Note: Information in this document marked with an "[*]" has been omitted and
filed separately with the Commission. Confidential treatment has been requested
with respect to the omitted portions.
EXHIBIT 10.12
iBEAM Network Membership
Agreement No. 093099 NPoint
This membership agreement (the "Agreement"), effective as of September 30, 1999
---------
(the "Effective Date"), is entered into by NorthPoint Communications, Inc.,
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("Member") and iBEAM BROADCASTING CORPORATION, a Delaware corporation with
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primary business offices at 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000
("iBEAM"). (iBEAM and Member individually a "Party" or together the "Parties")
WHEREAS, iBEAM intends to provide a paid service which provides Internet service
providers ("ISPs") with MaxCasters providing replication, live broadcast and on-
demand data streaming and,
WHEREAS, Member provides access to a high-speed network for the subscribers of
its ISP customers and,
WHEREAS, iBEAM offers and Member accepts the iBEAM service subject to the terms
and conditions set forth below.
NOW THEREFORE, for good and valuable consideration exchanged between the
Parties, Member and iBEAM agree as follows:
1. DEFINITIONS
----------------
When used in this Agreement, the following terms shall have the following
meanings unless the subject or the context otherwise requires:
A. Content: data or data streams used in the Service.
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B. Webcast Distribution Service (the "Service"): The service provided by
--------------------------------------------
iBEAM, where iBEAM copies and distributes Content from a series of content
providers to iBEAM MaxCasters using communications equipment and
telecommunications services (including, but not limited to, satellite,
broadcast and other networking services).
C. Confidential Information. Confidential and trade secret information as
------------------------
set forth more specifically in Article 15 of this Agreement.
D. Disclosing Party. A Party that discloses Confidential Information to a
----------------
Receiving Party.
E. Receiving Party. A Party receiving Confidential Information from a
---------------
Disclosing Party.
F. MaxCaster/TM/: A system of satellite downlink equipment, one or more
-------------
computer servers, other communications equipment and appropriate software
colocated with Member Network.
G Member Network: The network operated by Member without the installation of
---------------
the iBEAM MaxCaster(s).
H. Content Provider: a person or entity who provides Content for dissemination
----------------
on Webcast Distribution.
I. Referral: Shall mean placing iBEAM in contact with a potential iBEAM
--------
customer where contract negotiations with such potential customer begin
within ninety (90) days of the referral and such negotiations result in an
order and provision of services from iBEAM, unless such referred customer
was, as of the date of Member's referral: (a) already a customer under
contract with iBEAM; (b) already formally referred by another customer of
iBEAM; or (c) already in negotiations with iBEAM for services. Subject to
the foregoing, iBEAM will pay NorthPoint for Referrals as set forth in
Article 4.1.
2. SERVICE
------------
iBEAM will provide the Service to Member and Member accepts the Service
pursuant to the terms and conditions of this Agreement and its Exhibits by
incorporation.
3. OWNERSHIP AND USE AND DAMAGE
---------------------------------
3.1 Ownership: Title to and ownership of the MaxCaster, all copies of
documentation or instructions thereof and all data resident upon each
MaxCaster, including but not limited to any trademarks, servicemarks,
tradedress, copyrights (whether in literal or non-literal form) and/or patents
shall be and at all times remain with iBEAM, iBEAM's licensors or its agents or
assigns. Member will not reproduce or modify the MaxCaster or any portion
thereof. Member shall not rent, sell, lease, create or have created security
interests in the MaxCaster, have liens placed on the MaxCaster or otherwise
transfer the MaxCaster or any part thereof or use, or allow its use for the
benefit of any third party that is not a customer or subscriber of Member
3.2 Use: Member may transmit the Content resident on the MaxCaster to its end
users provided that the Content is unmodified or abridged in any manner. Member
shall not reverse assemble, reverse compile or reverse engineer the MaxCaster,
or otherwise attempt to discover any MaxCaster source code or underlying
Confidential Information (as that term is defined below). Further Member agrees
that it will not modify, copy, display, distribute, use, market, promote,
perform, cache or transmit any of the Content residing within the MaxCaster
except as required to display or distribute the Content to viewers of the
Internet or intercept any transmission intended to place Content on the
MaxCaster for the heretofore mentioned reasons without the
express permission of iBEAM. iBEAM may use certain iBEAM defined shared elements
of the MaxCaster for other services or customers.
3.3 In the event that Member breaches any provision of Articles 3.1 or 3.2
iBEAM shall have the right to bring immediate injunctive action to halt said
breach.
3.4 Damage to MaxCaster: Any damage caused to any portion of the MaxCaster while
resident at Member location by use outside the scope intended under this
Agreement will require Member to pay iBEAM to repair or replace the MaxCaster.
4. METHOD OF PAYMENT
----------------------
iBEAM owns all right, title and interest in and to any and all revenues
associated with all services transferred through the MaxCaster to Member
Network. iBEAM shall pay Member (*). In the event that Member provides iBEAM
with a Referral of a content provider or other customer for the Service,
Member will receive an additional (*).
4.2 iBEAM will tender to Member a summary of all shared revenues set forth in
Article 4.1 on a calendar quarterly basis. Member will then invoice iBEAM for an
amount equal to the aforementioned summary, which shall be payable net 30 days
from iBEAM receipt of said valid invoice.
4.3 Member is responsible for any taxes associated with Member's portion of any
revenues shared hereunder.
5. LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES
---------------------------------------------------------
5.1 NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT
MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO, TO THE OTHER
OR ANY OTHER THIRD PARTY, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR
OTHER THEORY(A) FOR ANY MONIES IN EXCESS OF $1,000,000.00, (B) FOR LOSS OR
INACCURACY OF DATA , COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR
TECHNOLOGY, OR (C) FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES
INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS.. NEITHER
PARTY SHALL BE RESPONSIBLE FOR ANY FORCE MAJEURE EVENT.
UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY
THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY
DAMAGES, ARISING FROM ANY ACT OR OMISSION, INCLUDING NEGLIGENT ACTS OR
OMISSIONS, OF THAT PARTY, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES, ARISING FROM ANY PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT
LIMITED TO LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS.
5.2 EXCEPT AS SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY, AND EACH
PARTY HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS
OR IMPLIED, REGARDING THE PRODUCTS AND SERVICES CONTEMPLATED BY THIS AGREEMENT,
INCLUDING ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF
PERFORMANCE OTHER THAN ANY REPRESENTATIONS OR WARRANTIES THAT CANNOT BE EXCLUDED
BY LAW.
5.3 IBEAM FURTHER DISCLAIMS THAT IT HAS WARRANTED THAT THE CONTENT PROVIDED
HEREUNDER IS UNDER IBEAM'S EDITORIAL CONTROL IN ANY MANNER WHATSOEVER OR THAT IT
IS NOT OBSCENE, INDECENT, OFFENSIVE OR HARMFUL TO MINORS.
6.0 TERM AND TERMINATION
-------------------------
6.1 This Agreement shall commence on the Effective Date and shall continue for
thirty-six (36) months. Either Party may, at its option, terminate this
Agreement upon sixty (60) days notice prior to the one (1) year anniversary of
the Effective Date. Thereafter, termination may only be effectuated through a
material breach by the other party which is not cured within ten (10) days of
notice by the non-breaching party. Notwithstanding the above, should iBEAM
accept an investment from any of Covad Communications, Rhythms NetConnections or
an Incumbent Local Exchange Carrier, iBEAM will inform Member of such investment
and Member may, at its sole option, within ten (10) days after notice of such
investment by iBEAM, terminate this Agreement immediately without penalty or
liability except with regards to obligations imposed by Article 6.3.
[*] 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.
6.2 If this Agreement is terminated for any reason, each Party shall
expeditiously stop using, remove and/or return the other Party's proprietary
information including but not limited to Confidential Information, trademarks,
tradenames, and servicenames. Additionally, Member will disconnect all iBEAM
equipment from the Member Network, and provide iBEAM access to the equipment for
iBEAM retrieval of said equipment.
6.3 In the event that this Agreement terminates for any reason, the following
Articles shall survive the termination: Articles 5 and 15.
7. INTERPRETATION
-------------------
7.1 Changes: All changes to this Agreement must be in writing, signed by each
Party and reference this Agreement and the Effective Date.
7.2 Order of Precedence: The terms and conditions of this Agreement shall take
precedence over those set forth within each Exhibit, Addendum or other written
document, signed by both parties and specified as an addition or change to this
Agreement.
8. WAIVER, REMEDIES CUMULATIVE
--------------------------------
8.1 The wavier by either Party of a breach or default by the other Party of any
of the provisions of this Agreement shall not be construed as a waiver of any
succeeding breach or default of the same or any other provisions of this
Agreement and shall not impair the exercise of any rights accruing to it under
this Agreement thereafter; nor shall any delay or omission on the part of either
Party to exercise or avail itself of any rights accruing to it under this
Agreement operate as a waiver of any breach or default by the other Party of any
of the said provisions.
8.2 All rights and remedies provided in this Agreement are cumulative and are
not exclusive of any rights or remedies provided by law.
9. NOTICES
------------
All communications in connection with this Agreement shall be in writing and may
be given by telecopy or mail to the recipient at the address set out in this
Agreement and sent to the attention of General Counsel or Chief Financial
Officer.
10. COSTS
----------
Each Party shall bear its own legal, accounting and other costs, charges and
expenses of and incidental to this Agreement.
11. DENIAL OF PARTNERSHIP
--------------------------
Nothing herein contained shall be construed as creating the relationship of
partnership, joint venture, fiduciary relationship or principal and agent
between the parties. Neither Party may pledge or purport to pledge the credit
of the other Party or make or purport to make any representations, warranties or
undertakings for the other Party.
12. FORCE MAJEURE
------------------
12.1 Where a Party is unable, wholly or in part, by reason of force majeure, to
carry out any obligations under this Agreement that obligation is suspended so
far as it is affected by force majeure during the continuance thereof.
In this Agreement, "force majeure" means an act of God, strike, lockout or other
interference with work, war declared or undeclared, blockade, disturbance,
lightning, fire, earthquake, storm, flood, explosion, network failures, error in
the coding of electronic files, software limitations, or inability to obtain
telecommunications services, governmental or quasi-governmental restraint
expropriation prohibition intervention direction or embargo, unavailability or
delay in availability of equipment or transport, inability or delay in obtaining
governmental or quasi-governmental approvals consents permits licenses
authorities or allocations, and any other cause whether of the kind specified
above or otherwise which is not reasonably within the control of the Party
affected.
13. ASSIGNMENT
---------------
Except for (i) assignment to a successor who acquires substantially all of the
assets and business of iBEAM or Member, (ii) assignment to a subsidiary company,
parent company, or subsidiary of a parent company, or (iii) assignment, pledge,
or transfer by iBEAM of any interest in any payments to be received by iBEAM
hereunder, neither party hereto may assign this Agreement or any portion thereof
without the prior written consent of the other. Any assignment permitted
hereunder or otherwise agreed to by the other Party hereto will not relieve the
assigning party of any obligations with respect to any covenant, condition, or
obligation required to be performed by the assigning Party under this Agreement.
14. PROMOTION AND PUBLIC ANNOUNCEMENT
--------------------------------------
14.1 Each Party shall have the right to make public announcements and/or press
releases using the other Party's name provided they have obtained prior written
approval.
14.2 iBEAM may offer Member certain tradenames and/or logos for use on Member's
Internet web site. Member may use these tradenames and/or logos only if Member
agrees to and abides by all usage requirements set forth within the download
area containing these tradenames and/or logos. Notwithstanding anything to the
contrary Member agrees to remove these tradenames and/or logos, from any Member
owned, operated or run in the name of, equipment or storage device within twenty
four (24) hours of receiving a request by iBEAM to remove said tradenames and/or
logos.
14.3 iBEAM agrees to submit to Member, on a monthly basis, a list of all
signed Content provider customers, in order that Member and iBEAM mutually plan
their marketing efforts.
14.4 The Parties will use commercially reasonable efforts to work to create a
portal page as specified in Exhibit D. Each six (6) month period as measured
from the Effective Date, the Parties will evaluate the progress and commercial
viability of the portal page.
15. CONFIDENTIALITY
--------------------
15.1 Each Party acknowledges that during the contractual relationship created
under the Agreement, situations may arise which require that they be given
access to Confidential Information (as defined more specifically in Article
15.2) owned by the other Party, its suppliers or customers.
15.2 The Receiving Party of the Confidential Information recognizes that the
Disclosing Party has a proprietary interest in maintaining the confidentiality
of such Confidential Information. The Receiving Party shall not, during the
term of this Agreement and for three (3) years after the termination of this
Agreement disclose any Confidential Information of the Disclosing Party to any
third party or use any Confidential Information for its benefit or for the
benefit of any third party except as permitted herein or to further the purposes
of this Agreement. The Receiving Party shall take reasonable precautions to
maintain the confidentiality of all Confidential Information, and in no case
lesser precautions that Receiving Party takes with its own similar Confidential
Information. Upon termination of this Agreement for any reason, each Party shall
immediately return or destroy all Confidential Information of the other Party in
its possession or control.
15.3 Confidential Information shall mean all information, whether in tangible
form or communicated orally, which is learned by the Receiving Party in the
course and performance of its obligations under this Agreement which concerns
the Disclosing Party's products, or contents thereof or services (existing or
potential), business affairs, pricing, suppliers, customers, and distributors,
including without limitation, customer usage data, computer hardware and
software (in existence or under development), pending patent applications,
technical, sales and business reports, technical or research notebooks, and
information and data, whether owned by the Disclosing Party or a third party,
relating to the Disclosing Party's commercial activities. Neither party shall be
required to designate written or oral information as Confidential Information,
provided that any such undesignated information shall only be considered
confidential if a reasonable person under the circumstances would understand it
to be confidential. Excluded from the foregoing definition is information which:
i) at the time of disclosure, is, or, after disclosure, becomes generally known
or available to the public other than as a consequence of the Receiving Party
breach of this Agreement; ii ) was properly known or otherwise available to the
Receiving Party prior to the disclosure by the Disclosing Party; iii) was
disclosed by a third party to the Receiving Party after the disclosure by the
Disclosing Party if such third party's disclosure neither violates any
obligation of the third party to the Disclosing Party nor is a consequence of
the Receiving Party's breach of this Agreement; iv)the Disclosing Party
authorizes a release.
15.4 The rights and obligations of the parties with respect to confidentiality
shall survive
termination of this Agreement.
16. ACTS BY LAW
----------------
Neither party shall be under any obligation to perform any service or deliver
any work should such service or delivery constitute a violation of any
applicable law.
17. GOVERNING LAW
------------------
This Agreement shall be governed by, and construed and enforced in accordance
with the laws of the State of California, without regards to its choice of law
provisions. The exclusive jurisdiction for any legal proceeding regarding this
Agreement shall be in the courts of the State of California and the Parties
hereto expressly submit to the jurisdiction of said courts.
18. SEVERABILITY
-----------------
If any provision or provisions of this Agreement shall be held to be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining portions shall not in any way be affected or impaired thereby.
19. INTEGRATION
----------------
This Agreement supersedes and replaces any and all prior agreements,
understandings or arrangements, whether oral or written, heretofore made between
the Parties and relating to the subject matter hereof and constitutes the entire
understanding of the Parties with respect to the subject matter of this
Agreement. This Agreement may not be altered or amended except by an express
written agreement signed by both Parties hereto.
iBEAM Broadcasting Corporation NorthPoint Communications, Inc.
By: By:
------------------------------------ ---------------------------------
Printed: Printed:
------------------------------- ----------------------------
Title: Title:
--------------------------------- ------------------------------
Exhibit A to Agreement No. 093099NPoint
Statement of Work
Party Responsibilities
1. iBEAM will be responsible for the following actions:
. A satellite pre-installation site survey of the facility by phone or at
iBEAM's and NorthPoint's option at customer site.
. The installation of the satellite dish utilizing a non-penetrating roof
mount on the roof of the facility or a designated area of the building,
depending on the availability of such space.
. The running of coaxial cable to the data or rack room where the iBEAM
MaxCaster indoor components will be racked.
. The racking and cabling of the server and switch components of the
MaxCaster.
. Registration and pointing of the satellite system.
. The activation of the system with the iBEAM Network operations monitoring
facility. This includes adding IP Addresses, Host ID names to the iBEAM
server and to Tier 1 NOC.
. Orientation of the customer technical staff to the equipment and to the
remote monitoring process.
. Alert NorthPoint during power outage or any iBEAM Network outage, whether
planned or otherwise, by telephoning NorthPoint at NorthPoint-specified
numbers.
2. The Member will be responsible for the following actions:
. Completion of the customer data network site survey. This information is
critical to the iBEAM Tier 1 NOC in the monitoring of the MaxCaster and
to the integration of the MaxCaster in the data network. The customer
will be required to provide IP addresses, host ID names, subnet masks,
and gateway default as specified by iBEAM.
. Designate a single point of contact for satellite and network
installation issues.
. Allow iBEAM NOC to monitor traffic to the switch, server or other
equipment for the following protocols, SNMP, FTP, Telnet, Ping,
Traceroutes.
. Subject to prior approval and scheduling by NorthPoint, access to the
data room for installation of the MaxCaster indoor components and the
roof structure for installation of the MaxCaster satellite antenna.
Installation must be supported by on-time access to the install areas.
. One "ACTIVE" twisted pair "analog" telephone line for termination to the
iBEAM MaxCaster internal modem card. This is to allow for "out of band"
monitoring and control of the iBEAM system.
. Member is responsible to pull data cables between router and MaxCaster.
. Connection to the Member Lan/Wan Network. If a layer 4 switch solution is
utilized a connection to the bit path must be provided.
. Access to 120 Volt AC from the Rack Power distribution harness for the
server and the switch. In cases where NorthPoint has only DC power, iBEAM
will be responsible for conversion from DC to AC.
. Adequate rack space for server, switch or other equipment. In addition,
iBEAM will need to know the type and model of racks used in the data room
for determining complementary shelves or rack guides for the server.
. Technical support and actual physical connection of the Layer 4 switch
into the bit stream and associated patching if required. The Member is
responsible for inserting the Layer 4 switch into the bit stream if
required.
. Access to MaxCaster user logs for tracking purposes such as number of
users on the network.
. UPS support for 14-Volt Amp power requirement for a period of 60 minutes
to allow an orderly shutdown of the equipment.
. Keep area in which the MaxCaster is located at 80 or less degrees
Fahrenheit and 75% or less, non-condensing relative humidity.
. Alert iBEAM during power outage or any Member Network outage, whether
planned or otherwise, by telephoning iBEAM at iBEAM specified numbers.
. Inform iBEAM whether the Member network is Multicast enabled at any time
during the contractual relationship.
. Provide iBEAM optimal connectivity into Member Network as mutually agreed
by the Parties
Exhibit B to Agreement No. 093099NPoint
Milestone Schedule
The Parties hereto will mutually agree upon a reasonable installation plan that
will detail the order and time for installation into each site. Notwithstanding
the above the Parties hereby agree to install the following numbers of sites in
the following schedule:
Milestones:
1) Within 30 days of the date of this Agreement, the Parties hereby agree
to have Initiated Installation of one (1) of Member site.
2) Within 75 days of the date of this Agreement the Parties hereby agree to
have Initiated Installation of an additional four (4) Member sites.
3) Within 95 days of the date of this Agreement the Parties hereby agree to
have Initiated Installation of an additional six (6) Member sites.
4) After the first eleven (11) sites have achieved Initiated Installation,
Member and iBEAM will use reasonable efforts to achieve Complete
Installation in the remaining operational Member sites within(180) days
from completion of installation of such 11 sites. As new Member sites
become operational Member and iBEAM will use reasonable efforts to achieve
Initiated Installation at each site within sixty (60) days of such site
achieving Complete Installation.
5) Upon Initiated Installation, each site will achieve Complete Installation
within an additional thirty (30) days, with the exception of any
unexpected delays outside the control of NorthPoint in securing roof
rights and the proper building access.
Initiated Installation shall mean that iBEAM has been supplied with a completed
installation check list as specified in Exhibit A, an analog phone connection as
specified in Exhibit A, and all iBEAM indoor equipment is installed and
operational within Member Network.
Complete Installation shall mean that Member has obtained rights sufficient to
install all iBEAM outdoor equipment, including but not limited to a satellite
receiver and that iBEAM has installed such outdoor equipment.
Exhibit C to Agreement No.093099 NPoint
Revenue-Sharing Schedule
The following schedule will govern the percentage of revenue shared with Member
pursuant to Section 4.1:
1) Referral for (*) and (*) customers: (*)% of all revenues from such
customers
2) Referrals for (*) and (*) customers: (*)% of all revenues from such
customers
3) Referrals in excess of (*) (*) customers: (*)% of all revenues form such
customers
Once Member has referred at least (*) customers, then Member's revenue-sharing
percentage for all customers referred during the term of this Agreement shall be
(*)%, provided that the total percentage of revenues shared with Member shall
not exceed (*)%. The revenue sharing for each Referral shall have a duration of
(*)months from the date iBEAM begins receiving revenue from such customer.
[*] 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.
Exhibit D to Agreement No. 093099NPoint
Portal Description
Hosting: iBEAM will host the co-branded portal page at no cost to Member.
The portal will display links to live and on demand streams that are
available on the iBEAM Network. iBEAM undertakes to use commercially
reasonable efforts to acquire the license to use Content Provider name and
Content on the portal page. The portal will be accessible to all Internet
users.
Portal Branding and Creation: iBEAM and Member will equally divide the
cost of developing and maintaining the co-branded portal. iBEAM will
provide any project management and operational support necessary to roll-
out and sustain the portal project. iBEAM and Member will jointly agree on
the design, content and operation of the portal. iBEAM will develop a
proof-of-concept portal at no cost to Member. iBEAM and Member will
jointly generate and fund the advertising associated with the portal. The
objective of this advertising is to drive demand for Member DSL service and
iBEAM-delivered streaming media.
DSL Promotion: The sub-portal will contain static links to the streaming
content of iBEAM content providers who have chosen to utilize the portal.
When a Member user clicks on a link, they will see an interstitial message
that informs them they are viewing an iBEAM enabled stream that is
available to them because they are a Broadband user. If a non-Member user
clicks on a link, they will receive an interstitial message encouraging
them to sign up for NorthPoint DSL service to get the high-fidelity version
of the stream.
Portal Promotion: iBEAM will promote the Member sub-portal with all iBEAM
content partners, as well as with iBEAM technology partners and joint
iBEAM/Member ISP customers. Also, iBEAM will include the Member sub-portal
whenever reasonable in iBEAM end user marketing and promotion efforts.
