EXHIBIT 10.17
SCHEDULE I
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ESCROW AGREEMENT
THIS ESCROW AGREEMENT is entered into this 29 day of July, 1997 by and
among INKTOMI CORPORATION ("Inktomi"), a California corporation, whose address
is 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000, DATA BASE,
INC. ("Escrow Agent"), a Washington corporation, whose address is 000 Xxxxx
000xx Xxxxxx, Xxxxxxx, XX 00000, and MICROSOFT CORPORATION ("Microsoft"), a
Washington corporation whose address is Xxx Xxxxxxxxx Xxx, Xxxxxxx, XX 00000-
6399.
A. Inktomi is the owner of computer programs and supporting documentation
that contain confidential information and are protected under copyright and as
trade secrets. Inktomi authorizes others to use the computer programs and
documentation under writtenagreements which, among other things, require the
other party to protect the confidentiality of Inktomi's property.
B. Computer programs can be expressed in machine-readable form, called
binary code, and in human-readable form, called source code or source listings.
Generally, parties are unable to modify or correct errors in the binary code
without having the source code.
C. This escrow arrangement is provided to assure Microsoft of access to
the source code, binary code and confidential supporting documentation in the
event that Inktomi (i) discontinues all or substantially all of its search
engine business operations or (ii) ceases to provide software development, error
correction, product enhancements and upgrades, and regular maintenance of the
computer programs (collectively, "Support") under and in accordance with the
Software Development Agreement and/or the Information Services Agreement (the
"Agreements") between Inktomi and Microsoft of even date herewith (as it may be
amended by mutual agreement of Inktomi and Microsoft from time to time).
THEREFORE, in consideration of the mutual covenants set forth in this
Agreement, Inktomi, Microsoft and Escrow Agent agree as follows:
1. Confidential Materials.
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1.1 Escrow Agent, as escrow agent, agrees to accept from Inktomi, for
storage purposes only, confidential materials in the form of source code and
binary code, program listings, supporting documentation, and other related
materials for certain computer programs owned by Inktomi (collectively,
"Confidential Materials"). Inktomi will furnish to Escrow Agent a list naming
or describing all computer programs for which Confidential Materials are
deposited into escrow. This list shall be certified by Inktomi as complete and
accurate. A list of computer programs for which Confidential Materials are
currently on deposit with Escrow Agent is attached as Exhibit A to this
Agreement. This list will be supplemented and updated by Inktomi with each
future deposit or withdrawal of Confidential Materials. For each deposit,
Escrow Agent will issue receipts to Inktomi.
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
1.2 Upon each deposit of Confidential Materials, Inktomi shall furnish to
Microsoft a copy of the list provided to Escrow Agent pursuant to this Section
1. Such list shall constitute notice to Microsoft that the Confidential
Materials listed thereon have been deposited with Escrow Agent. Upon the
request of Microsoft, Escrow Agent shall supply to Microsoft copies of all lists
furnished by Inktomi to Escrow Agent hereunder. Escrow Agent shall not be
required to determine the accuracy or completeness of the list(s) furnished by
Inktomi hereunder, nor shall Escrow Agent be responsible for Confidential
Materials not actually deposited with it, whether or not such Confidential
Materials were required to be deposited under the terms of this Agreement, any
license agreement between Inktomi and Microsoft or any other agreement.
2. Retention of Confidential Materials. Escrow Agent agrees to hold in
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safekeeping the Confidential Materials deposited hereunder, and shall release or
disclose any or all such Confidential Materials only in accordance with the
terms of this Agreement.
3. Release of Confidential Materials. Inktomi authorizes Escrow Agent to
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release Confidential Materials only as follows:
(a) Escrow Agent shall release to Inktomi all Confidential Materials
requested by written demand of both Inktomi and Microsoft, provided that such
Confidential Materials are specifically identified to the satisfaction of Escrow
Agent, and provided that all fees payable to Escrow Agent for performance of its
services hereunder have been fully paid.
(b) Provided that all fees payable to Escrow Agent for the performance of
its services hereunder have been fully paid, all Confidential Materials shall be
returned to Inktomi at any time that Escrow Agent ceases doing business or is
unable to hold the same in accordance with the terms of this Agreement due to
forces beyond its reasonable control; provided however, that Escrow Agent gives
such advance notice to Inktomi and Microsoft as is reasonably practicable, but
in no event less than thirty (30) days.
(c) In the event of (1) a demand by Microsoft pursuant to Subsection 4.1
hereof which is not disputed by Inktomi in the manner and within the time
prescribed in Subsection 4.2 hereof, or (2) a determination by the panel of
arbitrators in accordance with Section 5 hereof that (A) the applicable
Agreement remains in force and effect and (B) Inktomi has discontinued all or
substantially all of its search engine business operations or has ceased to
Support the Confidential Materials on a timely basis as required under the terms
of the applicable Agreement, then Escrow Agent shall, upon the receipt from
Microsoft of full payment for the costs and expenses of duplication, make
duplicate copies of those Confidential Materials which relate to the computer
program or programs with respect to which demand is made and shall deliver such
duplicate copies to Microsoft. Escrow Agent agrees that the "Write-Protect
Ring" on magnetic tape reels furnished to Escrow Agent by Inktomi shall not be
removed at any time.
(d) Escrow Agent shall release such Confidential Materials to such persons
and in such manner as shall be directed by order of any court of competent
jurisdiction pursuant to
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Section 6 or otherwise. Escrow Agent may also release Confidential Materials
pursuant to the provisions of Section 11 below.
4. Demand and Dispute.
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4.1 In the event Microsoft desires release of Confidential Materials
relating to one or more computer programs, Microsoft shall make written demand
on Escrow Agent therefor, specifically designating the computer program or
programs for which Confidential Materials are requested. Such demand must be
accompanied by all of the following documents and certificates, each executed
under oath by an authorized officer or representative of Microsoft:
(a) A certified true copy of a notice that Microsoft has mailed to Inktomi
at the address stated in this Agreement. The notice must contain a statement
that Microsoft has determined that Inktomi has discontinued all or substantially
all of its search engine business operations or has ceased to Support the
Confidential Materials on a timely basis as required under the terms of the
Agreements.
(b) A certificate stating that (i) Microsoft mailed to Inktomi, registered
or certified mail, the notice described in Paragraph 4.1(a) above, and that ten
(10) business days have elapsed from such mailing without response from Inktomi,
and (ii) before mailing the notice, Microsoft made a request upon Inktomi for
support services and Microsoft did not receive a response to such request or
received a response to the effect that Inktomi was unable or unwilling to
provide such services or Inktomi in fact did not timely provide such services.
(c) A copy of each of the Agreements, as executed by Inktomi and such
Microsoft, together with a statement by Microsoft, certified by Microsoft, that
the copies of the Agreements are true copies, and that the applicable
Agreement(s) is(are) still in force and grants Microsoft the rights to use the
computer program or programs for which Confidential Materials are requested.
(d) A certificate stating that Microsoft will pay in advance for all
expenses and costs of copying the Confidential Materials requested.
(e) A Confidentiality and Use Limitation Certificate, in the form of
Exhibit B attached hereto, for the benefit of Escrow Agent, Inktomi and any
successor of either.
(f) A certificate stating that Microsoft shall indemnify and hold harmless
Escrow Agent from and against any and all losses, damages, and expenses
(including attorney's fees) that may be incurred by Microsoft and/or Escrow
Agent by reason of Escrow Agent's compliance in good faith with the terms of
this Agreement.
4.2 Upon receipt of a demand and all required supporting documents
described in Subsection 4.1 hereof, Escrow Agent shall promptly give notice to
Inktomi of such receipt and transmit with such notice a copy of such demand and
all accompanying documents. Inktomi or its successor may dispute such demand,
at any time within ten (10) business days following
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Escrow Agent's notice to Inktomi hereunder by (i) giving written notice to
Escrow Agent that it continues to conduct all or substantially all of its search
engine business operations and continues to Support the Confidential Materials
on a timely basis as required under the terms of the Agreements, or (ii)
otherwise specifically denying any statements made by Microsoft in one or more
of the documents described in Paragraphs 4.1(a), (b) or (c) hereof. Such notice
shall be accompanied by a certificate to Escrow Agent stating that Inktomi will
submit to arbitration under the terms and conditions described in Section 5
hereof and abide by any decision rendered by the arbitrators in connection
therewith.
4.3 Upon receipt of Inktomi's notice of dispute as provided in Subsection
4.2 hereof, Escrow Agent shall promptly give notice to Microsoft of such receipt
and transmit with such notice a copy of such documents received from Inktomi
relating to such dispute. Subject to the last sentence of this Subsection 4.3,
Microsoft shall, within thirty (30) days following receipt of Inktomi's notice
of dispute, furnish Escrow Agent with a certificate stating that Microsoft will
submit to Arbitration under the terms and conditions described in Section 5
hereof and abide by any decision rendered by the arbitrators in connection
therewith. Microsoft may withdraw its demand for release of the Confidential
Materials at any time by giving Escrow Agent and Inktomi written notice of such
withdrawal.
5. Arbitration. Upon the earlier of the expiration of the thirty (30) day
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period described in Subsection 4.3 or the receipt by Escrow Agent of Microsoft's
certificate described in Subsection 4.3, the matter shall be submitted to
arbitration proceedings in Seattle, Washington, which proceedings shall be
conducted under the commercial rules then prevailing of the American Arbitration
Association, by a panel of not less than three professional experts in the field
of computer software technology. Each party will choose one arbitrator and the
two arbitrators so chosen will choose a third. If the two designated
arbitrators do not so choose a third within thirty (30) days, either party may
apply to the local Superior Court to appoint a third arbitrator. The sole issue
for arbitration shall be whether the Agreements remain in force and effect and
whether Inktomi has discontinued all or substantially all of its search engine
business operations or has ceased to Support the Confidential Materials on a
timely basis as required under the terms of either or both of the Agreements.
If the arbitrators determine that Inktomi has discontinued all or substantially
all of its search engine business operations or has ceased to Support the
Confidential Materials on a timely basis, the arbitrators shall order the
release of Confidential Materials. The prevailing party in the arbitration
proceedings shall be awarded reasonable attorneys' fees, expert and non-expert
witness costs and expenses, and all other costs and expenses incurred directly
or indirectly in connection with the proceedings, unless the arbitrators for
good cause determine otherwise. The decision of the arbitrators shall be final
and binding on the Inktomi and Microsoft and may be entered and enforced in any
court of competent jurisdiction.
6. Interpleader. Notwithstanding any other provisions of this Agreement, if
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Escrow Agent receives a written demand from Microsoft for release of
Confidential Materials and Escrow Agent is uncertain whether Inktomi's exercise
of its right to dispute such demand pursuant to Subsection 4.2 hereof was timely
or otherwise effective, then Escrow Agent may, in its sole discretion, begin an
interpleader action, pursuant to applicable law, and deposit the Confidential
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Materials with the clerk of the court or withhold release of the Confidential
Materials until instructed otherwise by the court order.
7. Fees. Microsoft shall pay to Escrow Agent, in advance, fees at the
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standard rate prescribed from time to time by Escrow Agent for performance of
services hereunder. Prices will be revised annually in accordance with Escrow
Agent's regular schedule of fees.
8. No Duty to Inquire into Truth, Authenticity or Authority; Right to Require
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Additional Documents. Escrow Agent shall not be required to inquire into the
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truth of any statements or representatives contained in any notices,
certificates or other documents required or otherwise provided hereunder, and
shall be entitled to assume that the signatures on such documents are genuine,
that the persons signing on behalf of any party thereto are duly authorized to
execute the same, and that all actions necessary to render any such documents
binding on the party purportedly executing the same have been duly undertaken.
Without in any way limiting the foregoing, Escrow Agent may in its discretion
require from Inktomi or Microsoft additional documents which it deems to be
necessary or desirable in the course of performing its obligations hereunder.
9. Waiver of Claims.
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(a) Inktomi hereby waives any claim for damages or otherwise which it may
have against Escrow Agent for any acts undertaken by Escrow Agent pursuant to
Microsoft's direction in Escrow Agent's good faith compliance with the terms of
this Agreement.
(b) Microsoft hereby waives any claim for damages or otherwise which it may
have against Escrow Agent for any acts undertaken by Escrow Agent pursuant to
Inktomi's direction in Escrow Agent's good faith compliance with the terms of
this Agreement.
10. Notices. Notices under this Agreement shall be in writing, addressed to
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the parties at the addresses listed in this Agreement, or to such other
addresses as a party shall have designated by notice to the other parties, and
shall be delivered by registered or certified mail, return receipt requested, to
the intended recipient. Notices shall be deemed to have been given and received
(i) when signed for on the return receipt, or (ii) if the party to receive
notice refuses to sign the return receipt or cannot be located after the
exercise of due diligence, three (3) business days after deposit of the notice
in the U.S. mail, properly addressed, with postage prepaid.
11. Termination.
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(a) This Agreement shall terminate upon termination of both the Agreements.
Upon such termination, Inktomi shall give written notice to Escrow Agent, and
provide a copy of such notice to Microsoft in the manner set forth in applicable
notice provisions of the Agreements. Unless Microsoft disputes such notice by
written notice to that effect to Escrow Agent and Inktomi within ten (10)
business days (the "Objection Period") after Microsoft's receipt of said notice
from Inktomi, and provided that all fees payable to Escrow Agent for the
performance of
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its services hereunder have been fully paid, Escrow Agent shall release and
return all Confidential Materials to Inktomi promptly after the expiration of
the Objection Period.
(b) Except as provided in Subsection 11(a) above or Section 1 hereof with
respect to modification of Exhibit A hereto, this Agreement may not be
terminated or modified except in writing signed by Escrow Agent, Inktomi and
Microsoft. Escrow Agent may, at any time, terminate this Agreement by resigning
as escrow agent hereunder. Escrow Agent shall provide Inktomi and Microsoft
ninety (90) days advance written notice of its intention to resign. Unless
within such period Escrow Agent receives written notice from the Inktomi and
Microsoft instructing Escrow Agent to deliver the Confidential Materials to one
or both of the parties, or to a third party, Escrow Agent shall deliver the
Confidential Materials to Inktomi.
(c) Upon the delivery of the Confidential Materials to one or both of the
parties, or to a third party, as permitted hereunder, all obligations of Escrow
Agent under this Agreement shall cease.
12. Bankruptcy. In the event of the commencement of a case by or against
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Inktomi pursuant to 11 U.S.C. Sections 301, 302, or 303, Microsoft may elect to
retain its right under this Agreement pursuant to 11 U.S.C. Section 365 (n). In
this regard, the Confidential Materials shall be deemed to be "intellectual
property" within the meaning of 11 U.S.C. Section 101. Inktomi's obligations
under this Agreement shall be binding on Inktomi's successors, including any
trustee or debtor in possession that may succeed to Inktomi's rights under this
Agreement.
13. Miscellany.
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13.1 This Agreement shall be construed, enforced, performed and in all
respects governed by and in accordance with the laws in the State of Washington.
In any action or suit to enforce any right or remedy under this Agreement the
prevailing party shall be entitled to recover its reasonable attorneys' fees and
costs.
13.2 In the event any provision of this Agreement is rendered null, void
or otherwise ineffective, then (i) the parties agree to negotiate in good faith
an acceptable alternative provision which reflects as closely as possible the
intent of the unenforceable provision and (ii) notwithstanding, and regardless
of whether the parties reach agreement after the good faith negotiations
described in clause (i) immediately above, the validity, legality and
enforceability of the remaining provisions of this Agreement shall not in any
way be affected or impaired thereby and shall remain in full force and effect.
Section and all other headings used herein are provided for convenience only and
are not to be given any legal effect or considered in interpreting any provision
of this Agreement. No provision of this Agreement shall be interpreted against
any party because such party or its legal representative drafted such provision.
13.3 Subject to such rights as Microsoft and/or Inktomi may have under the
Agreements, no party hereto shall voluntarily or by operation of law assign,
sublicense, transfer, encumber or otherwise dispose of all or any part of its
interest in this Agreement without the prior written consent of the non-
assigning party. Any attempted assignment, sub-license,
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transfer, encumbrance or other disposal without such consent shall
be void and shall constitute a material default and breach of this Agreement.
Subject to the provisions of this Section, this Agreement shall be binding upon
and inure to the benefit of each party and their respective successors and
assigns.
13.4 All rights and obligations of the parties hereunder are personal to
them. Except as otherwise specifically stated herein, this Agreement is not
intended to benefit, nor shall it be deemed to give rise to, any rights in any
third party.
13.5 Each party shall be responsible for compliance with all applicable
laws, rules and regulations, if any, related to the performance of its
obligations under this Agreement.
13.6 No waiver of any breach of any provision of this Agreement
shall constitute a waiver of any prior, concurrent or subsequent breach of the
same or any other provisions hereof or thereof, and no waiver shall be effective
unless made in writing and signed by an authorized representative of the waiving
party.
13.7 This Escrow Agreement (and, as between Inktomi and Microsoft,
the Agreements) contains the entire agreement of the parties with respect to the
premises, and may not be modified or amended except by a written instrument
executed by the party sought to be charged or bound thereby.
13.8 For the purposes of this Agreement, Inktomi and Microsoft hereby
designate the following individuals (and such additional individuals or
substitutes therefor as may hereafter be designated by written notice from
Inktomi or Microsoft, whichever is applicable) as having the authority to
provide directions to Escrow Agent hereunder:
Inktomi designates: Xxxxx Xxxxxxxxxxxx, Xxxxx Xxxxxxxx
Microsoft designates: ____________________________________________
Executed as of the date first written above.
Escrow Agent: DATA BASE, INC.
------------ /s/ Xxxxx Xxxx
By:________________________________
Data Base, Inc. Xxxxx Xxxx
000 Xxxxx 000/xx/ Xxxxxx Print Name:________________________
Xxxxxxx, XX 00000 Escrow Services
Title:_____________________________
July 29, 1997
Date:______________________________
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INKTOMI CORPORATION
Inktomi: /s/ Xxxxx X. Xxxxxxxxxxxx
------- By:______________________________
Xxxxx X. Xxxxxxxxxxxx
Inktomi Corporation Print Name:______________________
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000 XXX
Xxx Xxxxx, XX 00000 Title:___________________________
ATTN: General Counsel
July 24, 1997
Date:____________________________
MICROSOFT CORPORATION
Microsoft: /s/ Xxxxx Xxxxxxxx
---------- By:______________________________
Xxxxx Xxxxxxxx
Microsoft Corporation Print Name:______________________
One Microsoft Way Vice President
Xxxxxxx, XX 00000-0000 Title:___________________________
ATTN: Law & Corporate Affairs, U.S. Legal July 27, 1997
Date:____________________________
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EXHIBIT A
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COMPUTER PROGRAMS FOR WHICH CONFIDENTIAL MATERIALS ARE DEPOSITED WITH ESCROW
AGENT
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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Search Engine:
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[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
Crawler:
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[*] [*]
Indexer:
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[*] [*]
[*] [*]
[*] [*]
[*] [*]
Utilities:
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[*] [*]
[*] [*]
[*]
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[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
EXHIBIT B
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CONFIDENTIALITY AND USE LIMITATION CERTIFICATE
STATE OF WASHINGTON )
)
COUNTY OF KING )
The undersigned, being first duly sworn upon oath, does state as follows:
1. The undersigned has certain rights in and to certain computer programs
and data, under a Software Development Agreement and Search Results
Agreement (the "Agreements") between the undersigned and Inktomi Corporation, a
California corporation ("Inktomi").
2. The undersigned has demanded, and expects to receive, source listings
and/or other related documentation for such computer programs ("Confidential
Materials"). These materials are the confidential and proprietary information
of Inktomi, and Inktomi claims protection thereof under applicable of copyright
and trade secret law.
3. Upon receipt of the Confidential Materials, the undersigned shall limit
the use thereof solely for purposes of installation, operation, maintenance,
modification and enhancement of the computer programs. The Confidential
Materials, and any copies thereof, shall be used by the undersigned for internal
purposes only, and the undersigned shall not make any use of the binary/object
codes translated from the Confidential Materials, except as expressly permitted
under the Agreements. At all times that the undersigned is entitled to use the
Confidential Materials, the undersigned shall continue to pay to Inktomi all
royalties and other amounts which Inktomi is entitled to receive under the
Agreements.
4. The Confidential Materials shall at all times remain the sole and
exclusive property of Inktomi, and the delivery thereof to the undersigned shall
not be deemed a grant or transfer of such proprietary interests to the
undersigned. The undersigned accepts the Confidential Materials in strict
confidence, and shall not make available, provide or otherwise allow or permit
the provision, directly or indirectly, of the Confidential Materials, or any
part or portion thereof, in any form, representation, or medium, to any person
or entity other than the authorized personnel or consultants of the undersigned.
5. The undersigned agrees that Inktomi and DATA BASE, INC. ("Escrow
Agent"), a Washington corporation, and any successor thereto or employees or
agents thereof, may rely upon this Certificate and the representations made
herein for the delivery of the Confidential Materials to the undersigned, and
the undersigned agrees to indemnify and hold harmless such persons and entities
from and against any and all losses, damages and expenses (including attorneys'
fees) arising out of the undersigned's failure to use the Confidential Materials
in accordance with this Certificate or the Agreements, or otherwise as a result
of any release of any Confidential Materials by Escrow Agent in response to the
undersigned's request.
6. Notwithstanding anything to the contrary, this Certificate shall not
limit or enlarge the rights or obligations of the parties under the Agreements.
DATED this _____ day of ____________, 19___.
MICROSOFT CORPORATION
By:__________________________________
Print Name:__________________________
Title:_______________________________
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