iBEAM Broadcasting Corp. Contracts
Sample Business Contracts
Broadband Streaming Initiative Agreement - Microsoft Corp. and iBEAM Broadcasting Corp.
iBEAM and Microsoft
Broadband Streaming Initiative Agreement
This Broadband Streaming Initiative Agreement (the "Agreement") is entered
into and effective as of September 20, 1999 (the "Effective Date") by and
between Microsoft Corporation, a Washington corporation located at One Microsoft
Way, Redmond, WA 98052 ("Microsoft") and iBEAM Broadcasting Corporation, a
Delaware Corporation located at 645 Almanor Avenue, Sunnyvale, CA 94086
("iBEAM").
Recitals
iBEAM is an application service provider capable of delivering Internet-related
broadband multimedia applications and services for independent content providers
and corporate customers (referred to collectively as "ICPs"), including
competitively priced hosting and broadcasting services for live and on-demand
broadband Streaming Media.
Microsoft is a developer of operating system technologies and tools for the
development and serving of broadband multimedia applications and content,
including Streaming Media.
Microsoft has established a "Broadband Streaming Initiative," whereby Microsoft
desires to promote adoption of Windows Media Technologies ("WMT") for broadband
multimedia applications on the Internet.
Microsoft wishes to engage iBEAM as, and iBEAM wishes to become, a supplier and
promoter of broadband multimedia applications and services in connection with
Microsoft's upcoming Broadband Streaming Initiative.
Agreement
This Agreement is entered into with reference to the following information
("Initial Definitions Table") as well as the definitions set forth below:
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iBEAM Information: Corporate Name: iBEAM Broadcasting Corporation
Place of Incorporation: Delaware
Address for Notices: 645 Almanor Avenue, Suite 100,
Sunnyvale, CA 94086
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iBEAM Contact: iBEAM Contact/Title: Chris Dier, CFO
Telephone Number: (408) 523-1603
Facsimile Number: (408) 730-8937
Email: [email protected]
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iBEAM Name and iBEAM Service Name(s) iBEAM Name: iBEAM Broadcasting
(for use in press release): iBEAM Service Name(s): DirectCast
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Microsoft Confidential & Proprietary Page 1 of 9
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iBEAM Web Site: www.ibeam.com and any successors and additional and/or
new versions of a web site owned or controlled by iBEAM
during the Term.
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Term: Beginning as of the Effective Date and continuing
through September 30, 2002 unless earlier terminated in
accordance with Section 9.
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1. Definitions
1.1 Above the fold means the placement of Content (including an icon and/or
link) or other material on an iBEAM Web Site Page such that the material
is viewable on a computer screen at a 800 x 600 pixels resolution when the
user first accesses such web page and without having to scroll down to
view more of the web page.
1.2 Broadband Streaming Initiative ICP Participant means an ICP or other
customer designated by Microsoft in its sole discretion (including
without limitation Microsoft or any of its affiliates) to use Network
Credits in support of the Broadband Streaming Initiative as contemplated
by this Agreement.
1.3 Confidential Information means: (i) any source code of software disclosed
by either party to the other party; (ii) any trade secrets and/or other
proprietary non-public information not generally known relating to either
party's product plans, designs, costs, prices or names, finances,
marketing plans, business opportunities, personnel, research, development
or know-how; and (iii) the terms and conditions of this Agreement.
"Confidential Information" does not include information that: (i) is or
becomes generally known or available by publication, commercial use or
otherwise through no fault of the receiving party; (ii) is known and has
been reduced to tangible form by the receiving party prior to the time of
disclosure and is not subject to restriction; (iii) is independently
developed by the receiving party without the use of the other party's
Confidential Information; (iv) is lawfully obtained from a third party
that has the right to make such disclosure; or (v) is made generally
available by the disclosing party without restriction on disclosure.
1.4 Content means data, text, audio, video, graphics, photographs, artwork
and other technology and materials.
1.5 iBEAM Services means the provision of hosting, serving, broadcasting,
and/or other applications and services involving "live" and "on-demand"
broadband Streaming Media for third parties.
1.6 iBEAM Services Guidelines means the guidelines and procedures related to
this Agreement with respect to how iBEAM will be engaged by Broadband
Streaming Initiative ICP Participants to provide iBEAM Services to such
customers and will apply Network Credits against such provision of
services, as more fully described in Exhibit A.
1.7 Microsoft Software means Windows NT Server (including Windows Media
Streaming Media and Site Server 3.0) and direct successors thereto.
1.8 Network Credits means credits available to pay for iBEAM Services which
credits are equal in value to the Network Credits Fee Amount having been
paid by Microsoft from time to time during the Term, less amounts having
been applied pursuant to this
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Agreement to reflect the provision of iBEAM Services to Broadband
Streaming Initiative Participants, as further set forth in Section 2.1
and Exhibit A.
1.9 Streaming Media means multimedia Content that is transmitted live or held
in archive on servers and played or displayed via the Web incrementally,
or in semi-real time, such that it can be heard, viewed or received by an
end user with minimal download delays, if any.
1.10 Updates means, as to any Microsoft software, all subsequent public
releases thereof during the Term, including public maintenance releases,
error corrections, upgrades, enhancements, additions, improvements,
extensions, modifications and successor versions.
1.11 Windows Media Format means (a) the Windows Media Audio format which
encodes files with the Microsoft Audio codec (.wma extension), (b) the
proposed industry standard format referred to as the "Advanced Streaming
Format" (.asf extension), which as of the Effective Date is in
comment/revision processes within industry standards bodies, and (c) any
successors or replacements for such formats that may be designated by
Microsoft, regardless of the brand or trademark under which they are made
available from time to time.
1.12 Windows Media Player means the North American English version of the
upgrade to the Windows 95 and Windows 98 Microsoft Windows Media Player
client technology that displays Streaming Media in Windows Media Format,
other formats of Streaming Media, and other multimedia data-types, and
all successors and Updates to such technology which are commercially
released during the Term.
1.13 Windows Media Technologies or "WMT" means, collectively and
interchangeably, Windows Media Player and Windows Media Streaming Media
services for the Windows NT operating system.
All other initially capitalized terms shall have the meanings assigned to them
in this Agreement.
2. Microsoft Obligations
2.1 Network Credits Fee. Microsoft agrees to pay to iBEAM a Network Credits
Fee Amount of Five Hundred Thousand Dollars ($500,000.00), which fee will
pre-pay for iBEAM web hosting services and other iBEAM Services which
Microsoft may then use in accordance with this Agreement either for
Microsoft's internal operations or for the benefit of Broadband Streaming
Initiative ICP Participants or iBEAM customers. Microsoft will pay the
Network Credits Fee Amount of Five Hundred Thousand Dollars ($500,000.00)
in accordance with the following schedule: (a) Three Hundred Thousand
Dollars ($300,000.00) after iBEAM delivers an invoice for such amount to
Microsoft, which invoice iBEAM may deliver on or after the Effective
Date; (b) One Hundred Thousand Dollars ($100,000.00) on January 15, 2000,
and (c) One Hundred Thousand Dollars ($100,000.00) on April 15, 2000. All
amounts payable under this Agreement shall be due on a net thirty (30)
day basis. Such fees shall be refundable by iBEAM to Microsoft only to
the extent set forth in Section 9.
2.2 Deployment Support. During the Term, and at no charge to iBEAM, Microsoft
shall provide high-level technical support in the United States from
Microsoft's developer relations group or product support group in order
to assist iBEAM with carrying out its obligations under this Agreement
(with Microsoft selecting in its discretion which of these groups will
provide support). Such support shall include providing reasonable on-site
deployment support services to iBEAM, provided that Microsoft shall be
entitled to charge iBEAM at its then-current rates for any such on-site
Microsoft Confidential & Proprietary Page 3
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deployment support services which exceed a cumulative total of [*]
person-weeks (i.e., a total of [*] hours).
2.3 Promotion of iBEAM's Services. In conjunction with its Broadband
Streaming Initiative, Microsoft agrees to publicly announce that iBEAM is
a Microsoft recommended solution provider for ICPs who are using WMT to
run high bandwidth Streaming Media applications in a manner commercially
similar to the level of promotion provided to the other application
service providers who are Broadband Streaming Initiative Participants.
Thereafter, during the Term, Microsoft will use commercially reasonable,
good faith efforts to include and promote iBEAM as a provider of hosting
and other applications and services related to Streaming Media, including
without limitation as part of Microsoft's applicable marketing efforts
and materials, sales training, Web sites, and other promotions,
consistent with Microsoft's promotion of other Broadband Streaming
Initiative application service providers which have entered into
agreements with Microsoft on similar terms to this Agreement.
2.4 Early Releases. During the Term, Microsoft will provide to iBEAM, at no
charge, successive pre-commercial releases (beta, and where practical as
determined by Microsoft in its sole discretion, pre-beta) of Microsoft
Software in object code form; provided, however, that nothing herein
shall be deemed to require that Microsoft release any additional versions
of the Microsoft Software during the Term. Any Microsoft Software
provided hereunder may be used by iBEAM only in accordance with the
confidentiality and license agreements accompanying such Microsoft
Software and, in addition, may be used solely in connection with
supporting the provision of iBEAM Services that use Windows Media
Technologies. iBEAM understands that pre-release software is not intended
for full scale commercial use.
2.5 Preconditions for Microsoft Sponsorship and Support Obligations. Each of
Microsoft's obligations under this Section 2 is expressly conditioned
upon iBEAM's performance of its obligations under Sections 3.1 through
3.5 throughout the Term. In addition, because iBEAM has not fully
formulated and shared with Microsoft its plans for the iBEAM Services as
of the Effective Date, iBEAM agrees to confer in good faith with
Microsoft promptly after the Effective Date in order to develop and set
forth in writing, no later than ninety (90) days after the Effective
Date, mutually approved performance objectives (the "Performance
Criteria") for iBEAM's participation in the Broadband Streaming
Initiative during the first two (2) years of the Term. If Microsoft
reasonably believes that iBEAM has not met or exceeded such Performance
Criteria during the first fifteen (15) months of the Term, then Microsoft
may notify iBEAM of such determination by providing a written notice
identifying the specific Performance Criteria which iBEAM has not met,
provided that Microsoft must issue any such notice within ninety (90)
days after the fifteen (15) month anniversary of the Effective Date. If,
after receiving such a notice, iBEAM does not improve its performance
such that it meets the Performance Criteria within sixty (60) days after
receiving Microsoft's written notice hereunder, then Microsoft may in its
discretion terminate this Agreement effective thirty (30) days after
Microsoft provides written notice to iBEAM of such termination.
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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2.6 Digital Rights Management Application. To assist iBEAM in conducting an
evaluation of Microsoft's Digital Rights Management applications ("DRM")
in connection with iBEAM's services and applications related to Streaming
Media, Microsoft agrees to provide iBEAM with reasonable access to
applicable beta programs and other information on applicable new
technologies and technical support offerings, subject to Microsoft's
applicable confidentiality and license agreements.
2.7 Account Introductions. Microsoft agrees to use commercially reasonable
efforts during the first ninety (90) days after the Effective Date to
provide, on a non-exclusive basis, introductions to existing Microsoft
account contacts in order to assist iBEAM's efforts to make initial
presentations to selected Broadband Streaming Initiative ICP Participants
and appropriate ISPs with respect to participation in the Broadband
Streaming Initiative. The following is a preliminary list of anticipated
accounts as to which Microsoft agrees, if and only to the extent it has
appropriate existing contacts at such accounts as of the Effective Date,
to use commercially reasonable efforts to introduce iBEAM to, in
accordance with the foregoing sentence: [*].
2.8 International Marketing. Microsoft agrees to use commercially reasonable
efforts to provide senior iBEAM managers with reasonable access (subject
to availability) to Microsoft's applicable senior international managers
in order to provide advice on entering international markets in
connection with the Broadband Streaming Initiative. Microsoft agrees to
make commercially reasonable efforts to help iBEAM identify and make
initial executive level presentations to a mutually agreed list of tier
one international accounts.
2.9 Reservation of Rights. Except as expressly licensed pursuant to this
Agreement, iBEAM shall have no other rights in the Microsoft Software,
the Windows Media Player or any other Microsoft software, technology or
service provided to iBEAM hereunder. Microsoft retains all right, title
and interest in and to the Microsoft Software, the Windows Media Player
and any other Microsoft software, technologies and services. Nothing in
this Agreement shall be construed, by implication, estoppel or otherwise,
as granting iBEAM any rights to any Microsoft software, technology,
service or other intellectual property rights.
3 iBEAM Obligations
3.1 Use and Promotion of Windows Media Technologies. Subject to Window Media
Technologies being a competitively comparable solution to other Streaming
Media technologies (as reasonably determined by iBEAM in good faith based
on technology, price, quality and delivery timetables), throughout the
Term, including without limitation as part of iBEAM's full services
product launch, iBEAM will deploy, describe and promote Microsoft's WMT
platform and formats to prospective and actual customers [*] iBEAM may
also deploy, describe and promote other Streaming Media platforms or
formats. iBEAM agrees to hold its full services platform launch within
fifteen (15) days after Microsoft's initial public announcement of its
Broadband Streaming Initiative.
iBEAM's use and promotion of Windows Media Technologies shall further
include, without limitation:
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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(a) Content Format. Within thirty (30) days after the Effective Date, and
continuing thereafter throughout the Term, all Streaming Media available
on the iBEAM Web Site shall be made available in Windows Media Format;
provided, however, that nothing herein shall be deemed to prevent iBEAM
from making Streaming Media available on such Web site in other formats.
(b) Deployment of New Applications and Services. Throughout the Term, iBEAM
will promote and make available to its customers all new applications and
services related to Streaming Media on WMT platforms and in Windows Media
Format concurrently with or sooner than iBEAM makes such new applications
and services available based on or in conjunction with other Streaming
Media technologies or formats, subject to the limitation that iBEAM's
obligations hereunder with respect to release schedule parity are subject
to Microsoft's providing comparable competitive offerings to other
commercially available offerings in the area of Streaming Media
technology or formats (as applicable) during the Term.
(c) Sponsorship. Beginning on the Effective Date and continuing thereafter
throughout the Term, iBEAM shall include on all pages of the iBEAM Web
Site pages that relate to or contain Streaming Media or applications
therefor a prominent "Get Windows Media Player" link logo (the "Windows
Media Sponsorship Notice") which links to a Microsoft-authorized Windows
Media Player download site, in accordance with the following terms:
(i) The Windows Media Sponsorship Notice shall appear prominently and
Above the fold on each iBEAM Web Site page that contains or
provides access to Streaming Media or that materially focuses on
any iBEAM Service.
(ii) On all pages of the iBEAM Web Site, including without limitation
those described in Section 3.1(c)(i), in the event iBEAM includes
any information or notices concerning Streaming Media
technologies or formats other than Windows Media Technologies and
Windows Media Format, the Windows Media Sponsorship Notice shall
appear on such page in a position at least as favorable in
prominence, size and positioning as any other such notice.
(iii) In all cases, the Windows Media Sponsorship Notice shall be a
minimum of 65 by 57 pixels (width by height), and shall conform
to all trademark usage standards provided by Microsoft to iBEAM
from time to time.
(iv) Microsoft shall be entitled to substitute a different hypertext
link and/or link logo as the Windows Media Sponsorship Notice,
subject to the same pixel size restrictions as are set forth in
Section 3.1(c)(iii), in place of the "Get Windows Media Player"
link logo for purposes of this Agreement, including without
limitation iBEAM's responsibilities under this Section 3.1(c),
upon Microsoft's reasonable advance written notice to iBEAM.
(d) Additional Promotions. Microsoft and iBEAM will cooperate in good faith
to identify and pursue additional opportunities for promotion of Windows
Media Technologies in conjunction with the iBEAM Services to U.S.- based
ICPs in the
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[*].
(e) Uses of the Get Windows Media Player Logo. All use by iBEAM of the "Get
Windows Media Player" link logo (or any successor logo(s)) in connection
with this Agreement is subject to compliance with Microsoft's guidelines
relating to the use of such logo(s). The current version of such
guidelines as of the Effective Date is set forth in Exhibit B hereto.
3.2 Provision of iBEAM Services to Broadband Streaming Initiative ICP
Participants.
(a) iBEAM agrees to provide six (6) months of iBEAM Services, to be comprised
of broadband Streaming Media hosting, distribution and broadcasting
services, at no charge (either to Microsoft or the ICP, and without
applying Network Credits against the value of such services) to each
Broadband Streaming Initiative ICP Participant that Microsoft designates
in its discretion as a participant in the Broadband Streaming Initiative;
provided, however, that such obligation shall not extend beyond the Term
of this Agreement, and the value of such no-charge services in the
aggregate for Broadband Streaming Initiative ICPs will not exceed Two
Hundred Thousand Dollars ($200,000.00) as calculated using the rates
described in Exhibit A. iBEAM will use commercially reasonable efforts to
notify Microsoft in writing at least sixty (60) days before it
anticipates exceeding the foregoing maximum value of the relevant iBEAM
Services.
(b) At Microsoft's request and at no charge to Microsoft or the applicable
Internet Service Providers ("ISPs") and without applying Network Credits
against the value of such services. iBEAM will install copies of the
Microsoft Software and provide its standard level of customer service for
such software during the Term in order to support ISPs which Microsoft
has designated in its discretion to participate in the Broadband
Streaming Initiative. In performing the foregoing obligations, iBeam
shall maintain and comply with separate written agreements with Microsoft
and/or its licensees with respect to installation and support of the
Microsoft Software, and nothing in this Agreement shall be deemed to
authorize iBeam to install and/or support such copies of the Microsoft
Software.
(c) In addition to the obligations of iBEAM under Sections 3.2(a) and (b),
Microsoft shall be entitled to apply its prepaid Network Credits and
thereby obtain iBEAM Services for the benefit of designated ICP
Participants in accordance with this Agreement (including without
limitation Exhibit A). In the event that Microsoft authorizes iBEAM to
provide iBEAM Services that exceed in value (as calculated pursuant to
the terms set forth in Exhibit A) the value of then-existing pre-paid
balance of Network Credits, Microsoft agrees to pay iBEAM for such iBEAM
Services in accordance with iBEAM's then-current pricing to third parties
which are purchasing iBEAM Services in aggregate volumes comparable to
those being purchased by Microsoft in connection with the use of Network
Credits under this Agreement.
3.3 Promotion of Internet Radio Networks. iBEAM agrees to provide highly
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competitive fixed rate pricing for iBEAM Services to radio networks or
stations that iBEAM and Microsoft in
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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their reasonable discretion mutually designate to participate in such
manner in the Broadband Streaming Initiative. Such fixed rate pricing shall
be established at or below a rate that is the lesser of (a) seventy five
percent (75%) of iBEAM's then-applicable list prices and (b) the lowest
price then being provided by iBEAM to customers purchasing such iBEAM
Services in aggregate volumes comparable to those being purchased by
applicable radio networks or stations. iBEAM shall provide such fixed rate
pricing for the first year that each designated radio network or station
participates in this program, provided that such customers enter agreements
with terms equal to or greater than eighteen (18) months and agree to make
commercially reasonable efforts to promote their use of iBEAM's services.
3.4 Publicity. iBEAM will work with Microsoft to develop a mutually agreeable
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press release to be released as soon as possible after the Effective Date,
provided that the text of such release must have been approved in writing
by each party before its release. In such release, iBEAM shall endorse
Windows Media Technologies, and Windows Media Format as being recommended
by iBEAM as its recommended platform and formats for its services and
applications. Further, subject to the limitations set forth in the next
sentence hereof, iBEAM agrees that (a) it will not release or approve any
press releases using its name or descriptions of the iBEAM Services, other
than in conjunction with promotions of Windows Media Technologies as
described above, for [*] before the initial announcement contemplated by
the previous sentence, nor for [*] following such initial announcement, and
(b) at all times during the Term, iBEAM shall not issue or approve press
releases from third parties that are inconsistent with the spirit of this
Section 3.4. Notwithstanding the restrictions set forth in the previous
sentence, iBEAM shall be entitled to perform under any contractual
obligation existing as of the Effective Date which requires iBEAM to
release or approve press releases or making other announcements during the
Term; provided, however, that to the extent iBEAM can comply with such
contractual obligations and also comply with the time limitations set forth
in the previous sentence, it shall do so. During the Term, iBEAM will also
work with Microsoft to develop and release joint press announcements,
provided that the details of each such announcement must have been approved
in writing by each party before it occurs, and iBEAM agrees to provide
Microsoft with reasonably detailed information on iBEAM's use of Microsoft
technology in its iBEAM Web Site for inclusion in a case study which iBEAM
shall be entitled to review and approve. With respect to all approvals
contemplated by this Section 3.4, the parties agree not to unreasonably
withhold or delay such approvals.
3.5 Reporting and Audits. By the tenth (10/th/) day of each calendar month
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during the Term (other than the month in which the Effective Date falls),
iBEAM shall provide a report to Microsoft setting forth the following
information concerning the previous calendar month, to the extent iBEAM's
provision of such information to Microsoft does not conflict with any
obligation of iBEAM to a customer and is reasonably available from iBEAM's
reporting systems (and provided further that if iBEAM's reporting systems
do not enable it to provide any element of such reports, iBEAM will
promptly confer in good faith with Microsoft to pursue possible ways to
enable such reporting systems to provide the requested information):
(a) The URL and number of page views for pages on the iBEAM Web Site or
third party web sites hosted by iBEAM which contain Streaming Media;
(b) The number of referrals of end users from the iBEAM Web Site or third
party web sites hosted by iBEAM to Microsoft's Windows Media Player
download site(s);
(c) Web browsing software share and Streaming Media player share
information for the iBEAM Web Site and third party web sites hosted by
iBEAM; include version information;
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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(d) The number of streams served, including the total number of .wma, .asx
and .asf format files served, by bit rate;
(e) The average length of a user stream for a single connection to the
iBEAM Web Site and third party web sites hosted by iBEAM;
(f) The number of streams of pages with feature/streaming technology; and
(g) The average number of .wma, .wmx, and .asx files on site.
iBEAM shall provide all reports hereunder to Microsoft via Microsoft's web
reporting system located at [*], or any successor thereto.
In the event that iBEAM has failed to provide a report as described in this
Section 3.5 on or before the tenth (10/th/) day of the relevant calendar
month, then Microsoft will be entitled to suspend its performance under
this Agreement (including without limitation its payment obligations under
Section 2.1) until such report has been received. All information provided
pursuant to this Section will be deemed to be Confidential Information of
iBEAM.
3.6 Additional Trademark Use. iBEAM further agrees to use all Windows Media
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Technologies-related logos in accordance with the applicable logo program
requirements established by Microsoft in its sole discretion from time to
time. In the event that iBEAM fails to comply with Microsoft's then-current
logo requirements for participation in the Streaming Media Initiative at
any time during the Term, then Microsoft will be entitled, after providing
iBEAM with notice of breach and an opportunity to cure such breach within
thirty (30) days, to suspend its performance under this Agreement and
terminate this Agreement (including without limitation Microsoft's payment
obligations under Section 2.1) upon further written notice to iBEAM.
3.7 Technology Development and Testing Discussions. iBEAM agrees that upon
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request and subject to the parties' prior mutual written agreement with
respect to applicable intellectual property ownership and licenses, iBEAM
will make its appropriate senior technical personnel available to discuss
architecture and beta release testing matters with Microsoft in relation to
the following areas of mutual interest concerning technology development:
[*]. Microsoft agrees to provide pre-commercial releases of Microsoft
Software as specified under Section 2.4.
3.8 Digital Rights Management Applications. iBEAM intends to implement and
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license Microsoft Digital Rights Management "DRM" technologies and services
in connection with the iBEAM Services, provided, however, that Microsoft
technologies and services can be rejected by iBEAM if it evaluates and in
good faith reasonably deems them not to be commercially competitive with
respect to alternatives in the areas of technology, price, quality, and
delivery timetables, taken as a whole. In the event that any such
technology or service is reasonably deemed not to be competitive, iBEAM
agrees to provide Microsoft a written notice describing in reasonable
detail the reason(s) why the Microsoft offering has been deemed not to be
competitive and the opportunity to discuss and address such shortfalls.
Upon iBEAM's final selection (if any) of Microsoft's DRM technologies and
services, the parties further agree to negotiate in good faith for a
commercially reasonable period concerning the applicable license and
support terms and concerning joint promotional efforts the parties may
engage in with respect to iBEAM's implementation of
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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DRM, and upon entering into any such agreement iBEAM agrees that it will
deploy, describe and promote Microsoft's DRM technologies and services to
prospective and actual customers as its recommended digital rights
management solutions for iBEAM services; provided, however, that iBEAM may
also deploy, describe and promote other digital rights management solutions.
4. Additional Understandings
4.1 Corporate Solutions. Subject to Window Media Technologies being a
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competitively comparable solution to other Streaming Media technologies (as
reasonably determined by iBEAM in good faith based on technology, price,
quality and delivery timetables) iBEAM agrees to promote Microsoft Software
and Windows Media Technologies as its recommended platform and solutions
with respect to all Streaming Media-related services and solutions that
iBEAM may offer to corporate customers (e.g., to support intranets) during
the Term. iBEAM agrees to make good faith efforts to share its product and
sales plans for such marketplace with Microsoft promptly upon their
development. Microsoft acknowledges that all such prospective plans shall be
deemed to be Confidential Information of iBEAM.
4.2 International Service Rollout. iBEAM agrees to use commercially reasonable
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efforts to provide Microsoft [*], subject to the provisions of this Section
4.2, to [*] on then-standard commercial terms to support iBEAM's rollout of
its network and services internationally as part of joint ventures and other
affiliations in which iBEAM does not independently control technology
deployment. In all applicable iBEAM international efforts, iBEAM will
endeavor in good faith to provide Microsoft a [*] in order to implement and
license Microsoft technologies and services as referenced herein, provided,
however, that [*]. iBEAM and its international affiliates may make the final
selection based on its sole discretion in accordance with this paragraph.
4.3 Other Opportunities. iBEAM agrees to notify and offer Microsoft [*], on the
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same basis as described in Section 4.2, with respect to any and all
Streaming Media-related initiatives, applications, services and other
offerings that iBEAM may develop or offer during the Term of this Agreement.
[*]
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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5. Non-Exclusive
Nothing in this Agreement shall be deemed to restrict either party's ability to
license, develop, sub-license, manufacture, deploy, support, promote, or
distribute software, Content, Streaming Media or any other format or technology,
whether or not similar to Windows Media Technologies or any iBEAM Services.
6. Confidentiality
6.1 Each party shall protect the other's Confidential Information from
unauthorized dissemination and use with the same degree of care that such
party uses to protect its own like information and in no event using less
than a reasonable degree of care. Neither party will use the other's
Confidential Information for purposes other than those necessary to
directly further the purposes of this Agreement. Neither party will
disclose to third parties the other's Confidential Information without the
prior written consent of the other party. Except as expressly provided in
this Agreement, no ownership or license rights are granted in any
Confidential Information. The other provisions of this Agreement
notwithstanding, either party will be permitted to disclose the
Confidential Information to their outside legal and financial advisors; and
to the extent required by applicable law, provided however that before
making any such required filing or disclosure, the disclosing party shall
first give written notice of the intended disclosure to the other party,
within a reasonable time from the time disclosure is requested and in any
event prior to the time when disclosure is to be made, and the disclosing
party will exercise best efforts, in cooperation with and at the expense of
the other party, consistent with reasonable time constraints, to obtain
confidential treatment for all non-public and sensitive provisions of this
Agreement, including without limitation dollar amounts and other numerical
information.
6.2 The parties' obligations of confidentiality under this Agreement shall not
be construed to limit either party's right to independently develop or
acquire products without use of the other party's Confidential Information.
Further, either party shall be free to use for any purpose the residuals
resulting from access to or work with such Confidential Information,
provided that such party shall maintain the confidentiality of the
Confidential Information as provided herein. The term "residuals" means
information in non-tangible form, which may be retained by persons who have
had rightful and good faith access to the Confidential Information,
including ideas, concepts, know-how or techniques contained therein.
Neither party shall have any obligation to limit or restrict the assignment
of such persons or to pay royalties for any work resulting from the use of
residuals. However, the foregoing shall not be deemed to grant to either
party a license under the other party's copyrights or patents.
7. Warranties and Disclaimers
7.1 Warranties. Each party warrants and covenants that it has the full power
----------
and authority to enter into and perform according to the terms of this
Agreement.
7.2 DISCLAIMERS. ANY AND ALL SOFTWARE, TECHNOLOGY, SERVICES, CONTENT, OR
-----------
INFORMATION PROVIDED BY EITHER PARTY TO THE OTHER
Microsoft Confidential & Proprietary Page 11
<PAGE>
HEREUNDER IS PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND. EACH PARTY
DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT, WITH RESPECT TO ANY
SOFTWARE, TECHNOLOGY, SERVICES, CONTENT, OR INFORMATION PROVIDED HEREUNDER.
8. Indemnity
8.1 Indemnity. iBEAM shall, at its expense and Microsoft's request, defend
---------
any claim or action brought by a third party against Microsoft, or
Microsoft's affiliates, directors, or officers, to the extent it is based
upon a claim involving the iBEAM Services and/or the iBEAM Web Site,
including without limitation any claim that any iBEAM Services or any
Content included in or uploaded to the iBEAM Web Site infringes or violates
any copyright, patent, trademark, trade secret, right of publicity, or
other intellectual property, proprietary or contractual right of a third
party (all such claims or actions being referred to hereinafter as "iBEAM
Claims"), and iBEAM will indemnify and hold Microsoft harmless from and
against any costs, damages and fees reasonably incurred by Microsoft,
including but not limited to fees of outside attorneys and other
professionals, that are attributable to such iBEAM Claims. Microsoft shall:
(a) provide iBEAM reasonably prompt notice in writing of any such iBEAM
Claims and permit iBEAM, through counsel chosen by iBEAM, to answer and
defend such iBEAM Claims; and (b) provide the entity defending such claim
information, assistance and authority, at such entity's expense, to help
defend such iBEAM Claims. iBEAM will not be responsible for any settlement
made by Microsoft without iBEAM's written permission, which permission will
not be unreasonably withheld or delayed. Reasonable withholding of
permission may be based upon, among other factors, editorial and business
concerns. iBEAM will consult with Microsoft on the choice of any counsel
under this Section 8.1. In the event Microsoft receives any iBEAM Claim or
Microsoft has reason to believe it may be subject to any iBEAM Claim,
Microsoft shall be entitled, upon written notice to iBEAM, to suspend
performance under this Agreement (other than Microsoft's obligations under
Section 2.1) with respect to the applicable iBEAM Services, iBEAM Web Site
or Content thereon until iBEAM has taken steps to Microsoft's satisfaction
in order to address the alleged infringement. If iBEAM does not take
satisfactory steps to address the alleged infringement within fifteen (15)
days after receiving a notice from Microsoft under the foregoing sentence,
then Microsoft in its discretion may terminate this Agreement upon written
notice to iBEAM and such termination shall be deemed to be a termination
for cause for purposes of Section 9.
8.2 Settlement by iBEAM. Unless iBEAM obtains for Microsoft a complete release
-------------------
of all iBEAM Claims thereunder, iBEAM may not settle any iBEAM Claim under
this Section 8 on Microsoft's behalf without first obtaining Microsoft's
written permission, which permission will not be unreasonably withheld or
delayed. Reasonable withholding of permission may be based upon, among
other factors, the ability for Microsoft to ship any product. In the event
iBEAM and Microsoft agree to settle an iBEAM Claim, iBEAM agrees not to
disclose terms of the settlement without first obtaining Microsoft's
written permission, which will not be unreasonably withheld or delayed.
Microsoft Confidential & Proprietary Page 12
<PAGE>
9. Termination
9.1 Termination By Either Party. Either party may suspend performance and/or
---------------------------
terminate this Agreement as expressly provided elsewhere in this Agreement
or:
(a) Immediately upon written notice at any time, if the other party is in
material breach of any material warranty, term, condition or covenant
of this Agreement, other than those contained in Section 6, and fails
to cure that breach within [*] after written notice thereof; or
(b) Immediately upon written notice at any time, if the other party is in
material breach of Section 6.
9.2 Effect of Termination.
---------------------
(a) Neither party shall be liable to the other for damages of any sort
resulting solely from terminating this Agreement in accordance with its
terms.
(b) Termination of this Agreement shall not affect any other agreement
between the parties.
(c) Should either iBEAM or Microsoft terminate for cause pursuant to
Section 8.1, 9.1(a), or 9.1(b), neither party shall have any further
obligations to the other under Sections 2.1-2.9, Section 3.1-3.8, or
Section 4.1-4.3, with the exception that Microsoft shall be entitled in
its discretion either (i) to use, within [*] of such termination, any
Network Credits representing amounts previously paid by Microsoft
under this Agreement which have not been recouped via use of Network
Credits as of the termination of this Agreement; or (ii) to require
iBEAM to refund the portion of the Network Credit Fee Amount then
having been paid by Microsoft and not (as of the termination date)
used to provide iBEAM Services for the parties and purposes specified
in Section 2.1 and Exhibit A, provided that in no event shall iBEAM
be obligated to refund more than [*] of the total Network Credit Fee
Amount paid to iBEAM by Microsoft during the twelve (12) months prior
to Termination. Without limiting the generality of the foregoing,
Microsoft will have no obligation following termination of this
Agreement to make any additional payments or provide any further
services to iBEAM under Section 2 of this Agreement.
9.3 Survival. In the event of termination or expiration of this Agreement for
--------
any reason, Sections 1, 2.9, and 5-11 shall survive termination and
continue in effect in accordance with their terms.
10. Limitation Of Liabilities
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT,
INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF
BUSINESS INFORMATION, AND THE LIKE,
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
Microsoft Confidential & Proprietary Page 13
<PAGE>
ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE MICROSOFT
SOFTWARE OR EITHER PARTY'S CONFIDENTIAL INFORMATION, CONTENT, OR SERVICES, EVEN
IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THIS SECTION SHALL NOT APPLY TO SECTION 6 (REGARDING CONFIDENTIALITY), NOR TO
iBEAM'S INDEMNITY OBLIGATIONS WITH RESPECT TO THIRD PARTY CLAIMS AS PROVIDED IN
SECTION 8 OF THIS AGREEMENT.
11. General Provisions
11.1 Notices. All notices and requests in connection with this Agreement shall
-------
be deemed given as of the day they are received either by messenger,
delivery service, or in the United States of America mails, postage
prepaid, certified or registered, return receipt requested. Any such
notices to iBEAM should be sent to the address set forth in the Initial
Definitions Table on the first page of this Agreement, and sent to the
attention of the iBEAM Contact named in such Initial Definitions Table. Any
such notices to Microsoft should be addressed as follows:
--------------------------------------------------
Address:
--------------------------------------------------
Microsoft Corporation
One Microsoft Way
Redmond, WA 98052-6399
Attention: Patty Jackson
--------------------------------------------------
Phone: (425)882-8080
--------------------------------------------------
Fax: (425)936-7329
--------------------------------------------------
Copy to: Law and Corporate Affairs
--------------------------------------------------
Microsoft Corporation
One Microsoft Way
Redmond, WA 98052-6399
Attention: Law & Corporate Affairs
--------------------------------------------------
Phone: (425)882-8080
--------------------------------------------------
Fax: (425)936-7409
--------------------------------------------------
or to such other address as a party may designate pursuant to this notice
provision.
11.2 Independent Parties. Nothing in this Agreement shall be construed as
-------------------
creating an employer-employee relationship, an agency relationship, a
partnership, or a joint venture between the parties.
11.3 Governing Law. This Agreement will be governed by the laws of the State of
-------------
Washington, without reference to the conflict of law principles thereof.
Any action or litigation concerning this Agreement will take place
exclusively in the federal or state courts in King County, Washington, and
the parties expressly consent to jurisdiction of and venue in such courts
and waive all defenses of lack of personal jurisdiction and forum non
conveniens
Microsoft Confidential & Proprietary Page 14
<PAGE>
with respect to such courts. iBEAM hereby agrees to service of process by
mail or other method acceptable under the laws of the State of Washington.
11.4 Attorneys' Fees. 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.
11.5 Assignment. This Agreement and any rights or obligations hereunder may not
----------
be assigned by iBEAM (including without limitation via merger, stock
purchase, a sale of substantially all assets, or otherwise by operation of
law) without Microsoft's prior written approval which shall not be
unreasonably withheld or delayed. Notwithstanding the foregoing, iBEAM may
assign this Agreement in its entirety as part of a change in control of
iBEAM, provided that the assignee is not a software platform provider
(e.g., and without limitation, [*]) and does not develop and license
Streaming Media technologies or platforms (e.g., and without limitation
[*]); the parties further agree that it shall be deemed reasonable for
Microsoft to elect in its discretion not to approve a proposed assignment
to a software platform provider or a developer/licensor of Streaming Media
technologies or platforms. Any attempted assignment, sub-license, transfer,
encumbrance or other disposal by iBEAM which requires Microsoft's approval
and which has not been so approved will be void and will constitute a
material default and breach of this Agreement for which Microsoft may
terminate this Agreement in accordance with Section 9.1. Except as
otherwise provided, this Agreement will be binding upon and inure to the
benefit of the parties' successors and lawful assigns.
11.6 Force Majeure. Neither party shall be liable to the other under this
-------------
Agreement for any delay or failure to perform its obligations under this
Agreement if such delay or failure arises from any cause(s) beyond such
party's reasonable control, including by way of example labor disputes,
strikes, acts of God, floods, fire, lightning, utility or communications
failures, earthquakes, vandalism, war, acts of terrorism, riots,
insurrections, embargoes, or laws, regulations or orders of any
governmental entity.
11.7 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.
11.8 Entire Agreement. This Agreement does not constitute an offer by Microsoft
----------------
and it shall not be effective until signed by both parties. This Agreement
constitutes the entire agreement between the parties with respect to the
subject matter hereof and merges all prior and contemporaneous
communications. It shall not be modified except by a written agreement
dated subsequent to the date of this Agreement and signed on behalf of
iBEAM and Microsoft by their respective duly authorized representatives.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
Effective Date written above.
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
Microsoft Confidential & Proprietary Page 15
<PAGE>
------------------------------------------------------------------------------
MICROSOFT CORPORATION IBEAM BROADCASTING
CORPORATION
------------------------------------------------------------------------------
By: /s/ William Poole By: /s/ Chris Dier
------------------------------------------------------------------------------
Name (print): William Poole Name (print): Chris Dier
------------------------------------------------------------------------------
Title: General Manager Title: C.F.O.
------------------------------------------------------------------------------
Date: 9/22/99 Date: 9/20/99
------------------------------------------------------------------------------
Microsoft Confidential & Proprietary Page 16
<PAGE>
EXHIBIT A
IBEAM SERVICES GUIDELINES
1. Approval of Program Participants
--------------------------------
Microsoft shall have sole discretion regarding the designation of Broadband
Streaming Initiative ICP Participants and allocation of Network Credits for use
by such entities and/or Microsoft's internal use under this Agreement.
Microsoft shall make reasonable efforts to provide Network Credits to customers
and programs that iBEAM recommends for the Broadband Streaming Initiative. In
no event shall iBEAM provide any Microsoft Confidential Information to any
customer or prospective customer except with Microsoft's express written
approval. Microsoft shall notify iBEAM from time to time in writing of approved
Broadband Streaming Initiative ICP Participants, the particular iBEAM Services
to be used by each such entity pursuant to this Agreement, and the approved
allocation of Network Credits among such entities and Microsoft (if applicable).
Microsoft and iBEAM will cooperate in good faith following the Effective Date to
develop and implement operational procedures, including prior approvals for
sales programs, to coordinate the use of Network Credits in accordance with this
Agreement.
2. Terms of Service
----------------
Notwithstanding anything to the contrary in the foregoing paragraph, the
relationship between iBEAM and any Broadband Streaming Initiative ICP
Participant shall be separate from iBEAM's relationship with Microsoft and iBEAM
shall have the right to choose, in its sole discretion, not to do business with
any Broadband Streaming Initiative ICP Participant. iBEAM shall enter into a
separate agreement, in a timely manner, with each Broadband Streaming Initiative
ICP Participant to which iBEAM intends to provide iBEAM Services pursuant to
this Agreement, and iBEAM shall perform all such iBEAM Services in a manner as
mutually agreed upon by iBEAM and each such Broadband Streaming Initiative ICP
Participant. iBEAM shall be solely responsible for all services it provides to
Broadband Streaming Initiative ICP Participants, including without limitation
the iBEAM Services, and for enforcing the terms of any services or other
agreements it enters into with Broadband Streaming Initiative ICP Participants.
At Microsoft's sole discretion, iBEAM may perform iBEAM Services for
Microsoft acting on behalf of a Broadband Streaming Initiative ICP Participant,
in which event such provision of iBEAM Services shall be subject to the terms of
this Agreement and any further services agreement that Microsoft and iBEAM may
mutually agree upon.
3. Rate Schedule
-------------
In applying Network Credits under this Agreement for Microsoft's internal
use or provision to Broadband Streaming Initiative ICP Participants, iBEAM will
calculate use of Network Credits on the basis of the lower of (a) a discount of
twenty percent (20%) from iBEAM's then-current list rates for iBEAM Services;
and (b) any more favorable rate charged by iBEAM from time to time to any other
customer which is purchasing iBEAM Services in aggregate volumes that are
comparable to those being purchased by Microsoft in connection with this
Agreement. Net Credits consumed by iBEAM customers shall be in accordance with
terms mutually approved by Microsoft and iBEAM and included in the operational
procedures specified in paragraph 1 above.
Microsoft Confidential & Proprietary Page 17
<PAGE>
EXHIBIT B
Get Windows Media(TM) player
Link Logo Guidelines
Get Windows Media(TM) Player logo usage instructions
----------------------------------------------------
To put the logo and link on your Web site, follow these easy steps:
1. Read our policy below on using the Get Windows Media Player logo.
2. Copy the Get Windows Media Player logo.gif file image to your desktop.
[ICON APPEARS HERE]
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)
(A HREF="http://www.microsoft.com/windows/mediaplayer/download/default.
asp")
(IMG SRC="type path to logo image here" WIDTH="65"
HEIGHT="57" BORDER="0"
ALT="Get Windows Media Player" VSPACE="7")(/A)
(/CENTER)(BR)
5. You can modify this HTML code to fit your formatting as long as you follow
the guidelines outlined below.
Get Windows Media(TM) Player logo usage guidelines
--------------------------------------------------
1. Except as Microsoft may authorize elsewhere, non-Microsoft Web sites may
display only the Get Windows Media(YM) Player logo provided above ("Logo").
By downloading the Logo to your Web site, you agree to be bound by these
Policies.
2. You may only display the Logo on your Web site, and not in any other manner.
It must always be an active link to the download page for the Windows Media
Player at http://www.microsoft.com/windows/mediaplayer/download/default.asp.
3. The Logo GIF image includes the words "Get Windows Media Player" describing
the significance of the Logo on your site (that the Logo is a link to the
download page for the Microsoft Windows Media Player, not an endorsement of
your site). You may not remove or alter any element of the Logo.
4. The Logo may be displayed only on Web pages that make accurate references to
Microsoft or its products or services or as otherwise authorized by
Microsoft. Your Web page title and other trademarks and logos must appear at
least as prominently as the Logo. You may not display the Logo in any manner
that implies sponsorship, endorsement, or license by Microsoft except as
expressly authorized by Microsoft.
5. The Logo must appear by itself, with a minimum spacing (30 pixels) between
each side of the Logo and other distinctive graphic or textual elements on
your page. The Logo may not be displayed as a feature or design element of
any other logo.
6. You may not alter the Logo in any manner, including size, proportions,
colors, elements, or animate, morph, or otherwise distort its perspective or
appearance, except in the event expressly authorized by Microsoft.
Microsoft Confidential & Proprietary Page 18
<PAGE>
7. You may not display the Logo on any site that infringes any Microsoft
intellectual property or other rights, or violates any state, federal, or
international law.
8. These Policies do not grant a license or any other right to Microsoft's
logos or trademarks. Microsoft reserves the right at its sole discretion to
terminate or modify permission to display the Logo at any time. Microsoft
reserves the right to take action against any use that does not conform to
these Policies, infringes any Microsoft intellectual property or other
right, or violates other applicable law.
9. MICROSOFT DISCLAIMS ANY WARRANTIES THAT MAY BE EXPRESS OR IMPLIED BY LAW
REGARDING THE LOGO, INCLUDING WARRANTIES AGAINST INFRINGEMENT.
(C)1999 Microsoft Corporation. All rights reserved. Terms of Use.
Microsoft Confidential & Proprietary Page 19