Yahoo!, Inc. v. Mymail, Ltd.

MOTION to Dismiss for Lack of Jurisdiction and Improper Venue

N.D. Cal.February 13, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT’S MOTION TO DISMISS - CASE NO. 5:16-CV-07044-EDJ Alfredo A. Bismonte (Cal. Bar. No. 136154) Jeremy M. Duggan (Cal. Bar. No. 229854) BECK, BISMONTE & FINLEY, LLP 150 Almaden Blvd, 10th Floor San Jose, CA 95113 Tel: (408) 938-7900 Fax: (408) 938-0790 Email: abismonte@beckllp.com jduggan@beckllp.com BRIAN A. CARPENTER (Cal. Bar No. 262349) Brian.Carpenter@BJCIPLaw.com ERIC W. BUETHER (admitted pro hac vice) Eric.Buether@BJCIPLaw.com CHRISTOPHER M. JOE (admitted pro hac vice) Chris.Joe@BJCIPlaw.com BUETHER JOE & CARPENTER, LLC 1700 Pacific, Suite 4750 Dallas, TX 75201 Tel: (214) 466-1270 Fax: (214) 635-1842 ATTORNEYS FOR DEFENDANT MYMAIL, LTD. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION YAHOO!, INC., Plaintiff, v. MYMAIL, LTD., Defendant. Case No. 5:16-cv-07044-EDJ Honorable Edward J. Davila DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND IMPROPER VENUE Date: July 13, 2017 Time: 9:00 a.m. Place: Courtroom 4 - 5th Floor Case 5:16-cv-07044-EJD Document 20 Filed 02/13/17 Page 1 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i DEFENDANT’S MOTION TO DISMISS - CASE NO. 5:16-CV-07044-EDJ TABLE OF CONTENTS I. INTRODUCTION ................................................................................................................. 1 II. FACTUAL BACKGROUND ................................................................................................ 3 A. MyMail’s Patent Infringement Lawsuit Against Yahoo!........................................... 5 B. Yahoo!’s Breach of Contract Lawsuit........................................................................ 5 III. ARGUMENT ......................................................................................................................... 7 A. This Court Lacks Personal Jurisdiction Over MyMail .............................................. 7 1. The Legal Principles Applicable to Determining Personal Jurisdiction ..................................................................................................... 7 2. MyMail is Not a Party to the Yahoo! Terms of Service or the Yahoo! Toolbar License and is Not Bound by Those Agreements ............... 8 3. Neither the Yahoo! Toolbar Software License or the Terms of Service Were Reasonably Communicated to the Party Downloading the Yahoo! Toolbar ...................................................................................... 11 4. MyMail’s Patent Infringement Claims Against Yahoo! Are Not Subject to the Forum Selection Clause in the Yahoo! Terms of Service .......................................................................................................... 14 B. Venue of this Action in This District is Improper ................................................... 17 IV. CONCLUSION .................................................................................................................... 18 Case 5:16-cv-07044-EJD Document 20 Filed 02/13/17 Page 2 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii DEFENDANT’S MOTION TO DISMISS - CASE NO. 5:16-CV-07044-EDJ TABLE OF AUTHORITIES Cases Ajemian v. Yahoo!, Inc., 987 N.E.2d 604 (Mass. App. Ct. 2013) ........................................................... 10, 11, 12, 13 Bense v. Interstate Battery System of America, 683 F.2d 718 (2d Cir. 1982) .............................................................................................. 15 Boehringer Ingelheim Vetmedica, Inc. v. Merial, Ltd., No. 09-CV-212, 2010 WL 174078 (D. Conn. Jan. 14, 2010) ........................................... 16 Bridas S.A.P.I.C. v. Gov’t of Turkmenistan, 345 F.3d 347 (5th Cir. 2003) ......................................................................................... 9, 10 Carnival Cruise Lines, Inc. v. Saute, 111 S. Ct. 1522 (1991) ....................................................................................... 9, 11 ContentGuard Holdings, Inc. v. Amazon.com, Inc., WL 1885256 (E.D. Tex. Apr. 24, 2015) ..................................................................... 14, 15 Crescent Intern., Inc. v. Avatar Communities, Inc., 857 F.2d 943 (3d Cir. 1988) .............................................................................................. 15 EEOC v. Waffle House, Inc., 534 U.S. 279 (2002) ............................................................................................................ 9 Fteja v. Facebook, Inc., 841 F. Supp. 2d 829 (S.D.N.Y. 2012) ............................................................................... 13 Fleetwood Enterprises, Inc. v. Gaskamp, 280 F.3d 1069 (5th Cir. 2002) ....................................................................................... 9, 10 Harrison v. Procter & Gamble Co., No. CIV A 706CV-121-R, 2007 WL 431085 (N.D. Tex. Feb. 8, 2007) .......................... 11 Holland Am. Line Inc. v. Wartsila N. Am., Inc., 485 F.3d 450 (9th Cir. 2007) ............................................................................................... 9 HPI/GSA 3C, LLC v. Perry, 364 F.3d 1327 (Fed. Cir. 2004) ......................................................................................... 11 In re Broadcast.com, Inc., No. 2:00-CV-18-TJW, 2000 WL 35586773 (E.D. Tex. Aug. 31, 2000). ............................................................... 9, 11, 13, 14, 17 Interactive Music Tech., LLC v. Roland Corp. U.S., No. CIV.A. 6:07-CV-282, 2008 WL 245142 (E.D. Tex. Jan. 29, 2008) .......................... 16 Int'l Shoe Co. v. Washington, 326 U.S. 310 (1945) ............................................................................................................ 7 International Software Systems, Inc. v. Amplicon, Inc., 77 F.3d 112 (5th Cir.1996) ....................................................................................... 9 Case 5:16-cv-07044-EJD Document 20 Filed 02/13/17 Page 3 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iii DEFENDANT’S MOTION TO DISMISS - CASE NO. 5:16-CV-07044-EDJ Manetti-Farrow, Inc. v. Gucci America, 858 F.2d 509 (9th Cir. 1988) ............................................................................................. 15 Miller v. United States, 363 F.3d 999 (9th Cir. 2004) ............................................................................................. 11 Oertell v. Six Flags Entm't Corp., No. 3:16-CV-4002 CRB, 2017 WL 491165 (N.D. Cal. Feb. 7, 2017) ............................. 18 Omron Healthcare, Inc. v. Maclaren Exports, Ltd., 28 F.3d 600 (7th Cir. 1994) ............................................................................................... 15 Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491 (9th Cir. 1979). ............................................................................................ 17 Prod. Res. Grp., L.L.C. v. Martin Prof’l, A/S, 907 F. Supp. 2d 401 (S.D.N.Y. 2012) ............................................................................... 16 Richardson v. Lloyd’s of London, 135 F.3d 1289 (9th Cir. 1998) ........................................................................................... 17 Robles v. Comtrak Logistics, Inc., No. 2:13-CV-00161-JAM-AC, 2015 WL 1530510 (E.D. Cal. Apr. 3, 2015) .................. 15 Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797 (9th Cir. 2004) ............................................................................................... 8 Sims v. Paramount Gold & Silver Corp., 2010 WL 5364783 (D. Ariz. Dec. 21, 2010) .................................................................... 15 Sw. Airlines Co. v. BoardFirst, L.L.C., No. 3:06-CV-0891-B, 2007 WL 4823761 (N.D. Tex. Sept. 12, 2007)............................. 13 TAPCO Underwriters, Inc. v. Catalina London Ltd., No. 14-CV-8434 JSR, 2014 WL 7228711 (S.D.N.Y. Dec. 8, 2014) ................................ 16 TK Prod., LLC v. Buckley, No. 3:16-CV-803-SI, 2016 WL 7013470 (D. Or. Nov. 29, 2016) .................................... 15 Tompkins v. 23andMe, Inc., No. 5:13-CV-05682-LHK, 2014 WL 2903752 (N.D. Cal. June 25, 2014), aff'd, 840 F.3d 1016 (9th Cir. 2016) .................................................................................. 13 VS Techs., LLC v. Twitter, Inc., No. 2:11CV43, 2011 WL 11074291 (E.D. Va. June 28, 2011) .................................... 9, 15 Welenco, Inc. v. Corbell, 2013 WL 5423100 (E.D. Cal. Sept. 26, 2013) .................................................................. 15 World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) ............................................................................................................ 7 Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, 433 F.3d 1199 (9th Cir. 2006) ............................................................................................. 7 Case 5:16-cv-07044-EJD Document 20 Filed 02/13/17 Page 4 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iv DEFENDANT’S MOTION TO DISMISS - CASE NO. 5:16-CV-07044-EDJ Statutes 28 U.S.C. § 1391 ........................................................................................................................... 18 Fed. R. Civ. P. 4 .............................................................................................................................. 7 Fed. R. Civ. P. 12 ...................................................................................................................... 7, 17 Cal. Code. Civ. Proc. § 410 ............................................................................................................. 7 Case 5:16-cv-07044-EJD Document 20 Filed 02/13/17 Page 5 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 DEFENDANT’S MOTION TO DISMISS - CASE NO. 5:16-CV-07044-EDJ TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD PLEASE TAKE NOTICE that on July 13, 2017, at 9:00 a.m. or as soon thereafter as may be heard in the above-titled Court, located at the San Jose Courthouse, Courtroom 4 - 5th Floor, Defendant MyMail, Ltd. (“MyMail”) will and hereby does make a special appearance to dismiss Plaintiff Yahoo!, Inc.’s (“Yahoo!”) claims against it for lack of personal jurisdiction and improper venue. This Motion is based upon this Notice of Motion and Motion, the supporting Declaration of Robert Derby, and any supplemental briefing filed in support thereof, the records, pleadings, and other papers on file in this action, and upon further oral or documentary evidence as the Court shall consider prior to or at the time of the hearing on this Motion. RELIEF REQUESTED MyMail, Ltd., pursuant to FCRP Rule 12, requests dismissal of all claims in the complaint filed against it by Yahoo! on the grounds of lack of personal jurisdiction and improper venue. MEMORANDUM IN SUPPORT OF MOTION TO DISMISS Defendant MyMail, Ltd. (“MyMail”) hereby files this Motion to Dismiss for Lack of Personal Jurisdiction and Improper Venue. I. INTRODUCTION Plaintiff Yahoo!, Inc. (“Yahoo!”) has filed this breach of contract action against MyMail in retaliation for MyMail filing a patent infringement lawsuit against Yahoo! in Texas. Yahoo!’s sole basis for asserting that this Court has personal jurisdiction over MyMail and that venue of this action in this Court is proper is a forum selection clause found in two related online agreements pertaining to the use of “Yahoo! Services,” such as the Yahoo! Toolbar. These agreements are the Yahoo! Terms of Service and Yahoo! Toolbar License Agreement (collectively, the “Yahoo! Agreements”). Yahoo! does not allege that MyMail has any other relevant contacts with California to support personal jurisdiction or venue of this action in this Court. Yahoo! alleges that MyMail breached the Yahoo! Agreements by filing its patent infringement lawsuit against Yahoo! in the United States District Court for the Eastern District of Texas instead of in this District pursuant to the forum selection clause. Yahoo! also alleges that Case 5:16-cv-07044-EJD Document 20 Filed 02/13/17 Page 6 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 DEFENDANT’S MOTION TO DISMISS - CASE NO. 5:16-CV-07044-EDJ MyMail breached the related online Yahoo! Toolbar License Agreement by “reverse engineering one or more versions of the Yahoo Toolbar, and by using the Yahoo Toolbar in a manner inconsistent with the TOS and the Toolbar Software License” in connection with conducting a Rule 11 analysis of the accused Yahoo! Toolbar service. Yahoo!’s Complaint should be dismissed for lack of personal jurisdiction and improper venue because MyMail did not agree to the Terms of Service and specifically the forum selection clause in that agreement. MyMail has submitted uncontroverted evidence that it has neither agreed to those terms nor authorized or directed anyone else to do so on its behalf. Furthermore, MyMail cannot be bound by the forum selection clause in the Terms of Service as a non-signatory because its patent rights do not derive from the Terms of Service and MyMail is not attempting to enforce or benefit from the existence of that agreement. MyMail’s patent infringement claims against Yahoo! are not impacted whatsoever by the Yahoo! Terms of Service. The forum selection clause is not enforceable against MyMail for the additional reason that Yahoo! has not alleged and cannot show that its Terms of Service were reasonably communicated to any person registering for a Yahoo! e-mail account and downloading the Yahoo! Toolbar, as required by law. Yahoo! employs a “browsewrap” form of agreement where website terms and conditions of use are posted on the website as a hyperlink instead of a “clickwrap” form where the terms of the agreement are displayed, at least in part, on the user’s computer screen and the user was required to signify his or her assent by ‘clicking’ ‘I accept.’” Numerous courts have consistently ruled that a “browsewrap” form of agreement such as the one used by Yahoo! does not reasonably communicate the terms of the agreement to a website user, and one court has specifically ruled that Yahoo!’s “browsewrap” form of agreement fails to reasonably communicate the Terms of Service, including the forum selection clause, to a party using Yahoo!’s e-mail services. Yahoo!’s Terms of Service are not enforceable against MyMail for this reason as well. Furthermore, MyMail’s patent infringement claims against Yahoo! do not fall within the scope of the forum selection clause in the Terms of Service. The Yahoo! forum selection clause is limited to “any and all claims, causes of action or disputes (regardless of theory) arising out of or Case 5:16-cv-07044-EJD Document 20 Filed 02/13/17 Page 7 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 DEFENDANT’S MOTION TO DISMISS - CASE NO. 5:16-CV-07044-EDJ relating to the TOS, or the relationship between you and Yahoo” (emphasis added). MyMail’s patent infringement claims are not based upon the Yahoo! Agreements, do not depend on the existence of the Yahoo! Agreements, and do not involve interpretation of any terms of those Yahoo! Agreements. The resolution of MyMail’s patent infringement claims are not affected by the Yahoo! Agreements. Thus, MyMail’s patent infringement claims do not arise out of or relate to the Terms of Service or any contractual relationship created by the Yahoo! Agreements. For all of these reasons, this Court does not have personal jurisdiction over MyMail and venue of this action in this Court is improper. II. FACTUAL BACKGROUND Plaintiff Yahoo!, Inc. (“Yahoo!”) has filed this breach of contract action against MyMail in retaliation for MyMail filing a patent infringement lawsuit against Yahoo! in Texas. Yahoo!’s sole basis for asserting that this Court has personal jurisdiction over MyMail and that venue of this action in this Court is proper is a forum selection clause found in two related online agreements pertaining to the use of “Yahoo! Services,” such as the Yahoo! Toolbar. These agreements are the Yahoo! Terms of Service and Yahoo! Toolbar License Agreement (collectively, the “Yahoo! Agreements”). Yahoo! does not allege that MyMail has any other relevant contacts with California to support personal jurisdiction or venue of this action in this Court. Yahoo! alleges that MyMail breached the Yahoo! Agreements by filing its patent infringement lawsuit against Yahoo! in the United States District Court for the Eastern District of Texas instead of in this District pursuant to the forum selection clause. Yahoo! also alleges that MyMail breached the related online Yahoo! Toolbar License Agreement by “reverse engineering one or more versions of the Yahoo Toolbar, and by using the Yahoo Toolbar in a manner inconsistent with the TOS and the Toolbar Software License” in connection with conducting a Rule 11 analysis of the accused Yahoo! Toolbar service. Yahoo!’s Complaint should be dismissed for lack of personal jurisdiction and improper venue because MyMail did not agree to the Terms of Service and specifically the forum selection clause in that agreement. MyMail has submitted uncontroverted evidence that it has neither agreed to those terms nor authorized or directed anyone else to do so on its behalf. Case 5:16-cv-07044-EJD Document 20 Filed 02/13/17 Page 8 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 DEFENDANT’S MOTION TO DISMISS - CASE NO. 5:16-CV-07044-EDJ Furthermore, MyMail cannot be bound by the forum selection clause in the Terms of Service as a non-signatory because its patent rights do not derive from the Terms of Service and MyMail is not attempting to enforce or benefit from the existence of that agreement. MyMail’s patent infringement claims against Yahoo! are not impacted whatsoever by the Yahoo! Terms of Service. The forum selection clause is not enforceable against MyMail for the additional reason that Yahoo! has not alleged and cannot show that its Terms of Service were reasonably communicated to any person registering for a Yahoo! e-mail account and downloading the Yahoo! Toolbar, as required by law. Yahoo! employs a “browsewrap” form of agreement where website terms and conditions of use are posted on the website as a hyperlink instead of a “clickwrap” form where the terms of the agreement are displayed, at least in part, on the user’s computer screen and the user was required to signify his or her assent by ‘clicking’ ‘I accept.’” Numerous courts have consistently ruled that a “browsewrap” form of agreement such as the one used by Yahoo! does not reasonably communicate the terms of the agreement to a website user, and one court has specifically ruled that Yahoo!’s “browsewrap” form of agreement fails to reasonably communicate the Terms of Service, including the forum selection clause, to a party using Yahoo!’s e-mail services. Yahoo!’s Terms of Service are not enforceable against MyMail for this reason as well. Furthermore, MyMail’s patent infringement claims against Yahoo! do not fall within the scope of the forum selection clause in the Terms of Service. The Yahoo! forum selection clause is limited to “any and all claims, causes of action or disputes (regardless of theory) arising out of or relating to the TOS, or the relationship between you and Yahoo” (emphasis added). MyMail’s patent infringement claims are not based upon the Yahoo! Agreements, do not depend on the existence of the Yahoo! Agreements, and do not involve interpretation of any terms of those Yahoo! Agreements. The resolution of MyMail’s patent infringement claims are not affected by the Yahoo! Agreements. Thus, MyMail’s patent infringement claims do not arise out of or relate to the Terms of Service or any contractual relationship created by the Yahoo! Agreements. For all of these reasons, this Court does not have personal jurisdiction over MyMail and venue of this action in this Court is improper. Case 5:16-cv-07044-EJD Document 20 Filed 02/13/17 Page 9 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 DEFENDANT’S MOTION TO DISMISS - CASE NO. 5:16-CV-07044-EDJ A. MyMail’s Patent Infringement Lawsuit Against Yahoo!. On September 7, 2016, MyMail filed a Complaint against Yahoo in the United States District Court for the Eastern District of Texas. See Yahoo! Complaint - Exhibit 3 (the “Texas Action”). On November 18, 2016, MyMail filed a First Amended Complaint in the Texas Action. Id. - Exhibit 4. In the Texas Action, MyMail has sued Yahoo! for infringement of two patents addressing the dynamic updating, changing, or modification of toolbar data from remote servers. Id. Specifically, MyMail alleges that Yahoo!’s testing and implementation of the Yahoo! Toolbar infringes the asserted patents. Id. MyMail’s patent infringement claims do not depend upon the existence, enforcement, or interpretation of any agreement with Yahoo!. See Declaration of Robert Derby (the “Derby Declaration”) at ¶ 7. In the Texas Action, MyMail is not seeking to enforce any agreement with Yahoo!. Id. B. Yahoo!’s Breach of Contract Lawsuit. On December 9, 2016, Yahoo! filed this action alleging that MyMail. Yahoo! alleges that “[o]ne resource that Yahoo has provided users with access to is the “Yahoo Toolbar,” and that, “[b]efore downloading or first using the Yahoo Toolbar, a user needed to agree to the terms of a Toolbar Software License.” Dkt 1 at ¶¶ 10-11. Yahoo! further alleges that “[t]he Toolbar Software License also provides: “You and Yahoo! agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Santa Clara.” Id. at ¶ 18. Yahoo! also alleges that it “provides users with access to email services,” and that, “[b]efore first using Yahoo's email services, a user must agree to Yahoo’s Terms of Service (‘TOS’),” id. at ¶¶ 20-21, which contains the TOS contains the following forum selection clause: You and Yahoo each agree that . . .any and all claims, causes of action or disputes (regardless of theory) arising out of or relating to the TOS, or the relationship between you and Yahoo, shall be brought exclusively in the courts located in the county of Santa Clara, California or the U.S. District Court for the Northern District of California. You and Yahoo agree to submit to the personal jurisdiction of the courts located within the county of Santa Clara, California or the Northern District of California, and agree to waive any and all objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts. Id. at ¶ 24. Case 5:16-cv-07044-EJD Document 20 Filed 02/13/17 Page 10 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 DEFENDANT’S MOTION TO DISMISS - CASE NO. 5:16-CV-07044-EDJ Yahoo! alleges that MyMail breached the Toolbar Software License and the Terms of Service “by filing the Texas Action outside of courts located in the county of Santa Clara, California or the U.S. District Court for the Northern District of California. Dkt 1 at ¶ 38. Yahoo!’s complaint further alleges that MyMail breached the Toolbar License by “reverse engineering one or more versions of the Yahoo Toolbar, and by using the Yahoo Toolbar in a manner inconsistent with the TOS and the Toolbar Software License” in connection with performing a Rule 11 investigation into its claims for patent infringement. Id. at ¶ 37. With regard to personal jurisdiction and venue, Yahoo! alleges that, “[t]his Court has personal jurisdiction over MyMail because MyMail purposefully has directed its activities at California residents, including Yahoo, with the knowledge that its conduct could cause harm in this State, and Yahoo's cause of action arises out of and is related to these activities,” and that “[t]his Court also has personal jurisdiction over MyMail because, on information and belief, MyMail agreed in the contracts at issue in this litigation to submit to the personal jurisdiction of this court.” Id. at ¶¶ 5-6. Yahoo! also alleges that, “[o]n information and belief, MyMail or an individual under MyMail's direction or control has used Yahoo's email services, and has downloaded, installed, and used at least one version of the Yahoo Toolbar in connection with Yahoo's email services,” and, therefore, “[o]n information and belief, MyMail agreed to and is bound by the TOS and the Toolbar Software License.” Id. at ¶¶ 25-26. With regard to venue, Yahoo! alleges that “[v]enue is proper in this judicial district under 28 U.S.C. § 1391(b),” and that, “[o]n information and belief, MyMail also agreed in the contracts at issue in this litigation to setting venue in this judicial district.” The forum selection clauses contained in Yahoo!’s Terms of Service and Toolbar License are “browsewrap agreements” that merely contain an inconspicuous link on a web page to the terms and conditions of use of “Yahoo! Services.” According to Yahoo!, a person agrees to the Terms of Service by clicking a button at the bottom of a web page stating in small print “I agree to the Yahoo Terms and Privacy.” See Declaration of Stephen Owens - Exhibit 4 (attached as an Exhibit to the Declaration of Michael Ricketts). Similarly, according to Yahoo!, “[i]n order to obtain the Yahoo Toolbar . . , a user first needs to agree to the Yahoo Toolbar Software License” Case 5:16-cv-07044-EJD Document 20 Filed 02/13/17 Page 11 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 DEFENDANT’S MOTION TO DISMISS - CASE NO. 5:16-CV-07044-EDJ by click[ing] a button on a web page agreeing to the Yahoo Toolbar Software License” as reflected in Exhibit 3 to the Owens Declaration. Owens Declaration at ¶5. The webpages for opening a Yahoo! e-mail account and downloading the Yahoo! Toolbar do not display in any manner the terms to which the user is purportedly agreeing, such as by displaying a window on the page allowing the website visitor to scroll through and view the applicable terms before accepting them. III. ARGUMENT A. This Court Lacks Personal Jurisdiction Over MyMail 1. The Legal Principles Applicable to Determining Personal Jurisdiction Federal Rule of Civil Procedure 12(b)(2) provides that a court may dismiss a suit for lack of personal jurisdiction. Personal jurisdiction refers to a court’s power to render a valid and enforceable judgment against a particular defendant. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980). The contours of that power are shaped, in large part, by the Due Process Clause of the Fourteenth Amendment, which requires sufficient “contacts, ties, or relations” between the defendant and the forum state before “mak[ing] binding a judgment in personam against an individual or corporate defendant.” Int'l Shoe Co. v. Washington, 326 U.S. 310, 319 (1945). Due Process requires that “there exist ‘minimum contacts' between the defendant and the forum” in order to protect the defendant “against the burdens of litigating in a distant or inconvenient” court and lend “a degree of predictability to the legal system.” World-Wide Volkswagen, 444 U.S. at 291, 292, 297. Jurisdiction must also comport with law of the forum state. See Fed. R. Civ. P. 4(k)(1)(A); Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, 433 F.3d 1199, 1205 (9th Cir. 2006) (en banc). Because California’s long-arm statute allows the exercise of jurisdiction on any basis consistent with the state and federal constitutions, the jurisdictional analyses of state law and federal due process are the same. Cal. Code. Civ. Proc. § 410.10; see also Yahoo!, 433 F.3d at 1205. The Ninth Circuit applies a three-prong test to establish specific jurisdiction. (1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some Case 5:16-cv-07044-EJD Document 20 Filed 02/13/17 Page 12 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 DEFENDANT’S MOTION TO DISMISS - CASE NO. 5:16-CV-07044-EDJ act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant's forum- related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004). The “plaintiff bears the burden of satisfying the first two prongs of the test.” Id. “If the plaintiff succeeds in satisfying both of the first two prongs, the burden then shifts to the defendant to ‘present a compelling case’ that the exercise of jurisdiction would not be reasonable.” Id. 2. MyMail is Not a Party to the Yahoo! Terms of Service or the Yahoo! Toolbar License and is Not Bound by Those Agreements As mentioned above, the sole basis alleged by Yahoo! for this Court to exercise personal jurisdiction over MyMail is the forum selection clause contained in the Yahoo! Terms of Service and Yahoo! Toolbar License. Yahoo!, however, merely alleges that, “[o]n information and belief, MyMail or an individual under MyMail's direction or control has used Yahoo's email services, and has downloaded, installed, and used at least one version of the Yahoo Toolbar in connection with Yahoo's email services,” and, therefore, “[o]n information and belief, MyMail agreed to and is bound by the TOS and the Toolbar Software License.” Id. at ¶¶ 25-26. MyMail, however, has submitted the declaration of the manager of its general partner, Robert Derby, attesting to the fact that (1) he is the only person with authority to enter into contracts on behalf of MyMail, (2) he did not download any Yahoo! Toolbar on behalf of MyMail, (3) he did not establish any Yahoo! e-mail account on behalf of MyMail, (4) he has not agreed to the Toolbar Software License and the Terms of Service identified in Yahoo!'s motion to transfer on behalf of MyMail, (5) MyMail has not entered into any agreements with Yahoo!, (6) MyMail has not authorized, instructed or directed any person to open a Yahoo! e-mail account or download the Yahoo! Toolbar on behalf of MyMail, and (7) MyMail has not authorized, instructed or directed anyone to agree to either the Yahoo! Terms of Service or the Yahoo! Toolbar Software License terms identified in Yahoo!’s Complaint on behalf of MyMail. Declaration of Robert Derby at ¶¶ 4-5. Thus, MyMail is not bound by the forum selection clauses in either the Yahoo! Case 5:16-cv-07044-EJD Document 20 Filed 02/13/17 Page 13 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 DEFENDANT’S MOTION TO DISMISS - CASE NO. 5:16-CV-07044-EDJ Toolbar Software License or Terms of Service and, consequently, is not subject to this Court’s jurisdiction. The general rule is that a nonparty to a contract is not bound by its terms. See, e.g., EEOC v. Waffle House, Inc., 534 U.S. 279, 294 (2002). Thus, a forum selection clause does not ordinarily apply to nonparties. Instead, forum selection clauses are enforced against nonparties only in limited circumstances “where the alleged conduct of the nonparties is closely related to the contractual relationship” such that the nonparties can be considered “transaction participants” intended to “benefit from and be subject to” the forum selection clause. Holland Am. Line Inc. v. Wartsila N. Am., Inc., 485 F.3d 450, 456 (9th Cir. 2007).1 In VS Techs., LLC v. Twitter, Inc., No. 2:11CV43, 2011 WL 11074291 (E.D. Va. June 28, 2011), for example, the court held that a patentee asserting patent infringement claims against Twitter was not “closely related” to the inventor and prosecuting attorney of the patent-in-suit who also was a founding member and current manager of the patentee and assigned the patent-in-suit to the patentee. Id. at *2, *5, *7. The court rejected the argument by Twitter that the forum selection clause contained in its website Terms of Service-providing that “[a]ll claims, legal proceedings or litigation arising in connection with the Services will be brought solely in San Francisco County, California,” and previously agreed to by the inventor-also applied to the patentee suing it for infringement of the inventor’s patent. Id. The court observed that “here, according to VS Technologies, VS Technologies’ patent infringement suit ‘does not bear whatsoever on [Twitter's] Terms of Service. Plaintiff is not seeking enforcement of the Terms of Service. Instead, its claim of patent infringement will be resolved completely irrespective of the Terms of Service.’” Id. at *2. “Parties are presumed to be contracting for themselves only.” Bridas S.A.P.I.C. v. Gov’t of Turkmenistan, 345 F.3d 347, 362 (5th Cir. 2003) (citing Fleetwood Enterprises, Inc. v. Gaskamp, 280 F.3d 1069, 1075-76 (5th Cir. 2002). “This presumption may be overcome only if the intent to 1 Federal law governs the construction and enforceability of forum selection clauses. Carnival Cruise Lines, Inc. v. Saute, 111 S. Ct. 1522 (1991); International Software Systems, Inc. v. Amplicon, Inc., 77 F.3d 112, 114-15 (5th Cir.1996); In re Broadcast.com, Inc., No. 2:00-CV-18-TJW, 2000 WL 35586773, at *3 (E.D. Tex. Aug. 31, 2000). Case 5:16-cv-07044-EJD Document 20 Filed 02/13/17 Page 14 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 DEFENDANT’S MOTION TO DISMISS - CASE NO. 5:16-CV-07044-EDJ make someone a third-party beneficiary is ‘clearly written or evidenced in the contract.’” Id. (quoting Fleetwood Enterprises, 280 F.3d at 1075-76). In this case, there is no language in the Yahoo! Toolbar Software License or Terms of Service suggesting that any nonparty to those agreements would be a third party beneficiary of or be bound by the terms of those agreements. Both the Yahoo! Toolbar License and the Yahoo! Terms of Service contain language establishing a personal contractual relationship solely between Yahoo! and the user of the “Yahoo! Services.” The Yahoo! Terms of Service state that “Yahoo provides the Yahoo Services (defined below) to you subject to the following Terms of Service (‘TOS’),” and that, “[b]y accessing and using the Yahoo Services, you accept and agree to be bound by the terms and provision of the TOS.” Owens Declaration - Exhibit 2 at ¶28.2 The Terms of Service further provide that, “[i]n consideration of your use of the Yahoo Services, you represent that you are of legal age to form a binding contract and are not a person barred from receiving the Yahoo Services under the laws of the United States or other applicable jurisdiction.” Id. 3 Moreover, the Terms of Service expressly disclaim any intent to create third-party beneficiaries. Id. - Exhibit 2 at ¶23 (“You agree that, except as otherwise expressly provided in this TOS, there shall be no third-party beneficiaries to this agreement.”).4 The court in Ajemian v. Yahoo!, Inc., 987 N.E.2d 604, 614 (Mass. App. Ct. 2013), construed Yahoo!’s Terms of Service and concluded that “you” as used therein “refers to the person who accepted the TOS.” Id. at 614. The court found that “[t]he term ‘you’ is undefined and we can see no reasonable construction of it that would extend to the administrators of John’s estate [nonsignatories].” Id. The court further concluded that, “[t]o the extent that the term is 2 All emphasis is added unless specified otherwise. 3 The Yahoo! Toolbar License contains similar language establishing that it is a personal contract between Yahoo! and the user of that particular Yahoo! service. Owens Declaration -- Exhibit 1 at page 1 (“By clicking the ‘I Agree’ button below, you agree to these software license terms (the "Software License") that supplement the Yahoo! Terms of Service (‘TOS’),” and, “[b]y accepting the terms of this Agreement, you represent to Yahoo! Inc. and its affiliates (collectively, "Yahoo!") that you are at least 18 years old,” and “YOU MAY install and personally use the Yahoo! Software and any updates provided by Yahoo!”). 4 This provision is incorporated by reference into the Yahoo! Toolbar Software License. Case 5:16-cv-07044-EJD Document 20 Filed 02/13/17 Page 15 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 DEFENDANT’S MOTION TO DISMISS - CASE NO. 5:16-CV-07044-EDJ ambiguous, it is to be construed against Yahoo! as the drafter of the contract.” Id.5 The Ajemian court observed that “Yahoo! controlled the provisions of the TOS and it would have been a simple matter for it to define the parties to the contract to include estates, administrators, executors, successors and the like had that been Yahoo!’s intent. We see no reason to add those terms now.” Id. Furthermore, the court held that “[i]t is clear from the provisions of the TOS that the administrators are not intended third-party beneficiaries. Among other things, the TOS specifies that the agreement grants a nontransferable license only to the person accepting the TOS.” Id.6 These rulings apply equally in this case. The only parties to the Terms of Service and the Toolbar License are Yahoo! and the person who allegedly accepted the terms of these agreements when opening a Yahoo! e-mail account and downloading the Yahoo! Toolbar. MyMail was not such a person, and was not an intended third-party beneficiary of those agreements. The forum selection clauses in the Yahoo! Terms of Service and Toolbar License do not apply to MyMail. 3. Neither the Yahoo! Toolbar Software License or the Terms of Service Were Reasonably Communicated to the Party Downloading the Yahoo! Toolbar As the court declared in In re Broadcast.com, “Federal law sanctions forum selection clauses in form contracts if, and only if, the drafter reasonably communicates the terms of the clause.” 2000 WL 35586773, at *3 (citing Carnival Cruise Lines, 111 S. Ct. 1522 (1991). Even if MyMail were the party who opened a Yahoo! e-mail account and downloaded the Yahoo! Toolbar, as Yahoo! asserts, the forum selection clauses in those agreements would not be enforceable against MyMail because the Terms of Service and Toolbar License were not reasonably communicated to the party opening the e-mail account and downloading the toolbar. 5 It is a well-established principle of contract law that ambiguous contract language must be construed against the drafter. See, e.g., HPI/GSA 3C, LLC v. Perry, 364 F.3d 1327, 1334 (Fed. Cir. 2004); Miller v. United States, 363 F.3d 999, 1005-06 (9th Cir. 2004). 6 See also Harrison v. Procter & Gamble Co., No. CIV A 706CV-121-R, 2007 WL 431085, at *2 (N.D. Tex. Feb. 8, 2007) (“The plain meaning of the term parties in this Agreement could only apply to Gillette and Plaintiffs, the signatories to the Agreement. Therefore, the forum selection clause-clearly limited to “any Action between the parties” - does not apply to a case in which Plaintiffs, a party to the Agreement, have sued Procter & Gamble, a non-party to the Agreement.”) Case 5:16-cv-07044-EJD Document 20 Filed 02/13/17 Page 16 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 DEFENDANT’S MOTION TO DISMISS - CASE NO. 5:16-CV-07044-EDJ Yahoo!’s Complaint does not allege any facts regarding how the Terms of Service and the Toolbar License were communicated to a user of Yahoo! services. In the Texas Action, however, Yahoo! submitted the Declaration of Stephen Owens which addressed this issue. Owens states in his declaration that, “[i]n order to obtain the Yahoo Toolbar . . , a user first needs to agree to the Yahoo Toolbar Software License” by click[ing] a button agreeing to the Yahoo Toolbar Software License” as reflected in Exhibit 3 to the Owens Declaration. Owens Declaration at ¶5. Exhibit 3 reflects a large blue-colored button in the upper-right corner of the webpage prominently labeled “Download Now.” In very small print below the “Download Now” button is the following statement: “By clicking ‘Download Now’, [sic] you agree to the Terms and Privacy Policy for the Yahoo Toolbar.” The Owens Declaration also states that, “[i]n order to use the Yahoo Toolbar in connection with a Yahoo e-mail account . . , a user would need to first agree to the Yahoo Terms of Service (TOS),” citing Exhibit 4 to his declaration. Owens Declaration at ¶8. Exhibit 4 reflects a webpage with small print at the bottom of the page stating “I agree to the Yahoo Terms and Privacy.” The Owens Declaration also states that “[t]he TOS and Toolbar Software License have been available to the public, for example, at the URL https://policies.)rahoo.com/us/en/yahoo/terms/index.htm.” Id. at ¶9. Finally, the Owens Declaration states that “[t]he Toolbar Software License contains a link to the TOS and specifically states that it is a ‘supplement’ to the TOS.” Id. at ¶10. Significantly, the webpages for opening a Yahoo! e-mail account and downloading the Yahoo! Toolbar do not display in any manner the terms to which the user is purportedly agreeing, such as by displaying a window on the page allowing the website visitor to scroll through and view the applicable terms before accepting them. Moreover, with respect to the Terms of Service, there is no notice that opening a Yahoo! e-mail account signifies acceptance of those terms. The language “I agree to the Yahoo Terms and Privacy” merely appears at the bottom of the webpage. Several courts have found that the method used by Yahoo! to attempt to obtain an acceptance of its online terms by a user of its services is ineffective. In Ajemian v. Yahoo!, Inc., for example, the court found Yahoo!’s method for obtaining acceptance to its online Terms of Service, including the forum selection clause contained therein, Case 5:16-cv-07044-EJD Document 20 Filed 02/13/17 Page 17 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 DEFENDANT’S MOTION TO DISMISS - CASE NO. 5:16-CV-07044-EDJ did not reasonably communicate those terms to the user of Yahoo!’s services. The court observed in that case that, just as in this case, “‘[p]rospective users are given an opportunity to review the Terms of Service and Privacy Policy prior to submitting their registration data to Yahoo!.’” 987 N.E.2d at 612. “Standing alone,” the court stated, “this is not enough to establish that the forum selection provision and limitations provision of either the 2002 or the amended TOS were reasonably communicated, or to whom they were communicated.” Id. In reaching this decision, the Ajemian court observed that, “[a]lthough forum selection clauses contained in online contracts have been enforced, courts have done so only where the record established that the terms of the agreement were displayed, at least in part, on the user’s computer screen and the user was required to signify his or her assent by ‘clicking’ ‘I accept.’” 987 N.E.2d at 613 (citing cases). The court explained that “[t]his is known as a ‘clickwrap’ agreement.” Id. “By contrast,” the court further explained, “a ‘browsewrap’ agreement is one ‘where website terms and conditions of use are posted on the website typically as a hyperlink at the bottom of the screen.’” Id. quoting Fteja v. Facebook, Inc., 841 F. Supp. 2d 829, 836-37 (S.D.N.Y. 2012). The court held that the former have consistently been found sufficient to reasonably communicate terms and conditions to a user, whereas the latter have not: Although forum selection clauses have almost uniformly been enforced in clickwrap agreements, we have found no case where such a clause has been enforced in a browsewrap agreement. Here, the record does not establish that the TOS was a clickwrap agreement, or that terms of the TOS were displayed (in whole or part) to Robert or John, or that the terms were accepted by clicking “I accept” or by taking some similar action. As a result, the record does not reflect that the terms of any agreement were reasonably communicated or that they were accepted. Id.7 Similarly, in In re Broadcast.com, the court addressed “the issue . . . whether posting a link entitled ‘Terms of Use’ reasonably communicates to the user that his use of the site subjects him to important terms and conditions contained elsewhere in the site.” 2000 WL 35586773, at *4. 7 See also Tompkins v. 23andMe, Inc., No. 5:13-CV-05682-LHK, 2014 WL 2903752, at *5-6 (N.D. Cal. June 25, 2014), aff'd, 840 F.3d 1016 (9th Cir. 2016) (“In general, courts enforce inconspicuous browsewrap agreements only when there is evidence that the user has actual or constructive notice of the site’s terms”); Sw. Airlines Co. v. BoardFirst, L.L.C., No. 3:06-CV- 0891-B, 2007 WL 4823761 (N.D. Tex. Sept. 12, 2007) (same). Case 5:16-cv-07044-EJD Document 20 Filed 02/13/17 Page 18 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 DEFENDANT’S MOTION TO DISMISS - CASE NO. 5:16-CV-07044-EDJ The court found such a “browsewrap” agreement did not reasonably communicate the terms of service to the website user. Id. at *5. The court found that the fact that the words “Terms of Service” appeared at the bottom of the webpage “cuts against a conclusion that the terms of service are reasonably communicated to the Website user.” Id. Furthermore, the court emphasized that “[a] user’s presence on any particular page of a Website may only be momentary, and it cannot be said that a Webpage containing a link to the terms and conditions of use is within the user's ‘possession’ for any meaningful amount of time.” Id. Accordingly, the court held, “the court holds that the defendants did not reasonably communicate the terms of the forum selection clauses to the plaintiffs.” Id. Yahoo!’s Terms of Service and Toolbar License are “browsewrap agreements” that are merely presented as an inconspicuous link to the terms and conditions of use. Therefore, the terms and conditions of those agreements, including the forum selection clauses, were not reasonably communicated to the user of Yahoo!’s services. 4. MyMail’s Patent Infringement Claims Against Yahoo! Are Not Subject to the Forum Selection Clause in the Yahoo! Terms of Service Another essential requirement for the enforcement of a forum selection clause in a given case is “whether the dispute in question falls within the scope of that agreement.” ContentGuard Holdings, Inc. v. Amazon.com, Inc., WL 1885256 at *4 (E.D. Tex. Apr. 24, 2015). In this case, the forum selection clauses in the Yahoo! Agreements do not apply to MyMail’s patent infringement claims against Yahoo! because those patent infringement claims do not raise any issues concerning the terms of the Yahoo! Agreements or any contractual relationship created by those agreements. The Yahoo! Terms of Service forum selection clause applies only to “any and all claims, causes of action or disputes (regardless of theory) arising out of or relating to the TOS, or the relationship between you and Yahoo . . . .” Dkt. 18 - Exhibit 2 at ¶28 (emphasis added). The Yahoo! Toolbar License, which “supplements” the Terms of Service, merely states that “You and Yahoo! agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Santa Clara, California” and does not modify or alter the scope of the forum selection clause in the Terms of Service. Owens Declaration - Exhibit 1 at ¶11. Case 5:16-cv-07044-EJD Document 20 Filed 02/13/17 Page 19 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 DEFENDANT’S MOTION TO DISMISS - CASE NO. 5:16-CV-07044-EDJ Numerous courts, including the Ninth Circuit, have held that a claim “arises out of” a contract only when the claim asserted arises out of the contractual relationship or involves interpretation of the terms of the contract. See, e.g., Manetti-Farrow, Inc. v. Gucci America, 858 F.2d 509, 514 (9th Cir. 1988); Omron Healthcare, Inc. v. Maclaren Exports, Ltd., 28 F.3d 600 (7th Cir. 1994); Crescent Intern., Inc. v. Avatar Communities, Inc., 857 F.2d 943, 944-45 (3d Cir. 1988); Bense v. Interstate Battery System of America, 683 F.2d 718, 720 (2d Cir. 1982). The court in ContentGuard followed this authority and held that “provisions using the phrases ‘arising under,’ ‘arising out of,’ and ‘arising hereunder’ (collectively referred to as ‘arising under’ language) should be narrowly construed to cover only those disputes ‘relating to the interpretation and performance of the contract itself.’” ContentGuard, WL 1885256, at *4 (quoting Robles v. Comtrak Logistics, Inc., No. 2:13-CV-00161-JAM-AC, 2015 WL 1530510, at *3 (E.D. Cal. Apr. 3, 2015).8 In this case, MyMail is not asserting any rights created by the Yahoo! Agreements. MyMail’s patent infringement claims against Yahoo! exist independent of the Terms of Service and Toolbar License, and resolution of those claims do not require the interpretation of any language in those agreements. MyMail’s patent infringement claims are based upon conduct engaged in by Yahoo! without regard to the existence of the Yahoo Agreements. Indeed, MyMail’s patent infringement claims against Yahoo! existed before the Yahoo! Agreements even existed, given that MyMail’s claims arose many years ago when Yahoo! began to implement the accused Yahoo! Toolbar. In similar circumstances in the VS Technologies case, the court held that VS Technologies’ patent infringement claims against Twitter did not arise out of Twitter’s website terms of service, declaring that “[s]uch claims simply are not based on VS Technologies’ or Agarwal’s ‘access to and use of’ services provided by Twitter's website.” VS Techs., LLC v. Twitter, Inc., WL 8 It is the burden of the party seeking enforcement of a forum selection clause to sufficiently demonstrate that a claim requires interpretation of the contract. See TK Prod., LLC v. Buckley, No. 3:16-CV-803-SI, 2016 WL 7013470, at *1 (D. Or. Nov. 29, 2016); Welenco, Inc. v. Corbell, 2013 WL 5423100, at *7 (E.D. Cal. Sept. 26, 2013); see also Sims v. Paramount Gold & Silver Corp., 2010 WL 5364783, at *7 (D. Ariz. Dec. 21, 2010). Case 5:16-cv-07044-EJD Document 20 Filed 02/13/17 Page 20 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 DEFENDANT’S MOTION TO DISMISS - CASE NO. 5:16-CV-07044-EDJ 11074291, at *5. The same is true in this case. MyMail’s patent infringement claims against Yahoo! do not “arise out of” the Terms of Service or any contractual relationship evidenced by the Yahoo! Agreements. MyMail’s patent infringement claims against Yahoo! also do not “relate to” the Terms of Service or any contractual relationship created by the Yahoo! Agreements. Although the language “relate to” is broader in scope than the “arising out of” language, “[c]ourts have . . . described the term ‘relating to’ as equivalent to the phrases ‘in connection with’ and ‘associated with’, and synonymous with the phrases ‘with respect to’ and ‘with reference to.’” Boehringer Ingelheim Vetmedica, Inc. v. Merial, Ltd., No. 09-CV-212, 2010 WL 174078, at *11 (D. Conn. Jan. 14, 2010). See also Prod. Res. Grp., L.L.C. v. Martin Prof’l, A/S, 907 F. Supp. 2d 401, 414 (S.D.N.Y. 2012). “Disputes that are in no way affected by the existence of an agreement cannot be said to ‘relate to’ that agreement.” TAPCO Underwriters, Inc. v. Catalina London Ltd., No. 14-CV-8434 JSR, 2014 WL 7228711, at *4 (S.D.N.Y. Dec. 8, 2014). As explained above, MyMail’s patent infringement claims against Yahoo! do not depend upon the existence of any contractual relationship created by the Yahoo! Agreements. The resolution of MyMail’s patent infringement claims is not affected by these agreements in general, or by the specific provisions of the Terms of Service in particular. This case is unlike other cases where courts have found that patent infringement claims “relate to” a contract involving a license to or settlement of the asserted patent rights. See, e.g., Interactive Music Tech., LLC v. Roland Corp. U.S., No. CIV.A. 6:07-CV-282, 2008 WL 245142, at *5-6 (E.D. Tex. Jan. 29, 2008). Yahoo! has not identified any cognizable contract defense to MyMail’s patent infringement claims. In addition, the fact that the forum selection clause in the Terms of Service states that “the relationship between the parties shall be governed by the laws of the State of California” demonstrates that Yahoo! did not intend the forum selection clause to apply to patent infringement claims. A claim for patent infringement is governed exclusively by federal patent law. California state law is irrelevant to the issue of patent infringement. Thus, any relationship between the parties to the Yahoo! Terms of Service did not include disputes concerning patent infringement. Case 5:16-cv-07044-EJD Document 20 Filed 02/13/17 Page 21 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 DEFENDANT’S MOTION TO DISMISS - CASE NO. 5:16-CV-07044-EDJ In In re Broadcast.com, the court construed the forum selection clause in Yahoo!’s Terms of Service and found that it covered only Yahoo! services specifically provided to the user. The court observed that the language regarding the “relationship between User and Yahoo! . . . must be read in pari materia with the remainder of the Yahoo! Mail TOS, the purpose of which is to govern use of the Yahoo! Mail service.” In re Broadcast.com, 2000 WL 35586773, at *7. The court concluded that “[a] fair reading of the Yahoo! Mail TOS agreement indicates that its provisions govern a registrant's use of the e-mail service provided by Yahoo!. A fortiori, the relationship referenced by the choice of law/choice of forum provision is limited to that existing between Yahoo! and the user arising out of the e-mail service.” Id. Thus, the Broadcast.com court found that the plaintiff’s patent infringement claims “are outside the scope of the forum selection provision contained in the Yahoo! Mail TOS agreement.” Id. Similarly, the “relationship between you and Yahoo” referred to in the forum selection clause of the Terms of Service concerns a user’s use of the Yahoo! e-mail service and Yahoo! Toolbar, and does not include the subject matter of patent infringement. Yahoo! has not shown that the Terms of Service should be read as being applicable to anything besides the contracting user’s use of the Yahoo! Toolbar. MyMail’s patent infringement claims are directed at Yahoo!’s infringing implementation and use of the Yahoo! Toolbar, not the contracting party’s use of such services.9 B. Venue of this Action in This District is Improper Pursuant to Federal Rule of Civil Procedure 12(b)(3), a party may raise a defense based on improper venue. A defendant may raise the motion in his first responsive pleading or by a separate pre-answer motion. See Fed. R. Civ. P. 12(b)(3). Once the defendant challenges venue, the plaintiff bears the burden of establishing that venue is proper. Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir. 1979). The pleadings need not be accepted as true, and the court “may consider facts outside of the pleadings.” Richardson v. Lloyd’s of London, 135 9 In view of the fact that the forum selection clauses in the Yahoo! Agreements do not apply to MyMail or its patent infringement lawsuit against Yahoo!, there is no reason to address Yahoo!’s public interest factor arguments. Case 5:16-cv-07044-EJD Document 20 Filed 02/13/17 Page 22 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 DEFENDANT’S MOTION TO DISMISS - CASE NO. 5:16-CV-07044-EDJ F.3d 1289, 1292 (9th Cir. 1998). See also Oertell v. Six Flags Entm't Corp., No. 3:16-CV-4002 CRB, 2017 WL 491165, at *2 (N.D. Cal. Feb. 7, 2017). In this case, Yahoo!’s Complaint alleges that “[v]enue is proper in this judicial district under 28 U.S.C. § 1391(b),” and that, “[o]n information and belief, MyMail also agreed in the contracts at issue in this litigation to setting venue in this judicial district.” As shown above, MyMail did not agree to the Terms of Service or the Toolbar License Agreement containing the forum selection clauses. Thus, venue of this action in this district cannot be established based upon the forum selection clauses. Furthermore, MyMail is not a resident of this District. See Dkt 1 at ¶ 3. Finally, this District is not a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, and Yahoo! does not even allege any facts exist that could establish otherwise. Thus, there is no basis to establish venue of this action in this District under 28 U.S.C. § 1391(b). IV. CONCLUSION The record establishes that MyMail is not a party to the Yahoo! Agreements and is not otherwise bound by the asserted forum section clauses contained in those agreements. The evidence also establishes that Yahoo! has not reasonably communicated the forum selection clause to users of its services. Yahoo! also has failed to show that MyMail’s patent infringement claims fall within the scope of the asserted forum selection clauses. These facts and abundant case law show that Yahoo!’s attempted enforcement of the forum selection clauses in the Yahoo! Agreements against MyMail in this lawsuit is without merit. Thus, the Court should grant MyMail’s motion to dismiss for lack of personal jurisdiction or, alternatively, for improper venue. Case 5:16-cv-07044-EJD Document 20 Filed 02/13/17 Page 23 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 DEFENDANT’S MOTION TO DISMISS - CASE NO. 5:16-CV-07044-EDJ Dated: February 13, 2017 BECK, BISMONTE & FINLEY, LLP /s/ Alfredo A. Bismonte Alfredo A. Bismonte (Cal. Bar. No. 136154) Jeremy M. Duggan (Cal. Bar. No. 229854) 150 Almaden Blvd, 10th Floor San Jose, CA 95113 Telephone: (408) 938-7900 Facsimile: (408) 938-0790 Email: abismonte@beckllp.com jduggan@beckllp.com BUETHER JOE & CARPENTER, LLC Brian A. Carpenter (Cal. Bar No. 262349) Eric W. Buether (admitted PHV) Christopher M. Joe (admitted PHV) 1700 Pacific Avenue, Suite 4750 Dallas, Texas 75201 Telephone: (214) 466-1270 Facsimile: (214) 635-1842 Email: Brian.Carpenter@BJCIPLaw.com Eric.Buether@BJCIPLaw.com Chris.Joe@BJCIPLaw.com ATTORNEYS FOR DEFENDANT MYMAIL, LTD. Case 5:16-cv-07044-EJD Document 20 Filed 02/13/17 Page 24 of 24 Case 5:16-cv-07044-EJD Document 20-1 Filed 02/13/17 Page 1 of 4 Case 5:16-cv-07044-EJD Document 20-1 Filed 02/13/17 Page 2 of 4 Case 5:16-cv-07044-EJD Document 20-1 Filed 02/13/17 Page 3 of 4 Case 5:16-cv-07044-EJD Document 20-1 Filed 02/13/17 Page 4 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 1 DECLARATION OF MICHAEL RICKETTS - CASE NO. 5:16-CV-07044-EDJ Alfredo A. Bismonte (Cal. Bar. No. 136154) Jeremy M. Duggan (Cal. Bar. No. 229854) BECK, BISMONTE & FINLEY, LLP 150 Almaden Blvd, 10th Floor San Jose, CA 95113 Tel: (408) 938-7900 Fax: (408) 938-0790 Email: abismonte@beckllp.com jduggan@beckllp.com BRIAN A. CARPENTER (Cal. Bar No. 262349) Brian.Carpenter@BJCIPLaw.com ERIC W. BUETHER (admitted pro hac vice) Eric.Buether@BJCIPLaw.com CHRISTOPHER M. JOE (admitted pro hac vice) Chris.Joe@BJCIPlaw.com BUETHER JOE & CARPENTER, LLC 1700 Pacific, Suite 4750 Dallas, TX 75201 Tel: (214) 466-1270 Fax: (214) 635-1842 ATTORNEYS FOR DEFENDANT MYMAIL, LTD. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION YAHOO!, INC., Plaintiff, v. MYMAIL, LTD., Defendant. Case No. 5:16-cv-07044-EDJ Honorable Edward J. Davila DECLARATION OF MICHAEL RICKETTS Case 5:16-cv-07044-EJD Document 20-2 Filed 02/13/17 Page 1 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 2 DECLARATION OF MICHAEL RICKETTS - CASE NO. 5:16-CV-07044-EDJ I, Michael Ricketts, declare the following under penalty of perjury: 1. I am over the age of eighteen and have personal knowledge of the facts set forth in this Declaration. I am competent to testify as to all matters stated, and I am not under any legal disability that would in any way preclude me from testifying. 2. I am an employee of Buether Joe & Carpenter, LLC, counsel for Defendant MyMail, Ltd. 3. Attached hereto as Exhibit 1 is a true and correct copy of the “Declaration of Stephen Owens,” and Exhibits 1-4 thereto, filed by Yahoo!, Inc. on December 9, 2016 in support of Yahoo!’s Motion to Change Venue in the matter of MyMail, Ltd. v. Yahoo!, Inc., Civil Action No. 2:16-cv-1000-JRG-RSP in the Eastern District of Texas. I declare the foregoing to be true under the penalty of perjury on this 13th day of February, 2017. Michael D. Ricketts Case 5:16-cv-07044-EJD Document 20-2 Filed 02/13/17 Page 2 of 2 EXHIBIT 1 Case 5:16-cv-07044-EJD Document 20-3 Filed 02/13/17 Page 1 of 21 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS MARSHALL DIVISION MYMAIL, LTD., Plaintiff, v. YAHOO! INC., Defendant. Civil Action No. 2:16-cv-01000-JRG-RSP JURY TRIAL DEMANDED DECLARATION OF STEPHEN OWENS Case 2:16-cv-01000-JRG-RSP Document 18-3 Filed 12/09/16 Page 1 of 4 PageID #: 485Case 5:16 cv-07044-EJD Document 20-3 Filed 02/13/17 Page 2 of 21 DECLARATION OF STEPHEN OWENS - Page 1 I, Stephen Owens, declare as follows: 1. I am a Principal Software Developer at Yahoo!, Inc. ("Yahoo"). I have worked at Yahoo since August of 2002. At Yahoo, my job responsibilities have related in multiple ways to the Yahoo Toolbar. I was individually responsible for several years for maintaining and distributing the Yahoo Toolbar. As one example of my experience with the Yahoo Toolbar, I was at one point asked to rewrite the Internet Explorer version of the toolbar from scratch, and did so. Furthermore, through my current responsibilities I remain familiar with the maintenance and distribution of the Yahoo Toolbar. I have personal knowledge of the facts set forth in this Declaration and, if called as a witness, could and would testify to such facts under oath. 2. I am knowledgeable regarding the distribution of the various versions of the Yahoo Toolbar. I am familiar, in particular, with the role played by contracts such as the Yahoo Toolbar Software License in the distribution and use of software specifically intended for use with Yahoo's services. I am also familiar with Yahoo's Terms of Service ("TOS") and the role played by the TOS in regulating the use of Yahoo's services. 3. I have reviewed a copy of the First Amended Complaint filed with the Eastern District of Texas, Marshall Division, on November 18, 2016, in Civil Action No. 2:16-cv-01000 (the "FAC"). 4. The FAC alleges that various of its figures depict the operation of at least one version of the Yahoo Toolbar. See, e.g., FAC ¶ 27 ("As shown below . . . the Yahoo Toolbar displays the toolbar . . . ."). While I do not agree with all of the allegations in the FAC, the FAC does contain figures that appear to depict the use of one or more versions of the Yahoo Toolbar. Each of the FAC's Figures 1, 9, 27, 31, 33, and 34, for example, appears to have been produced Case 2:16-cv-01000-JRG-RSP Document 18-3 Filed 12/09/16 Page 2 of 4 PageID #: 486Case 5:16 cv-07044-EJD Document 20-3 Filed 02/13/17 Page 3 of 21 DECLARATION OF STEPHEN OWENS - Page 2 by a computer running a version of the Yahoo Toolbar. See FAC ¶ 10 (Figure 1), ¶ 17 (Figure 9), ¶ 22 (Figure 27), ¶ 25 (Figure 31), ¶ 27 (Figure 33), ¶ 28 (Figure 34). 5. In order to obtain the Yahoo Toolbar as depicted in the FAC, a user first needs to agree to the Yahoo Toolbar Software License. Exhibit 3 depicts an example of a webpage in which a user would click a button agreeing to the Yahoo Toolbar Software License. The FAC shows that MyMail or someone working with MyMail agreed to the Toolbar Software License. 6. The FAC also alleges that various things occur when the Yahoo Toolbar is used in connection with a Yahoo e-mail account. See, e.g., FAC ¶ 17 (When the "Mail" button on the Yahoo Toolbar is actuated, as shown below . . . the user's mailbox is displayed . . . ."); id. ¶ 15 at Figure 7 (depicting a file containing various references to "mail.yahoo.com"). While I do not agree with many of the allegations in the FAC, the FAC does contain various figures that appear to depict the use of one or more versions of the Yahoo Toolbar in connection with a Yahoo e- mail account. The FAC's Figure 9, for example, appears to depict the use of the Yahoo Toolbar in connection with the e-mail account "bjctest02." See, e.g., FAC ¶ 17 at Figure 9. 7. The FAC also shows that MyMail or someone working with MyMail used one or more versions of the Yahoo Toolbar in connection with Yahoo e-mail services in or around April 27, 2016. See, e.g., FAC ¶ 20 (describing alleged functionality of the Yahoo Toolbar with reference to Figure 14, which purports to depict a "GET request" allegedly produced in connection with the use of the Yahoo Toolbar, dated "27 Apr 2016"). 8. In order to use the Yahoo Toolbar in connection with a Yahoo e-mail account in the manner depicted in the FAC, a user would need to first agree to the Yahoo Terms of Service (TOS). Exhibit 4 depicts an example of a webpage in which a user would click a button agreeing to the TOS. The FAC shows that MyMail or someone working with MyMail agreed to the TOS. Case 2:16-cv-01000-JRG-RSP Document 18-3 Filed 12/09/16 Page 3 of 4 PageID #: 487Case 5:16 cv-07044-EJD Document 20-3 Filed 02/13/17 Page of 21 9. The TOS and Toolbar Software License have been available to the public, for example, at the URL https://policies.)rahoo.com/us/en/yahoo/terms/index.htm. Copies of the TOS and Toolbar Software License as they would have appeared on Apil?7, 2016 are attached to this Declaration as Exhibits 1 (Toolbar Software License) and2 (TOS). 10. All publicly released versions of the Yahoo Toolbar are designed to ensure that a user cannot begin using the Yahoo Toolbar-and cannot use the Yahoo Toolbar to access a Yahoo e-mail account-unless he or she first agrees to both the Toolbar Software License and the TOS. The Toolbar Software License contains a link to the TOS and specifically states that it is a "supplement" to the TOS. See Ex. 1 (Toolbar Software License).lf 11. Whoever produced the images in the FAC had, prior to the creation of the FAC, agreed to both the Toolbar Software License and the TOS. Executed on December 8, 2016 at Atlanta, Georgia. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. By: { DECLARATION OF STEPHEN OwENS-Page 3 Case 2:16-cv-01000-JRG-RSP Document 18-3 Filed 12/09/16 Page 4 of 4 PageID #: 488Case 5:16 cv-07044-EJD Document 20-3 Filed 02/13/17 Page 5 of 21 EXHIBIT 1 Case 2:16-cv-01000-JRG-RSP Document 18-4 Filed 12/09/16 Page 1 of 4 PageID #: 489Case 5:16 cv-07044-EJD Document 20-3 Filed 02/13/17 Page 6 of 21 12/8/2016 Toolbar Software License https://policies.yahoo.com/us/en/yahoo/terms/product-atos/toolbar/index.htm 1/3 Toolbar Software License Welcome to Yahoo! software (the "Yahoo! Software"). By clicking the "I Agree" button below, you agree to these software license terms (the "Software License") that supplement the Yahoo! Terms of Service ("TOS") below, also located at http://policies.yahoo.com/us/en/yahoo/terms/utos/index.html. If you disagree with any of the terms below, Yahoo! does not grant you a license to use the Yahoo! Software; click the "I Disagree" or "Cancel" button to exit the installer. Information collected through Yahoo! Software by Yahoo! is subject to the full Yahoo! Privacy Policy: http://policies.yahoo.com/us/en/yahoo/privacy/index.html. To find out more about setting your preferences and the information collected by the Yahoo! Software and used by Yahoo!, go to: http://policies.yahoo.com/us/en/yahoo/privacy/products/toolbar/index.html. Yahoo! reserves the right to update and change, from time to time, this Software License and all documents incorporated by reference. You can always find the most recent version of this Software License at http://policies.yahoo.com/us/en/yahoo/terms/product-atos/toolbar/index.html. Yahoo! may change this Software License by posting a new version without notice to you. Use of the Yahoo! Software after such change constitutes acceptance of such changes. Terms Privacy Center Intellectual Property Permissions Closed Captioning Guidelines Licensed Uses and Restrictions. By accepting the terms of this Agreement, you represent to Yahoo! Inc. and its affiliates (collectively, "Yahoo!") that you are at least 18 years old. The Yahoo! Software applications, documentation, and local computer files installed or utilized by the installer application (collectively, the "Yahoo! Software") are owned by Yahoo!, or Yahoo!'s licensors and content and data providers ("Yahoo! Licensors"), and are licensed to you on a worldwide (except as limited below), non-exclusive, non- sublicenseable basis on the terms and conditions set forth herein. This Software License defines legal use of the Yahoo! Software, all updates, revisions, substitutions, and any copies of the Yahoo! Software made by or for you. All rights not expressly granted to you are reserved by Yahoo! or their respective owners. 1. YOU MAY install and personally use the Yahoo! Software and any updates provided by Yahoo! (in its sole discretion) in object code form on a personal computer owned or controlled by you and may use the Yahoo! Software for your own noncommercial use or benefit. Your license to the Yahoo! Software under this Software License continues until it is terminated by either party. You may terminate the Software License by discontinuing use of all or any of the Yahoo! Software and by destroying all your copies of the applicable Yahoo! Software. To uninstall the Yahoo! Software, you may use the standard Microsoft Windows “Add/Remove Programs” menu in either the My Computer/Control Panel option or the Settings/Control Panel option. Once you access the Microsoft Windows Control Panel option, select “Add/Remove Programs”, and then the name of the Yahoo! Software. The Yahoo! Software will be uninstalled and will no longer be visible when you restart Internet Explorer. This Software License terminates automatically if you violate any term of this Software License, Yahoo! publicly posts a written notice of termination on Yahoo!'s web site, or Yahoo! sends a written notice of termination to you. 1.1. YOU MAY NOT: (i) decompile, reverse engineer, disassemble, modify, rent, lease, loan, distribute, or create derivative works (as defined by the U.S. Copyright Act) or improvements (as defined by U.S. patent law) from the Yahoo! Software or any portion thereof. (ii) incorporate the Yahoo! Software into any computer chip or the firmware of a computing device manufactured by or for you. (iii) use the Yahoo! Software in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with TOS or this Software License. (iv) you may not use the Yahoo! Software to operate nuclear facilities, life support, or other mission critical application where human life or property may be at stake. You understand that the Yahoo! Software is not designed for such purposes and that its failure in such cases could lead to death, personal injury, or severe property or environmental damage for which Yahoo! is not responsible. (v) use, or export the Yahoo! Software in violation of applicable U.S. laws or regulations. (vi) sell, lease, loan, distribute, transfer, or sublicense the Yahoo! Software or access thereto or derive income from the use or provision of the Yahoo! Software, whether for direct commercial or monetary gain or otherwise, without Yahoo!'s prior, express, written permission. 1.2. Ownership and Relationship of Parties; Support. The Yahoo! Software is protected by copyrights, trademarks, service marks, international treaties, and/or other proprietary rights and laws of the U.S. and other countries. You agree to abide by all applicable proprietary rights laws and other laws, as well as any additional copyright notices or restrictions contained in this Software License and in the TOS. Yahoo! and Yahoo!'s Licensors own all rights, title, and interest in and to their applicable contributions to the Yahoo! Software. This Software License grants you no right, title, or interest in any intellectual property owned or licensed by Yahoo!, including (but not limited 2. Search ὆� Sign in ✉ Mail ⚙ ⌂ Home Mail Search News Sports Finance Celebrity Weather Answers Flickr Mobile More⋁ Case 2:16-cv-01000-JRG-RSP Document 18-4 Filed 12/09/16 Page 2 of 4 PageID #: 490Case 5:16 cv-07044-EJD Document 20-3 Filed 02/13/17 Page 7 of 21 12/8/2016 Toolbar Software License https://policies.yahoo.com/us/en/yahoo/terms/product-atos/toolbar/index.htm 2/3 to) the Yahoo! Software and Yahoo! trademarks, and creates no relationship between yourself and Yahoo!'s Licensors, or between you and Yahoo! other than that of Yahoo! to licensee. The Yahoo! Software and its components contain software licensed from Yahoo! Licensors ("Licensor Software"). The Licensor Software enables the Yahoo! Software to perform certain functions, including, without limitation, access proprietary data on third -party data servers. You agree that you will use the Yahoo! Software, and any data accessed through the Yahoo! Software, for your own personal non-commercial use only. You agree not to assign, copy, transfer, or transmit the Yahoo! Software, or any data obtained through the Yahoo! Software, to any third party. Your license to use the Yahoo! Software, its components, and any third -party data, will terminate if you violate these restrictions. If your license terminates, you agree to cease any and all use of the Yahoo! Software, its components, and any third -party data. All rights in any third -party data, any third -party software, and any third -party data servers, including all ownership rights are reserved and remain with the respective third parties. You agree that these third parties may enforce their rights under this Agreement against you directly in their own name. Yahoo! may elect to provide you with customer support and/or software upgrades, enhancements, or modifications for the Yahoo! Software (collectively, "Support"), in its sole discretion, and may terminate such Support at any time without notice to you. Yahoo! may change, suspend, or discontinue any aspect of the Yahoo! Software at any time, including the availability of any Yahoo! Software feature, database, or content. Yahoo! may also impose limits on certain features and services or restrict your access to parts or all of the Yahoo! Software or the Yahoo! web site without notice or liability. Additionally, in order to enhance the security of the Yahoo! Software or to fix bugs, from time to time, Yahoo! may automatically download and install updates to the Yahoo! Software with or without prior notification. Yahoo! Auto-Updater. You agree that Yahoo! may automatically download and install the latest version of Yahoo! Software without prior notification. If you installed Yahoo! Search Protection, please visit the Yahoo! Search Protection Privacy Module to turn off or change your settings for this feature and find out more. 3. Fees and Payments. Also Yahoo! reserves the right to charge fees for future use of or access to the Yahoo! Software or the Yahoo! services and web sites (collectively, "Yahoo! Software Services") in Yahoo!'s sole discretion. If Yahoo! decides to charge for the Yahoo! Software Services, such charges will be disclosed to you prior. 4. Disclaimer of Warranties by Yahoo!. USE OF THE YAHOO! SOFTWARE AND ANY DATA ACCESSED THROUGH THE YAHOO! SOFTWARE (SUCH AS STOCK QUOTES, MARKET INFORMATION, NEWS, OR OTHER INFORMATION) IS AT YOUR SOLE RISK. THEY ARE PROVIDED "AS IS." ANY MATERIAL OR SERVICE DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE YAHOO! SOFTWARE (SUCH AS ANY ANTI-SPYWARE FEATURE) IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD AND/OR USE OF ANY SUCH MATERIAL OR SERVICE. YAHOO!, ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, AFFILIATES, AND ASSIGNS (COLLECTIVELY, "YAHOO! ENTITIES") AND YAHOO! LICENSORS DO NOT REPRESENT THAT THE YAHOO! SOFTWARE OR ANY DATA ACCESSED THEREFROM IS APPROPRIATE OR AVAILABLE FOR USE OUTSIDE THE UNITED STATES. THE YAHOO! ENTITIES AND YAHOO! LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE YAHOO! SOFTWARE AND ANY DATA ACCESSED THEREFROM, OR THE ACCURACY, TIMELINESS, COMPLETENESS, OR ADEQUACY OF THE YAHOO! SOFTWARE AND ANY DATA ACCESSED THEREFROM, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE YAHOO! SOFTWARE IS NOT DESIGNED, INTENDED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION, THE DESIGN, CONSTRUCTION, MAINTENANCE OR OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. YAHOO! SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES. IF THE YAHOO! SOFTWARE OR ANY DATA ACCESSED THEREFROM PROVES DEFECTIVE, YOU (AND NOT THE YAHOO! ENTITIES OR THE YAHOO! LICENSORS) ASSUME THE ENTIRE COST OF ALL REPAIR OR INJURY OF ANY KIND, EVEN IF THE YAHOO! ENTITIES OR YAHOO! LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH A DEFECT OR DAMAGES. SOME JURISDICTIONS DO NOT ALLOW RESTRICTIONS ON IMPLIED WARRANTIES SO SOME OF THESE LIMITATIONS MAY NOT APPLY TO YOU. 5. Limitation of Liability. THE YAHOO! ENTITIES AND YAHOO! LICENSORS WILL NOT BE LIABLE TO YOU FOR CLAIMS AND LIABILITIES OF ANY KIND ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF THE YAHOO! SOFTWARE BY YOURSELF OR BY THIRD PARTIES, TO THE USE OR NON-USE OF ANY BROKERAGE FIRM OR DEALER, OR TO THE SALE OR PURCHASE OF ANY SECURITY, WHETHER SUCH CLAIMS AND LIABILITIES ARE BASED ON ANY LEGAL OR EQUITABLE THEORY. 6. Case 2:16-cv-01000-JRG-RSP Document 18-4 Filed 12/09/16 Page 3 of 4 PageID #: 491Case 5:16 cv-07044-EJD Document 20-3 Filed 02/13/17 Page 8 of 21 12/8/2016 Toolbar Software License https://policies.yahoo.com/us/en/yahoo/terms/product-atos/toolbar/index.htm 3/3 Version date: May 4, 2012 THE YAHOO! ENTITIES AND YAHOO! LICENSORS ARE NOT LIABLE TO YOU FOR ANY AND ALL DIRECT, INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO ANY THIRD - PARTY SOFTWARE, ANY DATA ACCESSED THROUGH THE YAHOO! SOFTWARE, YOUR USE OR INABILITY TO USE OR ACCESS THE YAHOO! SOFTWARE, OR ANY DATA PROVIDED THROUGH THE YAHOO! SOFTWARE, WHETHER SUCH DAMAGE CLAIMS ARE BROUGHT UNDER ANY THEORY OF LAW OR EQUITY. DAMAGES EXCLUDED BY THIS CLAUSE INCLUDE, WITHOUT LIMITATION, THOSE FOR LOSS OF BUSINESS PROFITS, INJURY TO PERSON OR PROPERTY, BUSINESS INTERRUPTION, LOSS OF BUSINESS OR PERSONAL INFORMATION. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THIS RESTRICTION MAY NOT APPLY TO YOU. INFORMATION PROVIDED THROUGH THE YAHOO! SOFTWARE, INCLUDING STOCK QUOTES, ANALYSIS, MARKET INFORMATION, NEWS, AND FINANCIAL DATA, MAY BE DELAYED, INACCURATE, OR CONTAIN ERRORS OR OMISSIONS, AND THE YAHOO! ENTITIES AND YAHOO! LICENSORS WILL HAVE NO LIABILITY WITH RESPECT THERETO. YAHOO! MAY CHANGE OR DISCONTINUE ANY ASPECT OR FEATURE OF THE YAHOO! SOFTWARE OR THE USE OF ALL OR ANY FEATURES OR TECHNOLOGY IN THE YAHOO! SOFTWARE AT ANY TIME WITHOUT PRIOR NOTICE TO YOU, INCLUDING, BUT NOT LIMITED TO, CONTENT, HOURS OF AVAILABILITY. Indemnification. You agree to indemnify and hold the Yahoo! Entities harmless from any claim or demand, including reasonable attorneys' fees, made by any third party in connection with or arising out of your use of the Yahoo! Software, your violation of any terms or conditions of this Software License, your violation of applicable laws, or your violation of any rights of another person or entity. 7. Government End Users. If the Yahoo! Software and related documentation are supplied to or purchased by or on behalf of the United States Government, then the Yahoo! Software is deemed to be "commercial software" as that term is used in the Federal Acquisition Regulation system. Rights of the United States shall not exceed the minimum rights set forth in FAR 52.227- 19 for "restricted computer software." All other terms and conditions of this Software License apply. 8. Controlling Law. This Software License and the relationship between you and Yahoo! is governed by the laws of the State of California without regard to its conflict of law provisions. You and Yahoo! agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Santa Clara, California. The United Nations Convention on the International Sale of Goods does not apply to this Software License. 9. No General Waiver; Severability. The failure of Yahoo! to exercise or enforce any right or provision of this Software License shall not constitute a waiver of such right or provision. If any provision of this Software License is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of this Software License remain in full force and effect. 10. Complete Agreement. This Software License and the TOS constitute the entire understanding between the parties respecting use of the Yahoo! Software, superseding all prior agreements between you and Yahoo!. In the event of any conflict between the terms and conditions of this Software License and those in the TOS, the terms and conditions of this Software License will control, except to the extent that the TOS impose additional restrictions and liabilities on your actions. In the event of a conflict between the terms of this Software License and the TOS, this Software License will control to the extent of such conflict. 11. Surviving Provisions. Sections 1.b, 2, and 4 through 12, will survive any termination of this Agreement. 12. Case 2:16-cv-01000-JRG-RSP Document 18-4 Filed 12/09/16 Page 4 of 4 PageID #: 492Case 5:16 cv-07044-EJD Document 20-3 Filed 02/13/17 Page 9 of 21 EXHIBIT 2 Case 2:16-cv-01000-JRG-RSP Document 18-5 Filed 12/09/16 Page 1 of 7 PageID #: 493Case 5:16-cv-07044-EJ Document 20-3 Filed 02/13/17 Page 10 of 21 12/8/2016 Yahoo Terms of Service https://policies.yahoo.com/us/en/yahoo/terms/utos/index.htm 1/6 Yahoo Terms of ServiceTermsPrivacy Center Intellectual Property Permissions Closed Captioning Guidelines ACCEPTANCE OF TERMS Yahoo! Inc. ("Yahoo") welcomes you. Yahoo provides the Yahoo Services (defined below) to you subject to the following Terms of Service ("TOS"), which may be updated by us from time to time without notice to you. You can review the most current version of the TOS at any time at: https://policies.yahoo.com/us/en/yahoo/terms/utos/index.html. By accessing and using the Yahoo Services, you accept and agree to be bound by the terms and provision of the TOS. In addition, when using particular Yahoo owned or operated services, you and Yahoo shall be subject to any posted guidelines or rules applicable to such services, which may be posted and modified from time to time. All such guidelines or rules (including but not limited to our Spam Policy) are hereby incorporated by reference into the TOS. Yahoo may also offer other services that are governed by different Terms of Service. In such cases the other terms of service will be posted on the relevant service to which they apply. 1. DESCRIPTION OF YAHOO SERVICES Yahoo provides users with access to a rich collection of resources, including without limitation various communications tools, forums, shopping services, search services, personalized content and branded programming through its network of properties which may be accessed through any various medium or device now known or hereafter developed (the "Yahoo Services"). You also understand and agree that the Yahoo Services may include advertisements and that these advertisements are necessary for Yahoo to provide the Yahoo Services. You also understand and agree that the Yahoo Services may include certain communications from Yahoo, such as service announcements, administrative messages and the Yahoo Newsletter, and that these communications are considered part of Yahoo membership and you will not be able to opt out of receiving them. Unless explicitly stated otherwise, any new features that augment or enhance the current Yahoo Services, including the release of new Yahoo properties, shall be subject to the TOS. You understand and agree that the Yahoo Services is provided "AS-IS" and that Yahoo assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalization settings. You are responsible for obtaining access to the Yahoo Services, and that access may involve third-party fees (such as Internet service provider or airtime charges). You are responsible for those fees, including those fees associated with the display or delivery of advertisements. In addition, you must provide and are responsible for all equipment necessary to access the Yahoo Services. You understand that the technical processing and transmission of the Yahoo Services, including your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Please be aware that Yahoo has created certain areas on the Yahoo Services that contain adult or mature content. You must be at least 18 years of age to access and view such areas. 2. YOUR REGISTRATION OBLIGATIONS In consideration of your use of the Yahoo Services, you represent that you are of legal age to form a binding contract and are not a person barred from receiving the Yahoo Services under the laws of the United States or other applicable jurisdiction. You also agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Yahoo Service's registration form (the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Yahoo has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Yahoo has the right to suspend or terminate your account and refuse any and all current or future use of the Yahoo Services (or any portion thereof). You must be aged 13 or over to use the Services. If you have a pre-existing Family Account covering children aged under 13 then you have an ongoing responsibility to determine whether any of the Yahoo Services areas and/or Content (as defined in Section 6 below) are appropriate for your child. 3. YAHOO PRIVACY POLICY Registration Data and certain other information about you are subject to our applicable privacy policy. For more information, see the full Yahoo Privacy Policy at https://policies.yahoo.com/us/en/yahoo/privacy/index.html. You understand that through your use of the Yahoo Services you consent to the collection and use (as set forth in the applicable privacy policy) of this information, including the transfer of this information to the United States and/or other countries for storage, processing and use by Yahoo and its affiliates. 4. MEMBER ACCOUNT, PASSWORD AND SECURITY You will receive a password and account designation upon completing the Yahoo Service's registration process. You are responsible for maintaining the confidentiality of the password and account and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify Yahoo of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. Yahoo cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 5. 5. MEMBER CONDUCT You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages, tags, or other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from whom such Content originated. This means that you, and not Yahoo, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available via the Yahoo Services. Yahoo does not control the Content posted via the Yahoo Services and, as such, does not guarantee the accuracy, integrity or quality of such Content. You understand that by using the Yahoo Services, you may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will Yahoo be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Yahoo Services. You agree to not use the Yahoo Services to: 6. Search ὆� Sign in ✉ Mail ⚙ ⌂ Home Mail Search News Sports Finance Celebrity Weather Answers Flickr Mobile Install the new Firefox »More⋁ Case 2:16-cv-01000-JRG-RSP Document 18-5 Filed 12/09/16 Page 2 of 7 PageID #: 494Case 5:16-cv-07044-EJ Document 20-3 Filed 02/13/17 Page 11 of 21 12/8/2016 Yahoo Terms of Service https://policies.yahoo.com/us/en/yahoo/terms/utos/index.htm 2/6 You acknowledge that Yahoo may or may not pre-screen Content, but that Yahoo and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or remove any Content that is available via the Yahoo Services. Without limiting the foregoing, Yahoo and its designees shall have the right to remove any Content that violates the TOS or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content created by Yahoo or submitted to Yahoo, including without limitation information in Yahoo Message Boards and in all other parts of the Yahoo Services. You acknowledge, consent and agree that Yahoo may access, preserve and disclose your account information and Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce the TOS; (iii) respond to claims that any Content violates the rights of third parties; (iv) respond to your requests for customer service; or (v) protect the rights, property or personal safety of Yahoo, its users and the public. You understand that the Yahoo Services and software embodied within the Yahoo Services may include security components that permit digital materials to be protected, and that use of these materials is subject to usage rules set by Yahoo and/or content providers who provide content to the Yahoo Services. You may not attempt to override or circumvent any of the usage rules embedded into the Yahoo Services. Any unauthorized reproduction, publication, further distribution or public exhibition of the materials provided on the Yahoo Services, in whole or in part, is strictly prohibited. upload, post, email, transmit, or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically, or otherwise objectionable; 6.1. harm minors in any way;6.2. impersonate any person or entity, including, but not limited to, a Yahoo official, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity; 6.3. forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Yahoo Service; 6.4. upload, post, email, transmit, or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); 6.5. upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights ("Rights") of any party; 6.6. upload, post, email, transmit, or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation, except in those areas (such as shopping) that are designated for such purpose (please read our complete Spam Policy); 6.7. upload, post, email, transmit, or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; 6.8. disrupt the normal flow of dialogue, cause a screen to "scroll" faster than other users of the Yahoo Services are able to type, or otherwise act in a manner that negatively affects other users' ability to engage in real time exchanges; 6.9. interfere with or disrupt the Yahoo Services or servers or networks connected to the Yahoo Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Yahoo Services, including using any device, software or routine to bypass our robot exclusion headers; 6.10. intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange, or the NASDAQ, and any regulations having the force of law; 6.11. provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act; 6.12. "stalk" or otherwise harass another; and/or6.13. collect or store personal data about other users in connection with the prohibited conduct and activities set forth in paragraphs a through m above. 6.14. INTERSTATE NATURE OF COMMUNICATIONS ON YAHOO NETWORK When you register with Yahoo, you acknowledge that in using the Yahoo Services to send electronic communications (including but not limited to email, search queries, sending messages to Yahoo Chat or Yahoo Groups, uploading photos and files to Flickr, and other Internet activities), you will be causing communications to be sent through Yahoo's computer networks, portions of which are located in California, Texas, Virginia, and other locations in the United States and portions of which are located abroad. As a result, and also as a result of Yahoo's network architecture and business practices and the nature of electronic communications, even communications that seem to be intrastate in nature can result in the transmission of interstate communications regardless of where you are physically located at the time of transmission. Accordingly, by agreeing to this TOS, you acknowledge that use of the service results in interstate data transmissions. 7. SPECIAL ADMONITIONS FOR INTERNATIONAL USE AND EXPORT AND IMPORT COMPLIANCE Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content. Use of the Yahoo Services and transfer, posting and uploading of software, technology, and other technical data via 8. Case 2:16-cv-01000-JRG-RSP Document 18-5 Filed 12/09/16 Page 3 of 7 PageID #: 495Case 5:16-cv-07044-EJ Document 20-3 Filed 02/13/17 Page 12 of 21 12/8/2016 Yahoo Terms of Service https://policies.yahoo.com/us/en/yahoo/terms/utos/index.htm 3/6 the Yahoo Services may be subject to the export and import laws of the United States and other countries. You agree to comply with all applicable export and import laws and regulations, including without limitation the Export Administration Regulations (see http://www.access.gpo.gov/bis/ear/ear_data.html) and sanctions control programs of the United States (see http://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx). In particular, you represent and warrant that you: (a) are not a prohibited party identified on any government export exclusion lists (see http://www.bis.doc.gov/complianceandenforcement/liststocheck.htm) or a member of a government of any other export- prohibited countries as identified in applicable export and import laws and regulations; (b) will not transfer software, technology, and other technical data via the Yahoo Services to export-prohibited parties or countries; (c) will not use the Yahoo Services for military, nuclear, missile, chemical or biological weaponry end uses in violation of U.S. export laws; and (d) will not transfer, upload, or post via the Yahoo Services any software, technology or other technical data in violation of U.S. or other applicable export or import laws. CONTENT SUBMITTED OR MADE AVAILABLE FOR INCLUSION ON THE YAHOO SERVICES Yahoo does not claim ownership of Content you submit or make available for inclusion on the Yahoo Services. However, with respect to Content you submit or make available for inclusion on publicly accessible areas of the Yahoo Services, you grant Yahoo the following worldwide, royalty-free and non-exclusive license(s), as applicable: "Publicly accessible" areas of the Yahoo Services are those areas of the Yahoo network of properties that are intended by Yahoo to be available to the general public. By way of example, publicly accessible areas of the Yahoo Services would include Yahoo Message Boards and portions of Yahoo Groups and Flickr that are open to both members and visitors. However, publicly accessible areas of the Yahoo Services would not include portions of Yahoo Groups that are limited to members, Yahoo services intended for private communication such as Yahoo Mail or Yahoo Messenger, or areas off of the Yahoo network of properties such as portions of World Wide Web sites that are accessible via hypertext or other links but are not hosted or served by Yahoo. 9. With respect to Content you submit or make available for inclusion on publicly accessible areas of Yahoo Groups, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Yahoo Services solely for the purposes of providing and promoting the specific Yahoo Group to which such Content was submitted or made available. This license exists only for as long as you elect to continue to include such Content on the Yahoo Services and will terminate at the time you remove or Yahoo removes such Content from the Yahoo Services. 9.1. With respect to photos, graphics, audio or video you submit or make available for inclusion on publicly accessible areas of the Yahoo Services other than Yahoo Groups, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Yahoo Services solely for the purpose for which such Content was submitted or made available. This license exists only for as long as you elect to continue to include such Content on the Yahoo Services and will terminate at the time you remove or Yahoo removes such Content from the Yahoo Services. 9.2. With respect to Content other than photos, graphics, audio or video you submit or make available for inclusion on publicly accessible areas of the Yahoo Services other than Yahoo Groups, the perpetual, irrevocable and fully sublicensable license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Content (in whole or in part) and to incorporate such Content into other works in any format or medium now known or later developed. 9.3. CONTRIBUTIONS TO YAHOO By submitting ideas, suggestions, documents, and/or proposals ("Contributions") to Yahoo through its suggestion or feedback webpages, you acknowledge and agree that: (a) your Contributions do not contain confidential or proprietary information; (b) Yahoo is not under any obligation of confidentiality, express or implied, with respect to the Contributions; (c) Yahoo shall be entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way, in any media worldwide; (d) Yahoo may have something similar to the Contributions already under consideration or in development; (e) your Contributions automatically become the property of Yahoo without any obligation of Yahoo to you; and (f) you are not entitled to any compensation or reimbursement of any kind from Yahoo under any circumstances. 10. INDEMNITY You agree to indemnify and hold Yahoo and its subsidiaries, affiliates, officers, agents, employees, partners and licensors harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Content you submit, post, transmit, modify or otherwise make available through the Yahoo Services, your use of the Yahoo Services, your connection to the Yahoo Services, your violation of the TOS, or your violation of any rights of another. 11. NO COMMERCIAL REUSE OF YAHOO SERVICES You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion or use of, or access to, the Yahoo Services (including Content, advertisements, Software and your Yahoo ID). 12. GENERAL PRACTICES REGARDING USE AND STORAGE You acknowledge that Yahoo may establish general practices and limits concerning use of the Yahoo Services, including without limitation the maximum number of days that email messages, message board postings or other uploaded Content will be retained by the Yahoo Services, the maximum number of email messages that may be sent from or received by an account on the Yahoo Services, the maximum size of any email message that may be sent from or received by an account on the Yahoo Services, the maximum disk space that will be allotted on Yahoo's servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the Yahoo Services in a given period of time. You agree that Yahoo has no responsibility or liability for the deletion or failure to store any messages and other communications or other Content maintained or transmitted by the Yahoo Services. You acknowledge that Yahoo reserves the right to log off accounts that are inactive for an extended period of time. You further acknowledge that Yahoo reserves the right to modify these general practices and limits from time to time. Yahoo Messenger, including any web-based versions, will allow you and the people with whom you communicate to save your conversations in your Yahoo accounts located on Yahoo servers. This means you can access and search your message history from any computer with access to the internet. Whether or not you use this feature, other users may choose to use it to save conversations with you in their account on Yahoo too. Your agreement to this TOS 13. Case 2:16-cv-01000-JRG-RSP Document 18-5 Filed 12/09/16 Page 4 of 7 PageID #: 496Case 5:16-cv-07044-EJ Document 20-3 Filed 02/13/17 Page 13 of 21 12/8/2016 Yahoo Terms of Service https://policies.yahoo.com/us/en/yahoo/terms/utos/index.htm 4/6 constitutes your consent to allow Yahoo to store these communications on its servers. MODIFICATIONS TO YAHOO SERVICES Yahoo reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Yahoo Services (or any part thereof) with or without notice. You agree that Yahoo shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Yahoo Services (or any part thereof). 14. TERMINATION You may terminate your Yahoo account, any associated email address and access to the Yahoo Services by submitting such termination request to Yahoo. You agree that Yahoo may, without prior notice, immediately terminate, limit your access to or suspend your Yahoo account, any associated email address, and access to the Yahoo Services. Cause for such termination, limitation of access or suspension shall include, but not be limited to, (a) breaches or violations of the TOS or other incorporated agreements or guidelines, (b)requests by law enforcement or other government agencies, (c) discontinuance or material modification to the Yahoo Services (or any part thereof), (d) unexpected technical or security issues or problems, (e) extended periods of inactivity, (f) engagement by you in fraudulent or illegal activities, and/or (g) nonpayment of any fees owed by you in connection with the Yahoo Services. Further, you agree that all terminations, limitations of access and suspensions for cause shall be made in Yahoo's sole discretion and that Yahoo shall not be liable to you or any third party for any termination of your account, any associated email address, or access to the Yahoo Services. Termination of your Yahoo account includes any or all of the following: (a) removal of access to all or part of the offerings within the Yahoo Services, (b) deletion of your password and all related information, files and content associated with or inside your account (or any part thereof), and (c) barring of further use of all or part of the Yahoo Services. 15. DEALINGS WITH ADVERTISERS Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Yahoo Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. You agree that Yahoo shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Yahoo Services. 16. LINKS The Yahoo Services may provide, or third parties may provide, links to other World Wide Web sites or resources. You acknowledge and agree that Yahoo is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that Yahoo shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource. 17. YAHOO'S PROPRIETARY RIGHTS You acknowledge and agree that the Yahoo Services and any necessary software used in connection with the Yahoo Services ("Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that Content contained in advertisements or information presented to you through the Yahoo Services or by advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly permitted by applicable law or as authorized by Yahoo or the applicable licensor (such as an advertiser), you agree not to modify, rent, lease, loan, sell, distribute, transmit, broadcast, publicly perform or create derivative works based on the Yahoo Services, such Content or the Software, in whole or in part. Yahoo grants you a personal, non- transferable and non-exclusive right and license to use the object code of its Software on a single computer; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You agree not to modify the Software in any manner or form, nor to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Yahoo Services. You agree not to access the Yahoo Services by any means other than through the interface that is provided by Yahoo for use in accessing the Yahoo Services. 18. DISCLAIMER OF WARRANTIES YOU EXPRESSLY UNDERSTAND AND AGREE THAT: 19. YOUR USE OF THE YAHOO SERVICES AND SOFTWARE ARE AT YOUR SOLE RISK. THE YAHOO SERVICES AND SOFTWARE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. YAHOO AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT. 19.1. YAHOO AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT (i) THE YAHOO SERVICES OR SOFTWARE WILL MEET YOUR REQUIREMENTS; (ii) THE YAHOO SERVICES OR SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE YAHOO SERVICES OR SOFTWARE WILL BE ACCURATE OR RELIABLE; (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE YAHOO SERVICES OR SOFTWARE WILL MEET YOUR EXPECTATIONS; AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED. 19.2. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE YAHOO SERVICES OR SOFTWARE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGE TO YOUR COMPUTER SYSTEM, INTERNET ACCESS, DOWNLOAD OR DISPLAY DEVICE, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. 19.3. Case 2:16-cv-01000-JRG-RSP Document 18-5 Filed 12/09/16 Page 5 of 7 PageID #: 497Case 5:16-cv-07044-EJ Document 20-3 Filed 02/13/17 Page 14 of 21 12/8/2016 Yahoo Terms of Service https://policies.yahoo.com/us/en/yahoo/terms/utos/index.htm 5/6 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM YAHOO OR THROUGH OR FROM THE YAHOO SERVICES OR SOFTWARE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS. 19.4. A SMALL PERCENTAGE OF USERS MAY EXPERIENCE EPILEPTIC SEIZURES WHEN EXPOSED TO CERTAIN LIGHT PATTERNS OR BACKGROUNDS ON A COMPUTER SCREEN OR WHILE USING THE YAHOO SERVICE. CERTAIN CONDITIONS MAY INDUCE PREVIOUSLY UNDETECTED EPILEPTIC SYMPTOMS EVEN IN USERS WHO HAVE NO HISTORY OF PRIOR SEIZURES OR EPILEPSY. IF YOU, OR ANYONE IN YOUR FAMILY, HAVE AN EPILEPTIC CONDITION, CONSULT YOUR PHYSICIAN PRIOR TO USING THE YAHOO SERVICE. IMMEDIATELY DISCONTINUE USE OF THE YAHOO SERVICES AND CONSULT YOUR PHYSICIAN IF YOU EXPERIENCE ANY OF THE FOLLOWING SYMPTOMS WHILE USING THE YAHOO SERVICE: DIZZINESS, ALTERED VISION, EYE OR MUSCLE TWITCHES, LOSS OF AWARENESS, DISORIENTATION, ANY INVOLUNTARY MOVEMENT, OR CONVULSIONS. 19.5. LIMITATION OF LIABILITY YOU EXPRESSLY UNDERSTAND AND AGREE THAT YAHOO AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF YAHOO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (a) THE USE OR THE INABILITY TO USE THE YAHOO SERVICE; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE YAHOO SERVICE; OR (e) ANY OTHER MATTER RELATING TO THE YAHOO SERVICE. 20. EXCLUSIONS AND LIMITATIONS SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 19 AND 20 MAY NOT APPLY TO YOU. 21. SPECIAL ADMONITION FOR YAHOO SERVICES RELATING TO FINANCIAL MATTERS If you intend to create or join any service, receive or request any news, messages, alerts or other information from the Yahoo Services concerning companies, stock quotes, investments or securities, please read the above Sections 19 and 20 again. They go doubly for you. In addition, for this type of information particularly, the phrase "Let the investor beware" is apt. The Yahoo Services is provided for informational purposes only, and no Content included in the Yahoo Services is intended for trading or investing purposes. Yahoo and its licensors shall not be responsible or liable for the accuracy, usefulness or availability of any information transmitted or made available via the Yahoo Services, and shall not be responsible or liable for any trading or investment decisions based on such information. 22. NO THIRD-PARTY BENEFICIARIES You agree that, except as otherwise expressly provided in this TOS, there shall be no third-party beneficiaries to this agreement. 23. NOTICE Yahoo may provide you with notices, including those regarding changes to the TOS, including by but not limited to email, regular mail, SMS, MMS, text message, postings on the Yahoo Services, or other reasonable means now known or hereafter developed. Such notices may not be received if you violate this TOS by accessing the Yahoo Services in an unauthorized manner. Your agreement to this TOS constitutes your agreement that you are deemed to have received any and all notices that would have been delivered had you accessed the Yahoo Services in an authorized manner. 24. TRADEMARK INFORMATION You agree that all of Yahoo’s trademarks, trade names, service marks and other Yahoo logos and brand features, and product and service names are trademarks and the property of Yahoo! Inc. (the "Yahoo Marks"). Without Yahoo's prior permission, you agree not to display or use in any manner the Yahoo Marks. 25. NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT Yahoo respects the intellectual property of others, and we ask our users to do the same. Yahoo may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who may be repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide Yahoo's Copyright Agent the following information: Yahoo's Agent for Notice of claims of copyright or other intellectual property infringement can be reached as follows: By mail: Copyright Agent 26. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest; 26.1. a description of the copyrighted work or other intellectual property that you claim has been infringed;26.2. a description of where the material that you claim is infringing is located on the site;26.3. your address, telephone number, and email address;26.4. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; 26.5. a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf. 26.6. Case 2:16-cv-01000-JRG-RSP Document 18-5 Filed 12/09/16 Page 6 of 7 PageID #: 498Case 5:16-cv-07044-EJ Document 20-3 Filed 02/13/17 Page 15 of 21 12/8/2016 Yahoo Terms of Service https://policies.yahoo.com/us/en/yahoo/terms/utos/index.htm 6/6 Last updated March 16, 2012 c/o Yahoo! Inc. 701 First Avenue Sunnyvale, CA 94089 By phone: (408) 349-5080 By fax: (408) 349-7821 By email: copyright@yahoo-inc.com CLOSED CAPTIONING Yahoo complies with applicable Federal Communications Commission rules and regulations regarding the closed captioning of video content. Please visit https://policies.yahoo.com/us/en/yahoo/cc/index.htm for more information or to register any concerns or complaints regarding video content accessible on the Yahoo network of properties. 27. GENERAL INFORMATION Entire Agreement. The TOS constitutes the entire agreement between you and Yahoo and governs your use of the Yahoo Services, superseding any prior version of this TOS between you and Yahoo with respect to the Yahoo Services. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other Yahoo services, affiliate services, third-party content or third-party software. Choice of Law and Forum. You and Yahoo each agree that the TOS and the relationship between the parties shall be governed by the laws of the State of California without regard to its conflict of law provisions and that any and all claims, causes of action or disputes (regardless of theory) arising out of or relating to the TOS, or the relationship between you and Yahoo, shall be brought exclusively in the courts located in the county of Santa Clara, California or the U.S. District Court for the Northern District of California. You and Yahoo agree to submit to the personal jurisdiction of the courts located within the county of Santa Clara, California or the Northern District of California, and agree to waive any and all objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts. Waiver and Severability of Terms. The failure of Yahoo to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect. No Right of Survivorship and Non-Transferability. You agree that your Yahoo account is non-transferable and any rights to your Yahoo ID or contents within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted. Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Yahoo Services or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in the TOS are for convenience only and have no legal or contractual effect. 28. VIOLATIONS Please report any violations of the TOS to our Customer Care group. 29. Case 2:16-cv-01000-JRG-RSP Document 18-5 Filed 12/09/16 Page 7 of 7 PageID #: 499Case 5:16-cv-07044-EJ Document 20-3 Filed 02/13/17 Page 16 of 21 EXHIBIT 3 Case 2:16-cv-01000-JRG-RSP Document 18-6 Filed 12/09/16 Page 1 of 2 PageID #: 500Case 5:16-cv-07044-EJ Document 20-3 Filed 02/13/17 Page 17 of 21 12/8/2016 Download Internet Explorer 11 Enhanced by Yahoo http://downloads.yahoo.com/internetexplorer/ 1/1 Internet Explorer 11 Enhanced by Download Now By clicking "Download Now", you agree to the Terms and Privacy Policy for the Yahoo Toolbar. Fast. Fluid. Safer. Internet Explorer 11, enhanced by Yahoo, is the fastest, safest IE to date. It brings the web to life with rich, stunning experiences. Seamless integration of favorite features like Yahoo Toolbar, Homepage and Search make it easy for you to stay up-to-date and connected to what's most important for you. About Yahoo Terms Privacy Careers System Requirements Help Yahoo does not currently recognize the Do Not Track setting on this browser. To communicate your preferences to Yahoo, please visit Yahoo's Ad Interest Manager Windows, Internet Explorer, and the Internet Explorer logo are trademarks or registered trademarks of Microsoft Corporation United States - English Search 👤 Sign in ✉ Mail ⚙ ⌂ Home Mail Search News Sports Finance Celebrity Weather Answers Flickr Mobile Install the new Firefox »More⋁ Case 2:16-cv-01000-JRG-RSP Document 18-6 Filed 12/09/16 Page 2 of 2 PageID #: 501Case 5:16-cv-07044-EJ Document 20-3 Filed 02/13/17 Page 18 of 21 EXHIBIT 4 Case 2:16-cv-01000-JRG-RSP Document 18-7 Filed 12/09/16 Page 1 of 3 PageID #: 502Case 5:16-cv-07044-EJ Document 20-3 Filed 02/13/17 Page 19 of 21 12/8/2016 Yahoo https://login.yahoo.com/account/create?specId=yidReg&lang=en-US&src=ym&done=https%3A%2F%2Fmail.yahoo.com&display=login&intl=us 1/2 Sign up First name Last name I'd rather use my own email address Mobile phone number Gender (optional) Already have an account? Sign in I agree to the Yahoo Terms and Privacy Email address @yahoo.com Password +1 Birth Month Day Year Continue Case 2:16-cv-01000-JRG-RSP Document 18-7 Filed 12/09/16 Page 2 of 3 PageID #: 503Case 5:16-cv-07044-EJ Document 20-3 Filed 02/13/17 Page 20 of 21 12/8/2016 Yahoo https://login.yahoo.com/account/create?specId=yidReg&lang=en-US&src=ym&done=https%3A%2F%2Fmail.yahoo.com&display=login&intl=us 2/2 Case 2:16-cv-01000-JRG-RSP Document 18-7 Filed 12/09/16 Page 3 of 3 PageID #: 504Case 5:16-cv-07044-EJ Document 20-3 Filed 02/13/17 Page 21 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION YAHOO!, INC., Plaintiff, v. MYMAIL, LTD., Defendant. Case No. 5:16-cv-07044-EDJ Honorable Edward J. Davila [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND IMPROPER VENUE Before the Court is Defendant MyMail, Ltd.’s Motion to Dismiss for Lack of Personal Jurisdiction and Improper Venue. The Court, having considered the motion and having found good cause therefore, hereby ORDERS that the motion is GRANTED. IT IS HEREBY ORDERED that Plaintiff’s claims are dismissed, with prejudice, for lack of personal jurisdiction and improper venue. Date United States District Judge Edward J. Davila Case 5:16-cv-07044-EJD Document 20-4 Filed 02/13/17 Page 1 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Alfredo A. Bismonte (Cal. Bar. No. 136154) Jeremy M. Duggan (Cal. Bar. No. 229854) BECK, BISMONTE & FINLEY, LLP 150 Almaden Blvd, 10th Floor San Jose, CA 95113 Tel: (408) 938-7900 Fax: (408) 938-0790 Email: abismonte@beckllp.com jduggan@beckllp.com BRIAN A. CARPENTER (Cal. Bar No. 262349) Brian.Carpenter@BJCIPLaw.com ERIC W. BUETHER (admitted pro hac vice) Eric.Buether@BJCIPLaw.com CHRISTOPHER M. JOE (admitted pro hac vice) Chris.Joe@BJCIPlaw.com BUETHER JOE & CARPENTER, LLC 1700 Pacific, Suite 4750 Dallas, TX 75201 Tel: (214) 466-1270 Fax: (214) 635-1842 ATTORNEYS FOR DEFENDANT MYMAIL, LTD. Case 5:16-cv-07044-EJD Document 20-4 Filed 02/13/17 Page 2 of 2