exv10w11



 




PORTIONS OF THIS EXHIBIT WERE
OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE SECRETARY OF THE COMMISSION PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT; [***]
DENOTES OMISSIONS.



Exhibit 10.11




Execution Copy




YAHOO! SEARCH MARKETING - YAHOO! PUBLISHER NETWORK SERVICE ORDER #1-6252597








	PUBLISHER NETWORK




	PUBLISHER: NAMEMEDIA, INC. PUBLISHER TAX ID: 20-2353759 Start Date: The latter date of either OSI’s or Publisher’s signature, End Date: Two (2) years from the Start Date This Agreement terminates and supersedes the Term Sheet # 1-6252597, as amended, between Overture Services, Inc. and Overture Search Services (Ireland) Limited, on the one hand, and NameMedia, Inc., on the other hand. This Agreement will automatically renew for additional six (6)
 month periods unless either party gives notice of non-renewal at least forty five (45) days before the expiration of the current term.
Publisher’s Offerings: Syndicated Sites (as defined in Attachment C)
Links and Results:
E! Domain Match Link: Domain Match Results
Implementation:
As shown in Attachment A and as described in this SO and Attachments
Hyperlinks: Max Queries per Second: 250
Domain Match Results: Minimum Above the Fold: 4 (provided that the requirement is reduced to 3 solely in the event
Publisher displays its own Comparable Results on a Domain Results Page)
Publisher will use commercially reasonable efforts to launch the services within ten (10) business days of receiving
the production feed from Overture.
Compensation: Overture will pay Publisher for Domain Match Results on Syndicated Sites:
A.In the United States: [***]% of Gross Revenue.
B.In all countries in the Territory excluding the United States: [***]% of Gross Revenue.
Non-Disclosure Agreement (“NDA”) effective date: April 1, 2005
Notices will be delivered in accordance with Section 22 of Attachment B to:
NAMEMEDIA, INC.YAHOO! SEARCH MARKETING
230 Third Avenue, First Floor, Waltham, MA 02451 Attn: General Counsel Fax: 781 839 2801
3333 W. Empire Avenue, Burbank, CA 91504 Attn: General Counsel Fax: 818 524 3001
OVERTURE SEARCH SERVICES (IRELAND) LIMITED
First Floor, Fitzwilton House, Wilton Place, Dublin 2, Ireland
Attn: Legal
Fax: 44 20 7131 1775



Confidential




1









 




PORTIONS OF THIS EXHIBIT WERE
OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE SECRETARY OF THE COMMISSION PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT; [***]
DENOTES OMISSIONS.



Execution Copy




YAHOO! SEARCH MARKETING - YAHOO! PUBLISHER NETWORK SERVICE ORDER #1-6252597




Publisher, OSI and OSSIL agree to this Service Order and all
Attachments.


Signed:





	 	 	 	 	 	 	 	 	 	 	 
	NAMEMEDIA, INC. (“Publisher”)	 	 	 	OVERTURE SERVICES, INC., doing business as

YAHOO! SEARCH MARKETING (“OSI”)
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Kelly P. Conlin
	 	 	 	By:
	 	/s/ Scott Bushman	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	Name:

	 	Kelly P. Conlin
	 	 	 	Name:	 	Scott Bushman	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	Title:

	 	CEO
	 	 	 	Title:	 	Senior Director BD	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	OVERTURE SEARCH SERVICES (IRELAND) LIMITED
(“OSSIL”)
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 







Confidential





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PORTIONS OF THIS EXHIBIT WERE
OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE SECRETARY OF THE COMMISSION PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT; [***]
DENOTES OMISSIONS.



Execution Copy




YAHOO! SEARCH MARKETING - YAHOO! PUBLISHER NETWORK SERVICE ORDER #1-6252597




ATTACHMENT A




IMPLEMENTATION REQUIREMENTS





The following requirements apply to all Links and Results shown in the SO for Publisher’s
Offerings. Any provisions concerning Links and Results not explicitly listed in the SO do not
apply to Publisher, OSI is solely responsible for the Overture rights, obligations and duties
described under this Agreement for the markets included as part of the Territory within the
Americas and OSSIL is solely responsible for the Overture rights, obligations and duties
described under this Agreement for the markets included as part of the Territory outside of the
Americas. The use of the term “Overture” throughout this Agreement shall refer to OSI in
relation to the markets included as part of the Territory within the Americas and shall refer
to OSSIL in relation to all markets included as part of the Territory outside of the Americas.





	A.	 	Requirements for all Links, Queries and Results
	 
	1.	 	Publisher will implement the Links and Results as depicted in the mockups or as otherwise
provided in this Agreement, which shall be subject to change and modification by the Publisher
at any time. In the event Publisher changes or modifies the web pages displaying Links or
Results as shown in the mockups including but not limited to margins, text size, color, font,
shading/background, spacing, blank areas, content categories, number of listings, section and
placement on the page (top to bottom and left to right) in a way that materially and
negatively affects the prominence of the Links or Results, such that the monthly click through
rate (“CTR”) for all Publisher’s Offerings decreases
by more than [***]% [***] Publisher’s Offerings
(“Base CTR”) then Publisher shall promptly (but in no event later than five (5) business days
after notice from Overture) take such reasonable actions on the web pages for such Publisher’s
Offerings reasonably necessary to return the CTR to the Base CTR, The parties agree that this
provision will not apply in any month in which (a) Overture changes a material characteristic
of the Links or Results, (b) Publisher provides written notice to Overture that includes
evidence that [***] has caused the CTR for specific Publisher’s Offerings to affect the
CTR for Publisher’s Offerings, (c) Overture requests that Publisher change or modify the web
pages displaying the Links or Results, or (d) Publisher makes such changes or modifications
(i) in order to comply with law or a government regulation, or (ii) as reasonably determined
by Publisher to be necessary to reduce the legal risk to Publisher relating to the display of
Links or Results.
	 
	2.	 	Publisher will display the labels and headings shown in the mockups (or any
labels, headings or notices provided by Overture or required by law), with a nearby prominent
link to a webpage that explains in language mutually agreed upon by the
parties that certain Results are sponsored advertising, which may include
“paid listings” or “sponsored results.” Overture reserves the right to include links
within the Paid Results to further clarify the sponsored nature of the Paid Results to
reduce risk to Overture; provided that such links are implemented on a system-wide
network basis and that such links are not included for marketing or advertising Overture’s
products or services or other similar purposes unrelated to reducing
Overture’s risk associated with the display of the Paid Results.
	 
	3.	 	Publisher will display all Paid Search Results, Hyperlink Results, Domain Match Results and
Web Search Results on the next webpage displayed to a user after a Query, with no interstitial
content, at the same time as it displays the other content on that webpage.
	 
	4.	 	Publisher will not cache Results.
	 
	5.	 	Publisher will display Results contiguously, in the order provided by Overture, without any
other content between the individual Results; provided however that Publisher may display its
own Comparable Results after the first three (3) Domain Match Results on a Domain Results
Page.
	 
	6.	 	Publisher will not truncate the full titles, descriptions and URLs provided by
Overture and will not modify any part of the Results. Publisher will display Results in the
language provided by Overture.
	 
	7.	 	Publisher will include the Links on each Publisher’s Offering as described
in the





Confidential




3









 




PORTIONS OF THIS EXHIBIT WERE
OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE SECRETARY OF THE COMMISSION PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT; [***]
DENOTES OMISSIONS.



Execution Copy




YAHOO! SEARCH MARKETING - YAHOO! PUBLISHER NETWORK SERVICE ORDER #1-6252597





Agreement, subject to Section 3 of Attachment B. Publisher will not request Results by any means
except the Links and will not place Links on any software application or email except for the
Publisher’s Offerings listed in the SO, subject to Attachment B, Section 4. Publisher will use
commercially reasonable efforts to enable its users having IP addresses within the Territory
that access Publisher’s Offerings to access and use the Links and Results and to deliver Queries
to Overture when a user having an IP address within the Territory uses a Domain Match Link.




	B.	 	Additional Requirements for Hyperlinks
	 
	1.	 	Publisher will allow the Hyperlinks to send Overture a Query each time that a user uses a
Hyperlink. Overture reserves the right to require Publisher to remove Hyperlinks from any
webpage or to stop using any particular keyword in association with the Links or
Results for a particular Publisher’s Offering for any reason upon notice to Publisher, subject
to Attachment B, Section 8 below.
	 
	2.	 	Publisher will not exceed the Max Queries per Second. If Publisher exceeds the
Max Queries per Second, Overture shall notify Publisher and may suspend services
after 24 hours notice until the number of Queries per Second drops below the Max Queries
per Second.
	 
	3.	 	Publisher will display Domain Match Results and/or Hyperlinks at the same time as it
displays the other results on a webpage.
	 
	C.	 	Additional Requirements for Paid Search
and/or Web Search
	 
	1.	 	Publisher may implement the Search Box on all pages within Publisher’s Offerings; provided
that in the event Overture receives a complaint from one or more of its Advertisers
concerning the lack of a Search Box on a webpage for a Publisher’s Offering and provides
written notice, including the nature of the complaint as it relates to the Publisher’s
Offering, to Publisher, then Publisher will add a Search Box to the webpage that is the
subject of the complaint.
	 
	D.	 	Pop Under Windows.
	 
	1.	 	Publisher may provide Landing Pages for display in Pop Under Windows. Each Pop Under Window
containing a Landing Page will conform to the mock-up included below. For clarity, Publisher agrees
that Paid Results may not appear in Pop Under Windows.





Confidential




4









 




PORTIONS OF THIS EXHIBIT WERE
OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE SECRETARY OF THE COMMISSION PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT; [***]
DENOTES OMISSIONS.



Execution Copy




YAHOO! SEARCH MARKETING - YAHOO! PUBLISHER NETWORK SERVICE ORDER #1-6252597




MOCKUPS




To be mutually agreed upon by the parties within five (5) business days of the Start Date.




Confidential





5












 




PORTIONS OF THIS EXHIBIT WERE
OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE SECRETARY OF THE COMMISSION PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT; [***]
DENOTES OMISSIONS.



Execution Copy




     YAHOO!
SEARCH MARKETING - YAHOO! PUBLISHER NETWORK SERVICE ORDER #1-6252597



ATTACHMENT
B – TERMS AND CONDITIONS



The parties agree to the following:




The parties’ agreement consists of the Service Order, Attachment A, Attachment B, Attachment C and
the NDA (“Agreement”).




1. License. During the Term and subject to Publisher’s compliance with this
Agreement, except as expressly provided under this Agreement, Overture grants
to Publisher a limited, non-exclusive, non-assignable, non-transferable, non-sublicensable,
royalty-free license to use and display the Links and the Results on Publisher’s Offerings, solely
for the purposes contemplated in this Agreement. The above license includes the limited right to
use and reproduce the software code and/or URLs that allow Publisher to create Links and receive
Results. For the avoidance of doubt, any assignment by Publisher of this Agreement
permitted under Section 24 below shall include the license set forth in this Section 1.




2. Services. Overture will use commercially reasonable efforts to respond
to Queries by delivering Results or a response that no Results are being delivered. Overture
will determine the number of Results provided for each Query. Overture will
ensure 99.5% Availability as measured by Overture and verified by Publisher. In addition,
the Aggregate Response Time for Domain Match Results will not exceed a monthly average of
1,100 milliseconds for 95% of all Queries, as measured and reported monthly by Overture
production query logs and verified by Publisher. In the event of discrepancies between these two
sources, Publisher and Overture will work together to determine the root cause of such
discrepancy.




3. Publisher’s Offerings.



(a) This
Agreement applies to the top-level domains of any Syndicated Sites
(including successor sites) and the web pages within those Syndicated
Sites for which Domain  Match Results or Comparable Results are
displayed for users with IP addresses within the Territory.



(b) Notwithstanding anything to the contrary contained in the Agreement and subject to
the penultimate sentence of this Section 3(b), Publisher shall have the right during the Term of
the Agreement to monetize [***]. In the event that Publisher [***] pursuant to this Section
3(b), Publisher shall [***]. Overture shall [***] to provide Publisher with [***] to Publisher for
[***] a period of [***] days the [***] of [***]. If Overture and Publisher [***], the parties will
amend the Agreement to [***]. If Overture (i) [***] the [***], (ii) [***] to provide [***] with a
[***] to [***], or (iii) [***], but [***] to [***] on the [***], then Publisher [***] for [***]
shall not be considered [***] and as such shall not [***] . Notwithstanding the foregoing, in no
instance shall Publisher’s [***] of [***] pursuant to this Section 3(b) [***] for this Agreement.
Further, in the [***] does not [***] to [***] to [***], then [***] of a [***] on any [***] must
[***].



4. Right of First Negotiation for Mapped
Domains/ Additional Overture Products.



(a) Overture shall have the exclusive right of first negotiation to be the exclusive third party
source of [***]



			
	 
	 	Confidential






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PORTIONS OF THIS EXHIBIT WERE
OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE SECRETARY OF THE COMMISSION PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT; [***]
DENOTES OMISSIONS.


Execution Copy




     YAHOO! SEARCH MARKETING - YAHOO! PUBLISHER NETWORK SERVICE ORDER #1-6252597


; provided that the [***] is not subject to an
existing agreement with a third party provider of [***] substantially similar to [***], the terms of which would be breached by Publisher if Publisher were to enter into an
agreement with Overture to provide [***] substantially similar to [***] thereto (“Existing Agreement”) in which case Publisher shall not be obligated to
offer Overture the exclusive opportunity to provide such services. If a [***]
is subject to an Existing Agreement, Publisher agrees to (i) terminate the Existing
Agreement if permitted by the terms of the Existing Agreement without penalty to the Publisher and
(ii) not renew, nor extend the term of, the Existing Agreement in any event. If a [***]
is not subject to an Existing Agreement, Publisher shall notify Overture in writing of
such, and Overture shall have fifteen (15) business days from receipt of such written notice to
provide Publisher with a written response to Publisher’s offer to provide such services. In
the event that Overture accepts the offer, the parties shall negotiate in good faith for a period
of thirty (30) days the terms and conditions of Overture providing services to the [***]. For the avoidance of doubt, it is understood and agreed that if Overture and
Publisher agree that Overture shall provide [***] and [***] on a [***], (1) Overture shall be the exclusive provider of [***] on said [***] and (2) the following financial terms shall apply to the [***]: (i) Overture
agrees to guarantee Publisher a [***] paid to
Overture [***] (“[***]”) of [***] (the “ [***]”)
and (ii) in the event that the [***] falls below [***] then the [***] for the [***]
will be increased to up to [***] ([***]) [***] in order to attain the [***]. For
clarity, if and when the [***] is reached, Publisher will receive the [***] amount for the particular country in the Territory as set forth on page one (1) of the
Service Order. In the event that Overture (a) declines the offer, (b) fails to provide Publisher
with a written response to such offer within fifteen (15) business days, or (c) accepts the offer,
but fails to reach an agreement on the terms and conditions of Overture providing [***] and [***] to the [***] during the thirty (30) day period, Publisher
shall have the option of entering into an arrangement or agreement with a third party solely to
provide [***] solely
to the [***] previously offered. If Overture and Publisher reach an agreement on the [***], the parties will amend the Agreement to include such [***]. For clarity, the
parties agree that (i) any additional domains [***] in the
[***] by Publisher after the Start Date are automatically included in the
definition of [***] and (ii) Overture shall have the exclusive right of first negotiation
to be the exclusive source of [***] substantially similar to [***] on said
additional domains, provided they are not subject to an Existing Agreement.







(b) Publisher will promptly notify Overture in writing in the event that Publisher intends, on
Publisher’s Offerings, to [***] or [***], or permit a third party to [***], [***] from a Named Company other than [***] (“Named Company Products”) that are [***] to those [***] to [***] from [***] or an [***] (“Additional
Overture Products”). Overture shall have fifteen (15) business days from receipt of Publisher’s
written notification to provide Publisher with a written response that it wishes to be the
exclusive source of such [***] on [***]. The parties will
then negotiate for a period of thirty (30) days the terms and conditions of Overture providing the
[***] to [***]. If Overture and Publisher reach an
agreement on [***] for [***], the parties will amend the
SO to include such [***] for such [***]. If Overture (i)
declines the offer, (ii) fails to provide Publisher with a written response to such offer within
fifteen (15) business days, or (iii) accepts the offer, but fails to reach an agreement on the
terms and conditions of Overture providing the [***] to the [***], then Publisher may obtain the Named Company Products from a Named Company other than
[***]. For purposes hereof, Additional Overture Products shall not include (1) those products and
services currently offered [***] and (2) [***], and [***]. For clarity,
nothing contained herein is intended to limit Overture’s exclusive right of first negotiation in
Section 4(a) or Overture’s exclusivity in Section 8 of this Attachment B.







(c) This Agreement shall not prohibit, Publisher from entering into
direct relationships




			
	 
	 	Confidential






7









 





PORTIONS OF THIS EXHIBIT WERE
OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE SECRETARY OF THE COMMISSION PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT; [***]
DENOTES OMISSIONS.


Execution Copy




     YAHOO!
SEARCH MARKETING - YAHOO! PUBLISHER NETWORK SERVICE ORDER #1-6252597


with any advertiser, regardless of whether such relationship includes Comparable Results, subject
to the provisions of Attachment A, 
Section A(1).



(d) Notwithstanding the foregoing, Publisher may use a Named Company for any services for users
having IP addresses outside of the Territory.



5. Compensation. “Gross Revenue” means
the amount earned by Overture solely from the Paid Results shown on Publisher’s Offerings. Gross
Revenue is calculated and payment is made to Publisher net of any taxes Overture is required to
collect, withhold or pay with respect to such earned amount (except taxes on Overture’s net income)
and net of Adjustments and refunds to Advertisers. Overture agrees that the Adjustments shall equal
(a) [***]% of Gross Revenue for the United States, and
(b) [***]% of Gross Revenue for all countries in
the Territory other than the United States. For the avoidance of doubt, Adjustments do not include
refunds to Advertisers, which refunds, if any, shall not be used to provide discounts, rebates or
marketing allowances to Advertisers.



6. Payment. Overture will pay Publisher within 30 days after
the end of the calendar month in which the relevant Results appeared on Publisher’s
Offerings. Payment will be made in US dollars. If Overture’s Advertisers pay Overture in any
other currency, Overture will calculate payment using the average exchange rate
as published by a nationally recognized source (e.g., Oanda). If the Territory includes
countries other than the United States, Publisher acknowledges that payment will only be made after
Publisher fulfills Overture’s invoicing requirements. Overture may offset payments by any amounts
Publisher owes to Overture, including previous overpayments. Overture may
make payments only when Publisher’s balance exceeds US $250.00 (or until termination or expiration
of this Agreement). Except as specifically set forth in this Section, Overture will retain all
revenues derived from or in connection with its services.



7. Reports. Overture will provide Publisher with a monthly report describing
how the payment was determined and will provide Publisher access to preliminary online data on the
performance of the Results on Publisher’s Offerings containing at a minimum the information
currently provided by Overture to Publisher. Overture agrees to use commercially reasonable
efforts to provide such preliminary online data by 9 am (Pacific Time) the following day for at
least 80% of the days during a calendar month; provided that such preliminary
online data shall be available no later than 2 pm (Pacific Time) such day. The parties agree that
upon the existence of a Change of Control of Publisher involving a Named Company, preliminary
online data will be limited to Gross Revenue and the number of searches.



8. Exclusivity. On the Publisher’s Offerings, Publisher will ensure that
for users with IP addresses within the Territory, Overture is the exclusive third-party
source of (a) [***] and (b) [***]. Except as otherwise provided in
this Agreement, and solely for users having IP addresses within the Territory, on all
Publisher’s Offerings, Publisher will not display or link to, or permit any third party to
display, any (i) [***] or (ii) [***]; provided that Publisher may display [***] from Publisher’s
[***]. In addition, Publisher will not display or link to, or permit any third party
to display, any [***] within
the Territory. Publisher agrees that any violation or threatened violation of this Section 8
will cause Overture irreparable harm for which there is no adequate remedy at law with
respect to the particular Publisher’s Offering(s) at issue. If Overture
requires Publisher to remove all Hyperlinks from the web pages for a particular Publisher’s
Offering for any reason or for no reason, such Publisher’s Offering shall no longer be
included in the Publisher’s Offerings nor subject to this Section 8.



9. Ownership. As between Overture and Publisher, all right, title and
interest in the Links, Results and the Yahoo! trademarks are exclusively owned by Overture,
its licensors and/or its Advertisers, and all right, title and interest in
Publisher’s Offerings, the Publisher Content and the Publisher trademarks are exclusively owned by
Publisher and/or its licensors. Neither party grants any rights other than the limited licenses
granted in Section 1 above. Each party reserves any rights not expressly granted and disclaims
all implied licenses, including implied licenses to trademarks and patents.



10. Intentionally Deleted.



11. Responsibility for Publisher’s Offerings.
Publisher is solely responsible for the ownership, development, maintenance and operation of
Publisher’s Offerings and the Publisher Content. Publisher will provide at least five (5) business
days’ prior notification to Overture of any material change in the content, design or architecture
of




			
	 
	 	Confidential






8









 





PORTIONS OF THIS EXHIBIT WERE
OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE SECRETARY OF THE COMMISSION PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT; [***]
DENOTES OMISSIONS.


Execution Copy




     YAHOO!
SEARCH MARKETING - YAHOO! PUBLISHER NETWORK SERVICE ORDER #1-6252597


Publisher’s Offerings that would change the target audience for, or affect the implementation or
display of, the Links or the Results to, users having IP addresses in the Territory. If Publisher
makes a material change to Publisher’s Offerings that has an adverse affect on Overture as
reasonably determined by Overture or if Overture receives one or more material complaints about any
Publisher’s Offering (including complaints about the traffic sent to Advertisers from any
Publisher’s Offering), then Overture may terminate this Agreement as to the specific Publisher’s
Offering that was the subject of the change or complaint, subject to the notice, cure and
suspension provisions in Section 19 below. Overture may immediately suspend services for a
particular Publisher’s Offering if such Publisher’s Offering is the subject of such material
complaints(s) and any of the following factors relating to such Publisher’s Offering is also
present: (i) a threatened or initiated third party claim or proceeding against Overture or an
Overture Related Party related to such Publisher’s Offering; (ii) a governmental action or
investigation with respect to the Publisher’s Offering; (iii) adverse publicity or adverse media
attention with respect to the Publisher’s Offering; (iv) or Overture’s reasonable belief that
Overture, an Overture Related Party or any Advertiser may incur substantial liability with respect
to providing the services to the Publisher’s Offering. Subject to Section 19 below, Overture shall
restore service to the affected Publisher’s Offering if and when the complaint(s) are resolved in
favor of Publisher or the Affiliate (as applicable). In addition, termination under this Section 11
may be made as to a Publisher’s Offering without opportunity to cure if Overture has provided
Publisher notice of termination for the Publisher’s Offering under this Section 11 twice before
during any one (1) year period.



12. Traffic Quality. For each Query and each click on a Paid Result, Publisher will
provide: (a) the user agent; (b) the full, unencrypted Internet Protocol address of the user; (c)
the referring URL (HTTP Referrer); (d) any anonymous user identification ascribed by Publisher,
unique cookie or URL tag; and (e) any other data that Overture requests in writing that is used in
connection with Overture’s ad serving and quality systems. Publisher will provide this information
at the time a Query is sent to Overture and when a user clicks on a Paid Result. For clarity,
Overture will not request and Publisher will not share any personally identifiable information with
Overture. Additionally, Publisher will utilize the URLs and other source feed indicators designated
from time to time by
Overture. The parties will cooperate in a commercially reasonable manner to minimize automated,
fraudulent or lower quality traffic. Overture will have no obligation to make payments in instances
when Publisher has failed to utilize designated source feed indicators correctly. Overture shall
determine the validity and quality of all traffic in its reasonable discretion.



13.
Confidentiality. For the duration of the Term, the parties’ confidentiality
obligations will be governed by the terms of the NDA (dated as of April 1, 2005 and referenced on
page one (1) of the SO), which is incorporated into this Agreement by reference.



14. Overture Indemnification. Overture will indemnify, defend and/or settle, and
pay damages awarded pursuant to, any third party claim brought against Publisher, which alleges
that Overture’s Paid Results infringe any valid trademark or copyright in the
Territory; provided that Publisher promptly notifies Overture in writing of any such claim,
promptly tenders the control of the defense and settlement of any such claim to Overture (at
Overture’s expense and with Overture’s choice of counsel), and cooperates fully with Overture (at
Overture’s request and expense) in defending or settling such claim, including but not limited to
providing any information or materials necessary for Overture to perform the foregoing. Overture
will not enter into any settlement or compromise of any such claim, which settlement or compromise
would result in any liability to Publisher, without Publisher’s prior consent,
which will not be unreasonably withheld.



15. Publisher Indemnification. Publisher will indemnify, defend and/or settle, and
pay damages awarded pursuant to, any third party claim brought against Overture, which (a) alleges
that Publisher’s Offerings infringe any valid trademark or copyright in the Territory or (b) arises
out of Publisher’s modification of the Results in any way or the use of the Results in violation of
the Agreement; provided that Overture promptly notifies Publisher in writing of any such claim,
promptly tenders the control of the defense and settlement of any such claim to Publisher (at
Publisher’s expense and with Publisher’s choice of counsel), and cooperates fully with
Publisher (at Publisher’s request and expense) in defending or settling such claim,
including but not limited to providing any information or materials necessary for
Publisher to perform the foregoing. Publisher will not enter into any settlement or compromise of
any such claim without Overture’s prior consent, which will not be unreasonably withheld.




			
	 
	 	Confidential






9









 





PORTIONS OF THIS EXHIBIT WERE
OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE SECRETARY OF THE COMMISSION PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT; [***]
DENOTES OMISSIONS.


Execution Copy




     YAHOO!
SEARCH MARKETING - YAHOO! PUBLISHER NETWORK SERVICE ORDER #1-6252597


16. DISCLAIMER OF WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED
BY APPLICABLE LAW, (A) OVERTURE AND ITS LICENSORS ARE NOT RESPONSIBLE FOR ANY CONTENT
PROVIDED HEREUNDER OR FOR ANY SITES THAT CAN BE LINKED TO OR FROM THE RESULTS,
(B) PUBLISHER ACKNOWLEDGES THAT OVERTURE’S MARKETPLACES ARE
CONTINUOUSLY CHANGING AND THAT OVERTURE RESERVES THE RIGHT TO UPDATE ITS MARKETPLACES,
PRODUCTS AND SERVICES, AND (C) EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY NOR ITS
LICENSORS MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OR
CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, AND
NONINFRINGEMENT.



17. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE FOR ANY LOST PROFITS, COSTS OF
PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY OTHER INDIRECT, SPECIAL,
INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT
(INCLUDING, WITHOUT LIMITATION, UNDER ANY CONTRACT, NEGLIGENCE OR OTHER TORT THEORY OF
LIABILITY) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.



TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY’S AGGREGATE LIABILITY FOR DIRECT
DAMAGES SHALL BE LIMITED TO THE GREATER OF (a) AMOUNTS [***] OR
(b) [***] (ASSUMING NO BREACH HAD OCCURRED) FOR THE [***]. IN ADDITION, EACH PARTY’S LIABILITY UNDER THE INDEMNIFICATION PROVISIONS
IN SECTIONS 14 AND 15 OF THIS ATTACHMENT B SHALL BE LIMITED TO $[***].



NOTWITHSTANDING THE FOREGOING, THE
ABOVE EXCLUSIONS AND LIMITATIONS OF LIABILITY WILL NOT APPLY TO: (i) A PARTY’S BREACH OF ITS
CONFIDENTIALITY OBLIGATIONS; or (ii) AN INTENTIONAL BREACH BY PUBLISHER OF ITS EXCLUSIVITY
OBLIGATIONS SET FORTH IN SECTION 15(c) ABOVE.



18. Abuse of Services. Unless specifically allowed in this Agreement, Publisher will not
authorize or engage in, or engage or enable a third party, on Publisher’s behalf, to do any of the
following:



(a) Queries or clicks generated by any automated or fraudulent means



(b) Queries or clicks on Results generated by misleading or incentivized means, including:
(i) blind links (where users do not know that they will be performing a Query or clicking on a
Result); (ii) pre-populating the Search Box; (iii) Queries or clicks required in order to obtain
some benefit or perform another function, such as leaving a webpage or closing a
window; (iv) Publisher, its employees, contractors or agents clicking on the Results except in the
course of normal individual use; or (v) offering a user any pecuniary or other in kind inducement
to search or click on the Results.



(c) Unauthorized implementations, including: (i) use, display, syndication, sublicensing or
delivery of the Links, Results or Marks anywhere other than on Publisher’s Offerings (which shall
not include the use, display or delivery of links to a Landing Page or a Domain Results Page
displayed in connection with Publisher’s Offerings for purposes of advertising or
generating traffic to such Publisher’s Offerings); (ii) Links placed on or
Queries from or after 404 or other error messages using a downloadable application; (iii) (1)
Queries from or the display of Links within pop-over windows, (2) the display of Results
within pop over or pop under windows, (3) Queries from, or displays of Results or
Links in or through a downloadable application or an email; or (iv) using a software
application that is downloaded to a user’s computers to drive traffic to any website on which
Links or Results appear unless the application has been expressly approved by the user
or approved by Overture;



(d) Sending Queries to Overture from users outside the Territory or masking the IP
address of a user by Publisher;



(e) Adding, deleting or changing terms or characters of a Query by anyone other than
the user;




			
	 
	 	Confidential







10












 




PORTIONS OF THIS EXHIBIT WERE
OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE SECRETARY OF THE COMMISSION PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT; [***]
DENOTES OMISSIONS.


Execution Copy



YAHOO!
SEARCH MARKETING - YAHOO! PUBLISHER NETWORK SERVICE ORDER #1-6252597



(f) Display of anything (such as pop-up windows or expanding banners) that may obscure any portion
of the Links or the Results or stripping, blocking, or filtering Results by any means or in any way
preventing or inhibiting the display of Results in whole or in part;



(g) Purchasing traffic with the intent of directing users to web pages where Paid Results are the
most prominent page element; or



(h) Installing any program on a user’s computer or replacing a user’s home page, without the
user’s express and informed prior consent.



Any search, impression, click or conversion generated in violation of this Section 18 shall not be
counted for purposes of calculating any compensation owed to Publisher.



If Publisher violates any provision above, Overture may immediately, suspend services for the
particular Publisher’s Offering that is in breach, or upon notice and 48 hours’ opportunity to
cure, for this Agreement if a material portion of Publisher’s Offerings are breaching any
provision above. If Publisher fails to cure or desist from the breach within 48 hours after
Overture informs Publisher of the violation or fails to provide reasonable assurances that there
will be no further violations, Overture may (i) remove the particular Publisher’s Offering that is
in breach from the Agreement, or (ii) terminate the entire Agreement if a material portion of
Publisher’s Offerings remain in breach five (5) business days after notice is given to Publisher,
immediately upon notice without liability to Publisher except for any compensation due to
Publisher through the date of termination. If Publisher violates the same provision of this
Section 18 more than once or any of the provisions of this Section 18 more than twice, Overture
may remove the particular Publisher’s Offering from the Agreement or terminate the entire
Agreement if a material portion of Publisher’s Offerings are in breach upon notice without
providing opportunity to cure. For clarity, the provisions of this Section 18 only apply to the
Publisher’s Offerings covered by this Agreement and unauthorized implementations on a Publisher’s
Offering described in Section 18(b) are not otherwise subject to the exclusivity provisions of
this Agreement, including the provisions governing interactions with Named Companies.



Furthermore, Section 18(b)(i) shall not apply to the use, display or delivery of links to a Landing
Page or Domain Results Page displayed in connection with Publisher’s Offerings for purposes of
advertising or generating traffic to such Publisher’s Offerings (e.g. Publisher may buy
category-relevant ads and/or display ads that link to Landing Pages and Domain Results Pages). For
clarity, nothing contained herein shall permit Publisher to purchase traffic with the intent of
directing users to web pages where Paid Results are the most
prominent page element.



19. Breach/Bankruptcy. Except where this Agreement provides otherwise, either party may
terminate this Agreement if the other party fails to cure any material breach of this Agreement
within ten (10) business days of notice thereof. When Overture is the non-breaching party, Overture
may suspend services to Publisher during the cure period if Overture believes the suspension will
prevent harm to Overture or the Overture network. In addition, either party may suspend performance
and/or terminate this Agreement if the other party makes any assignment for the benefit of
creditors or files or has filed against it any petition under bankruptcy law.




20. Publisher Change of Control/Transfer of Assets.



(a) Overture may, within fourteen (14) days of notice from Publisher of a Change of Control,
terminate this Agreement without liability (i) upon thirty (30) days written notice to Publisher
upon the existence of a Change of Control of Publisher involving [***]; (ii) upon sixty (60) days
written notice to Publisher upon the existence of a Change of Control of Publisher involving a
Named Company other than [***]; or (iii) upon ninety (90) days written notice to Publisher
involving a non-Named Company.. “Change of Control” means (x) a merger, consolidation or
other reorganization of a party to which Publisher is a party, if the individuals and entitles who
were stockholders (or partners or members or others that hold an ownership interest) of Publisher
immediately prior to the effective date of the transaction have “beneficial ownership” (as defined
in Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of less than eighty percent
(80%) of the total combined voting power for election of directors (or their equivalent) of the
surviving entity following the effective date of the transaction, (y) acquisition by any entity or
group of direct or indirect beneficial ownership in the aggregate of then issued and outstanding
securities (or other ownership interests) of Publisher in a single transaction or a series of
transactions representing in the aggregate fifty percent (50%) or more of the total combined voting
power of Publisher



Confidential



11









 





PORTIONS OF THIS EXHIBIT WERE
OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE SECRETARY OF THE COMMISSION PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT; [***]
DENOTES OMISSIONS.


Execution Copy





YAHOO!
SEARCH MARKETING - YAHOO! PUBLISHER NETWORK SERVICE ORDER #1-6252597



(excluding the initial public offering of Publisher’s stock on a national securities exchange), or
(z) a sale of all or substantially all of Publisher’s assets.



(b) Publisher will not assign or transfer any of Publisher’s Offerings to any entity wholly or
partially owned by, controlled by, or under common control with, Publisher in a way that would
affect Publisher’s display of Domain Match Results to users of the Publisher’s Offerings without
requiring that entity to enter into one of the following, at Overture’s request: (i) an amendment
to this Agreement adding that entity as a party, or (ii) a separate agreement containing terms
substantially similar to this Agreement, including but not limited to Section 8 (Exclusivity).
Overture will not unreasonably withhold, condition, or delay its consent to such amendment or
agreement. For clarity, Publisher retains the right and ability to assign any domains that do not
provide, display or link to Domain Match Results or Comparable Results under this Agreement.



21.
Conversion Shortfall. If the conversion rate for Publisher’s Offerings (meaning the
percentage of users who arrive at an Advertiser’s website after clicking on a Result on
Publisher’s Offerings and then perform a specific act e.g., purchase, registration, etc.) for any
calendar month is in the [***]% of the average historical conversion rate (based on the
trailing three-month average) for all Advertisers tracked by Overture, Overture may notify
Publisher of the shortfall. In addition, Overture agrees to notify Publisher as soon as possible
after Overture has the conversion rate for Publisher’s Offerings if the conversion rate for
Publisher’s Offerings is in the [***]% of the average. Publisher will have sixty (60) days to
bring its conversion rate for the Publisher’s Offerings above
the [***]% of the average;
provided that during such time Overture shall work with and assist Publisher in its efforts to
improve the conversion rate. If Publisher fails to cure the shortfall for such Publisher’s
Offerings or if Publisher’s conversion rate for such
Publisher’s Offerings slips [***]% again,
Overture may remove such Publisher’s Offerings from this Agreement, or this Agreement if this
Section 20 applies to a material portion of the Publisher’s Offerings, upon ninety (90) days’
written notice to Publisher. Publisher acknowledges that the specific act that constitutes a
conversion may vary by Advertiser.



22. Notice. Notice will become effective when delivered: (a) by courier to the address in
the SO (established by written verification of personal, certified or registered delivery by
courier or postal service); or (b) by fax to the fax number in the SO (established by a
transmission report and followed by a copy sent by courier or certified or registered mail). The
parties will notify each other of updated addresses and/or fax numbers.



23. PR. No party will issue a press release or other written public statement regarding
this Agreement without the other party’s written approval, except that Overture may communicate the
general nature of this Agreement to Advertisers and may list Publisher as a Yahoo! publisher. No
cure period shall apply to a breach of this Section.



24. Assignment. Overture may assign all or part of this Agreement to an Overture Related
Party upon written notice Publisher provided that the Overture Related Party has agreed to the
terms of the Agreement. Publisher may not assign any rights or duties under this Agreement without
Overture’s written consent; provided, however, that solely in connection with a Change of Control
or a sale of substantially all of Publisher’s Offerings, such consent shall not be unreasonably
withheld, conditioned or delayed provided such assignment is not to a Named Company. Any assignment
without Overture’s consent will be void. Notwithstanding the foregoing, Publisher may assign or
transfer this Agreement to a Publisher Related Party upon written notice to Overture so long as the
assignee continues to own, control or operate the Publisher’s Offerings.



25. Agreement. Executed counterparts will each be deemed originals. The parties can rely on
fax copies of the signed Agreement as if they are originals. Only a written instrument executed by
the party expressly waiving compliance may waive any terms of this Agreement. This is the entire
agreement between the parties on this subject and it supersedes any other written or verbal
agreements on this subject. Amendments must be in writing and signed by an officer of each party.
If any part of this Agreement is invalid, the remainder shall remain in force and the invalid
portion will be replaced with a valid provision coming closest to the parties’ intent and having
like economic effect. Each party will use commercially reasonable efforts to give the other party
twenty (20) days written notice of its intent to file this Agreement with the SEC or other
regulatory agency and to consult with the other party for the purpose of incorporating reasonable
proposed redactions.



26. Law and Venue. This Agreement will be governed by California law, without regard for
its conflict of law principles. The parties submit to non-exclusive jurisdiction and venue in the
state or


 Confidential




12









 





PORTIONS OF THIS EXHIBIT WERE
OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE SECRETARY OF THE COMMISSION PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT; [***]
DENOTES OMISSIONS.


Execution Copy





YAHOO!
SEARCH MARKETING - YAHOO! PUBLISHER NETWORK SERVICE ORDER #1-6252597



federal courts of Los Angeles County, California for disputes related to this Agreement.



27. Expiration/Termination. When this Agreement expires or is terminated: all rights and
licenses will terminate immediately and Publisher will immediately cease using the Links, Results
and Marks; Sections 9, 13-17, 22, 23, 25-27 and 29 of Attachment B, and Sections 8 and 10 of
Attachment C will survive; and Publisher will promptly refund to Overture any unearned portion of
any payment.



28. Misc. A party will not be liable for failing to perform because of strikes, riots,
natural disasters, internet outages, terrorism, government action, or any other cause beyond the
party’s reasonable control. The parties are independent contractors, not agents, partners,
employees or joint venturers.




29. Definitions.



Above the Fold: visible without scrolling down, right or left, at a screen resolution of
800 x 600.



Ad Code: the JavaScript or other code that initiates a Query when a user goes to an Ad
Page.



Adjustments: credit card processing fees, bad debt and charge-backs and commissions or
discounts allowed or paid to advertising agencies.



Advertiser: any entity providing advertising content to Overture paid marketplace
databases for display as sponsored listings.



Aggregate Response Time: the amount of time (measured in milliseconds) from Overture’s
receipt of a Query from Publisher to Overture’s delivery of a Domain Match Result for that Query
to Publisher.



Agreement: see preamble in Attachment B.



Algorithmic Results: any response to a search query, keyword or other request served from
an index or indexes of data related to Web pages generated, in whole or in part, by the
application of an algorithmic search engine.



Availability: [total minutes in the year – (total yearly minutes of unplanned downtime +
total yearly minutes of scheduled maintenance downtime) / (total minutes in the year – total
yearly minutes scheduled maintenance downtime)], as measured and reported on a calendar month
basis.



Bidded Click: a valid click by a human user on a Paid Result displayed on Publisher’s
Offerings after transferring from a Link to a Paid Result.



Comparable Results: paid listings that are substantially similar to the Domain Match
Results provided under this Agreement,



CTR: the percentage of Domain Results Pages displayed by Publisher to users with IP
addresses in the United States that receive a Bidded Click in a month.



Google:
Google, Inc. and its subsidiaries and entities under common control.



Hyperlinks: words that are displayed in the form of hyperlinks, that generate a Query for
Hyperlink Results when clicked on or used by a user.



Hyperlink Results: the content of Advertisers served from Yahoo! Search Marketing’s paid
marketplace databases in response to a Query generated by a Hyperlink, provided for display as
text-based sponsored listings. Hyperlink Results do not include Web Search Results.



Links: Search Box and Hyperlinks, to the extent included in the SO.



Marks: any Yahoo! trademark shown in the mockups.



Matched Ads: the content of Advertisers served from Yahoo! Search Marketing’s paid
marketplace databases in response to a Query generated from the Ad Code.



Named Companies: Google, FindWhat/Miva, About.com, InfoSpace, America Online, Microsoft
Corporation, InterActiveCorp, Ask Jeeves, Industry Brains, Lycos, LookSmart, Ltd., Quigo, and
Kanoodle, Claria (Territory outside of the United States), Mirago
(Europe), Godado (Europe), J-Listings (Japan), Searchteria (Japan), Naver (Korea), Daum (Korea), Sensis/Telstra (Australia),
Scupio (Taiwan), iG (Brazil), eCentry (Brazil), Universe Online (Brazil), iBest (Brazil), Terra
(Brazil), Mercado Live (Brazil), Buscape (Brazil), Bondfaro (Brazil and all of their subsidiaries
and affiliates. Overture may designate in writing one additional entity per quarter as a Named
Company during the Term; provided, however, that if Publisher has a pre-existing relationship with
a proposed entity to be added to the Named Company list, the proposed entity shall not be included
on such list.



Overture Related Party: at any time during the Term, Yahoo! Inc., and any joint venture of
Overture Services, Inc. or Yahoo! Inc., and any entity that directly or indirectly controls, is
controlled by, or is under common control with Overture Services, Inc. or Yahoo! Inc., where
“control” means the ownership of, or the power to


 Confidential





13









 






PORTIONS OF THIS EXHIBIT WERE
OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE SECRETARY OF THE COMMISSION PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT; [***]
DENOTES OMISSIONS.


Execution Copy




YAHOO!
SEARCH MARKETING - YAHOO! PUBLISHER NETWORK SERVICE ORDER #1-6252597



vote, at least twenty percent (20%) of the voting stock, shares or interests of such
entity. In the event of an assignment of all or part of this Agreement to an Overture Related
Party, the term “Overture” used in this Agreement shall be deemed to refer exclusively to the
Overture Related Party as a party to this Agreement, to the extent of the assignment (as to both
the Overture Related Party’s responsibilities and rights).



Paid Results: Paid Search Results, Domain Match Results, Hyperlink Results and/or Matched
Ads.



Paid Search Results: the content of Advertisers served from Yahoo! Search Marketing’s paid
marketplace databases in response to a Query generated through a Search Box, provided for display
as text-based sponsored listings. Paid Search Results do not include
Web Search Results.



Pop Under Window: a browser window displayed to a user by a third party website beneath
such third party website’s browser window.



Publisher Content: all content residing on Publisher’s Offerings, including third party
content, but excluding the Links, Results and Marks.



Publisher’s Offerings: any Syndicated Sites, Mapped Domains, Applications, and Emails
identified in the SO and any Attachments.



Publisher Related Party: Publisher’s subsidiaries and other entities controlling,
controlled by or under common control with Publisher. In the event of an assignment of this
Agreement by Publisher, Publisher shall be deemed to refer exclusively to the assignee (as to both
the assignee’s responsibilities and rights).



Query: a search query initiated from the Search Box or a Hyperlink, or a request for
Matched Ads initiated by the Ad Code on an Ad Page.



Results: Paid Search Results, Hyperlink Results, Web Search Results, Domain Match Results
and/or Matched Ads, to the extent included in this Agreement and as appropriate to the context.



Search Box: a graphical area in which a user can enter a Query for Results.



SO: the Service Order.



Term: the period between the Start Date and the End Date, plus any renewal periods, unless
terminated earlier as provided in this Agreement.



Territory: the United States, the United Kingdom, Switzerland, Austria Germany, Japan,
France, Canada, Italy, Spain, Norway, Sweden, Netherlands, Denmark, Finland, Australia, Brazil,
Hong Kong and Taiwan; provided that the parties may mutually agree to add additional countries to
the Territory when Overture has local results available in those countries.



Web Search Results: the responses served from Yahoo Inc.’s Web search databases (including
all databases related to Yahoo! Search Marketing’s and Yahoo Inc.’s content acquisition programs),
ranked by an algorithm designed to determine relevance.



  Confidential




14









 







PORTIONS OF THIS EXHIBIT WERE
OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE SECRETARY OF THE COMMISSION PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT; [***]
DENOTES OMISSIONS.


YAHOO! SEARCH MARKETING - YAHOO! PUBLISHER NETWORK SERVICE ORDER # # 1-6252597




ATTACHMENT
C – DOMAIN MATCH ATTACHMENT FOR SYNDICATED SITES




1. Definitions.



(a) Affiliate: a third party for whom Publisher syndicates or desires to syndicate Links and
Results.



(b) Domain Match Link: the Search Box, Hyperlinks and/or URL of a Syndicated Site, to the extent
that Overture agrees to receive Queries from such Links on the Syndicated Sites and Landing Pages.



(c) Domain Match Results: the content of Advertisers served from Overture’s paid marketplace
databases in response to Queries from Landing Pages or in response to the URL of certain Syndicated
Sites, which responses are provided for display as text-based sponsored listings. Domain Match
Results do not include Web Search Results.



(d) Domain Results Page: a webpage that displays Domain Match Results.



(e) Landing Pages: the webpages hosted by Publisher that display Search Boxes and/or Hyperlinks (as
determined by Overture’s mapping technology), as shown in the mockups.



(f) Syndicated Site: means the Affiliate domain names that do not violate the policies listed in
Section 5 of this Attachment C.





	2. Links and Results. Publisher may syndicate the following Links and Results to
Syndicated Sites (“Syndication Right”):






	 	þ Domain Match Link: Domain Match Results




3. Domain Match Implementation. Upon a user having an IP address in the Territory (as
determined by Overture’s technology) typing in a Syndicated Site within the Publisher’s Offerings,
Publisher will directly transfer the user to a Landing Page or Domain Results Page (as determined
by Overture’s mapping technology). Publisher may provide keyword suggestions to Overture that may
be used by Overture to determine the Hyperlinks displayed on the Landing Pages for Syndicated
Sites. If Overture eliminates the ability for Publisher to provide keyword suggestions for
substantially all Syndicated Sites for which Domain Match Results are provided, then Publisher
shall have the right to terminate this Agreement without liability or penalty upon 60 days’ written
notice to Overture.



4. Overture Rights. Notwithstanding anything in this Agreement to the contrary and without
limitation of Overture’s other rights and remedies, Overture may, upon notice to Publisher via the
proper production feed, for any reason or no reason, in its sole discretion: (a) decline to respond
to Queries originated from one or more Syndicated Sites; or (b) require Publisher to block the
display of one or more Landing Pages or Domain Results Pages if Overture reasonably believes that
(i) Publisher does not have the right to use or to associate data or content with a corresponding
Syndicated Site, or (ii) the association of data or content on the Landing Page or Domain Results
Page in response to a Syndicated Site (1) violates the intellectual property rights of a third
party; (2) is libelous, defamatory or obscene; or (3) might create liability for Overture.



5. Policies. Overture may change or add to these policies in its sole discretion by
informing Publisher in writing. Publisher will not redirect to Overture any domain names that
include the following:



(a) trademarks, company names, and names of specific natural persons (including misspellings),
such as McDonalds.com, macdnlds.com, xcerox.com, micaljordan.com;



(b) words which would evoke a question of legality, such as automatic or military-style assault
weapons, cracked or pirated software (eg, words like appz, warez, cracks, crackz, hacks, hackz),
falsely obtained passwords (eg, words like passwordz), prostitution services, and illegal
substances or words alluding to the ingestion of illegal substances;



(c) defamatory, libelous or threatening language, such as racial or religious epithets or
language related to doing physical harm to people or their property;



(d) vulgar or obscene language, such as fckyu.com;



(e) any language that might advocate or glorify torture, rape or any other illegal or harmful
act; and/or



(f) any language that is sexually explicit, including but not limited to language related to
prostitution, child pornography or underage sex, bestiality, necrophilia, incest or pedophilia.



6. Approval. Publisher may provide Links or Results to an Affiliate and its Syndicated
Sites prior to receiving Overture’s approval or rejection in writing; provided however that
Publisher will not


 Confidential





15









 








PORTIONS OF THIS EXHIBIT WERE
OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE SECRETARY OF THE COMMISSION PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT; [***]
DENOTES OMISSIONS.


YAHOO!
SEARCH MARKETING - YAHOO! PUBLISHER NETWORK SERVICE ORDER # # 1-6252597



provide Links or Results to any Affiliate or any Syndicated Site for which Overture has
provided Publisher with the termination of its approval in writing (email sufficing). Prior to, or
concurrent with, the display of Links or Results on any Syndicated Site for a new Affiliate,
Publisher will notify Overture of new Affiliates by submitting in writing at least the following:





	(a)	 	Affiliates: the Affiliate’s full legal name and a list of all websites on which
Affiliate requests that Domain Match Links and Domain Match Results be displayed.
	 
	(b)	 	Syndicated Sites: the estimated percentage of searches originating from outside the
United States, mockups of the proposed implementation, and any such other information
reasonably requested by Overture.




Overture shall have the right to provide Publisher with a written acceptance or rejection of each
Affiliate or any Syndicated Site within five (5) business days after receipt of the information
described above. Overture may reject any proposed Affiliate and/or any proposed Syndicated Site if
Overture reasonably believes that the Affiliate and/or Syndicated Site might (i) cause Overture,
an Overture Related Party and/or an Advertiser to incur liability; (ii) violate any law,
ordinance, regulation, statute, third party right or Overture policy;
or (iii) cause harm
to Overture’s network or marketplace.



7. Required Terms. Publisher’s written agreement with each Affiliate will include the
following:





	(a)	 	Overture will be identified as a third party beneficiary of Publisher’s agreement with the
Affiliate, entitled to enforce the provisions of that agreement as they pertain to Overture;
	 
	(b)	 	An expiration date for the syndication of Links and Results that is no later than the end of
the Term;
	 
	(c)	 	Implementation requirements and mockups that are substantially identical to those in
Attachment A;
	 
	(d)	 	The Affiliate’s explicit agreement that (i) the Affiliate will not assign any right to, or
further syndicate, the Links or Results provided by Publisher, (ii) the Syndicated Sites are
subject to exclusivity terms that are substantially identical to those in Section 8 of
Attachment B (Exclusivity); and (iii) the Affiliate will not commit any act listed in Section
18 of Attachment B (Abuse of Services);
	 
	(e)	 	The Affiliate’s acknowledgement that Overture may terminate Publisher’s ability to syndicate
to Affiliate on 24 hours notice, for any reason or no reason; and
	 
	(f)	 	Publisher and the Affiliate will not modify their agreement as it pertains to Overture
without Overture’s prior written consent, which consent shall not be unreasonably conditioned
or delayed.




Publisher will require the Affiliate to (i) sign a written letter or (ii) consent to an electronic
agreement, which acknowledges each term above. Upon Overture’s request, Publisher will provide
Overture with a copy of such written letter or with verification of the Affiliate’s consent to the
electronic agreement.




8. Publisher’s Additional Obligations.





	(a)	 	Publisher’s exclusivity obligations in Section 8 of Attachment B shall apply to Publisher’s
syndication of Links and Results for actual and potential Affiliates; provided that the
exclusivity applies only to Syndicated Sites that Publisher controls and hosts while they are
parked with Publisher. Unless Overture consents in writing, Publisher will not permit
Affiliates to host pages containing Links or Results. If Overture agrees to allow an Affiliate
to host pages containing Links and/or Results, Publisher will require the Affiliate to meet
all of Publisher’s obligations under this Agreement.
	 
	(b)	 	Publisher will ensure that Results are not provided to any entity other than an Affiliate
that owns a Syndicated Site, and are not syndicated or distributed beyond the Syndicated Site.
	 
	(c)	 	Publisher will ensure that the Affiliate complies with the required terms set forth in
Section 7 above in its agreement with Publisher and with this Agreement. For clarity, the
parties agree that all of Overture’s rights and Publisher’s obligations under this Agreement
apply to Syndicated Sites.
	 
	(d)	 	Publisher will maintain the technical ability to immediately suspend its provision of Links
and Results for individual Affiliates and individual Syndicated Sites. In addition, Publisher
will implement any reasonable technical requirements required by Overture to comply with this
Attachment C.
	 
	(e)	 	Publisher agrees to use Overture’s Domain Match technology for all Syndicated Sites.
Publisher further agrees to cause its Affiliates to


 Confidential







16









 






PORTIONS OF THIS EXHIBIT WERE
OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE SECRETARY OF THE COMMISSION PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT; [***]
DENOTES OMISSIONS.


YAHOO!
SEARCH MARKETING - YAHOO! PUBLISHER NETWORK SERVICE ORDER # # 1-6252597





migrate to Overture’s DM 4.0 within thirty (30) days of the Start Date.




	(f)	 	Publisher will provide Overture with a list of Internet Protocol addresses of its own servers
and Affiliates’ servers used to send Queries to Overture
(“Recognized Servers”) and promptly
notify Overture in writing of any changes or additions to such list. Overture will have no
obligation to make payment to Publisher with respect to Queries from servers that are not
Recognized Servers.
	 
	(g)	 	Publisher will provide Overture with a written report of all current Affiliates and
Syndicated Sites (i) on a quarterly basis and (ii) upon Overture’s reasonable request.
	 
	(h)	 	Publisher will implement separate source feed indicators for each Affiliate and each
implementation prior to launch of services, in addition to any other source feed indicators
required by Overture during the Term.
	 
	(i)	 	Publisher will immediately notify Overture of any Affiliate’s failure to comply with any of
the requirements in this Attachment C and to immediately terminate any Affiliate that
syndicates or distributes any Links or Results beyond a Syndicated Site.
	 
	9.	 	Compensation.
	 
	(a)	 	Gross Revenue generated by Syndicated Sites will be treated in the same manner as the other
Gross Revenue earned under this Agreement. Overture will make no compensation payment directly
to any Affiliate and will have no responsibility for Publisher’s pricing or payment to any
Affiliate. In no event will the compensation paid by Publisher to an
Affiliate exceed [***] percent ([***]%) of Gross Revenue.
	 
	(b)	 	If Publisher generates any revenue from Syndicated Sites while Publisher or an Affiliate is
in violation of any requirement of this Syndication Attachment and Publisher has been notified
in writing by Overture, then Overture reserves the right to exclude such Syndicated Site
revenue from its calculation of any amounts owed to Publisher.




10.
Audit. Overture or Publisher may audit the other party for compliance with the
Agreement once in each twelve (12) month period during the Term and once during the ninety (90) day
period following expiration or termination of this Agreement. Each audit will apply to the prior
twelve (12) months. The audit may be conducted by an independent third party auditor reasonably
acceptable to the party being audited, at the expense of the party requesting the audit. The audit
will be conducted at a mutually agreed time during normal business hours. The third party auditor
will be bound to confidentiality obligations substantially similar to the confidentiality
obligations in this Agreement, and the results of the audit and all information reviewed during
such audit will be deemed the audited party’s confidential information. The auditor may review only
those records that are reasonably necessary to determine the audited party’s compliance with the
Agreement.



11.
No Restrictions. Nothing in this Agreement will prevent Overture from marketing or
providing any product or service directly to any prospective or approved Affiliate.




12. Suspension and Termination.





	(a)	 	Publisher will immediately notify Overture of any Affiliate’s failure to comply with
any requirement under this Syndication Attachment.
	 
	(b)	 	If an Affiliate or Publisher, with respect to that specific Affiliate, fails to comply
with any requirement hereunder, Overture may do one or more of the following:






	 	(i)	 	Suspend provision of Results in response to Queries from the Affiliate
until the Affiliate becomes compliant;
	 
	 	(ii)	 	Require Publisher to stop sending Queries to Overture from Publisher or
Affiliate until the Affiliate becomes compliant; and/or
	 
	 	(iii)	 	Suspend provision of some or all Results to Publisher until the Affiliate
becomes compliant or is terminated by Publisher.






	(c)	 	In addition to the foregoing, Overture may terminate the approved status of any
Affiliate and/or Syndicated Site(s) for any reason or no reason, on twenty four (24) hours
notice to Publisher. Within twenty four (24) hours of receiving such notice, Publisher will
stop sending Overture any Query from the Affiliate and/or Syndicated
Site(s). Starting
three (3) months after Publisher provides Domain Match Results to an Affiliate, solely in
the event Overture terminates the approved status of Affiliates for no reason and the
Syndicated Sites for these terminated Affiliates constitute more than
[***]% [***] from [***] during the last sixty (60) day period, then





Confidential




17









 






PORTIONS OF THIS EXHIBIT WERE
OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE SECRETARY OF THE COMMISSION PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT; [***]
DENOTES OMISSIONS.


YAHOO! SEARCH MARKETING - YAHOO! PUBLISHER NETWORK SERVICE ORDER # # 1-6252597





Publisher may terminate this Attachment C by giving thirty (30) days written notice to
Overture.




	(d)	 	If Publisher or an Affiliate commits a Named Act listed herein, Overture may terminate
Publisher’s Syndication Rights (1) as to a particular Affiliate and/or Syndicated Site subject
to a 24 hour cure period or (2) under this Agreement as a whole if such Named Act relates to a
material portion of Publisher’s Offerings subject to a five (5) business day cure period.
“Named Acts” shall include the following: (i) Publisher refuses to send a list of Affiliates
to Overture upon Overture’s request; (ii) activation of a previously rejected or terminated
Affiliate; (iii) Publisher or Affiliate commit a breach of exclusivity; (iv) an Affiliate
provides, syndicates or distributes Links and/or Results to any rejected or terminated
Affiliates or Syndicated Sites; (v) Publisher provides, syndicates or distributes Links and/or
Results to any rejected or terminated Affiliates or Syndicated Sites; (vi) Publisher fails to
comply with Section 8(e) of this Attachment C; (vii) Publisher fails to comply with Section
8(f) of this Attachment C; (viii) Publisher incorrectly uses the source feed indicators
provided by Overture; or (ix) Publisher fails to include the required terms set forth in
Section 7 above in its agreement with each Affiliate. Notwithstanding the foregoing, if there
has been a previous instance of the same Named Act by an Affiliate and/or Syndicated Site,
then Overture may terminate Publisher’s Syndication Rights as to the Affiliate and/or
Syndicated Site without any cure period (w) upon sixty (60) days written notice if Publisher
cures such Named Act within twenty four (24) hours of notice from Overture or (x) immediately
in the event Publisher fails to cure the Named Act within twenty four (24) hours of notice
from Overture, Further, if there has been a previous instance of the same Named Act on a
material portion of Publisher’s Offerings, then Overture may terminate Publisher’s Syndication
Rights under the Agreement as a whole without any cure period (y) upon sixty (60) days written
notice if Publisher cures such Named Act within five (5) business days hours of notice from
Overture or (z) immediately in the event Publisher fails to cure the Named Act within five (5)
business days of notice from Overture. In addition, Overture may suspend Publisher’s
Syndication Rights in the event of any noncompliance with any material requirement hereunder,
which Syndication Rights shall be restored upon Publisher’s cure of such noncompliance.
	 
	(e)	 	In the event of a Change of Control of Publisher involving an entity that (i) provides
adult-related content, (ii) is an adult-related advertiser or (iii) derives 80% or more of
its revenue from adware or spyware-related business models, Overture shall have the right to
immediately terminate this Attachment C upon notice to Publisher.





13. Indemnity.





	(a)	 	Claims by Affiliates against Publisher will not constitute third party claims covered by
Overture’s indemnity obligations in Section 14 of the Terms and Conditions (Overture
Indemnification).
	 
	(b)	 	Without limiting Publisher’s other indemnification obligations under this Agreement,
Publisher will indemnify, defend and/or settle, and pay damages awarded pursuant to, any third
party claim brought against Overture, any Overture Related Party and any Advertiser, arising
out of or related to a Syndicated Site or an Affiliate. The limitation of liability described
in Section 17 of the Terms and Conditions shall not apply to any amounts owed by Publisher
under this Section.




14. Misc. In the event of a conflict between the terms of this Attachment C and any other
provision of the Agreement, the terms of this Attachment C will govern as to the syndication of
Links and Results.



 Confidential



18