GOTO.COM SEARCH SERVICES ORDER
Affiliate's Name: Nettaxi.com, Inc. Type of Entity/State: Delaware
Street Address: 1696 Del Avenue City /State/Zip: Campbell, CA 95008
Telephone/Fax: 408-879-9880 / 408-879-9907 Email: dws@nettaxi.com
1. Term: 2 years. 2. Effective Date: 09/01/2000
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3. GoTo.com Search Services: GoTo.com Search Services includes GoTo.com's
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technology and functionality for matching particular keyword requests with an
index of certain web site URL's, for providing the results of that match via the
Internet and then enabling users to link to a designated page for the
advertisers which comprise the results of such match. GoTo.com Search Services
do not include GoTo.com's other services such as GoTo.com Shopping Services and
GoTo.com Auction Services.
4. The GoTo.com Search Services will be offered on Affiliate's Offering(s),
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which is either or both of the following, as indicated below:
Yes Affiliate's Web Site: The pages under the top level domain names owned
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or operated by Affiliate, including but not limited to the following:
www.Nettaxi.com
N/A Affiliate's Application: _____________________________.
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5. Search Links: Search Links enable a user to access GoTo.com Search
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Services. The included Search Links on Affiliate's Offering are indicated
below:
Type of Description
Search Link
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N/A GoTo.com The GoTo.com search box as provided by GoTo.com.
Search Box
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Yes Affiliate The search box provided by Affiliate.
Search Box
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N/A Contextual Words and/or phrases provided by GoTo.com that are
Links hyperlinked to Search Results that appear in a new
browser window.
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Yes HotSpots Words and/or phrases provided by GoTo.com that are
hyperlinked to Search Results.
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N/A Other
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6. Implementation of Search Links: GoTo.com shall provide the GoTo.com
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Search Box, Contextual Links and HotSpots (as indicated), or, for Search Links
to be created by Affiliate (either the Affiliate Search Box or a Search Link
described in "Other"), GoTo.com shall provide the software code and
functionality (such as the precise URL) and, if applicable, the GoTo.com Marks
to create those Search Links. Affiliate shall enable users of Affiliate's
Offering(s) to initiate search queries through the Search Links and to access
the GoTo.com Search Services by creating, implementing, and maintaining the
Search Links in accordance with the specifications (including content, branding,
shape, size, color, spacing and placement) provided to Affiliate by GoTo.com
from time to time, and otherwise in accordance with this GoTo.com Search
Services Order. Search Links on Affiliate's Web Site must be located Above the
Fold. GoTo.com shall use commercially reasonable efforts to provide the GoTo.com
Search Services.
Are mock ups or other additional requirements of the Search Links provided as
part of this GoTo.com Search Services Order? Yes: No: XX. If yes, they are
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attached as Exhibit A and made a part of this GoTo.com Search Services Order.
After a user initiates a query of the GoTo.com Search Services via a Search
Link, then GoTo.com shall use reasonable efforts to make the results of that
query (the "Search Results") available. Search Results are as indicated below:
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Yes GoTo.com Paid Search Results only, where "Paid Search Results" are
search results provided by advertisers of GoTo.com and do not include
supplemental search results provided by third party
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N/A All Search Results (Paid Search Results plus supplemental search results
provided by a third party.)
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7. Search Results Implementation. This section applies only if Search
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Results appear on Affiliate's Offering (i.e. Search Results are Licensed
Materials). Affiliate shall implement the Search Results on Affiliate's Offering
in accordance with GoTo.com's specifications for the format, presentation,
display and placement, and otherwise in accordance with this GoTo.com Search
Services Order. Affiliate shall use reasonable efforts to have all Search
Results appear Above the Fold. At a minimum, 5 complete Search Results must
appear Above the Fold. The number of Search Results for each query, as well as
the order for such Search Results, will be determined by GoTo.com. Affiliate
shall not modify any aspect of the Search Results (including the data contained
therein), and shall ensure that the Search Results appear in the order provided
by GoTo.com.
Contextual Links and Hotspots Implementation.
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a) If Affiliate has a Contextual Link as a Search Link on Affiliate's
Offering, then the Search Results that appear after a click on a Contextual
Link will be displayed in a new browser window, smaller in size than the
full screen, from a server operated and controlled by GoTo.com.
b) If Affiliate has HotSpots or Contextual Links as a Search Link on
Affiliate's Offering, then, on an ongoing basis, Affiliate shall implement
changes in the HotSpots or Contextual Links that are requested by GoTo.com
or mutually agreed by the parties, within two business days after receiving
such request.
Are mock ups or other additional requirements of the Search Results and how they
appear on Affiliate's Offering provided as part of this GoTo.com Search Services
Order? Yes: No: XX If yes, they are attached as Exhibit B and made a part
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of this GoTo.com Search Services Order.
8. Licensed Materials: The Licensed Materials are the items provided by
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GoTo.com that will be displayed on Affiliate's Offering(s), as indicated below.
Yes Portions of Search Links provided by GoTo.com (i.e. the GoTo.com Search
Box, Contextual Links or HotSpots and the software code, functionality
and/or URLs that enable a user of Search Links to access theGoTo.com Search
Services.)
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Yes GoTo.com Marks
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Yes Search Results
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Yes GoTo.com Search Services
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9. Compensation. GoTo.com shall pay Affiliate the amounts set forth below,
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less any taxes GoTo.com may be required to withhold, within 45 days after the
end of the quarter in which such amounts were incurred. GoTo.com shall include a
report of the amounts that accrued during the most recent measurement period
with each payment. GoTo.com will retain all revenue derived from the Search
Links, GoTo.com Search Services and Search Results, except as specifically set
forth on this GoTo.com Search Services Order. Payments must be in U.S. Dollars.
GoTo.com has no obligation to make any payment in any period where the total due
Affiliate is less than $250; GoTo.com may hold such payments due Affiliate until
the amount due Affiliate hereunder exceeds $250.
GoTo.com shall pay Affiliate 40% of Gross Revenue. For purposes of this
Agreement, "Gross Revenue" means amounts collected by GoTo.com for Bidded Clicks
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less taxes, administrative charges, customary reserves and accruals, bad debts
and discounts stated on the invoice. For purposes of this Agreement, a "Bidded
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Click" is a click on a Paid Search Result by a user of Affiliate's Offering(s)
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immediately after transferring from the Search Links to the. Search
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Results. Bidded Clicks are counted at GoTo.com's servers. GoTo.com has no
obligation to pay Affiliate for Bidded Clicks (i) whereby a user repeatedly
accesses the GoTo.com Search Services within a finite period of time without
intent to perform a search, or by a bot, macro program, Internet agent or any
other automatic means, (ii) that are fraudulent Bidded Clicks, such
determination to be made by GoTo.com or (iii) otherwise not Bidded Clicks, such
determination to be made by GoTo.com.
10. Miscellaneous. Terms not defined herein have the meanings indicated in
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the attached Terms and Conditions, which, along with all attached exhibits,
riders and mock ups, if any, are incorporated into this GoTo.com Search Services
Order. By signing below, both Affiliate and GoTo.com accept and agree to this
GoTo.com Search Services Order, including the attached Terms and Conditions, and
all exhibits, riders and mock ups, if any.
Accepted and Agreed:
AFFILIATE GOTO.COM, INC
By: /s/ Robert Speicher By: /s/ Todd Taffin
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Name: Robert Speicher Name: Todd Taffin
Title: EVP Sales and Marketing Title:
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Name of Entity: Nettaxi.com
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TERMS AND CONDITIONS OF SERVICES ORDER
1. ADDITIONAL DEFINITIONS
1.1 Affiliate. The entity or person set forth in the first line of the
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GoTo.com Services Order as Affiliate.
1.2 Above the Fold: "Above the Fold" means visible on the top of a computer
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screen without the user scrolling down or to the right or to the left, at a
screen resolution of 640 by 480.
1.3 GoTo.com Marks: (i) any or all of the following, as provided by
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GoTo.com: (A) The mark "GoTo.com", in typed form and stylized formats; (B) the
green circle on a yellow background incorporating the name "GoTo.com" (the
"GoTo.com Logo", as may be modified from time to time); (C) the phrase "Search
made simple"; (ii) all of the following (X) the format or general image or
appearance of the Search Results or the Web pages provided by GoTo.com or
produced by any of its technology or services; (Y) any word, symbol or device,
or any combination thereof, used or intended to be used by GoTo.com to identify
and distinguish GoTo.com's products or services from the products or services of
others, and to indicate the source of such goods or services; and (Z) any
updates to the foregoing.
2. GRANT OF LICENSE
2.1 License. Subject to the terms and conditions of this Services Order,
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GoTo.com grants to Affiliate a limited, non-exclusive, non-assignable,
non-transferable, non-sub-licensable, royalty-free license during the term of
this Services Order to display the Licensed Materials on Affiliate's Offerings,
as specifically authorized or described in this Services Order.
2.2 Conditions of License. The Licensed Materials must be reproduced and
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displayed in the size, place, and manner indicated in this Services Order, and
only in compliance with GoTo.com's Usage Guidelines, attached hereto as Schedule
1, as modified from time to time by GoTo.com in its sole discretion. If
Affiliate engages in any action that, in GoTo.com's sole discretion, reflects
poorly on GoTo.com or otherwise disparages or devalues the GoTo.com Marks; or
GoTo.com's reputation or goodwill, GoTo.com may terminate the Services Order
immediately upon notice to Affiliate.
2.3 Ownership of Licensed Materials. Affiliate acknowledges that all
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right, title and interest in the Licensed Materials is exclusively owned by
GoTo.com and/or its licensors, and that no right other than the limited license
granted herein is provided to Affiliate. Affiliate shall not assert copyright,
trademark or other intellectual property ownership or other proprietary rights
in the Licensed Materials or in any element, derivation, adaptation, variation
or name thereof. Affiliate shall not contest the validity of, or GoTo.com's
ownership of, any of the Licensed Materials. During the term of this Services
Order, Affiliate shall not, in any jurisdiction, adopt, use, or register, or
apply for registration of, whether as a corporate name, trademark, service mark
or other indication of origin, or as a domain name, any GoTo.com Marks, or any
word, symbol or device, or any combination confusingly similar to any of the
GoTo.com Marks.
2.4 Ownership of Goodwill. Affiliate agrees that its use of the Licensed
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Materials inures to the benefit of GoTo.com. All goodwill or reputation in the
Licensed Materials automatically vests in GoTo.com when the Licensed Materials
are used by Affiliate pursuant to this Services Order.
2.5 Ownership of GoTo.com Search Services. Affiliate acknowledges and
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agrees that, as between the parties, GoTo.com owns all right, title and interest
in and to the GoTo.com Search Services and the Search Results, whether or not
such items are included in the Licensed Materials.
3. AFFILIATE'S RESPONSIBILITIES
3.1 Affiliate's Offerings: Affiliate agrees that it is solely responsible
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for the development, maintenance and operation of Affiliate's Offerings and for
all materials and content that appear on Affiliate's Offerings.
4. REPRESENTATIONS AND WARRANTIES
4.1 GoTo.com Warranties. GoTo.com represents and warrants that it has full
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power and authority to enter into this Services Order. GoTo.com does not warrant
that the Licensed Materials or GoTo.com Search Services will meet all of
Affiliate's requirements or that performance of the Licensed Materials or
GoTo.com Search Services will be uninterrupted or error-free. GOTO.COM IS NOT
RESPONSIBLE FOR ANY CONTENT PROVIDED BY THIRD PARTIES (INCLUDING ADVERTISERS),
OR FOR ANY THIRD PARTY SITES THAT CAN BE LINKED TO FROM THE SEARCH RESULTS.
GOTO.COM AND ITS LICENSORS MAKE 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.
4.2 Affiliate Warranties. Affiliate represents and warrants that: (i) it has
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full power and authority to enter into this Services Order, (ii) the content on
Affiliate's Offerings, or on Search Links or the Web site or other location
Search Results are displayed (except to the extent provided by GoTo.com)
(collectively, "Affiliate Items"). and/or the technology used by Affiliate in
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connection with Affiliate Items and/or the means by which users access Affiliate
Items (a) are owned, validly licensed for use by Affiliate or in the public
domain; (b) do not constitute defamation, libel, obscenity; (c) do not violate
applicable law or regulations; (d) do not infringe or violate any copyright,
patent, trademark or other similar intellectual property right, or otherwise
violate or breach any duty toward, or tights of any person or entity, including
without limitation, rights of privacy and publicity; and (e) do not result in
any consumer fraud, product liability, breach of contract to which Affiliate is
a party or cause injury to any third party.
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5. CONFIDENTIALITY
5.1 Definition. "Confidential Information" means any information disclosed
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by either party to the other party during the Term (and any renewals terms),
either directly or indirectly, in writing, orally or by inspection of tangible
objects, which is designated as "Confidential," "Proprietary" or some similar
designation. Information communicated orally will be considered Confidential
Information if such information is designated as being Confidential Information
at the time of disclosure and confirmed in writing as being Confidential
Information within 20 days after the initial disclosure. Confidential
Information will not, however, include any information which (i) was publicly
known and made generally available in the public domain prior to the time of
disclosure by the disclosing party; (ii) becomes publicly known and made
generally available after disclosure by the disclosing party to the receiving
party through no action or inaction of the receiving party; (iii) is already in
the possession of the receiving party at the time of disclosure by the
disclosing party; (iv) is obtained by the receiving party from a third party
without a breach of such third party's obligations of confidentiality; or (v) is
independently developed by the receiving party without use of or reference to
the disclosing party's Confidential Information.
5.2 Restrictions. The receiving party agrees (i) not to disclose any
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Confidential Information to any third parties, (ii) not to use any Confidential
Information for any purposes except to carry out its rights and responsibilities
under this Services Order and (iii) to keep the Confidential Information
confidential using the same degree of care the receiving party uses to protect
its own confidential information, as long as it uses at least reasonable care.
If either party receives a subpoena or other validly issued judicial process
requesting, or is required by a government agency (such as the SEC) to disclose,
Confidential Information of the other party, then the receiving party shall not
disclose such Confidential Information without the prior written approval of the
disclosing party and shall notify the disclosing party of such requirement and
shall reasonably cooperate to seek confidential treatment or to obtain an
appropriate protective order to preserve the confidentiality of the Confidential
Information. All obligations under this Section 5.2 survive for 3 years after
termination of the Services Order.
6. INDEMNIFICATION
6.1 GoTo.com Indemnification. GoTO.com shall defend and/or settle, and pay
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damages awarded pursuant to, any third party claim brought against Affiliate,
which alleges facts that would constitute a breach of any warranty or
representation made by GoTo.com under this Services Order; provided that
Affiliate promptly notifies GoTo.com in writing of any such claim, promptly
tenders the control of the defense and settlement of any such claim to GoTo.com
(at GoTo.com's expense and with GoTo.com's choice of counsel), and cooperates
fully with GoTo.com (at GoTo.com's request and expense) in defending or settling
such claim, including but not limited to providing any information or materials
necessary for GoTo.com to perform the foregoing.
6.2 Affiliate Indemnification. Affiliate shall defend and/or settle, and pay
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damages awarded pursuant to, any third party claim brought against GoTo.com,
which alleges facts that would constitute a breach of any warranty,
representation or covenant made by Affiliate under this Services Order or are
related to Affiliate's breach of a material obligation under this Services
Order; provided that GoTo.com promptly notifies Affiliate in writing of any such
claim, promptly tenders the control of the defense and settlement of any such
claim to Affiliate (at Affiliate's expense and with Affiliate's choice of
counsel), and cooperates fully with Affiliate (at Affiliate's request and
expense) in defending or settling such claim, including but not limited to
providing any information or materials necessary for Affiliate to perform the
foregoing. Affiliate will not enter into any settlement or compromise of any
such claim without GoTo.com' s prior consent, which shall not be unreasonably
withheld.
6.3 Limitation of Liability. EXCEPT FOR LIABILITY ARISING OUT OF OR RELATED
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TO BREACH OF THE CONFIDENTIALITY PROVISIONS HEREIN, OR FOR OBLIGATIONS ARISING
UNDER SECTION 5.1 OR 5.2, NEITHER PARTY OR ANY OF GOTO.COM'S LICENSORS WILL BE
LIABLE FOR ANY LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR
SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
INCLUDING DAMAGES FOR LOST DATA, HOWEVER CAUSED AND UNDER ANY THEORY OF
LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT, 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. IN NO EVENT WILL GOTO.COM'S
LIABILITY ARISING OUT OF THIS SERVICES ORDER EXCEED THE NET AMOUNT PAID OR
PAYABLE TO AFFILIATE UNDER THIS SERVICES ORDER DURING THE TWELVE MONTHS PRIOR TO
THE DATE THE CAUSE OF ACTION AROSE.
7. TERM
7.1 Term. This Services Order is effective as of the Effective Date and
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shall continue in force for the Term. Thereafter, Services Order will renew
automatically for successive one-year periods until expiration of the commercial
usefulness of the Search Results, until either party gives written notice to the
other party of its intent not to renew no less than 30 days prior to the end of
the previous one-year period, or until terminated pursuant to this Services
Order.
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7.2 Termination. If either party breaches any covenant, representation
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and/or warranty of this Services Order and such breaching party does not cure
such breach within ten (10) days of written notice by the nonbreaching party of
such breach, then the nonbreaching party may terminate the Services Order upon
written notice to the breaching party after failure to cure within those ten
(10) days. In addition, either party may suspend performance and/or terminate
this Services Order if the other party makes any assignment for the benefit of
creditors or has any petition under bankruptcy law filed against it, which
petition is not dismissed within 60 days of such filing, or has a trustee or
receiver appointed for its business or assets or any party thereof.
7.3 Effect of Termination or Expiration. Upon the termination of this
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Services Order for any reason (i) all license rights granted herein shall
terminate immediately, and (ii) Affiliate shall immediately cease use of the
Licensed Materials, and (iii) Sections 2.3, 2.4, 5, 6, 7.4 and 8 survive.
8. MISCELLANEOUS
8.1 Notice. Any notice required for or permitted by this Services Order
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shall be in writing and shall be deemed delivered if delivered 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, (iv) by certified
or registered mail, return receipt requested, upon verification of receipt; or
(v) by the same day, when delivered by email. All notices must be sent to the
addresses first described above, or to such other address that the receiving
party may have provided for the purpose of notice in accordance with this
Section.
8.2 Press Release. Affiliate may not issue any press release or other public
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statements regarding this Services Order without GoTo.com's prior written
approval.
8.3 Mock Ups. If any mock ups are attached to this Services Order, then all
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Search Links and/or all Search Results, as appropriate, shall appear
substantially similar to such mock ups.
8.4 Assignment. Neither party may, assign its rights or delegate its
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obligations under this Services Order without the other party's prior written
consent, except to the surviving entity in a merger or consolidation in which it
participates or to a purchaser of all or substantially all of its assets, so
long as such surviving entity or purchaser shall expressly assume in writing the
performance of all of the terms of this Services Order.
8.5 No Third Party Beneficiaries. All rights and obligations of the parties
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hereunder are personal to them. This Services Order is not intended to benefit,
nor shall it be deemed to give rise to, any rights in any third party.
8.6 Governing Law. This Services Order will be governed and construed, to
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the extent applicable, in accordance with United States law, and otherwise, in
accordance with California law, without regard to conflict of law principles.
Except for requests for injunctive relief, any dispute or claim arising out of
or in connection with this Services Order shall be finally settled by binding
arbitration in Los Angeles County, California under the Commercial Rules of the
American Arbitration Association by one arbitrator appointed in accordance with
said rules. Judgment on the award rendered by the arbitrator may be entered in
any court having jurisdiction thereof.
8.7 Independent Contractors. The parties are independent contractors. This
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Services Order shall not be construed to create a joint venture or partnership
between the parties. 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.
8.8 Force Majeure. Neither party shall be liable hereunder by reason of any
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failure or delay in the performance of its obligations (except for the payment
of money) on account of strikes, shortages, riots, insurrection, fires, flood,
storm, explosions, earthquakes, Internet outages, acts of God, war, governmental
action, or any other cause that is beyond the reasonable control of such party.
8.9 Compliance with Law. Each party shall be responsible for compliance with
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all applicable laws, rules and regulations, if any, related to the performance
of its obligations under this Services Order.
8.10 Entire Agreement. This Services Order (including the Services Order, these
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Terms and Conditions and all exhibits, riders and mock ups attached thereto)
constitutes the entire agreement between the parties with respect to the subject
matter hereof. This Services Order supersedes, and the terms of this Services
Order govern, any other prior or collateral agreements (including without
limitation, any warranties) with respect to the subject matter hereof. Any
amendments to this Services Order must be in writing and executed by an officer
of the parties.
8.11 Counterparts. This Services Order may be entered into by each party in
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separate counterparts and shall constitute one fully executed Services Order
upon execution by both Affiliate and GoTo.com.
8.12 Severability. If any provision of this Services Order is held or made
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invalid or unenforceable for any reason, such invalidity shall not affect the
remainder of this Services Order, and the invalid or unenforceable provisions
shall be replaced by a mutually acceptable provision, which being valid, legal
and enforceable comes closest to the original intentions of the parties hereto
and has like economic effect.
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8.13 Waiver. The terms or covenants of this Services Order may be waived
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only by a written instrument executed by the party waiving compliance. The
failure of either party at any time or times to require performance of any
provision hereof shall in no manner affect the right at a later time to enforce
the same. No waiver by either party of the breach of any term or covenant
contained in this Services Order, whether by conduct or otherwise, in any one or
more instances, shall be deemed to be, or construed as, a further or continuing
waiver of any such breach or a waiver of the breach of any other term or
covenant contained in this Services Order.
8.14 Section Headings. The section headings contained herein are for
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reference purposes only and shall not in any way affect the meaning or
interpretation of this Services Order.
SCHEDULE 1
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GOTO.COM USAGE GUIDELINES
1. You may use the Licensed Materials solely for the purpose authorized
herein by GoTo.com and only in compliance with the specifications, directions,
information and standards supplied by GoTo.com and modified by GoTo.com from
time to time.
2. You agree to comply with any requirements established by GoTo.com
concerning the style, design, display and use of the Licensed Materials; to
correctly use the trademark symbol TM or registration symbol with every use of
the trademarks, service marks and/or tradenames as part of the Licensed
Materials as instructed by GoTo.com; to use the registration symbol upon
receiving notice from GoTo.com of registration of any trademarks, service marks
and/or tradenames that are part of the Licensed Materials.
3. You may not alter the Licensed Materials in any manner, or use the
Licensed Materials in any manner that may dilute, diminish, or otherwise damage
GoTo.com's rights and goodwill in any GoTo.com trademark, tradename and/or
service mark that are part of the Licensed Materials.
4. You may not use the Licensed Materials in any manner that implies
sponsorship or endorsement by GoTo.com of services and products other than those
provided by GoTo.com.
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