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Exhibit 10.8
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
STRATEGIC ALLIANCE AND MASTER SERVICES AGREEMENT
BY AND BETWEEN
AKAMAI TECHNOLOGIES, INC.
000 XXXXXXXX
XXXXXXXXX, XXXXXXXXXXXXX, X.X.X. 00000
PHONE: 000-000-0000
FAX: 000-000-0000
("AKAMAI")
AND
APPLE COMPUTER, INC.
0 XXXXXXXX XXXX
XXXXXXXXX, XXXXXXXXXX, X.X.X. 00000
PHONE: (000) 000-0000
FAX: (000) 000-0000
("APPLE")
APPLE CONTACT AKAMAI CONTACT
Name: [**] Name: Xxxx Xxxxx
Title: [**] Title: President and
Chief Operating Officer
Phone: [**] Phone: (000) 000-0000
Fax: Fax: (000) 000-0000
Email: [**] Email: xxxx@xxxxxx.xxx
APPLE CONTACT FOR NOTICES AKAMAI CONTACT FOR NOTICES
Name: Xxxxx Xxxxxx, Esq. Name: Controller,
Title: General Counsel Akamai Technologies, Inc.
Address: 1 Infinite Loop, Cupertino, Address: 000 Xxxxxxxx, Xxxxxxxxx,
Xxxxxxxxxx, X.X.X. 00000 Xxxxxxxxxxxxx, X.X.X. 00000
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Akamai/Apple Proprietary and Confidential
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STRATEGIC ALLIANCE AND MASTER SERVICES AGREEMENT
This STRATEGIC ALLIANCE AND MASTER SERVICES AGREEMENT,
consisting of the terms and conditions set forth below and the attached
schedules, each of which is incorporated into and made a part hereof by this
reference (the "Agreement"), is entered into by and between AKAMAI TECHNOLOGIES,
INC., a Delaware corporation ("Akamai"), having its principal place of business
as set forth on the cover page of this Agreement, and APPLE COMPUTER, INC., a
California corporation ("Apple"), having its principal place of business as set
forth on the cover page of this Agreement, effective as of April 1, 1999 (the
"Effective Date").
BACKGROUND
Akamai has developed proprietary technology to efficiently deliver
content over the Internet, and is in the business of providing services
including the distribution of such content. To support such services, Akamai has
deployed a worldwide network dedicated to web content distribution.
Apple owns and distributes QuickTime technology, which includes
software and a format that facilitates the distribution of audio, video, sound,
music, 3D, virtual reality and other multimedia content, including streaming
media, over the Internet and other computer networks (today known as QuickTime 4
and with any later versions or releases, "QuickTime"). Part of Apple's QuickTime
technology consists of software for playback of content in the QuickTime format
(currently and with any later versions or releases, "QuickTime Player"). Apple
is in the process of developing and deploying a service currently offered under
the name "QuickTime TV" intended principally for transmitting over the Internet
through computer networks owned or operated by or for Apple live streams of
multimedia content in QuickTime format (today and as may be later renamed
"QT-TV").
Akamai and Apple desire to enter into this Agreement whereby Apple and
Akamai will work together to optimize the Akamai Network (as defined below) to
make publicly available streaming media content in the QuickTime format over
QT-TV and otherwise as provided in this Agreement to ensure that the optimal
server will be chosen to deliver the best performance to customers/users of
QT-TV and Apple Content. Akamai will provide to Apple certain web content
distribution and network communications services to facilitate the deployment of
QT-TV and the serving of streaming media content in the QuickTime format, all on
the terms and subject to the conditions set forth below.
Akamai/Apple Proprietary and Confidential
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Akamai and Apple agree
as follows:
1. AKAMAI SERVICES AND OBLIGATIONS.
1.1 FREEFLOW SERVICES. Pursuant to the terms and subject to the
conditions of this Agreement, Akamai shall provide to Apple during the Term (as
defined in Section 10.1), the services ordered by Apple as set forth on the
attached SCHEDULE A: FREEFLOW(sm) ORDER FORM, in accordance with the description
thereof in the attached SCHEDULE B, FREEFLOW SERVICE SCHEDULE (the "FreeFlow
Services") for use in connection with deployment of QT-TV and in support of the
distribution of other Apple Content (as defined in Section 2.1) over the
Internet.
1.2 EXCLUSIVITY.
1.2.1 TERM. During the period commencing on the later of (a)[**]; or (b)[**];
and ending on [**], unless earlier terminated in accordance with this
Agreement (the "Exclusivity Period"), [**] shall not [**] to the [**]
for use by [**] as QT-TV ("QT-TV Content"), where [**] provided by [**]
but such restriction shall not apply to the [**] (whether [**] or not)
for the [**] where [**] is by a [**].
1.2.2 CONDITIONS. The Exclusivity Period will continue [**]
(i) Akamai is in default of any of its obligations under the Agreement, and
such default has not been cured within the cure period set forth in
Section 10.2 hereof.
(ii) Any event allowing termination by Apple under Section 10 occurs.
(iii) A notice of intent to cease offering the FreeFlow Services has been
given by Akamai under Section 10.4.
(iv) Akamai undergoes a Change of Control. For purposes of this Agreement, a
"Change of Control" means any transaction (or series of related
transactions) that would occasion: (a) Akamai's sale or lease of all or
substantially all of its assets to another unaffiliated entity; or (b)
any merger or consolidation resulting in the exchange of the
outstanding shares of Akamai for securities or consideration issued, or
caused to be issued, by the acquiring corporation or its subsidiary,
unless the stockholders of Akamai as of the date prior to the closing
date of such transaction (or series of related transactions) hold at
least 50% of the voting power
Akamai/Apple Proprietary and Confidential
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
of the surviving corporation in such a transaction.
(v) Akamai does not meet service levels (as described in Section 1.3 and
SCHEDULE C) whereby Outages are [**] in duration for [**]
If an event described in Section 1.2.2 occurs, the provisions
of this Section 1.2 will immediately cease in effect and Apple
may [**]
1.2.3 TERMINATION OF EXCLUSIVITY. Upon a Change of Control to [**], or any
successor in interest to the assets or business of [**] as applicable,
[**] with the termination of exclusivity. Upon a Change of Control [**]
exclusivity under Section 1.2 shall terminate [**] if assignment of
this Agreement to such entity is approved by Apple under Section 14.3.
1.2.4 SCALABILITY: If at any time [**] the FreeFlow Services used or
requested by Apple in accordance with Section 1.3, 1.4, 1.5 or 1.6
hereof [**] Apple may [**] of this Section 1.2 for the [**] under
Section 7.3. Once Akamai is able to [**] the required FreeFlow
Services, then the [**] period set forth in Section 1.2.1. These rights
are available to Apple in addition to and independent of the right to
terminate exclusivity as set forth in Section 1.2.2. In the event of
[**] the necessary FreeFlow Services [**] Apple shall have the [**] of
the event [**]. The [**] to accommodate the [**] under Section 7.3. If
at any time Akamai [**] any portion of the FreeFlow Services requested
by Apple in accordance with the performance criteria described in
Section 1.6, Apple may [**] that Akamai does [**] without any penalty
or breach of this Section 1.2.
1.3 NETWORK AVAILABILITY AND OPERATIONS. Akamai shall provide, maintain and
operate, at its own cost, on a twenty-four hours per day, seven days per week,
365 days per year basis, a geographically distributed network of proprietary web
servers (the "Akamai Network"), all network software and peripherals, and all
Internet connectivity in support of QT-TV and Apple Content (as defined below),
as required to provide the FreeFlow Services in accordance with this Agreement.
Outages, service interruptions, uptime and other performance metrics will be
governed by the service level commitments and credits terms in Schedule C:
Service Level Commitments and Credits. Akamai shall staff its Network Operating
Center ("NOC") twenty-four hours per day, seven days per week, 365 days per year
with at least that number of appropriately trained employees sufficient to
adequately perform its services under this Agreement.
Akamai/Apple Proprietary and Confidential
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
1.4 ACCESS TO AKAMAI NETWORK; UPDATES; INSTALLATION AND TRAINING. On or before
the Effective Date, Akamai shall deliver to Apple one copy of the Akamai
Software (as defined in Section 4.1), and the related Documentation (as defined
in Section 4.1) together with all user IDs and passwords as necessary for Apple
to access the Akamai Network and utilize the FreeFlow Services. In addition,
Akamai shall provide to Apple during the Term [**], maintenance for the Akamai
Software and deliver to Apply one copy of any update, new version, upgrade or
other revision of the Akamai Software (along with related Documentation) that
Akamai makes available to customers during the Term. Akamai shall, [**], (a)
install the Akamai Software on a machine designated by Apple, and (b) provide
qualified Apple personnel a reasonable amount of training in the use of the
Akamai Software and the FreeFlow Services.
1.5 NETWORK SECURITY. Akamai shall keep in place and in operation at all times
network security as specified in SCHEDULE D: NETWORK SECURITY PROTOCOLS to
monitor and protect against unauthorized access to Apple Content (as defined in
Section 2.1) while on, within or passing through the Akamai Network. Apple
acknowledges, however, that the portion of the Akamai Network through which
Apple Content will pass and the web servers on which Apple Content will be
stored will not be segregated or in a separate physical location from web
servers on which Akamai's other customers' content is or will be transmitted or
stored. Akamai will notify Apple immediately in the event of any breach of
network security that affects or may affect Apple Content and describe the steps
Akamai is taking to correct and prevent a similar situation from occurring
again.
1.6 NETWORK CAPACITY. Akamai shall maintain at all times during the Term
adequate capacity on the Akamai Network as necessary to meet Apple's minimum
estimated network usage as described in Section 7.3, as well as the anticipated
network usage by other Akamai customers. Akamai shall use reasonable efforts to
deploy Akamai servers on network backbones [**] (such as, and by way of
illustration only,[**]), subject to Apple making reasonable efforts to assist
Akamai to obtain access to such backbones on commercially reasonable terms and
conditions. Subject to Apple's performance of its obligations under Section 2
below, Akamai shall, at the time of the [**] by Apple (on or about [**]), cause
the Akamai Network to have the capacity to serve [**] users at an average rate
of [**]second on a continuous basis, and within [**] date (anticipated to be on
or about [**]), cause the Akamai Network to have the capacity to support [**]
users at an average rate of [**] second on [**] basis. The Akamai Network will
remain geographically distributed, and Akamai shall provide to Apple [**] of the
Akamai Network [**] shall be [**] Akamai shall also promptly notify Apple in the
event of [**] Without limiting the above, to support Apple's worldwide
customers, on or before [**] Akamai will locate Akamai Network [**].
Akamai/Apple Proprietary and Confidential
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
1.7 ADDITIONAL SERVICES. Akamai shall provide Apple with such installation,
support, training or other additional services relating to distributing media
content over the Internet as may be requested by Apple from time to time during
the Term and set forth in a separate schedule or addendum agreed to and executed
by both parties.
2. APPLE RESPONSIBILITIES AND OBLIGATIONS.
2.1 APPLE CONTENT. As between the parties, Apple will be solely responsible for
the creation, renewal, updating, deletion, editorial content, control and all
other aspects of any files, software, scripts, multimedia images, graphics,
audio, video, text, or other [**] any web site owned or operated by Apple and
routed to, passed through and/or stored on or within the Akamai Network or
otherwise transmitted or routed using the Free Flow Services ("Apple Content")
provided that Apple shall not be responsible for or have any obligation [**] for
[**] Apple Content that result from [**] such content [**].
2.2 TAGGING OF APPLE CONTENT. Apple will be responsible for utilizing the
RENAME(sm) module of the Akamai Software to tag/rename the uniform resource
locator ("URL") of the Apple Content to route such Apple Content to the Akamai
Network. In the event Apple has actual knowledge that any Apple Content
infringes the intellectual property or other rights of a third party or violates
any applicable laws or regulations (including, without limitation, laws and
regulations relating to indecency or obscenity), Apple shall use commercially
reasonable efforts to remove such Apple Content from Apple's origin server
and/or remove the RENAME(sm) URL/tag from such Apple Content so that it will not
be routed to and not pass through the Akamai Network.
2.3 MAINTAIN QT-TV AND APPLE CONTENT. As between the parties, Apple will be
solely responsible for maintaining the availability of QT-TV, any web site(s)
that serve Apple Content, the connectivity of QT-TV and such web site(s) to the
Internet, the hosting of all Apple Content on Apple's computer servers, as well
as all IP addresses, domain names and other elements that Apple deems necessary
to operate and maintain QT-TV and to serve Apple Content.
3. ADDITIONAL AGREEMENTS OF THE PARTIES.
3.1 [**] QT-TV. [**] Akamai agrees to provide a reasonable amount of [**]
assistance to Apple to assist in Apple's [**] performance of QT-TV and to enable
Apple to develop [**] source suppliers and providers to QT-TV.
Akamai/Apple Proprietary and Confidential
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
3.2 ENHANCEMENTS TO AKAMAI NETWORK'S ABILITY TO SERVE QUICKTIME. The parties
agree to cooperate to monitor and enhance the performance of QuickTime on the
Akamai Network as follows:
3.2.1 Akamai shall provide to Apple, subject to the restrictions and
limitations set forth herein and in Section 4 below, [**], certain [**]
which will provide [**] information helpful to [**] the Akamai
Network's ability to [**]. Apple agrees to evaluate the [**] after
delivery of [**] and related documentation for possible inclusion of
the [**], in order to determine whether [**] (i) provides meaningful
[**] information relative to the ability of the Akamai Network to [**],
and (ii) does not [**]. In the event Apple [**] it will notify Akamai
of its reasons [**] and provide Akamai an opportunity to [**] by Apple
in the [**]. In the event Apple elects [**] Akamai hereby grants to
Apple the perpetual, irrevocable royalty-free, non-exclusive license to
[**] to prepare [**] and to distribute, [**] created by Apple under
this Section 3.2.1, [**]. Apple will notify Akamai of, and provide
Akamai an opportunity to [**]. All Akamai [**] disclosed to Apple shall
be considered "Confidential Information" as defined in Section 9 below.
3.2.2 Apple hereby grants to Akamai, [**] subject to the terms and conditions
of this Agreement, [**], in accordance with the terms of [**], unless
otherwise specified in this Agreement; and (b) such [**] deems
necessary [**] each solely for the purpose of enhancing and optimizing
the Akamai Network's ability to serve QT-TV and Apple Content. All [**]
disclosed to Akamai by Apple shall be considered "Confidential
Information" of Apple as defined in Section 9 below, and without
limiting Section 9, Akamai shall not, for itself or any affiliate of
Akamai or any third party, (i) disclose the [**] to any third party,
(ii) alter or duplicate any aspect of the [**], except as expressly
permitted under this Agreement or remove any proprietary markings or
notices thereon or therein, (iii) assign, transfer, distribute, or
otherwise provide access to the [**] to any third party, or (iv) copy,
sell, license, assign or transfer the [**]. In the event Akamai
undergoes a Change of Control (as defined in Section 1.2.2(v)), Akamai
shall immediately [**] or at Apple's option [**].
3.3 [**]. Each party shall use commercially reasonable efforts and provide
sufficient resources, at its own expense, to [**] specified by Akamai within the
Akamai Network (the results thereof, the "[**]"). Each party agrees to require
that all employees and independent contractors participating in this endeavor
sign or otherwise have in effect such confidentiality and ownership/invention
assignment agreements as may be reasonably required by either party. Such [**]
will be deemed complete only when the parties have had an opportunity to [**]
and have reasonably determined that the [**].
Akamai/Apple Proprietary and Confidential
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
3.4 [**]; OTHER APPLICATIONS. It is understood and acknowledged that QT-TV -
currently [**]. The parties shall, as may be mutually agreed from time to time,
explore the possibility of [**] development at a later date. Any such
development will be pursuant to a separate written agreement.
3.5 USAGE FORECASTS. The parties agree to discuss on a periodic basis (no less
often than quarterly) the forecast of the advisable Akamai Network capacity and
anticipated overall usage of Akamai resources by Apple.
3.6 [**] QT-TV. The following provisions will apply [**] as contemplated under
Section 3.3 above.
3.6.1 In the event that, during the Term: (x) Apple [**] that has outstanding
capital stock or its equivalent ("Capital Stock") (including any
securities convertible into or exchangeable for capital stock or its
equivalent) held by any person or entity (a "Third Party")[**] (ii) a
person or entity that [**] prior to such transaction or (iii) an [**]
or, prior to [**] such Entity,[**] for consideration to any Third Party
any shares of Capital Stock of such Entity (each, a "[**]"); or (y) any
Entity to which [**] subsequently issues for consideration Capital
Stock (including any securities convertible into or exchangeable for
capital stock or its equivalent, "New Securities") (a [**]), provided
there is no outstanding [**] hereunder at the time [**] to engage in a
Qualifying Transfer or Qualifying Issuance, [**] shall have, in
connection with the first such Qualifying Transfer or Qualifying
Issuance, the [**] [**] (the [**] the outstanding Capital Stock, on a
fully diluted basis assuming full exercise of all outstanding
securities which are convertible into or exchangeable for Capital Stock
(including any New Securities issued in connection with such Qualifying
Issuance), of such Entity,[**] Capital Stock equal to the [**] Capital
Stock [**] in such Qualifying Transfer or Qualifying Issuance;
provided, that the Prior Right shall not apply to (1) any [**] Capital
Stock of the Entity by the Entity, [**] or any other person controlling
the Entity or (2) any transaction in which [**] in the Entity or any
other person controlling the Entity. The Prior Right shall not apply
to, and this Section 3.6 grants [**] to participate [**] that do not
constitute a [**] computer networks owned or operated by or for [**].
3.6.2 [**] shall (or shall cause the Entity to) [**] the terms or the
proposed terms of the Qualifying Transfer or Qualifying Issuance, which
notice shall set forth, in reasonable detail, the terms or proposed
terms of such Qualifying Transfer or Qualifying Issuance, the [**] for
which the [**] such Prior Right as to all the shares of Capital Stock
available [**] such Prior Right pursuant to the [**] (or the Entity,
Akamai/Apple Proprietary and Confidential
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
if the [**] was issued by the Entity) [**] after receipt of the [**]
Prior Right. If [**] Prior Right or fails to provide notice within such
[**] and the Entity shall have up to [**] from the date of the [**] to
complete the Qualifying Transfer or Qualifying Issuance upon the same
terms specified in the [**] whereupon [**]. If [**] the Entity [**] of
the Qualifying Transfer or Qualifying Issuance in any material respect,
[**] the Entity shall [**] of the revised terms of such proposed
transaction by delivery of [**] pursuant to the procedure set forth
above. In the event that [**] or the Entity and are [**] will provide a
[**] therefor and provide [**] for the [**] of the [**] other than
[**].
3.6.3 The obligations of this Section 3.6 [**] in the event (i) the [**] or
(ii)[**]. [**] under this Section 3.6 [**] any termination of this
Agreement.
3.7 FREEDOM OF ACTION. Except for the right to audit described in Section 7.5
below and any rights Apple (directly or through its subsidiary Apple Computer
Inc. Ltd.) may have under the Stock Purchase Agreement and related agreements
executed concurrent herewith or as a consequence of its acquisition of any
securities of Akamai, Apple shall have no right to have access to any of
Akamai's proprietary business information except as otherwise contemplated by
this Agreement, or to share in any revenues from any of Akamai's agreements,
arrangements or relationships, and Akamai shall be free to support and provide
services to any and all competitors to Apple, QuickTime and QT-TV, and to
support third parties in the distribution of streaming media in QuickTime and
all other formats, and to retain any and all revenues and relationships
resulting therefrom.
4. AKAMAI SOFTWARE; RESTRICTIONS.
4.1 LICENSE OF AKAMAI SOFTWARE. Akamai grants [**] to Apple a limited,
worldwide, nontransferable and nonexclusive license to use, during, the
Term,[**], the GeoFlow(sm) software and the RENAME(sm) software as more fully
described in SCHEDULE E: AKAMAI SOFTWARE (collectively, and together with any
updates, new versions, upgrades or other revisions thereof made available by
Akamai during the Term and all related documentation, the "Akamai Software"), in
object code form only (except as provided in Section 3.2.1 as to the [**],
subject to the restrictions set forth below.
4.2 LICENSE RESTRICTIONS. Apple's use of the Akamai Software is limited as
follows:
4.2.1 Apple shall use the RENAME(sm) software solely for the purpose of
renaming the URL of Apple Content;
Akamai/Apple Proprietary and Confidential
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
4.2.2 Apple shall use the GeoFlow(sm) software for Apple's internal purposes
only, solely in conjunction with and for the purpose of (i) analyzing
the flow of Apple Content that is delivered using the FreeFlow
Services, and (ii)[**] as described in Section 3.1.
4.2.3 Apple acknowledges that Akamai has advised it that the GeoFlow(sm)
software contains certain third party software elements, including
without limitation software relating to the GeoFlow(sm) mapping
functions, and Apple agrees with respect to such elements that are
specifically identified in SCHEDULE F, Apple shall be prohibited from
replicating or distributing such mapping images or otherwise using the
same other than for Apple's internal business purposes.
4.2.4 Apple shall not, for itself, any affiliate of Apple or any third party:
sell, license, assign, or transfer the Akamai Software or any
Documentation; decompile, disassemble, or reverse engineer the Akamai
Software; copy the Akamai Software or any Documentation (except that
Apple may make a reasonable number of copies of the Akamai Software for
backup purposes only); or remove from the Akamai Software or any
Documentation any notice of the confidential nature thereof or the
proprietary rights of Akamai or its suppliers in such items.
4.3 ADDITIONAL APPLE RESTRICTIONS. Apple shall not: (a) provide access to the
Akamai Software to any third party; or (b) export, re-export or permit any third
party to export or re-export the Akamai Software or Documentation outside of the
territorial limits of the country in which it was originally delivered without
appropriate licenses and clearances.
4.4 ESCROW. Within [**] after the Effective Date, the parties shall enter into a
[**] reasonably acceptable to both parties, pursuant to which [**] that are
[**]. Akamai shall [**] to the [**] that it is required to [**] under this
Agreement, [**]. In the event of a [**], Akamai agrees to grant, and does hereby
grant to Apple, the [**] the [**] for the [**] thereof and to [**] and to [**]
only, for the limited purpose of [**] in a manner consistent with the manner in
which [**] under this Agreement and any [**]; provided that [**] such rights
only in the event of [**] pursuant to such [**] agreement. [**] agreement will
provide that the [**] upon the occurrence of any one or more of the following
events:
a. [**] business in the ordinary course, makes an [**] appointed
[**] or makes a [**] similar law; and
b. [**] its right to [**] under Section 7.4.2.
Akamai/Apple Proprietary and Confidential
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
5. INTELLECTUAL PROPERTY RIGHTS.
5.1 QUICKTIME TECHNOLOGY AND APPLE CONTENT; LIMITED LICENSE TO USE. As between
Apple and Akamai, Apple (or its suppliers or licensors) shall retain all right,
title and interest in and to QT-TV, QuickTime, [**], and any and all
enhancements, improvements, bug fixes, updates and upgrades thereto developed by
or as a result of this Agreement (hereinafter collectively referred to as the
"QuickTime Technology") and any Apple Content. Apple hereby grants to Akamai a
limited non-exclusive, non-transferable license during the Term to use the
QuickTime Technology and Apple Content solely as necessary to perform Akamai's
obligations hereunder. Akamai may not assign, transfer, sell, license,
sublicense or grant any of its rights to the QuickTime Technology or any Apple
Content to any other person or entity. Akamai acknowledges that the QuickTime
Technology and Apple Content constitutes proprietary information and/or trade
secrets of Apple or its providers that is or may be protected by U.S. copyright,
trade secret and similar laws and certain international treaty provisions. This
Agreement does not transfer or convey to Akamai or any third party any right,
title or interest in or to the QuickTime Technology or any Apple Content or any
associated intellectual property rights, except as specifically set forth in the
terms of this Agreement.
5.2 AKAMAI SOFTWARE, DOCUMENTATION AND FREEFLOW SERVICES. As between Apple and
Akamai, Akamai (or its suppliers or licensors) shall own all right, title and
interest in and to the Akamai Software and Documentation (and any and all
enhancements, improvements, bug fixes, updates and upgrades thereto), the
FreeFlow Services, and the Akamai Network. Apple acknowledges that the Akamai
Software, Documentation, FreeFlow Services, and Akamai Network constitute
proprietary information and trade secrets of Akamai or its suppliers or
licensors and that the Akamai Software and any and all enhancements,
improvements, bug fixes, updates and upgrades thereto developed by or as a
result of this Agreement, and Documentation therefor are protected by U.S.
copyright, trade secret and similar laws and certain international treaty
provisions. This Agreement does not transfer or convey to Apple or any third
party any right, title or interest in or to the Akamai Software, Documentation,
FreeFlow Services, or Akamai Network or any associated intellectual property
rights, except as specifically set forth in the terms of this Agreement.
5.3 DEVELOPMENT OF INTELLECTUAL PROPERTY.
5.3.1 ASSIGNMENT. Akamai acknowledges that except as the parties may
otherwise agree by separate written agreement, all copyrightable
material, notes, records, drawings, designs, inventions, improvements,
developments, discoveries and trade secrets conceived, made or
discovered by Akamai, solely or in collaboration
Akamai/Apple Proprietary and Confidential
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with others, in the course of the development activities contemplated
under Sections 3.1, 3.2.2, 3.3 or 3.4 of this Agreement that are
original works or that modify, enhance, or create derivative works of
any QuickTime Technology or Apple Content ("AKAMAI WORK PRODUCT"), are
the sole property of Apple. Akamai further shall assign (or cause to be
assigned) and does hereby assign fully to Apple all Akamai Work Product
and any copyrights, patents, mask work rights or other intellectual
property rights relating thereto. Apple acknowledges that except as the
parties may otherwise agree by separate written agreement, all
copyrightable material, notes, records, drawings, designs, inventions,
improvements, developments, discoveries and trade secrets conceived,
made or discovered by Apple, solely or in collaboration with others, in
the course of the development activities contemplated under Sections
3.1, 3.2.1 or 3.4 of this Agreement that modify, enhance, or create
derivative works of any of the Akamai Software, Documentation, FreeFlow
Services, or Akamai Network ("APPLE WORK PRODUCT"), are the sole
property of Akamai. Apple further shall assign (or cause to be
assigned) and does hereby assign fully to Akamai all Apple Work Product
and any copyrights, patents, mask work rights or other intellectual
property rights relating thereto. Akamai Work Product and Apple Work
Product is sometimes referred to hereinafter collectively as "Work
Product".
5.3.2 FURTHER ASSURANCES. Each of Akamai and Apple shall assist the other
party, or its designee, at such other party's expense, in every proper
way to secure Apple's or Akamai's rights, as the case may be in the
Akamai Work Product or the Apple Work Product, respectively, and any
copyrights, patents, mask work rights or other intellectual property
rights relating thereto in any and all countries, including the
disclosure to Apple or Akamai, as the case may be, of all pertinent
information and data with respect thereto, the execution of all
applications, specifications, oaths, assignments and all other
instruments that Apple or Akamai, as the case may be, deems necessary
in order to apply for and obtain such rights and in order to record or
perfect Apple's or Akamai's interest therein.
5.3.3 PRE-EXISTING MATERIALS. Each party agrees that if in the course of
performing, any development activities hereunder, it incorporates into
any Work Product any invention, improvement, development, concept,
discovery or other proprietary information owned by any third party,
(i) it shall inform the other party, in writing, before incorporating
such invention, improvement, development, concept, discovery or other
proprietary information into any Work Product; and (ii) it hereby
grants the other party a nonexclusive, royalty-free, perpetual,
irrevocable, worldwide license to use, reproduce, distribute, perform,
display, prepare derivative works of, make, have made, sell and export
such item as part of or in connection with such Work Product.
Akamai/Apple Proprietary and Confidential
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6. PUBLICITY; TRADEMARKS.
6.1 PUBLICITY. During the Term, Akamai may: (a) identify Apple as a customer;
(b) hyperlink from Akamai's web site to Apple's home page; and (c) display the
QuickTime logo on the Akamai web site in accordance with Apple's guidelines for
the use of such xxxx. On or about the Effective Date, the parties shall issue
one or more mutually acceptable joint press releases announcing this Agreement.
The content of the press release shall be subject to the approval of each party
in its sole discretion, provided that neither party will unreasonably delay its
review. The parties may from time to time during the Term identify mutually
agreeable marketing opportunities within QT-TV. During the Term, Apple shall
place the Akamai logo and a hyperlink to the Akamai home page on the QuickTime
and QT-TV home pages.
6.2 MARKS; USAGE RESTRICTIONS.
6.2.1 In addition to the rights granted in Section 6.1, each party may
display or refer to the other party's proprietary indicia, trademarks,
service marks, trade names, logos, symbols and/or brand names
(collectively "Marks") upon the advance written approval of that party.
Neither party may remove, destroy or alter the other party's Marks. All
use of a party's Marks shall be subject to such party's logo and
trademark usage guide, as provided to the other party or made available
on a party's website, and as the same may be updated from time to time.
6.2.2 Each party agrees that it shall not challenge or assist others to
challenge the rights of the other party or its suppliers or licensors
in the Marks or the registration of the Marks, or attempt to register
any trademarks, trade names or other proprietary indicia confusingly
similar to the Marks.
6.2.3 All Marks (other than Akamai Marks) appearing on or incorporated in the
QuickTime Technology or Apple Content are and shall remain, as between
Akamai and Apple, the exclusive property of Apple or its providers. All
Marks (other than Apple Marks) appearing on or incorporated in the
Akamai Software, Documentation or FreeFlow Services are and shall
remain, as between Akamai and Apple, the exclusive property of Akamai
or its suppliers. Neither party grants any rights in the Marks or in
any other trademark, trade name, service xxxx, business name or
goodwill of the other except as expressly permitted hereunder or by
separate written agreement of the parties and all use of a party's
Marks shall inure to the benefit of the owner of such Xxxx.
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
7. FEES; PRICING AND PAYMENT TERMS.
7.1 FEES; PAYMENT TERMS. Akamai's current fees for the FreeFlow Services
(including license fees, installation charges, service usage and other fees) are
set forth in the attached SCHEDULE A AND SCHEDULE B. Subject to the provisions
of Section 7.3 below, such fees will remain in effect for the period ending [**]
after the Effective Date. Thereafter, the parties shall [**] or the remainder of
the Term. All prices are in United States dollars and do not include sales, use,
value-added or import taxes, customs duties or similar taxes that may be
assessed by any jurisdiction. Amounts due hereunder are payable [**] after
receipt of invoice. In the event that [**] any other party [**] with respect to
the FreeFlow Services provided by Akamai to Apple hereunder, or any portion
thereof, then [**], provided however,[**] all of the [**] terms and conditions
[**].
7.2 TAXES. All taxes, duties, fees and other governmental charges of any kind
(including sales and use taxes, but excluding taxes based on the gross revenues
or net income of Akamai) which are imposed by or under the authority of any
government or any political subdivision thereof on the fees for any of the
FreeFlow Services provided by Akamai under this Agreement shall be borne by
Apple and shall not be considered a part of, a deduction from or an offset
against such fees.
7.3 [**] USAGE [**]. Subject to the provisions of Section 7.4 below and to
Akamai's satisfactory performance of its obligations under this Agreement:
7.3.1 Commencing on [**] and continuing through [**] Apple agrees to commit
to purchase FreeFlow Services at a rate of [**] per month usage of the
Akamai Network, measured based on Akamai's [**] convention, or [**] per
month.
7.3.2 Commencing on [**] and continuing through [**]provided that [**]
pursuant to section 3.3 Apple agrees to commit to purchase [**] of
FreeFlow Services.
7.3.3 Apple's commitments under this Section 7.3 [**], and any Apple Content,
[**] originated by Apple and distributed through the Akamai Network
will be [**] such commitment. For avoidance of doubt, any FreeFlow
Services used by Apple [**] (to the extent there exists [**]. Moreover,
in the event that a [**] to provide for its own distribution through
Akamai, [**] for the corresponding month. If Apple, at and as of [**],
has not paid Akamai fees equal to at least [**] in the aggregate, then
Apple shall pay to Akamai the difference between [**] and the fee
amounts actually paid by Apple.
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
7.3.4 In the event that Akamai gives Apple notice of Akamai's intent to
terminate this Agreement under Section 10.4, or if the provisions of
Section 1.2.3 apply, the [**] of Apple under this Section 7.3 will
immediately [**].
7.4 [**] PURCHASE OF AKAMAI BY CERTAIN THIRD PARTIES.
7.4.1 In the event Apple (or any successor entity to the business of QT-TV in
which Apple has a continuing equity interest) [**] at any time during
the Exclusivity Period for any reason (other than a breach hereunder by
Akamai), [**] Akamai FreeFlow Services as follows. For avoidance of
doubt, Apple will be deemed to have [**] if it or its successor in
interest [**] with Apple but otherwise [**], or if [**] directs all
content providers [**] directly to Akamai [**]. During the period
following [**] and for the duration of the Exclusivity Period, Apple
will be obligated to purchase [**] FreeFlow Services equal to [**]
amount Apple actually purchased [**] during the twelve (12) months (or
any shorter period preceding [**]) immediately preceding the end of
beginning of the month in which [**]; provided however, that Akamai
agrees that Apple's [**], as adjusted pursuant to this Section 7.4.1,
shall be [**] that Akamai acquires [**] during all or any portion of
the immediately preceding twelve (12) months or such shorter period.
7.4.2 During the Term, in the event [**] then Akamai agrees as follows:
(a) Akamai shall require [**] to provide Apple with
[**] QT-TV and the distribution of QuickTime media [**] at the
[**] such services during the [**] generally available to
Akamai or its successors' customers; and
(b) In the event [**] hereby [**] to Apple to Apple
hereunder [**], over the Internet.
The foregoing obligation of Akamai is subject to the
understanding that [**] as described in this Section 7.4.2
[**] in the event that [**].
7.5 ACCURATE RECORDS; RIGHT TO AUDIT. Akamai shall maintain complete and
accurate records and log files to support and document the fees charged to Apple
in connection with this Agreement. Akamai shall, upon written request from
Apple, provide access to such records and log files during regular business
hours at Akamai's convenience, to Apple or to an independent auditor(s) chosen
by Apple for the purposes of audit. Apple's right to conduct such audits shall
be limited to twice in any one calendar year.
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
If any such audit discloses that Akamai has overcharged Apple for such fees by
[**] or more for the period under audit, Akamai shall pay, in addition to such
deficiency, the costs of such audit. Akamai shall keep such records and log
files for a rolling three years from the date of service.
8. REPRESENTATIONS AND WARRANTIES.
8.1 AKAMAI'S REPRESENTATIONS AND WARRANTIES. Akamai represents and warrants to
Apple as follows:
8.1.1 Akamai and its licensors own or possess the necessary rights, title and
licenses in and to the Akamai Software, Documentation, and FreeFlow
Services and the Akamai Network necessary to grant the licenses granted
hereunder and perform the FreeFlow Services hereunder without claim or
encumbrance, including without claim of infringement of the
intellectual property, or other rights of any third party. Akamai has
the right to enter into this Agreement and to perform its obligations
hereunder.
8.1.2 Akamal has obtained and will maintain in effect throughout the Term any
and all consents, approvals and other authorizations necessary for the
performance of its obligations hereunder.
8.1.3 At all times during the Term, Akamai shall meet or exceed the network
availability, capacity and operations and performance levels as set
forth in Section 1 above.
8.1.4 YEAR 2000 READINESS WARRANTY. Akamai warrants that the FreeFlow
Services, Akamai Network and Akamai Software are Year 2000 Ready. "Year
2000 Ready" means the ability to: (i) accept input and provide output
of data involving dates correctly and without ambiguity as to the
twentieth or twenty-first centuries; (ii) manage, store, sort, perform
calculations, and otherwise process data involving dates before,
during, and after January 1, 2000 without malfunction, abends or
aborts; and (iii) correctly process leap years including the year 2000.
The foregoing warranty is subject to the condition that all other
products (e.g., hardware, software, and firmware) which interface with
the FreeFlow Services or are used with the Akamai Software (including
any Apple Content or other elements) properly exchange date data with
the FreeFlow Services and/or Akamai Software, as the case may be;
provided, however, that Akamai covenants that it will undertake to
obtain a Year 2000 readiness warranty from all hardware vendors, third
party software licensors and Internet connectivity providers. In the
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Securities and Exchange Commission. Asterisks denote omissions.
event Akamai becomes aware that the FreeFlow Services, Akamai Network
or Akamai Software or any hardware, third party software or Internet
connectivity provider is not Year 2000 Ready, Akamai shall immediately
notify Apple and promptly undertake to correct the Akamai Software,
FreeFlow Services, or Akamai Network third party product or service
provider to eliminate such problem. If Akamai fails to correct any
portion of the Akamai Software or such third party product or service
that does not meet the foregoing warranty within a reasonable period of
time, Apple shall have the right, in addition to all other remedies
available to it, to immediately terminate this Agreement.
8.1.5 Akamai warrants that (i) the Akamai Software, the FreeFlow Services,
the Akamai Network, and Documentation and any [**], provided they are
used by Apple in accordance with this Agreement (and where appropriate,
the Documentation), do not and will not infringe any patent, copyright,
trade secret, trademark, right of privacy or publicity or other
proprietary right of any third party; and (ii) to the best of Akamai's
knowledge, no claim, action or suit for the infringement of any patent,
copyright, trade secret, trademark or other intellectual property
right, or the misappropriation of a trade secret or other proprietary
right, has been made or is pending against Akamai or any third party
from which Akamai has obtained rights in connection with the Akamai
Software, the FreeFlow Services, Akamai Network, Documentation and [**]
provided to Apple hereunder.
8.1.6 WARRANTY DISCLAIMER. EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION
8.1, AKAMAI EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR
IMPLIED, TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING BUT NOT
LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY FITNESS FOR A
PARTICULAR PURPOSE AND INFRINGEMENT.
8.2 APPLE'S REPRESENTATIONS AND WARRANTIES. Apple represents and warrants
to Akamai as follows:
8.2.1 Apple has the right to enter into this Agreement and to perform its
obligations hereunder.
8.2.2 Apple has obtained and will maintain in effect to its knowledge
throughout the Term any and all consents, approvals and other
authorizations necessary for the performance of its obligations
hereunder.
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8.2.3 WARRANTY DISCLAIMER. EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION
8.2, APPLE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR
IMPLIED, TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING BUT NOT
LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY FITNESS FOR A
PARTICULAR PURPOSE AND INFRINGEMENT.
9. CONFIDENTIAL INFORMATION. All information disclosed by either party
("Disclosing Party") to the other party ("Receiving Party"), if disclosed in
writing, labeled as proprietary or confidential, or if disclosed orally, reduced
to writing within thirty (30) days and labeled as proprietary or confidential
(collectively, "Confidential Information") shall remain the sole property of the
Disclosing Party. Except to perform its obligations to exercise its rights under
this Agreement, the Receiving Party shall not use any Confidential Information
of the Disclosing Party for its own account. The Receiving Party shall use at
least the same level of efforts it uses to protect its own most confidential
information, but in no event less than reasonable care, to protect the
Disclosing Party's Confidential Information. The Receiving Party shall not
disclose Confidential Information to any third party without the express written
consent of the Disclosing Party (except solely for Receiving Party's internal
business needs, to employees or consultants who are bound by a written agreement
with Receiving Party to restrict the disclosure and use of such Confidential
Information in a manner consistent with this Agreement). Confidential
Information shall exclude information (i) available to the public other than by
a breach of this Agreement; (ii) rightfully received from a third party not in
breach of an obligation of confidentiality; (iii) independently developed by the
Receiving Party without access to Confidential Information; (iv) known to the
Receiving Party at the time of disclosure; or (v) produced in compliance with
applicable law or a court order, provided the Disclosing Party is given
reasonable notice of such law or order and an opportunity to attempt to preclude
or limit such production. Subject to the above, the Receiving Party agrees to
cease using any and all materials embodying Confidential Information, and to
promptly return such materials to the Disclosing Party upon request.
10. TERM AND TERMINATION.
10.1 TERM; INITIAL TERM; RENEWALS. This Agreement shall become effective as of
the Effective Date and remain in full force and effect through April 1, 2001,
unless earlier terminated in accordance with this Agreement. Upon the expiration
of such initial term, this Agreement may be renewed upon mutual agreement. The
initial term, together with any renewal period, is collectively referred to as
the "Term."
Akamai/Apple Proprietary and Confidential
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
10.2 TERMINATION UPON DEFAULT. Either party may terminate this Agreement in the
event that the other party defaults in performing any obligation under this
Agreement and such default continues unremedied for a period of [**] following
written notice of default.
10.3 TERMINATION UPON INSOLVENCY. Either party may terminate this Agreement,
effective upon delivery of written notice by such party: (i) upon the
institution of insolvency, receivership or bankruptcy proceedings or any other
proceedings for the settlement of debts of the other party; (ii) upon the making
of an assignment for the benefit of creditors by the other party; or (iii) upon
the dissolution of the other party.
10.4 AKAMAI TERMINATION UPON TERMINATION OF FREEFLOW SERVICES. Akamai may
terminate this Agreement if it ceases offering the FreeFlow Services (or their
substantial equivalent) to [**] or other parties for a period of [**] provided
that if such election is made during the Exclusivity Period, Akamai shall give
Apple at least [**] advance notice of such intent to terminate. If such election
is made after the Exclusivity Period, Akamai shall give Apple at least [**]
advance notice to terminate.
10.5 TERMINATION BY APPLE. Apple may terminate this Agreement in accordance with
Section 8.1.4.
10.6 EFFECT OF TERMINATION. The provisions of Sections 3.2.1, 3.7, 4, 5, 6.2.2,
6.2.3, 7.2, 7.5, 8, 9, 10.6, 11, 12, 13, 14.4-14.8, and 14.10-14.13 shall
survive termination of this Agreement. All other rights and obligations of the
parties shall cease upon termination of this Agreement. The term of any license
granted hereunder shall expire upon expiration or termination of this Agreement;
provided, however, that the licenses granted to Apple under Sections 3.2.1, 4.4
and 5.3.3 will survive.
11. DISPUTE RESOLUTION.
11.1 INFORMAL DISPUTE RESOLUTION. In the case of any disputes under this
Agreement, the parties shall first attempt in good faith to resolve their
dispute informally, or by means of commercial mediation, without the necessity
of a formal proceeding as follows: Either party may, upon written notice to the
other, submit such dispute to the parties' chief executive officers, who shall
meet to attempt to resolve the dispute by good faith negotiations. In the event
the parties are unable to resolve such dispute within thirty (30) days after
such notice is received, either party may proceed to submit the dispute to
mediation in Santa Xxxxx County, California. If such mediation is unsuccessful
in resolving the dispute thirty (30) days after such submission, either party
may avail itself of any remedies available to it. Notwithstanding the foregoing,
each party shall have
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Securities and Exchange Commission. Asterisks denote omissions.
the right to seek equitable relief for any breach of the confidentiality or
license provisions of this Agreement.
12. INDEMNIFICATION.
12.1 MUTUAL INDEMNIFICATION. Each party shall indemnify and hold the other,
its assignees, agents, officers and employees harmless from and against any
damages to real or tangible personal property and/or bodily injury to persons,
including death, to the extent such damages result from its or its employees' or
agents' gross negligence or willful misconduct.
12.2 AKAMAI INDEMNIFICATION OBLIGATIONS.
12.2.1 Akamai shall defend, indemnify and hold harmless Apple and its
affiliates, licensors, suppliers, officers, directors, employees and
agents from and against any suit, demand, proceeding, or assertion of a
third party against Apple and pay any and all damages, liability and
expenses (including court costs and reasonable attorneys' fees) based
upon (a) a claim that any of the Akamai Software, Documentation,[**],
FreeFlow Services, or the Akamai Network or operation thereof infringes
any valid patent, copyright, trade secret, or other intellectual
property right; or (b) any unauthorized alterations to Apple Content
due to breaches in Akamai Network security, provided that: (i) Apple
promptly notifies Akamai, in writing, of the suit, claim or proceeding
or a threat of suit, claim or proceeding; (ii) at Akamai's reasonable
request and expense, Apple provides Akamai with reasonable assistance
for the defense of the suit, claim or proceeding; and (iii) Apple
allows Akamai sole control of the defense of any claim and all
negotiations for settlement or compromise provided that Akamai may not
enter into any settlement agreement which would in any manner
whatsoever affect the right of, or bind Apple in any manner to such
third party, without Apple's prior written consent.
12.2.2 If a claim of infringement under this Section 12.2 occurs, or if Akamai
determines that a claim is likely to occur, Akamai shall promptly, at
its sole option, either: (i) procure for Apple the right or license to
continue to use the Akamai Software, [**], or FreeFlow Services free of
the infringement claim; or (ii) replace or modify the Akamai
Software,[**], or FreeFlow Services to make them non-infringing
provided that the replacement software or services are substantially
similar in functionality. If these remedies are not reasonably
available to Akamai, Akamai may, at its option, terminate this
Agreement and return any fees paid by Apple in advance.
Akamai/Apple Proprietary and Confidential
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
12.2.3 Despite the provisions of this Section 12.2, Akamai has no obligation
to the extent any claim of infringement that is based upon or arises
out of: (i) any modification to the Akamai Software if the modification
was not made by or for Akamai; or (ii) the use or combination of the
Akamai Software with any hardware, software, products, data or other
materials not specified or provided by Akamai; or (iii) Apple's use of
the FreeFlow Services other than in accordance with the Documentation.
12.2.4 THE PROVISIONS OF THIS SECTION 12.2 STATE THE SOLE AND EXCLUSIVE
OBLIGATIONS OF AKAMAI FOR ANY PATENT, COPYRIGHT, TRADEMARK, TRADE
SECRET OR OTHER INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT.
12.3 APPLE INDEMNIFICATION OBLIGATIONS.
12.3.1 Apple shall defend Akamai and its affiliates, licensors, suppliers,
officers, directors, employees and agents from and against any claim,
demand or lawsuit against Akamai, and pay any and all damage,
liability, and expenses (including court costs and reasonable
attorneys' fees) finally awarded to the extent incurred as a result of
any such claim alleging that [**] provided that: (i) Akamai promptly
notifies Apple, in writing, of the suit, claim or proceeding or a
threat of suit, claim or proceeding; (ii) at Apple's reasonable request
and expense, Akamai provides Apple with reasonable assistance for the
defense of the suit, claim or proceeding; and (iii) Apple has sole
control of the defense of any claim and all negotiations for settlement
or compromise, provided that Apple may not enter into any settlement
agreement which would in any manner whatsoever affect the right of, or
bind Akamai in any manner to such third party, without Akamai's prior
written consent.
12.3.2 Despite the provisions of this Section 12.3, Apple has no obligation to
the extent any claim of infringement that is based upon or arises out
of: (i) any modification to the Apple Software if the modification was
not made by or for Apple; or (ii) the use or combination of the Apple
Software with any hardware, software, products, data or other materials
not specified or provided by Apple; or (iii) [**] other than in
accordance with the terms of this Agreement.
Akamai/Apple Proprietary and Confidential
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
12.3.3 THE PROVISIONS OF THIS SECTION 12.3 STATE THE SOLE AND EXCLUSIVE
OBLIGATIONS OF APPLE FOR ANY PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET
OR OTHER INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT.
13. LIMITATION OF LIABILITY AND DAMAGES.
13.1 LIMITATION OF LIABILITY. EXCEPT FOR A PARTY'S INDEMNIFICATION
OBLIGATIONS IN SECTION 12, AKAMAI'S AND APPLE'S LIABILITY TO THE OTHER PARTY FOR
ALL CLAIMS ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR
OTHERWISE, SHALL BE LIMITED TO [**].
13.2 EXCEPT FOR LIABILITIES ARISING UNDER SECTION 9, IN NO EVENT SHALL
EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY LOSS OF DATA,
LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR OTHER SPECIAL, INCIDENTAL,
CONSEQUENTIAL OR INDIRECT DAMAGES UNLESS INCLUDED IN AN AWARD SUBJECT TO AN
INDEMNITY OBLIGATION UNDER SECTION 12.2 OR SECTION 12.3 ARISING FROM OR IN
RELATION TO THIS AGREEMENT OR THE USE OF THE SERVICES, HOWEVER CAUSED AND
REGARDLESS OF THEORY OF LIABILITY. THIS LIMITATION WILL APPLY EVEN IF SUCH PARTY
HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
14. MISCELLANEOUS.
14.1 INDEPENDENT SERVICE PROVIDER. The relationship of Akamai and Apple
established by this Agreement is that of independent service providers, and
nothing contained in this Agreement shall be construed to (i) give either party
the power to direct and control the day-to-day activities of the other; (ii)
deem the parties to be acting as partners, joint venturers, co-owners or
otherwise as participants in a joint undertaking; or (iii) allow either party to
create or assume any obligation on behalf of the other party for any purpose
whatsoever.
14.2 NOTICES. Any notice required or permitted hereunder shall be in writing
and shall be delivered as follows (with notice deemed given as indicated): (i)
by personal delivery when delivered personally; (ii) by established overnight
courier upon written verification of receipt; (iii) by facsimile transmission
when receipt is confirmed orally; or (iv) by certified or registered mail,
return receipt requested, upon verification of receipt. All notices must be sent
to the contact person for notices at the address listed on the cover page of
this Agreement. Either party may change its contact person for notices and/or
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Securities and Exchange Commission. Asterisks denote omissions.
address for notice by means of notice to the other party given in accordance
with this Section 14.2.
14.3 ASSIGNMENT. [**] assign this Agreement, in whole or in part, in connection
with any internal reorganization or a sale of all or substantially all of its
assets related to this Agreement. [**], assign this Agreement, in whole or in
part, either voluntarily or by operation of law. [**] shall not unreasonably
withhold or delay its consent to any proposed assignment by [**] or any
successor in interest to the business or assets of either entity) if such entity
agrees in writing to assume all obligations of [**] hereunder and demonstrates
that it can and will perform all such obligations at or above the commitments
made by [**] hereunder. Any attempt to assign this Agreement in violation of
this Section 14.3 shall be a material default of this Agreement and shall be
void.
14.4 THIRD PARTY BENEFICIARIES. This Agreement is solely for the benefit of the
parties and their successors and permitted assigns, and does not confer any
rights or remedies on any other person or entity.
14.5 GOVERNING LAW. This Agreement shall be interpreted according to the laws of
the State of California without regard to or application of choice-of-law rules
or principles.
14.6 ENTIRE AGREEMENT AND WAIVER. This Agreement and any Schedules hereto shall
constitute the entire agreement between Akamai and Apple with respect to the
subject matter hereof and all prior agreements, representations, and statement
with respect to such subject matter are superceded hereby, including without
limitation any non-disclosure agreement previously executed between the parties.
The terms of this Agreement shall control in the event of any inconsistency with
the terms of any Schedule hereto. Except as provided in Section 7.1, this
Agreement may be changed only by written agreement signed by both Akamai and
Apple. No failure of either party to exercise or enforce any of its rights under
this Agreement shall act as a waiver of any particular or subsequent breaches;
and the waiver of any breach shall not act as a waiver of subsequent breaches.
14.7 SEVERABILITY. In the event any provision of this Agreement is held by a
court or other tribunal of competent jurisdiction to be unenforceable, that
provision will be enforced to the maximum extent permissible under applicable
law, and the other provisions of this Agreement will remain in full force and
effect. The parties further agree that in the event such provision is an
essential part of this Agreement, they will begin negotiations for a suitable
replacement provision with like economic effect and intent.
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Securities and Exchange Commission. Asterisks denote omissions.
14.8 NON-DISCLOSURE OF AGREEMENT TERMS. Neither party shall disclose to third
parties, other than its agents and representatives on a need-to-know basis, the
terms of this Agreement or any Schedule hereto without the prior written consent
of the other party, except either party shall be entitled to disclose (i) such
terms to the extent required by law; (ii) the existence of this Agreement; (iii)
press releases as allowed under Section 6.1.
14.9 FORCE MAJEURE. If either party is prevented from performing any of its
obligations under this Agreement due to any cause beyond the party's reasonable
control, including, without limitation, an act of God, fire, flood, earthquake,
explosion, war, strike, embargo, government regulation, civil or military
authority (a "force majeure event") the time for that party's performance will
be extended for the period of the delay or inability to perform due to such
occurrence; provided, however, that Apple will not be excused from the payment
of any sums of money owed by Apple to Akamai; and provided further, however,
that if a party suffering a force majeure event is unable to cure that event
within thirty (30) days, the other party may terminate this Agreement.
14.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which, when so executed and delivered, shall be deemed an
original, and all of which shall constitute one and the same Agreement.
14.11 CONSTRUCTION. This Agreement shall be construed and interpreted fairly, in
accordance with the plain meaning of its terms, and there shall be no
presumption or inference against the party drafting this Agreement in construing
or interpreting the provisions hereof.
14.12 REMEDIES. Except as provided in Sections 12.2 and 12.3, the rights and
remedies of the parties set forth in this Agreement are not exclusive and are in
addition to any other rights and remedies available to it at law or in equity.
14.13 BINDING EFFECT. This Agreement shall be binding upon and shall inure to
the benefit of the respective parties hereto, their respective
successors-in-interest, legal representatives, heirs and assigns.
IN WITNESS WHEREOF, each of the parties, by its duly authorized
representative, has entered into this Agreement as of the Effective Date.
APPLE COMPUTER, INC. AKAMAI TECHNOLOGIES, INC.
By: /s/ [**] By: /s/ Xxxx Xxxxx
Name: [**] Name: Xxxx Xxxxx
Title: [**] Title: President and COO
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Securities and Exchange Commission. Asterisks denote omissions.
SCHEDULE A - FREEFLOW ORDER FORM 1
CONTRACT SALES
EFFECTIVE 4/1/99 REP:
DATE:
TYPE: /X/ New / / Upgrade / / Renewal
CUSTOMER INFORMATION: CUSTOMER CONTACT:
Company Name: [**]
Name: Apple Computer Phone: [**]
Billing Fax:
Address: 1 Infinite Loop E-Mail: [**]
Xxxxxxxxx, XX 00000
BILLING CONTACT: (if different than Customer Contact) TECHNICAL CONTACT:
Name: [**]
Name: Same Phone: [**]
Phone: Fax:
Fax: E-Mail: [**]
E-Mail:
UPGRADE/ACCOUNT CHANGE AUTHORITY: (Check contacts with authority to upgrade
contract)
X Customer Billing Technical Other (See Special
Contact Contact Contact Instructions)
----- ----- ----- -----
TOTAL CHARGES SUMMARY: (SEE ATTACHED DETAILED PRODUCTS AND SERVICES
DESCRIPTIONS)
INITIAL FEE: One-time fee after installation is INITIAL FEE: WAIVED
complete
PRICE PER MBPS: Rate per Mbps for FreeFlow services:
[**] Mbps -[**] per Mbps
[**] Mbps -[**] per Mbps
[**] Mbps + - [**] per Mbps
(these rates are [**] on FreeFlow)
COMMITTED
INFORMATION Committed Monthly Usage of 100
-----
RATE (CIR): FreeFlow service CIR: MPBS
MONTHLY Monthly fees billed in advance STANDARD
RECURRING FEES: (based on CIR), MONTHLY
= Price per Mbps x CIR RECURRING: [**]
INITIAL TERM: [**], STARTING WITH THE EFFECTIVE DATE
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
AKAMAI PRODUCTS & SERVICES DETAILED DESCRIPTIONS
FREEFLOW SERVICE CONFIGURATION
Initial Recurring
Fees Charges
---- -------
FreeFlow -Initial RENAME script consultation and project
Integration plan development [**]
Details and
Requirements
- on-site integration meeting and development
FreeFlow - per chart, page 1 - [**]
Service
Network
Utilization
([**] for usage of [**] Mbps/month)
Billing to be based on [**] of FreeFlow usage
There will be a [**] Mbps committed rate of FreeFlow
utilization during this time - any usage above the
Committed Information Rate will be billed per the rates
indicated in the table on Page 1
- Committed Rate fees [**]
- Usage over the CIR [**]
SUBTOTAL: [**] [**]
ADJUSTMENTS: [**] ---
[**]
TOTAL (AT COMMITTED RATE): [**] [**]
SPECIAL
INSTRUCTIONS:
- [**]
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
SCHEDULE A - FREEFLOW ORDER FORM 2
CONTRACT SALES
EFFECTIVE 8/1/99 REP:
DATE:
TYPE: /X/ New / / Upgrade / / Renewal
CUSTOMER INFORMATION: CUSTOMER CONTACT:
Company Name: [**]
Name: Apple Computer Phone: [**]
Billing Fax:
Address: 1 Infinite Loop E-Mail: [**]
Xxxxxxxxx, XX 00000
BILLING CONTACT: (if different than Customer
Contact) TECHNICAL CONTACT:
Name: [**] Name: [**]
Phone: Phone: [**]
Fax: Fax:
E-Mail: E-Mail: [**]
UPGRADE/ACCOUNT CHANGE AUTHORITY: (Check contacts with authority to upgrade
contract)
/X/ Customer / / Billing / / Technical / / Other (See Special
Contact Contact Contact Instructions)
TOTAL CHARGES SUMMARY: (SEE ATTACHED DETAILED PRODUCTS AND SERVICES
DESCRIPTIONS)
INITIAL FEE: One-time fee after installation is INITIAL FEE: N/A
complete
PRICE PER MBPS: Rate per Mbps for FreeFlow services:
[**] Mbps - [**] per Mbps
[**] Mbps -[**] per Mbps
[**] Mbps + -[**] per Mbps
(these rates are [**] on FreeFlow)
COMMITTED
INFORMATION Committed Monthly Usage of [**]
RATE (CIR): FreeFlow service CIR: MPBS
MINIMUM
Monthly Recurring Fees are as STANDARD
MONTHLY indicated in the contract MONTHLY [**]
RECURRING FEES: RECURRING:
INITIAL TERM: [**], STARTING WITH THE EFFECTIVE DATE (AS DETERMINED UNDER THE
MASTER SERVICE AGREEMENT)
Akamai/Apple Proprietary and Confidential
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
AKAMAI PRODUCTS & SERVICES DETAILED DESCRIPTIONS
FREEFLOW SERVICE CONFIGURATION Initial Recurring
Fees Charges
---- -------
FreeFlow -Initial RENAME script consultation and project
Integration plan development [**]
Details and
Requirements
- on-site integration meeting and development
FreeFlow - per chart, page 1 -
Service
Network
Utilization
[**] for usage of [**] + Mbps/month)
Billing to be based on [**] of FreeFlow usage
There will be a [**] minimum commitment for utilization
of Akamai services During this [**] agreement
- Committed Rate fees [**]
- Usage over the CIR [**]
SUB-TOTAL: [**] [**]
ADJUSTMENTS: --- ---
[**]
TOTAL (AT COMMITTED RATE): [**] [**]
SPECIAL
INSTRUCTIONS:
-[**]
Akamai/Apple Proprietary and Confidential
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SCHEDULE B
FREEFLOW SERVICES
FreeFlow Services consist of all of the following which shall be
provided in accordance with the service level commitments and credits described
on Schedule C and incorporated herein by reference.
1. 24 X 7 MONITORING
All systems on the FreeFlow network are monitored to ensure that key
processes are running, systems have not exceeded capacity, and regions
are interacting in accordance with Akamai's standards.
2. GEOFLOW MONITORING SUITE (as described on Schedule C and incorporated
herein by reference).
3. RENAME APPLICATION AND PROCESS
The RENAME tool allows customers to include content for delivery via
the FreeFlow content delivery service. The RENAME application is a
small, flexible script that is run on URLs or certain pieces of content
to tag them with a customer-specific code ("Content Provider Code"),
and a unique identifier ("Fingerprint"). RENAME is a passive process,
typically run in the staging environment and not in a "live" production
environment. Akamai provides initial and ongoing support for RENAME
planning and integration as described in Section 2 of the Agreement.
4. CONTENT PROVIDER CODE (as described on Schedule E and incorporated
herein by reference).
5. THE "FINGERPRINT"
Another component of the RENAMEd URL is the "Fingerprint". This is a
unique identifier, which ensures that the object or image being served
is the object or image that customer delivers to the FreeFlow network
to be served.
Posted below is an example of an Apple Computer URL followed by the
corresponding RENAMEd URL:
Akamai/Apple Proprietary and Confidential
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Original URL:
[**](Regular URL)
Format for RENAMEd URL:
[**]
URL after running RENAME:
[**]
6. [**]
As long as [**] for specific [**] then [**] has the ability to [**]
access the [**] request. An [**] can be made only upon prior request by
[**] and during the period of time [**] then any applicable [**]
related to [**] but not commitments related to [**]
7. AKAMAI ACCOUNT MANAGEMENT
Akamai provides Apple Computer with a dedicated account manager who
serves as a single point of contact for all Apple requirements.
8. INVOICES
Invoices are sent on the 5th of the month in which service is
delivered. Initial fees appear on the first xxxx, as do any fees
associated with custom services and equipment. Fees associated with
[**] for period of usage on the [**] invoice.
9. APPLE COMPUTER IMPLEMENTATION
During the [**] period after execution of the Master Services
Agreement, Akamai will provide [**] to assist Apple Computer with
integration of the RENAME process and other appropriate services,
including providing assistance to Apple in the development of software
tools and applications to monitor the performance of QT-TV [**] as used
to determine stream quality. After execution of the Master Services
Agreement, Apple and Akamai will create a plan for integration of the
process for tagging Apple web content for inclusion on the FreeFlow
service network.
Akamai/Apple Proprietary and Confidential
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
After the [**], Akamai will provide [**] as mutually agreed.
10. APPLE COMPUTER MONTHLY COMMITTED RATE
Apple Computer will be billed at the [**] FreeFlow network [**]. Apple
Computer will have a Committed Rate of traffic per month. Usage [**] at
any time, [**] for usage [**].
Akamai/Apple Proprietary and Confidential
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
SCHEDULE C
SERVICE LEVEL COMMITMENTS AND CREDITS
Akamai agrees to provide a level of service demonstrating:
a) Measurable Performance Enhancement: The Akamai FreeFlow service will
deliver content measurably faster than Apple's web site using the methodology
described in Section II below.
b) 100% Uptime: The Akamai FreeFlow service will serve content 100% of
the time using the methodology described in Section II below.
c) Service Credits: If the Akamai FreeFlow service fails to meet either
of the above service levels, Apple will receive a credit [**] the failure
occurs; provided, however, that Apple shall only receive one such credit [**]
and, subject to any terminations rights provided to Apple in the Master
Agreement.
II. Metric Methods:
The following methodology will be employed to measure FreeFlow service Uptime
and Performance Enhancement:
1. Agents and Polling Frequency
A. From [**] geographically and network-diverse locations in
major metropolitan areas, Akamai will [**] Sites will include
the following areas:
[**]
B. The [**] will perform [**] operations:
i. [**] operation will be performed on a [**] residing
on the appropriate [**] (e.g.[**]
ii. [**] will be performed from the [**]
[**]
C. The [**] will be a file of [**] or greater in size.
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
D. [**] will occur at approximately [**] intervals.
E. Based on the [**] described in B. above, the [**] received
from the two sources, (a) Apple's server, and (b) the Akamai
network, will be compared for the purpose of measuring
performance metrics and outages.
2. Performance Metrics
The performance metric will be based on a [**] of performance for the
FreeFlow service and the Apple's [**], computed from [**]. Each time
will be weighted to reflect peak traffic conditions or "primetime"
usage. The primetime period is 10 AM to 7 PM EST. All times recorded
during this period will be [**]. If on a given day the [**] then the
[**] of service.
3. Outages
An outage is defined as a [**] by a single agent to "get" a file from
the FreeFlow network [**] to "get" the test file from Apple's web site.
If an outage is identified by this method, Apple will receive [**] in
which the [**].
Akamai will not be deemed to have breached its obligations under this
Schedule C to the extent and for the period that QT-TV and other Apple
Content is not available at all due to failure or unavailability of
Apple servers.
Akamai will provide Apple with a means to see [**] data about network
utilization. This data will include at least the following:
- [**] served
- [**] served
- [**] customers
- [**] day
- any [**]
- [**] info [**]
- [**] info
Akamai will provide 24x7 telephone problem escalation. Akamai will respond
within [**] to any problem reported by Apple. In the case of a major outage,
Akamai will notify Apple by telephone within [**]. In addition, [**] any problem
impacting user performance.
Akamai/Apple Proprietary and Confidential
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
SCHEDULE D
NETWORK SECURITY PROTOCOLS
CONTENT INTEGRITY
The Akamai RENAME software contains a feature that can attribute to each
customer content object that has been directed for distribution using the Akamai
Network a unique fingerprint, and it is recommended that Akamai customers use
this feature. The fingerprint is a [**]. The fingerprint helps to ensure that
the Akamai Network does not serve out-of-date objects or serve an incorrect
object, because if a content object [**]. At the prior written request of a
customer, the Akamai Network will [**] In addition, a customer is [**] provided
by the customer. At the prior written request of a customer, servers in the
Akamai Network will [**] those given to Akamai by the customer.
PHYSICAL SECURITY
Several layers of physical security protect servers in the Akamai Network. The
majority of Akamai's servers are [**] that allow for [**] only to authorized
personnel.
CONTROLLING ACCESS
Access to servers deployed in the Akamai Network is controlled [**] logging into
a server must use [**] to access any [**] network. There are [**] to the
servers: [**] which is used by [**] Additionally, any [**] that are [**] on the
servers.
MONITORING
The [**] component of the Akamai Network, which [**] on a [**] provides [**].
The [**] is staffed on a 7x24 basis and monitors the Akamai Network for
performance, stability and observable [**]
ONGOING
Akamai shall monitor vendor-based security alert notifications and ensure that
all appropriate third party security-related patches and upgrades are tested and
applied on servers in the Akamai Network.
Apple may suggest security enhancements intended to ensure integrity of Apple
Akamai/Apple Proprietary and Confidential
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Content.
In the case of any [**] Akamai will notify Apple [**] to describe the steps
Akamai is taking to correct and prevent a similar situation again.
CERT RECOMMENDATIONS
Akamai shall at a minimum comply promptly with all applicable CERT (Computer
Emergency Response Team) recommendations with regard to specified levels of
integrity, confidentiality, performance, and other quality attributes necessary
to maintain essential service levels in the presence of attack, failure, or
accident.
[**]
[**] Akamai's facilities [**] practices and procedures.
Akamai/Apple Proprietary and Confidential
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SCHEDULE E
DESCRIPTION OF AKAMAI SOFTWARE
AKAMAI SOFTWARE CONSISTS OF ALL OF THE FOLLOWING, INCLUDING ALL REVISIONS
THEREOF MADE AVAILABLE BY AKAMAI DURING THE TERM AND ALL RELATED DOCUMENTATION.
1. GEOFLOW MONITORING SUITE
GeoFlow Monitoring Suite is a set of tools that provide site usage
statistics. The suite includes tools for both real-time and historic
analysis of customer data.
GeoFlow Traffic Analyzer is the real-time component of the GeoFlow
tools suite. Traffic Analyzer's multiple monitoring views enable up to
date access to network and customer-specific traffic information with
the option to export data to other applications which accept the data
in the format provided for more detailed offline analysis.
GeoFlow Log Analyzer allows for full viewing of historical data. Log
Analyzer culls its information from existing web server log files to
provide for exploration of site traffic patterns in the data.
2. RENAME APPLICATION AND PROCESS
The RENAME tool allows customers to include content for delivery via
the FreeFlow content delivery service. The RENAME application is a
small, flexible script that is run on URLs or certain pieces of content
to tag them with a customer-specific code ("Content Provider Code"),
and a unique identifier ("Fingerprint"). RENAME is a passive process,
typically run in the staging environment and not in a "live" production
environment. Akamai provides initial and ongoing support for RENAME
planning and integration as described in Section 2.
3. CONTENT PROVIDER CODE
The Content Provider Code is a numerical account reference within the
serial number portion of a RENAMEd URL. The Content Provider Code is
used by
Akamai/Apple Proprietary and Confidential
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Akamai to collect and sort customer-specific information. The Content
Provider Code is used by Akamai to represent data on the GeoFlow
Traffic Analyzer real time reporting interface. Content Provider Codes
are also used to aggregate network utilization data for billing and
reporting to customer.
4. [**]
To be determined by the parties.
Akamai/Apple Proprietary and Confidential
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
SCHEDULE F
[**] SOFTWARE
1. GeoFlow Traffic Analyzer (as described on Schedule E)
a. [**]
b. [**]
c. [**]
2. GeoFlow Log Analyzer
a. [**]
Akamai/Apple Proprietary and Confidential
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