Exhibit 10.5


 


EXECUTION COPY


 


CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE
INFORMATION SUBJECT TO THE CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED AS
*. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.


 


 


AMENDMENT NUMBER FIVE TO GOOGLE ORDER FORM AND GOOGLE
SERVICES AGREEMENT


 


This
Amendment Number Five (“Amendment 5”) is  made effective as of September 1, 2007 (“Amendment 5 Effective Date”), and entered
into by and between Answers Corporation (formerly known as Gurunet
Corporation), a corporation formed under the laws of Delaware (“Customer”) and Google Inc., a corporation
formed under the laws of Delaware with its principal place of business at 1600
Amphitheatre Parkway, Mountain View, California 94043 (“Google”).


 


Background


 


1.         Customer and Google entered
that certain Google Services Agreement (“GSA”)
and Google Services Agreement Order Form (“Order
Form”), each effective as of January 28, 2005, each as amended by
Amendment Number One to Google Order Form and Google Services Agreement
effective as of December 20, 2005 (“Amendment
1”), Amendment Number
Two to Google Order Form effective as of January 31, 2006 (“Amendment 2”), Amendment Number Three to
the Google Services Agreement and the Google Services Agreement Order Form
effective as of September 11, 2006 (“Amendment
3”), and Amendment Number Four to Order Form effective as of
December 13, 2006 (“Amendment 4”)
(the GSA, Order Form, Amendment 1, Amendment 2, Amendment 3, and Amendment 4
collectively, the “Agreement”)
pursuant to which Google provides certain Services (as defined in the
Agreement) to Customer; and


 


2.         The parties now wish to
extend the term of the Agreement, revise the tiered schedule for determining
the AFS and AFC Revenue Share Percentages, and to implement Customer Search
Engine and amend certain terms and conditions of the Agreement, but in all
other respects the Agreement shall continue in full force and effect.


 


                  NOW, THEREFORE, in
consideration of the mutual promises contained herein, the parties agree as
follows:


 


Terms


 


1.         For the purposes
of this Amendment 5, unless otherwise defined herein, capitalized terms used
herein shall have the same meanings set forth in the Agreement.


 


2.         The parties
agree to renew the Agreement under the same terms and conditions (except as
modified by this Amendment Five) for an additional two (2) years, through
January 31, 2010.


 


3.         The parties agree that the
tiered schedule for determining “Customer’s AFS Revenue Share Percentage” on
the cover page of the Order Form, as set forth in Section 5 of Amendment 2,
shall be deleted in its entirety and replaced with the following:


 


(i)             if during any
calendar month of the Service Term the aggregate of AFS Revenues and AFC
Revenues are equal to or greater than * Dollars ($*), then “Customer’s AFS
Revenue Share Percentage” shall be * percent (*%) for such month;


 


(ii)          if during any
calendar month of the Service Term the aggregate of AFS Revenues and AFC
Revenues are less than * Dollars ($*)
but equal to or greater than * Dollars ($*), then “Customer’s AFS Revenue Share
Percentage” shall be * percent (*%) for such month; or


 


(iii)       if during any
calendar month of the Service Term the aggregate of AFS Revenues and AFC
Revenues are less than * Dollars ($*), then “Customer’s AFS Revenue Share
Percentage” shall be * percent (*%) for such month.


 


4.         The parties agree that the
tiered schedule for determining “Customer’s AFC Revenue Share Percentage” on
the cover page of the Order Form, as set forth in Section 6 of Amendment 2,
shall be deleted in its entirety and replaced with the following:


 


(i)             if during any
calendar month of the Service Term the aggregate of AFS Revenues and AFC
Revenues are equal to or greater than * Dollars ($*), then “Customer’s AFC
Revenue Share Percentage” shall be * percent (*%) for such month;


 


(ii)          if during any
calendar month of the Service Term the aggregate of AFS Revenues and AFC
Revenues are less than * Dollars ($*) but equal to or greater than * Dollars
($*), then “Customer’s AFC Revenue Share Percentage” shall be * percent (*%)
for such month; or


 


(iii)       if during any
calendar month of the Service Term the aggregate of AFS Revenues and AFC
Revenues are less than * Dollars ($*), then “Customer’s AFC Revenue Share
Percentage” shall be * percent (*%) for such month.


 


5.         The parties
agree to add the following as Section 3.37 of the Order Form:


 


3.37.           “Custom
Search Engine” means Google’s custom search engine provided to
Customer by Google through the WebSearch Service.


 


6.         The parties agree to add the
following as Section 4.4 of the Order Form:


 


4.4.             Custom
Search Engine. If Customer implements
Custom Search Engine, Customer understands and agrees to the following
additional provisions, notwithstanding anything to the contrary contained in
this Agreement:


 


4.4.1.                  Beta
Feature. The Custom Search Engine has
been designated by Google as a Beta Feature (as defined in the GSA) and is
therefore provided “as is,” with no representation, warranty or indemnity,
express or implied, and any use thereof shall be undertaken solely at Customer’s
own risk. Google reserves the right, in its sole discretion, to cease providing
Custom Search Engine at any time with thirty (30) calendar days prior written
notice to Customer. In the event Google ceases to provide Custom Search Engine
pursuant to the preceding sentence, Section 4.4 of this Order Form shall
terminate immediately at the end of such thirty (30) days notice period (except
as provided herein) and the remaining terms of this Agreement shall remain in
full force and effect.


 

















 


4.4.2.            Metadata
Content.


 


4.4.2.1           Definitions.
For purposes  of subsection
4.4.2 hereof (including all subsections thereof), the following capitalized
terms will have the meanings set forth below.


 


a.               “Google
Affiliate” means any entity that  directly or indirectly controls, is controlled by, or is
under common control with Google. For these purposes, “control” includes
control over greater than fifty percent (50%) of the voting rights or equity
interests of Google.


 


b.              “Google End
Users” means end users who access or use the Google Services.


 


 


c.               “Google
Services” means Google’s products and services that are
accessible through and otherwise provided by various computer and electronic
technologies, networks (syndicated and otherwise) and systems, including,
without limitation, Internet-based services and products accessible through the
Google Sites and any Google syndication partner sites.


 


 


d.              “Google
Site” means any website located at a domain owned by Google or a Google
Affiliate, including all subdomains and directories thereof, and all successor
sites thereto.


 


 


e.               “Metadata
Content” means (a) the metadata provided by Customer to
Google pursuant to Customer’s use of Custom Search Engine, including, but not
limited to, labels and Customer’s submitted associations between labels and
URLs, (b) any text, data, images, and other content provided and/or authored by
Customer in connection with Customer’s profile page to be displayed to End
Users, and (c) any Nickname(s) chosen by Customer, and (d) if Customer elects
to so participate, any ratings, reviews and comments provided by Customer to
Google pursuant to Custom Search Engine; and any Updates thereto provided to
Google by Customer.


 


 


f.                 “Nickname(s)” means the name
that Customer may select by which Customer and Customer’s Metadata Content
shall be identified to End Users; and Updates thereto.


 


g.              “Updates” means updates,
refreshes, corrections and/or other modifications.


 


 


4.4.2.2.        License.
Subject to the terms and conditions of this  Agreement, Customer hereby grants to Google a irrevocable,
perpetual, nonexclusive, worldwide and royalty-free right and license to (i)
use, copy, modify, distribute, create derivative works based on and display
(publicly or otherwise) the Metadata Content through the Google Services, and
(ii) allow Google End Users to access and use the Metadata Content through the
Google Services. Google may use consultants and other contractors in connection
with the performance of its obligations and exercise of its rights under this
Section 4.4, provided that such consultants and contractors will be subject to
the same obligations as Google. The license granted hereunder may not be
sublicensed by Google, except to Google Affiliates, its syndication partners or
the syndication partners of any Google Affiliate and Google End Users in
connection with their use of the Google Services.


 


4.4.2.3.        Reservation
of Customer Rights. Except for the license granted under this Section
4.4, Customer retains any right, title and interest in and to the Metadata
Content. In addition, Customer retains all rights to all other content authored
or owned by Customer, to the extent not otherwise licensed or transferred to
Google pursuant to other agreements, to which such Metadata Content is attached
or associated and used in connection with Custom Search Engine.


 


4.4.2.4.        Reservation
of Google Rights. Notwithstanding anything to the contrary, Customer
understands and agrees that nothing in this Agreement will prevent or restrict
Google from using data Google obtains from a source other than Customer under
this Section 4.4. Customer acknowledges and agrees that it will not have any
right, title or interest in any information, content, or data used by Google in
conjunction or association with the Metadata Content, and Customer shall not
make any claim of ownership or interest in any such information, content, or
data. Google and/or its licensors retain all right, title and interest in and
to the Google Services, the Google Sites and all content or data forming part
of or displayed as part of or through the Google Services or Google Sites,
other than the Metadata Content.


 


4.4.2.5.        Third
Party Relations. Customer shall be responsible for accepting and
responding to any communication, modification or removal requests initiated by
a party that is listed in or otherwise has rights in the Metadata Content where
such communication arises out of having its information on the Google Services
and pertains to the Metadata Content.


 


4.4.2.6.        Display
and Format of Metadata Content. The rights granted to Google
herein include the right to display portions of the Metadata Content on Google
Services, Google Sites, Google syndication partner sites and Google Affiliate
syndication partner sites, and display any links to web page(s) on which such
portions of the Metadata Content reside, all as determined by Google in its
sole discretion; provided that, notwithstanding anything to the contrary,
nothing in this Section 4.4 obligates Google to make available to Google End
Users any or all of the Metadata Content. Google will have the sole right to
determine the placement and location of the selected Metadata Content through
the Google Services. For the sake of clarity, each party retains sole
discretion with respect to the look-and-feel, display and operation of its
respective services and websites.


 


4.4.3.                  Implementation
of Custom Search Engine. Customer shall
implement Custom Search Engine in a manner that: (a) conforms to the Custom
Search Engine Specifications set forth in the Cover Page(s) of this Order Form,
if any; (b) conforms to Google’s brand treatment guidelines for Custom Search
Engine (the “CSE Brand Treatment Guidelines”)
as updated by Google from time to time, the current version of which
is located at hffp://google.com/coop/docs/cse/branding.html (or other URL that
Google may make available from time to time in its sole discretion); (c)
conforms to the screenshots and specifications for Custom Search Engine set
forth in Exhibit A attached
hereto; and (d) otherwise complies with the technical and implementation
requirements provided by Google from time to time for Custom Search Engine.
Customer agrees that Google’s brand treatment guidelines for WebSearch referenced
in Section 4.2(b) above (“WebSearch Brand
Treatment Guidelines”) shall apply to Customer’s implementation of
Custom Search Engine in addition to the CSE Brand Treatment Guidelines. If any
terms of the WebSearch Brand Treatment Guidelines conflict with the terms of
the CSE Brand Treatment Guidelines, the terms of CSE Brand Treatment Guidelines
shall control.


 


                                                                              4.4.4.                  Labeling, Branding and
Attribution. Each
WebSearch Box located on a WebSearch Site which is used in connection with
Custom Search Engine and each Results Page containing a WebSearch Results Set
shall conspicuously display a graphic (available at http://google.com/coop/docs/cse/branding.html) that indicates
that the Custom Search Engine is provided by Google, unless otherwise agreed to or
required by Google. The graphic shall link to the Google site located at http://www.google.com
or such other address as Google may designate from time to time during the
Term. Customer agrees that the labeling, branding and attribution requirements
for the


 

















 


WebSearch Service set forth
in Section 4.2.3 above (the “WebSearch
Attribution Requirements”) shall apply to Customer’s implementation
of Custom Search Engine in addition to the labeling, branding and attribution
requirements For Custom Search Engine set forth in this Section 4.4.4 (the “CSE Attribution Requirements”). If any
terms of the WebSearch Attribution Requirements conflict with the terms of the
CSE Attribution Requirements, the terms of the CSE Attribution Requirements
shall control.


 


4.4.5.                  Custom
Search Engine Search Results. Customer
acknowledges and agrees that the Search Results displayed in connection with
Custom Search Engine will be determined by some or all of the following: (a)
the web sites over which the search is to be restricted, filtered or re-ranked,
as provided by Customer through its use of Custom Search Engine; (b) labels
created by Customer, or a community of which Customer is a member; and/or (c)
other Custom Search Engine features that Google may make available from time to
time as described in the Custom Search Engine documentation, which can be found
at http://google.com/coop/docs/cse/ or other URL that Google may make available
from time to time at its sole discretion.


 


4.4.6.                  Survival. The
following sections of this Order Form will survive any termination or
expiration of this Agreement: 3.37, 4.4.1 and 4.4.2 (including all subsections
thereof).”


 


7.         The parties
agree to add the following as subsections (e) through (h) to the second
sentence of Section 6 of the GSA:


 


“(e)
all information provided by Customer to Google in connection with Custom Search
Engine is true and accurate; (f) Customer is the owner of or is licensed to use
and provide the Metadata Content to Google for use with Custom Search Engine;
(g) the Metadata Content does not violate the rights of any third parties,
including without limitation infringement or misappropriation of any applicable
copyright, patent, trademark, trade secret, music, image, or other proprietary
or property right, false advertising, unfair competition, invasion of rights of
privacy, publicity or personality; and (h) the Metadata Content will not
contain any material that is fraudulent, threatening, abusive, harassing,
defamatory, vulgar, obscene, profane, or racially or ethnically objectionable,
including, without limitation, any material that encourages conduct that would
constitute a criminal offense, result in civil liability, or otherwise violate
any applicable local, State, national or international law.”


 


8.         The parties agree to delete
subsection (d) of Section 7.2 of the GSA in its entirety and replace it with
the following:


 


“(d) any claim alleging facts that would constitute a breach of Customer’s
representations and warranties made in subsections (b), (e), (f), (g) and/or
(h) of the second sentence of Section 6; and/or (e) Google’s use of any
Metadata Content, provided that such use complies with the requirements of the
Agreement.


 


9.         The terms and conditions of
the Agreement, except as amended by this Amendment 5, shall remain in full
force and effect. This Amendment 5 may be executed in counterparts, including
facsimile counterparts.


 


IN WITNESS WHEREOF, the parties have executed this
Amendment 5 by persons duly authorized as of the Amendment 5 Effective Date.


 


 


	
  Google:
  GOOGLE, INC.

  	
   

  	
  Customer: ANSWERS CORPORATION

  
	
   

  	
   

  	
   

  
	
  By:
  

  	
  /s/
  Sanjay Kapor

  	
   

  	
  By:
  

  	
  /s/
  Robert S. Rosenschein

  
	
  Print
  Name: Sanjay Kapor

  	
   

  	
  Print
  Name: Robert S. Rosenschein

  
	
  Title:
  Director, Strategic Partnerships

  	
   

  	
  Title:
  CEO

  
	
  Date:
  Sep. 21, 2007

  	
   

  	
  Date:
  Sep. 19, 2007