OPENSOCIAL FOUNDATION

INTENT AGREEMENT

This OPENSOCIAL FOUNDATION INTENT AGREEMENT (the “Agreement”) is effective on March 25, 2008 (the “Effective Date”) by and between Google Inc. (“Google”), a Delaware corporation with offices at 1600 Amphitheater Parkway, Mountain View, California 94043, Yahoo!, Inc. (“Yahoo!”), a Delaware corporation with offices at 701 First Avenue, Sunnyvale, CA 94089, and MySpace, Inc. (“MySpace”), a Delaware corporation with offices at 407 N. Maple Drive, Beverly Hills, CA 90210 (each individually, a “Party,” and collectively, the “Parties”).

The OpenSocial community is advancing the state of the social web.  We want to make it easier for everyone to create and use social applications.  We believe that OpenSocial is the best way to do so, and that the existing open community process is working well.

We want to improve the process by further opening up the OpenSocial intellectual property to the public.  We believe that creating a non-profit private foundation and a neutral web page at www.opensocial.org (the “Site”) will do so.

Now therefore, in consideration of the mutual promises and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto agree to the following:

1.  OPENSOCIAL FOUNDATION

1.1        Creation.  The Parties shall endeavor to have, on or before the date that is three (3) months after the Effective Date ("Target Date”):

(a)  formed a non-profit private foundation dedicated to the sustainable and open development of open and extensible specifications for social networking APIs.  Such foundation shall be the “OpenSocial Foundation”, and such specifications, as published on the Site (or otherwise published by any Party) shall be the “OpenSocial Specifications”; 

(b)  developed a policies and procedures document governing the operation of the OpenSocial Foundation;

(c)  prepared a form of and entered into a board member agreement for members of the OpenSocial Foundation’s board of directors; and

(d)  prepared a form of and entered into an intellectual property contribution agreement (the “Foundation IP Agreement”) with the OpenSocial Foundation related to contributions to OpenSocial Specifications.

(all of the foregoing comprising the “Foundation Establishment”).

The Parties intend for the Foundation Establishment to follow the guidelines set forth in the OpenSocial Foundation Proposal attached as Exhibit A to this Agreement.

1.2        Specifications.  Concurrently with working to form the OpenSocial Foundation, the Parties shall use good faith efforts to collaborate with the OpenSocial community to develop one or more version(s) of the OpenSocial Specification whose contents are mutually adopted by the Parties and are published on the Site. 

1.3        Publication of Specifications during the Bridge Period.  During the Bridge Period, the Parties agree as follows:

(a) The Parties agree to designate version 0.7 of the OpenSocial API specification, which is provided and published by Google at code.google.com/apis/opensocial/, as the "Existing Specification."  The Existing Specification will be published on the Site with the designation “OpenSocial Specification – Implementation Version 0.7”; 

(b) Each of the Parties may publish draft OpenSocial Specifications on the Site.  Each such draft shall include attribution of the individual authors and their affiliations only, not attributions to any of the Parties as corporate entities.  Any Party may also publish such draft specifications elsewhere provided the Party includes a reference to the Site, with a link in any electronic versions, and clearly marks such specification as a proposed draft; and

(c) The Parties will further develop the Site to encourage participation by additional individuals and entities, encourage the adoption of an appropriate interim intellectual property rights process pertaining to third-party contributions to any OpenSocial Specification, and encourage ongoing use of the Site to enhance OpenSocial Specifications. 

None of the above Sections 1.3 (a) - (c) shall be construed as a requirement for or restriction on any of the Parties or any other party to implement or contribute to any version of an OpenSocial Specification.

1.4        Contribution of OpenSocial Subject Matter.  Provided that the Parties have achieved Foundation Establishment on or before the Expiration Date (as defined in Section 4), then upon the date of Foundation Establishment (the “Establishment Date”): 

(a)  each Party shall provide an intellectual property rights contribution as set forth in the Foundation IP Agreement;

(b)  Google shall assign to the OpenSocial Foundation the "OpenSocial" trademark(s), any applications and registrations therefor, and any goodwill of the business associated therewith; and

(c)  Google shall transfer the Site and associated domain names to the OpenSocial Foundation.

The OpenSocial Foundation will determine, in accordance with its policies and procedures, the initial version of an OpenSocial Specification to adopt and publish.  The OpenSocial Foundation will own all future (i.e., post-Establishment Date) versions of the OpenSocial Specification published on the Site, with the Parties’ intellectual property rights and obligations with respect thereto being contributed to the OpenSocial Foundation by and governed by the Foundation IP Agreement.  

2.  INTELLECTUAL PROPERTY RIGHTS

2.1        Copyright License to Existing OpenSocial API Specification.  Google hereby licenses, for that period prior to the Establishment Date (the "Bridge Period"), its copyrights in the Existing Specification to each of the other Parties under the terms of the Creative Commons Attribution License version 2.5 (the “Creative Commons License”) in order to allow each Party to (a) develop and/or publish during the Bridge Period new versions or aspects of the OpenSocial Specification based on the Existing Specification, and (b) develop, use, and promote applications implementing the OpenSocial Specification(s) ((a) and (b), collectively, the "Purpose").  Each Party hereby licenses, for the Bridge Period, its copyrights in any draft version of the OpenSocial Specification (or portion thereof) provided by that Party to each of the other Parties under the terms of the Creative Commons License (or such other similar license agreed to by the Parties) for the Purpose.  The Parties agree to grant copyright licenses to third parties under the terms of the Creative Commons License (or such other similar license agreed to by the Parties) for the Bridge Period.

2.2        Patent Non-Assertion Covenant.  Each Party hereby agrees to the non-assertion covenant attached as Exhibit B to this Agreement regarding that Party's patent rights in connection with OpenSocial Specification activities.  Each Party shall use good faith efforts to reasonably obtain non-assertion covenants from third party contributors to an OpenSocial Specification, as appropriate, based on contributors known to that Party.

2.3        Patent Right in Joint Development.  When two or more Parties jointly conceive a patentable invention during the course of activities governed by this Agreement in support of any OpenSocial Specification (“Joint Patent Rights”), each such Party jointly owns the Joint Patent Rights and hereby assigns and agrees to assign to the other such Party(ies) an equal, undivided interest therein.  No such Party shall have the right to license Joint Patent Rights to third parties (other than its Related Entities) unless unanimous written consent is given by the other such Parties, except that, each such Party and its Related Entities are free to practice the Joint Patent Rights with no duty to notify or account to the other Parties.  Each Party hereby agrees, during and after the term of this Agreement, to execute any document reasonably requested to perfect another Party’s intellectual property rights as set forth pursuant to this Agreement.  “Related Entity” means, with respect to any Party, any person, firm, corporation, partnership, or similar entity that directly or indirectly controls, is controlled by, or is under common control with such Party, but only for so long as such control exists.  For purposes of the foregoing, “control” means direct or indirect control of thirty percent (30%) or more of the voting power to elect directors (or otherwise direct management) of such entity.

2.4        License to OpenSocial Trademark.  Google hereby grants each of the other Parties a worldwide license to display and otherwise use the "OpenSocial" trademark(s) during the Bridge Period for the Purpose.

2.5       No Other Rights.  Except as expressly granted in this Agreement, nothing shall be construed as granting any intellectual property rights, licenses, forbearances, or any other interest or obligation of any kind from one Party to another Party or any third party, whether by express grant, implication, exhaustion, estoppel, or otherwise. The Parties agree that the licenses and covenants set forth in this Section 2 and their intellectual property rights in any OpenSocial Specification and the “OpenSocial” trademark(s) shall become subject to and superseded by the relevant aspects of the Foundation IP Agreement upon the Establishment Date.  For the avoidance of doubt, if Foundation Establishment does not occur, the Bridge Period shall continue perpetually and such licenses and covenants shall remain in effect with respect to all covenantees thereunder.

2.6        Attribution.  Each Party will identify in any OpenSocial Specification (or portion thereof) provided by that Party the individual authors who are major contributors to such OpenSocial Specification, together with their corporate affiliations (if known). 

3.  CONFIDENTIALITY

Neither this Agreement nor any OpenSocial Specification (or any portion thereof) is confidential.  Each Party may display or otherwise distribute this Agreement to third parties.  To the extent the Parties exchange any confidential information under this Agreement, the Parties shall enter another agreement governing the confidentiality of such information. 

4.  TERM

This Agreement is effective as of the Effective Date and, unless earlier terminated or extended by mutual written agreement of the Parties, continues in full force and effect for a period of one (1) year from the Effective Date (the "Expiration Date”).  If the Parties are making good faith progress toward, but have not completed, the Foundation Establishment by the Target Date, they may extend the Target Date by mutual written consent.  In the event of termination, the provisions of Sections 1.3, 2, 3, 4, and 5 shall survive.

5.  GENERAL PROVISIONS

The Agreement shall be governed by the laws of California without giving effect to any conflict of laws or choice of laws concepts.  With respect to any dispute or litigation arising out of or relating to this Agreement, each Party agrees that it shall be filed in and heard by the state or federal courts with jurisdiction to hear such suits in either Los Angeles County or Santa Clara County, California.  This Agreement constitutes the entire understanding and agreement with respect to its subject matter, and supersedes any and all prior or contemporaneous representations, understandings and agreements whether oral or written between the Parties relating to the subject matter of this Agreement, all of which are merged in this Agreement.  If any provision of this Agreement is found to be invalid or unenforceable pursuant to judicial decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms.  In such event, the Parties agree to negotiate in good faith, a legal and enforceable substitute provision which most nearly conforms to the Parties’ intention in entering into this Agreement.    In the case of a reorganization, acquisition, merger, consolidation, sale of all or substantially all of the assets, or other change of control of any Party, this Agreement will be binding upon and inure to the benefit of the acquirer or other successor entity (the “Acquirer”) with respect to those intellectual property rights relating to the subject matter hereof that are owned or controlled by the Party (whether filed, pending, or issued) as of the date of the change of control, but not as to any intellectual property rights held or acquired by the Acquirer independently of the change of control.  IN NO EVENT WILL ANY PARTY BE LIABLE TO ANY OTHER PARTIES FOR LOST PROFITS OR ANY FORM OF INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER FROM ANY CAUSES OF ACTION OF ANY KIND WITH RESPECT TO THIS AGREEMENT, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.  UNDER NO CIRCUMSTANCES SHALL ANY PARTY BE LIABLE TO ANY OTHER PARTY ON ACCOUNT OF THAT PARTY'S USE OR MISUSE OF OR RELIANCE ON THE OPENSOCIAL SPECIFICATION.

Accepted and Agreed:

Google Inc.

By: // [SIGNATURE]

(Authorized signature)

Name: Jeff Huber

Title: SVP, Engineering

Yahoo!, Inc.

By: // [SIGNATURE]

(Authorized signature)

Name: Jay Rossiter

Title: SVP

MySpace, Inc.

By: // [SIGNATURE]

(Authorized signature)

Name: Amit Kapur

Title: COO

EXHIBIT A - OPENSOCIAL FOUNDATION PROPOSAL

OpenSocial Foundation Proposal

Overview

This document proposes the creation of a non-profit, private foundation dedicated to the sustainable and open development of the OpenSocial initiative and related intellectual property.  This document will be used as a starting point for creating the charter of such a foundation, along with its structure, policies, and procedures, and its responsibilities for supporting the ongoing development of the technology. 

Requirements

The OpenSocial initiative has reached a point where it must simultaneously (a) put in place sufficient legal structure to provide authors and implementers with the necessary assurances concerning intellectual property, licensing, and logistical concerns, (b) create a scalable and sustainable model for efficient future growth of the technical specifications, and (c) support the ongoing need for the principal stakeholders to ship working and interoperable implementations.

In meeting these needs, the OpenSocial Foundation will be structured to include both corporate and individual representation, and to foster a transparent and participatory community for the purpose of providing equal access to specifications published by the OpenSocial Foundation, at no charge.

Responsibilities

The responsibilities of the OpenSocial Foundation include:

·         Creating a structure and instituting practices for technical development by a broad base of contributors and community stakeholders, independent of any undue influence by any one party

·         Creating a governance structure and instituting practices for oversight of community-based development, including review and voting procedures, working group charter creation, dispute resolution, and similar procedures.

·         Establishing an intellectual property rights policy

·         Holding assigned intellectual property

·         Enforcing trademark and copyright

·         Creating and maintaining the OpenSocial website and community 

Tasks outside the scope of the foundation include:

·         Directly dictating technical aspects of the specifications

Next Steps

The following steps would be taken to move toward the establishment of an independent OpenSocial Foundation:

1.    Draft an OpenSocial Foundation Charter document that describes the structure and mission of the foundation, the rules for choosing the board, and the board's obligations.  This document may borrow heavily from those used by the OpenID Foundation.

2.    Create an OpenSocial Foundation Board Membership Agreement document.  This document may borrow heavily from those used by the OpenID Foundation.

3.    Create and file the OpenSocial Articles of Incorporation and file for 501(c)(3) tax-exempt status.  This document may borrow heavily from those used by the OpenID Foundation.

4.    Create and publish an Intellectual Property Rights Policy, including OpenSocial Patent Non-Assertion Covenants, which are required to be filed by all contributors to the OpenSocial specifications.  These Covenants should borrow heavily from the non-assertion covenant attached as Exhibit B hereto.

EXHIBIT B - NON-ASSERTION COVENANT

Patent Non-Assertion Covenant

Subject to the Conditions below, each grantor of this covenant (as contemplated in the Agreement) hereby makes the following promise (on behalf of itself and, to the extent it has the power to do so, on behalf of its Related Entities) (collectively, “I” or “me”) without the requirement of any monetary compensation or any additional terms and conditions:

I hereby irrevocably promise (subject to the conditions below and any associated limitations set forth in the Agreement)  not to assert any Necessary Claims against any other entity (“you”) for making, using, selling, offering for sale, importing, or distributing any Implementation or offering any product or service to the extent it contains or uses a Compliant Portion.  This is a personal promise directly from me to you, and you acknowledge as a condition of benefiting from it that no rights from me are received from me for your suppliers, distributors, or otherwise in connection with this promise.

Conditions: 

This promise is not an assurance that:  (a) any of my issued patent claims covers an Implementation or are enforceable; or (b) an Implementation will not infringe patents or other intellectual property rights of any third party. 

No other rights except those expressly stated in this promise will be deemed granted, waived, or received by implication, exhaustion, estoppel, or otherwise.

Notwithstanding anything to the contrary, I may revoke my covenant not to assert any Necessary Claims against you if you file against me a claim, counterclaim, defense, suit, or action alleging patent infringement, invalidity, or unenforceability with respect to an Implementation. 

I make no (and hereby expressly disclaim any) warranties (express, implied, or otherwise), including implied warranties of merchantability, non-infringement, fitness for a particular purpose, or title, related to any OpenSocial Specification, and the entire risk as to implementing or otherwise using this specification is assumed by the implementer (i.e., a person or other entity that creates, distributes, or offers a product or service that contains or makes use of an Implementation).

Definitions:

“Agreement” means the OpenSocial Foundation Intent Agreement, effective on March 25, 2008, by and between Google Inc., Yahoo!, Inc. and MySpace, Inc.

“Applicable OpenSocial Specification” means, with respect to a grantor, each of: (a) the Existing Specification; (b) any OpenSocial Specification published by and identified as published by the grantor in an area of the Site clearly designated for proposed drafts; (c) any other OpenSocial Specification approved in writing by the grantor pursuant to a mutually agreed upon process; and (d) solely that portion of any subsequent OpenSocial Specification that is subject to a preexisting obligation by the grantor in clauses (a) through (c) under this Covenant with respect to any of the specifications described in clauses (a) through (c).

“Compliant Portions” means those specific portions of a product (hardware, software, or combinations thereof) or service only to the extent that they implement and are compliant with all relevant portions of any Applicable OpenSocial Specification.

“Implementation” means a product (e.g., but without limitation, hardware, software, or firmware) or service that consists of (or makes use of) one (1) or more Compliant Portions.

“Necessary Claims” means claims of any patent or patent application, other than design patents and design registrations, in any jurisdiction in the world:  (a) for which and to the extent I have the right, at any time when this Patent Non-Assertion Covenant is effective, to grant licenses or rights of the nature granted herein without such grant resulting in payment of royalties or other consideration to third parties (except for payments to Related Entities or employees); and (b) that are necessarily infringed by Compliant Portions of a particular Implementation of an Applicable OpenSocial Specification.  A claim is necessarily infringed hereunder only when such infringement could not have been avoided by another commercially reasonable non-infringing implementation of Compliant Portion(s) of that particular Implementation based on the state of the art when the Applicable OpenSocial Specification was deemed final.  “Necessary Claims” do not, however, include any claims of any patent or patent application that read on: (x) any enabling technologies that may be necessary to make or use any product or service (or portion of either) that complies with the Applicable OpenSocial Specification, but that are not themselves expressly set forth in such Applicable OpenSocial Specification; (y) the implementation of other published standards not developed under the Agreement;  or (z) any portion(s) of any product or service (or any combination of such portion(s)) the sole purpose or function of which is not required to comply with the Applicable OpenSocial Specification.

“Related Entity” has the meaning set forth in the Agreement.