (a) Customer correctly implements the technical specifications concerning correct use of XML protocol arguments and correct handling of optional or new result fields set forth in the Google Data Protocol, (b) Customer's DNS client implementa ti on correctly observes the DNS TTL values returned by Google's DNS serv ers, i .e ., if Customer's DNS client does not cache values beyond the TTL ti me , and c) Customer sends Queri es to the host name provided to customer by Google (e.g . XYZ.google .com) and Customer's client implementation repeats the DNS lookups at least every [***] in order to pick up any changes . 4. Remedy-If the Services do not comply with the serv ice levels set forth in this Schedule and Results Pages are not sent back to Customer in response to a Query, then for purposes of the [* * *] described in Schedule B, each such Query shall be deemed to be a [***] serv ed. Where Google is unable to count Que ries because of an outage, such Query determination shall be made using Customer's legitimate and verifiable data . [***] INDICATES THAT CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24b-2 . CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS . 25 SCHEDULE I-COMPETITIVE SERVICE URL S [***] INDICATES THAT CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24 b-2. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS . 26 60 of 61 /6/2005 10:02 AM h ASK JEEVES INC (Form : 10-Q, Received: 08/14/2002 15 :13 :57) 7 Case 5:04-cv-01497-RS Document 220-10yahoo.brand.edgar-online .com/EFX dll/E14 ARpro.dll?FetchF. . . Filed 07/06/2005 Page DG of 14 ttp:// QuickLinks ADVERTISING SERVICES AGREEMENT SCHEDULE A--CUSTOMER SITES SCHEDULE B-SERVICE FEES SCHEDULE D SCHEDULE E----BRAND FEATURE S SCHEDULE F--CUSTOMER R-APLEMENTATION A Sample Page SCHEDULE G--COMPETITORS LIS T SCHEDULE H-SERVICE LEVEL AGREEMENT SCHEDULE I--COMPETITIVE SERVICE URL S End of Filing Q 2005 EDGAR Online, Inc . 61 of 61 16/2005 10 :02 AM

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