SeaChange International Inc. Contracts
Sample Business Contracts
License and Development Agreement - SeaChange International Inc. and Microsoft Licensing Inc.
LICENSE AND DEVELOPMENT AGREEMENT
This License and Development Agreement (the "Agreement") is made and
entered into as of May 8, 2000 (the "Effective Date"), by and between SEACHANGE
INTERNATIONAL, INC. ("SeaChange"), a Delaware corporation with a principal place
of business at 124 Acton Street, Maynard, MA 01754 and MICROSOFT LICENSING,
INC. ("Microsoft"), a Nevada corporation located at 6100 Neil Road, Reno, Nevada
89520. Microsoft and SeaChange are sometimes referred to individually as a
"Party", and collectively as the "Parties".
Recitals
SeaChange has substantial experience in the delivery of high performance
streaming video for Cable TV, Broadband Internet and Broadcast Television
systems and is willing to supplement its product development efforts to enable
the integration of Microsoft's Windows Media Technology server platform as the
primary internet protocol and MPEG streaming platform for SeaChange's next
generation Cable TV, Broadband Internet and Broadcast Television systems.
Microsoft is developing the next generation of software products commonly
referred to as Window Media Technologies, which are currently anticipated to
ship in beta form by the end of calendar year 2000. Microsoft wishes to provide
SeaChange with technical assistance, engineering support and certain resources
to assist it in the development efforts described above.
NOW, THEREFORE, in consideration of the mutual promises as stated herein
and for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Parties agree as follows.
Agreement
1. Definitions
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1.1 "Confidential Information" shall have the meaning set forth in the
Microsoft Corporation Reciprocal NonDisclosure Agreement executed between the
Parties with an effective date of October 11, 1999.
1.2 "Content" means digital audio (including, but not limited to,
timeline-synchronized audio, music, voice and sounds), digital video, and other
digital information including data, text (including, but not limited to, script
command data and related metadata such as a song title or an artist's name),
animation, graphics, photographs, and artwork, and combinations of any or all of
the foregoing.
1.3 "Derivative Technology" means: (i) for copyrightable or copyrighted
material, any translation (including translation into other computer languages),
portation, modification, correction, addition, extension, upgrade, improvement,
compilation, abridgment or other form in which an existing work may be recast,
transformed or adapted; (ii) for patentable or patented material, any
improvement thereon; and (iii) for material which is protected by trade secret,
any new material derived from such existing trade secret material, including new
material which may be protected by copyright, patent and/or trade secret.
1.4 "Distribute" means to reproduce, license, rent, lease, sell, offer to
sell, broadcast, publicly display, publicly perform, transmit and otherwise
distribute through any means or medium now existing or later developed.
1.5 "Licensed Software" means the Source Code and Object Code for the
SeaChange Plug-Ins and Enhancements (as defined in Section 2.1 below) to be
developed by SeaChange under this Agreement, along with all necessary
documentation, as more fully described in the Statement of Work.
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1.6 "Microsoft Technology" means: Windows Media Services CD-ROM software
developers' kit, the current release of which is referred to as Hercules
Developers release one, Updates thereof released during the Term (collectively,
the "Hercules SDK"), and any supporting documentation, including white papers,
that Microsoft may make available therefor for the Next Generation Microsoft
Windows Media Server, to the extent that Microsoft determines, after discussion
with and consideration of SeaChange's requests, is reasonably necessary for
SeaChange to integrate its SeaChange System Software with the Next Generation
Microsoft Windows Media Server as contemplated by this Agreement.
1.7 "Next Generation Microsoft Windows Media Server" means the Microsoft
streaming media server software Update to the Windows NT/Windows 2000 operating
system currently under development by Microsoft, which Update currently is
anticipated to be released in beta form by the end of calendar year 2000 and to
be commercially available during calendar year 2001, and which provides both
internet protocol and high speed MPEG streaming support for MPEG1 and 2 Content.
1.8 "Object Code" means computer code in a form for execution on a
computer and/or the code that results from running source code through a
compiler.
1.9 "Schedule" means the schedule set forth in the Statement of Work that
identifies the key milestones and timeframes applicable to SeaChange's
development efforts under this Agreement.
1.10 "SeaChange Media Cluster" means the SeaChange video server platform
used for streaming video applications.
1.11 "SeaChange System Software" means the streaming media software
components of SeaChange's next generation Cable TV, Broadband Internet and
Broadcast Television systems and Updates of any of the foregoing released during
the Term, as more fully described in the Statement of Work.
1.12 "SeaChange Web Site" means the world wide web site currently located
at http:\\www.schange.com that is SeaChange's primary public web site, including
any updates or successor sites made available by SeaChange during the Term.
1.13 "Source Code" means computer code in high level, human readable
language, including associated comments, documentation, build tools, test
harnesses, test utilities and test plans reasonably necessary to allow Microsoft
to use and/or modify the Licensed Software as contemplated under this Agreement.
1.14 "Statement of Work" means the agreed upon document, attached hereto as
Exhibit A, that describes the SeaChange System Software, and the high-level
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development efforts to be performed by SeaChange in connection with development
of the Licensed Software, and includes the Schedule. The Statement of Work may
be amended from time to time by mutual written agreement of the Parties.
1.15 "Updates" means as to software, all subsequent public releases thereof
during the Term, including public maintenance releases, error corrections,
upgrades, enhancements, additions, improvements, extensions, modifications and
successor versions.
1.16 "Use" means to use, copy, edit, format, modify, translate and
otherwise create Derivative Technology of software.
1.17 Windows Media Formats means the current version, and any Updates
thereof commercially released during the Term, of formats developed by or for
Microsoft for authoring, storing, editing, distributing, streaming, playing,
referencing, or otherwise manipulating Content which formats are used by the
Windows Media Technologies during the Term.
1.18 "Windows Media Technologies" means, collectively and interchangeably,
Microsoft Windows Media Player, Windows Media Protocols, Windows Media Formats,
Microsoft Windows
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CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.
NT/Windows 2000 Server Windows Media Services, and Windows Media Tools, all of
which are available as standard components of Windows operating systems releases
and/or which are available as Updates to Windows operating systems users via
Microsoft's Windows Update Web site.
1.19 "Windows Media Protocols" means the current version, and any Updates
thereof commercially released during the Term, of protocols developed by or for
Microsoft for authoring, storing, editing, distributing, streaming playing,
referencing or otherwise manipulating Content which are used by the Windows
Media Technologies during the term.
1.20 "Windows Media Stream" means: (i) live or on-demand Windows Media
Format Content delivered across a network, including (without limitation) wired
or wireless communications media, using IP Multicast, HTTP, MMSU, MMST, MSBD, or
other protocols supported by Windows Media Technologies during the Term; and
(ii) Windows Media Format Content files. A Windows Media Stream can originate
from, without limitation, a third party application built with the Microsoft
Windows Media Format SDK pursuant to a license from Microsoft, a Windows Media
Technologies component, an HTTP server, a local or network shared file system, a
Content Proxy Server, or a Cache Proxy Server. For purposes of this Agreement:
(A) "Cache Proxy Server" means an application, under a license from Microsoft,
(1) that is a server that streams or delivers Windows Media Format Content that
has originated solely from a Windows Media Server, and (2) that performs caching
and delivery functions solely for the purpose of enhancing network performance
in delivering Windows Media Streams from a Windows Media Server to a Windows
Media Player or Licensed Application; and (B) "Content Proxy Server" means an
application, under a license from Microsoft, that is a server which streams or
manages Windows Media Format Content for purposes of distribution and tracking
Windows Media Streams.
1.21 "Windows Media Format Content" means Content created in or encoded
into Windows Media Formats.
1.22 All other initially capitalized terms shall have the meanings assigned
to them in this Agreement.
2. License Grants; Ownership
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2.1 License Grant to SeaChange.
(a) SDKs. Microsoft will license to SeaChange the Hercules SDK, at
such time as the Hercules SDK is made commercially available, under
Microsoft's standard license terms applicable to such Hercules SDK. At the
time of receipt of such Hercules SDK, SeaChange must agree to and execute
the license agreement accompanying and/or applicable to such Hercules SDK
(or Update thereof) before it shall have any right to use such Hercules
SDK.
(b) Microsoft Technology. Microsoft hereby grants to SeaChange the
following additional limited right to use the Microsoft Technology, solely
in conjunction with the development efforts described in this Agreement,
and according to the terms and conditions of this Agreement: a non-
exclusive, nonassignable, non-sublicensable, nontransferable, royalty-free,
limited right and license to use the Microsoft Technology internally at
SeaChange, solely for purposes of integrating the SeaChange System Software
with the Next Generation Microsoft Windows Media Server by:
(i) *
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CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
(ii) migrating existing SeaChange Windows NT device drivers to
Windows 2000 and enabling them to work with the newly created Plug
Ins; and
(iii) ***
SeaChange will have no rights to Distribute or have Distributed Plug-
Ins, device drivers or Enhancements developed using the Microsoft Technology
("SeaChange Modified Code") unless and until such SeaChange Modified Code is a
valid "Licensed Application" under the terms and conditions of the Hercules SDK.
2.2 License Grant to Microsoft. Provided that the Parties are in full
compliance with the terms of this Agreement, SeaChange hereby grants to
Microsoft the following worldwide, nonexclusive, perpetual, irrevocable, royalty
free, fully paid up rights:
(a) to Distribute and have Distributed, under Microsoft's standard
license terms, copies of the Licensed Software, including any Derivative
Technology thereof created under Section 2.2(b) (collectively, "Changes")
in Object Code form as an integrated module of and in conjunction with the
Next Generation Microsoft Windows Media Server, and
(b) to Use and make Changes of the Licensed Software in both Source
Code and Object Code form, including the right to have a third party do the
foregoing on Microsoft's behalf;
provided, however, that Microsoft's rights under this Section 2.2(a)
and 2.2(b) shall be solely for the purposes of making bug fixes to the
Licensed Software available to end users solely in the event SeaChange is
unwilling or unable to do so, and
(c) to use and Distribute the Licensed Software and Changes solely via
restricted license for the purpose of demonstrating the Licensed Software
and Changes thereof in conjunction with Microsoft software used with
SeaChange products, including without limitation, Next Generation Microsoft
Windows Media Server.
The Parties agree that there may be certain technology developed by
SeaChange for which the parties may wish to establish other rights, including
without limitation licenses or ownership rights. In such case, the Parties
agree to negotiate in good faith and agree on the applicable terms. Any such
agreement shall be documented by way of written amendment to this Agreement.
2.3 Ownership of Licensed Software, Ownership and License in Changes.
Except as expressly licensed to Microsoft pursuant to this Agreement, SeaChange
retains all right, title and interest in and to the Licensed Software and all
Derivative Technology created by SeaChange related thereto; except that,
Microsoft shall own all right, title and interest in and to any Changes of the
Licensed Software created solely by or on behalf of Microsoft. SeaChange shall
have a worldwide, nonexclusive, perpetual, irrevocable, royalty-free, fully paid
up right to Use the Changes and to Distribute and have Distributed via
restricted license, the Changes and Derivative Technology thereof created by or
for SeaChange in object code form only, solely in conjunction with the Licensed
Software, and in all cases solely for the purposes of making bug fixes and/or
updates to the Licensed Software available to licensees of the Licensed
Software.
2.4 Ownership of Microsoft Technology. Microsoft retains all right, title
and interest in and to the Microsoft Technology, including any and all
Derivative Technology thereof.
2.5 No Other Licenses Granted. Except as expressly granted herein or in
other duly authorized written agreement(s) between the Parties, no other
licenses to patents, copyrights, trade secrets or other intellectual property
are granted by implication, estoppel, exhaustion or any other theory. Under no
circumstances will the license grants set forth in Section 2.1 be construed as
granting to SeaChange, by
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implication, estoppel or otherwise, a license to any Microsoft technology or
intellectual property other than the Microsoft Technology. All rights not
expressly granted therein as to the foregoing are expressly reserved by
Microsoft. Under no circumstances will the license grants set forth in Section
2.2 be construed as granting to Microsoft, by implication, estoppel or otherwise
a license to any SeaChange technology or intellectual property other than the
Licensed Software. All rights not expressly granted therein as to the foregoing
are expressly reserved by SeaChange.
3 Microsoft Obligations
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3.1 Technical Assistance. Microsoft will use commercially reasonable
efforts to provide SeaChange with such other reasonable resources, including
technical assistance and engineering resources as Microsoft determines, after
consultation with SeaChange, are appropriate to support SeaChange's development
efforts. Such resources may take the form of Microsoft Technology, engineering
resources, technical assistance from Microsoft product group resources, and any
other form as Microsoft determines appropriate.
4. SeaChange Obligations.
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4.1 Development of the Licensed Software. SeaChange will develop the
Licensed Software in accordance with the Statement of Work and as
follows:
(a) Device Drivers: SeaChange will port the device drivers listed in
statement of work to the Windows 2000 operating system and Updates thereof.
(b) Media Cluster: SeaChange will adapt the Media Cluster, Vstream
and other required software components as identified in the Statement of
Work to Microsoft Windows 2000, in order to facilitate the development of
Plug Ins as described in Section 4.1(c) below. The desired goal is that the
integrated components will serve as the primary streaming software component
of a node in a SeaChange Media Cluster, which subsequently will be used in
SeaChange's streaming product lines. The component would facilitate the
delivery of Content in either Windows Media Formats and or native MPEG2
transport streams.
(c) Plug-Ins. SeaChange will create and build Plug-Ins as
appropriate and set forth in the Statement of Work to fully integrate
SeaChange System Software with Windows Media Technologies. The purpose of
the Plug-Ins is for integration of SeaChange System Software functionality
into Windows Media Server to facilitate: (i) the storage of Content in both
MPEG1/2 and Windows Media Formats in a SeaChange Media Cluster, (ii) enable
Windows Media Streaming or native MPEG2 streaming from Windows Media Server
through the use of the Plug-Ins, (iii) support the integration of the
SeaChange Media Cluster into Windows Media Server, and (iv) enable the
support for additional required control protocols and resource management.
The detailed specifications of such development efforts shall be set forth
in the attached Statement of Work, as such may be amended from time to time
by mutual written agreement of the Parties. By way of example, but not
limitation, SeaChange's development of the Plug-Ins, ported device drivers
and ported SeaChange Media Cluster will support:
(i) output of MPEG 2 TS over DVB-ASI, QAM and SMPTE 259M
from Windows Media Server servers;
(ii) output of MPEG 1 and MPEG 2 TS over IP over ATM from
Windows Media Server servers;
(iii) Output of ASF wrapped MPEG 1 or 2 TS and PS over TCP/IP
from Windows Media Servers servers;
(iv) Plug-in support for MPEG 2 transport stream multiplexing
<PAGE>
(d) Enhancements. SeaChange will enhance the SeaChange System
Software to use Next Generation Microsoft Windows Media Server as the
primary streaming platform for such software (the "Enhanced Version"). All
such development efforts shall be completed in accordance with the attached
Statement of Work, as such may be amended from time to time by mutual
written agreement of the Parties.
4.2 Acceptance. The acceptance procedures and criteria that will apply to
Microsoft's acceptance of the Licensed Software will be set forth in the
Statement of Work. In particular, Microsoft shall have the right to review and
accept the Licensed Software as to the development of the necessary plug ins and
other interface technology. SeaChange shall use commercially reasonable efforts
to meet all development schedules as set forth in the Statement of Work. The
Parties will cooperate to agree on and document the performance criteria for the
Next Generation Microsoft Windows Media Server as part of the Statement of Work.
4.3 Failure of the Next Generation Microsoft Windows Media Server. In the
event that SeaChange demonstrates that the Next Generation Microsoft Windows
Media Server or Microsoft Windows 2000 fails to meet such performance criteria
in a way that materially impacts SeaChange's ability to market and sell the
Enhanced Version, then the Parties will cooperate in good faith to address and
resolve such issues.
4.4 Other Development Efforts. SeaChange agrees to work with Microsoft in
good faith to determine the feasibility of the following additional development
efforts.
(a) Integration of Existing Media Cluster Technology and Windows Media
Server 4.1. As an interim solution prior to completion of the Licensed
Software, SeaChange will work with Microsoft to investigate the integration
by SeaChange of the SeaChange Media Cluster file system with Microsoft's
existing Windows Media Server, in order to facilitate SeaChange's ability
to immediately leverage Microsoft's TCP/IP streaming delivery system across
SeaChange's fault tolerant systems. The Parties will cooperate to make a
decision whether to pursue the work identified in this Section 4.4(a)
within sixty (60) days immediately following the Effective Date.
(b) Soft Cable Modem Termination System ("CMTS"). SeaChange will work
with Microsoft to investigate the feasibility of jointly developing a
software-based CMTS.
4.5 Promotion of Enhanced Version; Promotional Fund.
(a) Promotion of Enhanced Version. After completion of the Licensed
Software, and provided Microsoft has and continues to make commercially
available the Next Generation Microsoft Windows Media Server or a
replacement product that is compatible with the Licensed Software, it is
the intent of the parties that SeaChange shall promote the Enhanced Version
as its primary streaming media system for all Microsoft Windows 2000-based
SeaChange systems, and, subject to customer requirements, ship the Enhanced
Version as its primary streaming media system for all Microsoft Windows
2000-based SeaChange systems.
(b) Promotional Fund. During the first three (3) years following first
commercial shipment of the Enhanced Version, SeaChange shall set aside a
minimum amount into a promotional fund (the "Promotional Fund"), which
amounts Seachange will use for activities designed to promote and market
the Enhanced Version, pursuant to the Marketing Plan identified in Section
4.5(c) below. SeaChange shall set aside a minimum amount of $600,000 for
each of Year 1, Year 2, Year 3. For purposes of this Section 4.5, a "Year"
shall be defined as the twelve month period beginning on the first date of
commercial shipment of the Enhanced Version, and subsequent anniversaries
of such initial shipment date.
(c) Marketing Plan. For each of Year 1, Year 2 and Year 3, SeaChange
shall prepare a marketing plan that identifies the promotional and
marketing activities in which it will
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engage to promote and market the Enhanced Version and on which it proposes
to spend the Promotional Fund in each such Year (the "Marketing Plan"). No
later than sixty (60) days prior to the beginning of each of Year 1, Year 2
and Year 3, SeaChange shall provide Microsoft with a draft of the
applicable Marketing Plan, for Microsoft's review and approval. Microsoft
shall provide SeaChange with any input or revisions it may have to such
draft Marketing Plan within thirty (30) days and the parties will cooperate
in good faith to mutually agree upon and implement such input and/or
revisions. Each such Marketing Plan may be amended during the applicable
Year upon mutual written agreement of the Parties.
4.6 Non-Performance.
(a) In the event Microsoft's commercial release of Next Generation
Microsoft Windows Media Server slips beyond the dates set out in the
Statement of Work, or the Parties agree to change any schedule set out in
the Statement of Work, then the parties will negotiate in good faith a
revised schedule that is mutually agreeable to both parties. In addition,
in the event that Microsoft fails to commercially release the Next
Generation Microsoft Windows Media Server in accordance with the
performance standards set out in the Statement of Work within eighteen (18)
months after the commercial release date identified in the Statement of
Work, then SeaChange shall have the option to notify Microsoft in writing
within thirty (30) days immediately following the end of the expiration of
such eighteen (18) month period of its election to terminate its
obligations under this Agreement without liability or further obligation on
the part of either Party under this Agreement. The Parties shall meet on
an as-needed basis to review the status of the development of the Next
Generation Microsoft Windows Media Server and the Licensed Software until
such time as they are commercially released.
(b) In the event that on the date that is eighteen (18) months
immediately after the date on which SeaChange is obligated to make
commercially available the Enhanced Version (the "Delivery Deadline"),
SeaChange has failed to make commercially available the Enhanced Version,
then effective as of such Delivery Deadline, Microsoft shall have the right
to terminate this Agreement upon written notice, without further liability
on the part of either party.
4.7 Reporting. No later than thirty (30) days following the end of the
SeaChange fiscal quarter next following the end of every Year during the Term,
SeaChange shall provide Microsoft with a report identifying the total number of
copies of the Enhanced Version distributed by SeaChange or on its behalf, and
the total number of licenses of Next Generation Microsoft Windows Media Server
distributed therewith ("Report") during the applicable Year. SeaChange shall
also submit a copy of the Report to the Microsoft Contact identified in Section
12.1.
4.8 SeaChange Development and Marketing Systems. On or before the
Effective Date, SeaChange shall provide Microsoft, at SeaChange's cost, with two
(2) SeaChange video server systems, including all Software and hardware, for
Microsoft's use for development and marketing purposes. Microsoft shall have
the right to use such systems in accordance with SeaChange's standard licensing
terms for such systems attached hereto as Exhibit E. SeaChange will provide
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Microsoft with technical support, as mutually agreed by the Parties in writing,
to assist it in its marketing and development efforts with such ITV Software.
5. Consulting Services and Technical Support.
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5.1 Execution of MSA. Within sixty (60) days of the Effective Date,
SeaChange will execute a Microsoft Master Services Agreement (the "MSA")
pursuant to which all Microsoft Consulting Services ("MCS") and Premier Support
For Developers Services ("Premier Support") will be acquired by SeaChange during
the Term.
5.2 Premier Support for Developers. SeaChange will contract with
Microsoft for a Premier Support Application Development Consultant ("ADC"), for
a minimum of the first two years of the Agreement. SeaChange may also obtain
additional Premier Support Services and Microsoft Consulting
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Services by executing additional Services Description(s) under the MSA. Any such
Premier resources shall be used to assist SeaChange with the development efforts
as identified in this Agreement.
5.3 Personnel. SeaChange will hire (or transfer from other areas within
SeaChange) and use commercially reasonable efforts to retain 3 to 5 qualified
engineering and other required personnel by September 1, 2000 increasing to 5 to
10 qualified engineering and other required personnel by January 5, 2001, and
such other personnel as necessary to facilitate its development efforts under
this Agreement.
6. Marketing Efforts.
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6.1 Joint Marketing. The Parties will cooperate to identify and carry out
joint marketing activities in support of cable, satellite, DSL, Broadcast and
other broadband opportunities as they relate to the Parties' respective
technologies. Such activities may include joint sales calls to prospective
customers, trade show support and seminar support and participation. The
Parties will mutually agree on any such joint activities to be undertaken,
including any personnel to be involved as well as amounts to be spent in support
of such activities. The Parties will cooperate in good faith to identify and
pursue additional opportunities for promotion of the Windows Media Technologies
in conjunction with the sale of SeaChange System Software to broadband network
operators (i.e., cable, satellite and telephone) through the Term.
6.2 Public Relations. The Parties will agree upon a press release
regarding the relationship contemplated in this Agreement, to be released no
later than 5 business days following the Effective Date. Microsoft will use
commercially reasonable efforts to support SeaChange's future publicity and
promotional endeavors related to streaming media by providing appropriate quotes
for SeaChange press releases and participants for SeaChange sponsored events,
subject to availability of Microsoft personnel. Any and all press releases or
public statements regarding the Parties' relationship as contemplated in this
Agreement shall be subject to review and approval of both Parties.
6.3 Promotion. Throughout the Term, SeaChange will deploy, describe and
promote Windows Media Technologies and the Windows Media Format to prospective
and actual customers as a recommended platform and format for all SeaChange
streaming software systems, and in no event less favorably than Company promotes
and markets any similar third party technologies as part of SeaChange System
Software. Throughout the Term, Microsoft will deploy, describe and promote
SeaChange's ITV systems and the SeaChange System Software to prospective and
actual customers as a recommended ITV system and format for Windows Media
Technologies and the Windows Media Format, and in no event less favorably than
Microsoft promotes and markets any similar third party systems or technologies
for its Windows Media Technologies platform and the Windows Media Formats.
Microsoft and SeaChange shall coordinate a mutually agreed public announcement
of this Agreement, Each party agrees that the other party will be the only
entity with which it announces a binding contract or any other relationship
regarding Windows Media Server for VOD at Cable 2000, on or about May 8, 2000.
6.4 Branding. During the Term, SeaChange agrees to affix the "Plays
Windows Media" logo ("Logo") on the control monitor and face plate of the rack
mount for the hardware containing the Enhanced Version. All use of the Logo by
Company is subject to compliance with the Plays Windows Media Logo License and
guidelines attached hereto as Exhibit D.
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6.5 SeaChange Web Site. Beginning on the Effective Date and continuing
thereafter throughout the Term, SeaChange shall develop and update a web page
within the SeaChange Web Site for the purpose of identifying and promoting the
relationship between SeaChange and Microsoft contemplated herein. Such web page
shall include the "Get Windows Media Player" link logo shown on Exhibit B hereto
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("Microsoft Link Logo") pursuant to the guidelines in Exhibit B (including any
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updates thereto provided in writing by Microsoft to SeaChange) and in accordance
with the following terms.
(a) The Microsoft Link Logo shall appear prominently, on a non-
exclusive basis, on the Windows Media page of the SeaChange Web Site.
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(b) On all pages of the SeaChange Web Site in which SeaChange includes
any sponsorship notices of other streaming and downloadable media
technology vendors, the Microsoft Link Logo shall appear in a position at
least as favorable in prominence, size and positioning as any other
sponsorship notice on such page.
(c) In all cases, the Microsoft Link Logo shall be a minimum of 65 by
57 pixels, and shall conform to trademark usage standards provided by
Microsoft to SeaChange from time to time.
(d) Microsoft shall be entitled to substitute a different Windows
Media Logo in place of the Microsoft Link Logo for purposes of this
Agreement upon Microsoft's reasonable advance written notice to SeaChange.
In the event that Microsoft substitutes an alternative logo, SeaChange
agrees that its usage of such logo shall be subject to applicable logo
usage guidelines as provided by Microsoft.
6.6 Microsoft Web Site. The Parties acknowledge that Microsoft is
currently contemplating updating its web site to include a section regarding the
Next Generation Windows Media Server upon commercial release of that product.
Provided that Microsoft has accepted the Licensed Software as provided in
Section 4.2 above, Microsoft agrees that it will use commercially reasonable
efforts to include information regarding the Licensed Software in the applicable
section of the updated Microsoft web site, including a link to the SeaChange Web
Site.
6.7 Additional Promotions. Each Party agrees to use commercially
reasonable efforts to prominently place and promote the other Party's streaming
media and software technology and appropriate logo at relevant trade show
events, subject to mutual written agreement of the Parties. Any use of either
Party's logo or trademark shall be subject to all applicable usage guidelines of
that Party, And each Party shall have the right to review and approve any such
usage by the other Party. Microsoft's written approval will be required with
respect to any additional promotions by SeaChange of Windows Media Technologies.
Microsoft will include SeaChange in its Broadband Jumpstart program as a VOD
supplier and shall use commercially reasonable efforts to investigate such other
promotions of SeaChange and its products compatible with the Next Generation
Microsoft Windows Media Server that may be available through Microsoft's
appropriate marketing channels. In no event shall this section 6.7 be deemed to
require either Party to engage in any promotional activities to which such Party
has not, in its reasonable discretion, already consented in writing.
7. NonDisclosure
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7.1 The Parties acknowledge and agree that the terms and conditions of the
Microsoft Corporation Reciprocal Non-Disclosure Agreement entered into by and
between the Parties and dated October 11, 1999 (the "NDA"), attached hereto as
Exhibit C and incorporated into this Agreement. The terms of this Agreement and
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all discussions and negotiations related thereto and all information exchanged
pursuant hereto are considered Confidential Information as defined in the NDA.
7.2 Each Party may disclose the terms and conditions of this Agreement to
its employees, affiliates and its immediate legal and financial consultants on a
need to know basis as required in the ordinary course of that Party's business,
provided that such employees, affiliates and/or legal and/or financial
consultants have agreed in writing in advance of disclosure to be bound or are
otherwise bound by confidentiality requirements substantially similar to those
found in the NDA, and may disclose Confidential Information as required by
government or judicial order, provided each Party gives each other Party prompt
notice of such order and complies with any protective order (or equivalent)
imposed on such disclosure. Further, the Parties acknowledge that this
Agreement, or portions thereof, may be required under applicable law to be
disclosed, as part of or an exhibit to a Party's required public disclosure
documents. If any Party is advised by its legal counsel that such disclosure is
required, it will notify the others in writing and the Parties will jointly seek
confidential treatment of this Agreement to the maximum extent reasonably
possible, in documents approved by all Parties and filed with the applicable
governmental or regulatory authorities.
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8. No Obligation/Independent Development
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Notwithstanding any other provision of this Agreement, Microsoft shall have no
obligation or restriction to market, sell or otherwise distribute the Licensed
Software, either as a stand-alone or in any Microsoft product. Nothing in this
Agreement will be construed as restricting either party's ability to acquire,
license, develop, manufacture or distribute for itself, or have others acquire,
license, develop, manufacture or distribute for a party, similar technology
performing the same or similar functions as the technology contemplated by this
Agreement, or to market and distribute such similar technology in addition to,
or in lieu of, the technology contemplated by this Agreement.
9. Representations and Warranties
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9.1 By SeaChange. SeaChange warrants and represents that:
(a) it has the full power to enter into this Agreement and grant the
license rights set forth herein; and
(b) it has not previously and will not grant any rights in the
Licensed Software to any third party that are inconsistent with the
rights granted to Microsoft herein.
9.2 By Microsoft. Microsoft warrants and represents that:
(a) it has the full power to enter into this Agreement and grant the
license rights set forth herein; and
(b) it has not previously and will not grant any rights in the
Microsoft Technology to any third party that are inconsistent with the
rights granted to SeaChange herein.
10. Term and Termination
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10.1 Term. This Agreement shall commence as of the Effective Date and
shall continue for three (3) years (the "Initial Term") unless terminated
earlier pursuant to Section 10.2 or as otherwise provided under this Agreement.
At the end of the Initial Term, the Parties may renew this Agreement for
successive one (1) year periods upon mutual written agreement, provided that the
Party wishing to renew provides the other Party with at least sixty (60) days
written notice prior to the end of the then current term.
10.2 Termination. This Agreement may terminate at the election of the non-
defaulting Party if any of the following events of default occur: (i) if either
Party materially fails to perform or comply with this Agreement or any provision
thereof; (ii) if either Party becomes insolvent or admits in writing its
inability to pay its debts as they mature, or makes an assignment for the
benefit of creditors; (iii) if a petition under any foreign, state or United
States bankruptcy act, receivership statute, or the like, as they now exist, or
as they may be amended, is filed by either Party; or (iv) if such a petition is
filed by any third party, or an application is not resolved favorably to such
Party within sixty (60) days. Termination due to default shall be effective
thirty (30) days after written notice to the defaulting Party if the default has
not been cured within such thirty (30) day period; provided, however that
termination shall be effective immediately upon written notice at any time, if
the defaulting Party is in material breach of Section 6 or Section 12.2.
10.3 Survival. Sections 1, 2.2, 2.3, 2.4, 2.5, 7, 8, 9, 10.3, 11 and 12
shall survive termination or expiration of this Agreement for any reason.
Neither Party shall be liable to the other for damages of any sort resulting
solely from terminating this Agreement in accordance with its terms. Any
licenses or sublicenses already granted by either party to a third party as may
be authorized under this Agreement shall not be affected by any termination of
this Agreement and shall remain in full force and effect. Termination of this
Agreement shall not affect any other agreement between the Parties.
<PAGE>
11. Exclusion of Incidental and Consequential Damages; Limitation of Liability
--------------------------------------------------------------------------
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER
PARTY BE LIABLE FOR ANY DIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT
DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR PERSONAL INJURY,
LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF
PRIVACY, FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE,
NEGLIGENCE, AND FOR ANY OTHER PECUNIARY LOSS OR OTHER LOSS WHATSOEVER) ARISING
OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, EVEN IN THE EVENT OF THE FAULT,
TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF
WARRANTY OF SUCH PARTY, AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THE PROVISIONS OF THIS SECTION 11 SHALL NOT APPLY
TO SECTION 7 (REGARDING CONFIDENTIALITY) OR TO ANY ACTION ARISING OUT OF THE
BREACH OF A PARTY'S INTELLECTUAL PROPERTY RIGHTS AS TO TECHNOLOGY, SOFTWARE OR
OTHER TECHNOLOGY PROVIDED TO A PARTY UNDER THIS AGREEMENT.
12. General
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12.1 Notices. All notices and other communications required or desired to
be served, given or delivered hereunder shall be made in writing and shall be
addressed to the Party to be notified as follows:
if to Microsoft: Microsoft Corporation
One Microsoft Way
Redmond, WA 98052-6399
Attn: Tom Gershaw
Senior Business Development Manager
Phone: (425) 882-8080
copy to: Law & Corporate Affairs
Fax: (425) 936-7329
if to SeaChange: SeaChange International, Inc.
124 Acton Street
Maynard, MA 01754
Attn: Ed Delaney
Vice President, Business Development
Phone: 978-889-3004
or, as to each Party, at such other address as designated by such Party in a
written notice to the other Party. All such notices and communications shall be
deemed to be validly served, given or delivered (i) upon delivery thereof if
delivered by hand to the Party to be notified; (ii) upon the scheduled delivery
date in the case of delivery to a reputable express delivery service or (iii)
upon acknowledgment of receipt thereof (by the sender's telecommunications
device) if transmitted by a telecommunications device.
12.2 Successors and Assigns; Assignment. This Agreement shall be binding
upon and inure to the benefit of the Parties and their respective successors and
assigns. A Party's successors and assigns shall include, without limitation, a
receiver, trustee or debtor in possession of or for such Party. Notwithstanding
the foregoing, neither party may assign this Agreement, or any rights or
obligations hereunder, except with the express written consent of the other
party, which consent shall not be unreasonably withheld, conditioned or delayed.
For purposes of this Agreement, an "assignment" under this Section shall be
deemed to include the following: (a) a merger of a Party where such Party is
not the surviving entity; (b) any transaction or series of transactions whereby
a third party acquires direct or indirect power to control the management and
policies of a Party, whether through the acquisition of voting securities, by
contract, or otherwise; or (c) the sale of more than 50% of a Party's assets
(whether in a single transaction or series of related transactions).
<PAGE>
12.3 Independent Contractor. SeaChange is an independent licensor and
contractor for Microsoft and nothing in this Agreement shall be construed as
creating an employer-employee relationship, a partnership, an agency or a joint
venture between the parties.
12.4 Governing Law; Attorneys' Fees. This Agreement shall be governed by
the laws of the State of Washington without regard to the choice of law
provisions of Washington law. SeaChange consents to jurisdiction by the state
and federal courts sitting in the State of Washington. Process may be served on
either Party by regular mail, postage prepaid, certified or registered, return
receipt requested. In any action or suit to enforce any right or remedy under
this Agreement or to interpret any provision of this Agreement, the prevailing
Party shall be entitled to recover its costs, including reasonable attorneys'
fees.
12.5 Construction. If for any reason a court of competent jurisdiction
finds any provision of this Agreement, or portion thereof, to be unenforceable,
that provision of the Agreement will be enforced to the maximum extent
permissible so as to effect the intent of the Parties, and the remainder of this
Agreement will continue in full force and effect. Failure by either Party to
enforce any provision of this Agreement will not be deemed a waiver of future
enforcement of that or any other provision. This Agreement has been negotiated
by the Parties and their respective counsel and will be interpreted fairly in
accordance with its terms and without any strict construction in favor of or
against either Party.
12.6 Amendments, Waivers and Consents. No amendment or waiver of any
provision of this Agreement nor consent to any departure by any Party herefrom,
shall in any event be effective unless the same shall be in writing and signed
by the other Party, and then such amendment, waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
12.7 Section Headings. The section headings herein are for convenience of
reference only, and shall not affect in any way the interpretation of any of the
provisions hereof.
12.8 Entire Agreement. This Agreement does not constitute an offer by
either Party and it shall not be effective until signed by both Parties. This
Agreement, the attached Exhibits and the NDA constitute the entire agreement
between the Parties with respect to the subject matter hereof and merge all
prior and contemporaneous oral and written communications. It shall not be
modified except by a written agreement dated subsequent to the date of this
Agreement and signed on behalf of Microsoft and SeaChange by their respective
duly authorized representatives.
IN WITNESS WHEREOF, SeaChange and Microsoft have executed this License and
Development Agreement as of the Effective Date.
MICROSOFT CORPORATION SEACHANGE INTERNATIONAL, INC.
By ___________________________ By ___________________________
Name _________________________ Name _________________________
Title _________________________ Title __________________________
Date _________________________ Date __________________________
<PAGE>
CONFIDENTIAL MATERIAL OMITTED AND FILED SEPERATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
EXHIBIT A
STATEMENT OF WORK
*
<PAGE>
CONFIDENTIAL MATERIAL OMITTED AND FILED SEPERATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISK DENOTE OMISSIONS.
***
<PAGE>
EXHIBIT B
Get Windows Media(TM) player
Link Logo
Get Windows Media(TM) Player logo usage instructions
-------------------- ------------------------------
To put the link logo on your Web site, follow these easy steps:
1. Read our policy below on using the Get Windows Media Player link logo.
2. Copy the Get Windows Media Player logo .gif file image to your
desktop.
[LOGO]
3. Move the Get Windows Media Player logo .gif file from your desktop to
your Web server.
4. Insert the following HTML code on your Web page. Be sure to point the
IMG SRC to the location of the Get Windows Media Player logo .gif
file on your server:
BR CENTER
AHREF="http://www.microsoft.com/windows/mediaplayer/download/
default.asp"
IMG SRC="type path to logo image here"
(as defined in the license
agreement for the SDK), and must be
listed as prominently as other
versions available for download or
purchase.
(ii) If not all versions of the Product
include the appropriate
Redistributable Components (e.g., a
minimal install version), then only
those versions that include the
Redistributable Components may
include the Logo.
(b) The Microsoft Windows Media Player Software
Development Kit in compliance with the
Internet Explorer Application Kit license
Agreement. These are Products that use the COM
interfaces of the Windows Media Player
Product
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Company Product Name and Description Version Number
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