EXHIBIT 10.28
CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THIS
DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH
THE COMMISSION.
Internet Linking and
Content Storage/Distribution Agreement
THIS AGREEMENT is made and entered into as of the 17th day of May, 2000,
by and between BellSouth Telecommunications, Inc., acting by and through its
agent XxxxXxxxx.xxx Inc. ("BellSouth"), and iBEAM Broadcasting Corporation (the
"Company").
1. Reasons for Agreement.
(a) The Company operates a service which aggregates and distributes
various types of content obtained from third parties ("Content Providers")
through the IP networks and related facilities of Internet service providers
such as BellSouth to Internet users. The activities of the Company described
above, including any relevant Web site(s) relating thereto (as the same may be
customized by the Company as provided in this Agreement), in order to distribute
such content to BellSouth's Internet users, together with such content, are
hereinafter collectively referred to as the "Company's Service".
(b) BellSouth and Company desire to facilitate the distribution of such
content by Company to users of BellSouth's Internet services, and to have
BellSouth feature the Company's Service on one or more web sites operated in
conjunction with BellSouth's Internet gateway services at such locations (URLs)
as may be designated by BellSouth from time to time (the "BellSouth Site").
2. Featuring of the Company's Service. BellSouth may provide one or more
featured hypertext links to or other promotional information about the Company's
Service and/or the availability of particular content through the Company's
Service on the BellSouth Site. Unless otherwise mutually agreed, any such links
may include the placement of a 140 pixel by 65 pixel graphic provided by Company
in a manner consistent with the Company's standard style guide and which links
to a Company provided URL. BellSouth may also conduct other marketing or related
activity promoting the Company's Service or the availability of such service and
related content to BellSouth's Internet users.
3. Local Storage of the Company's Service. BellSouth will provide Company
with local storage and streaming and http serving support for the Company's
Service as provided in this Agreement in conjunction with BellSouth's Internet
gateway service as specified in Attachment "A" to this Agreement to facilitate
access thereto by BellSouth's Internet users.
4. Changes to or Limitations on the Company's Service. As part of the
linking of the BellSouth Site to the Company's Service and the distribution of
the Company's Service (and related content) to BellSouth's Internet users, the
parties may intend for certain changes to be made to or limitations placed on
the Company's Service. Any such changes initially contemplated by the
parties shall be set forth on Attachment "B" to this Agreement. The Company
shall be responsible for procuring and maintaining at its expense all equipment,
software, facilities, bandwidth, personnel and services necessary to host and
maintain the Company's Service and make it available on the Internet for access
through BellSouth's Internet network, other than the local storage and related
services to be provided by BellSouth as set forth on Attachment "A".
5. Pricing and Additional Consideration. Any pricing and other
consideration set forth on Attachment "C" to this Agreement shall govern all
payments, promotion or other economic obligations of the parties to each other
hereunder. Unless otherwise specified on Attachment "C", neither party shall be
obligated to pay any amounts or perform any services for the other in connection
with their respective activities under this Agreement.
6. Term. The scheduled term of this Agreement will commence on the date
hereof, and will continue for an initial term of two (2) years. This Agreement
may be terminated as set forth in Attachment "E".
7. General Terms & Conditions. This Agreement and all activities of the
parties hereunder shall be subject to the provisions of the Internet Linking and
Content Caching/Distribution Terms and Conditions, attached hereto as Attachment
"E".
IN WITNESS WHEREOF, BellSouth and Company have caused this Internet
Linking and Content Storage/Distribution Agreement to be executed and delivered
by their duly authorized representatives, effective as of the date first written
above.
BellSouth Telecommunications, Inc iBEAM Broadcasting Corporation
By: its agent, XxxxXxxxx.xxx Inc. [Company]
By:__________________________________ By:___________________________________
Name:________________________________ Name:_________________________________
Title:_______________________________ Title:________________________________
Address for notices: Address for notices:
000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000 000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000 Xxxxxxxxx, XX 00000
Attn: Xxxxxxxx Xxx Xxxx Attn: Xxxxxx Xxxxx
2
BellSouth Telecommunications, Inc iBEAM Broadcasting Corporation
By: its agent, XxxxXxxxx.xxx Inc. [Company]
By:__________________________________ By:___________________________________
Name:________________________________ Name:_________________________________
Title:_______________________________ Title:________________________________
Address for notices: Address for notices:
000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000 000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000 Xxxxxxxxx, XX 00000
Attn: Xxxxxxxx Xxx Xxxx Attn: Xxxxxx Xxxxx
3
Attachment "A"
to Internet Linking and Content Storage/Distribution Agreement
between
BellSouth and iBEAM Broadcasting Corporation
Local Storage of the Company's Service
I. Location And Installation Of Equipment And Connection
A. Company Equipment. Company shall provide or be responsible for the
provision of all equipment mutually agreed by the parties to be necessary or
appropriate for location in BellSouth Internet service facilities (each, a
"Facility", and collectively, "Facilities") in connection with the distribution
of the Company's Service to BellSouth's Internet service users (collectively,
the "Company Equipment"). Such Company Equipment shall be used only for the
purpose of distributing the Company's Service to BellSouth Internet services
users pursuant to this Agreement. Title to all Company Equipment (and license
rights to all software operating thereon) shall, as between Company and
BellSouth, remain with Company.
B. Space for Local Storage. BellSouth shall provide appropriate space for
the location of such Company Equipment at the mutually agreed upon Facilities,
which the parties anticipate will be located in at least ten markets within the
BellSouth region, as set forth in each Site Activation Form agreed to by the
parties pursuant to this Agreement. In connection with each Site Activation Form
to be executed with respect to each Facility, the parties shall mutually agree
upon the nature and quantity of the Company Equipment to be located at such
Facility. All Company Equipment to be located in BellSouth CO facilities shall
be NEBS compliant as defined in the Warrant Agreement between BellSouth
Corporation and iBEAM Broadcasting Corporation dated May 16, 2000, "The Warrant
Agreement," and shall meet any and all other standards typically applicable to
other equipment located in such Facilities. [*] BellSouth shall provide suitable
space, which shall not be less than [*] in each of the Facilities for all
applicable Company Equipment. Suitable space as used in this Agreement shall
mean space with power, fire suppression, HVAC and other similar attributes
substantially equivalent to that utilized by BellSouth for its own equipment or
that of its affiliates used in the provisioning or support of its
Internet-related services in the applicable Facilities.
C. Installation and Maintenance. Company agrees to deliver or cause to be
delivered to BellSouth all mutually agreed-upon Company Equipment for
installation by BellSouth in the relevant Facility. BellSouth shall permit
representative of the Company to be present at all such installations and shall
cooperate with the Company in good faith with respect to the installation of all
Company Equipment. Any Company Equipment located in any Facility shall be staged
for installation, shipped, operated, maintained and repaired by Company, subject
to BellSouth's standard security procedures and other practices relating to the
admission of vendor personnel to the Facilities, and otherwise in accordance
with the practices and procedures to be mutually agreed upon pursuant to this
Agreement (which are anticipated by the parties to be substantially similar to
those set forth on Attachment "A-1" to this Agreement).
* Confidential material redacted and filed separately with the
Commission.
A-1
D. Site Activation Forms. BellSouth and Company shall enter into a Site
Activation Form for each Facility at which any Company Equipment will be located
and connected to BellSouth's Internet services network for distribution of the
Company's Service to BellSouth Internet services users pursuant to this
Agreement, in substantially the form attached hereto as Attachment "A-2". Each
Site Activation Form shall become effective and binding on the parties upon
execution of such Site Activation Form by each party. The rights and obligations
of each party with respect to the distribution of the Company's Service from a
Facility shall commence upon joint execution of the applicable Site Activation
Form and shall become an integral part of this Agreement upon execution by the
parties. The executed Site Activation Form for each Facility, together with the
terms hereof, shall constitute the entire agreement of the parties with respect
to the distribution of the Company's Service from such Facility. This Agreement
shall be deemed amended by and shall include each Site Activation Form executed
by the parties.
E. Additional Facilities. Company and BellSouth shall be entitled to
include new or additional Facilities that are not the subject of existing Site
Activation Forms upon mutual agreement by jointly preparing and executing a Site
Activation Form for such Facility. BellSouth shall give written notice to
Company of any new sites at which BellSouth is operating which BellSouth desires
to be included as a Facility hereunder.
F. Schedule. BellSouth and Company will adhere to the implementation
schedule and milestones mutually agreed to and set forth in each Site Activation
Form. BellSouth agrees to cooperate and coordinate with Company in: (i) delivery
of the local exchange carrier circuit which will terminate at the Company
Equipment in each Facility, (ii) receipt of shipment of and installation of such
equipment, and (iii) completion of the connection to BellSouth, so as to adhere
to the implementation schedule. Neither party shall be liable hereunder for any
delay in meeting such implementation schedule, except for delays that effect the
terms of the Warrant Agreement.
G. Changes. BellSouth will not allow or cause any Company Equipment to be
rearranged, moved, modified, repaired, interconnected (other than as specified
in the applicable Site Activation Form) or relocated without thirty (30) days
prior written notice to Company. Upon a written notice from BellSouth to Company
that BellSouth desires to reconfigure or otherwise modify a Facility, BellSouth
and Company will work together in good faith to arrange for Company to move the
Company Equipment and to minimize any disruption in end user access to the
Company's Service that may be caused by such changes in location or
configuration.
H. Interconnection. If necessary, Company will, at its expense, connect
the Company Equipment located at each Facility to BellSouth's Internet services
network servers through (i) a minimum of a DS-3 line (or its equivalent) or (ii)
wireless technology of equivalent capacity. BellSouth will, at Company's
expense, provide a connection to such Company Equipment at BellSouth's
aggregation router through [*] or (ii) mutually agreed upon electrical or
optical interface connection set forth in the Site Activation Form for such
Facility. Company shall, at its sole
* Confidential material redacted and filed separately with the
Commission.
A-2
expense, provide such connections between the Company Equipment located at each
Facility and the Company's Service network as may be required to deliver the
Company's Service to the Facility for distribution to BellSouth's Internet
services users. Such connections shall be for the sole purpose of delivering the
Company's Service to the Facility for distribution to BellSouth's Internet
services users as provided in this Agreement. Company shall not, at or from the
Facility, provide the Company's Service or any other service or content to, nor
interconnect the Company Equipment for distribution or delivery of the Company's
Service or any other service or content to, any party other than BellSouth and
BellSouth's Internet services users.
I. Local Loop Circuit or Satellite Connection. Company shall, in the
Company's sole discretion, be entitled to negotiate and provision for and obtain
a local loop circuit and/or satellite connection for each Facility, based on any
existing contractual obligations and arrangements of Company. However, unless
and except where such provisioning will be commercially not reasonable, Company
shall obtain such local loop circuits from BellSouth's regulated telephone
network or otherwise as reasonably specified by BellSouth, as long as such
specified circuits or services are priced comparably to similar circuits or
services generally provided by BellSouth to Company or other parties similarly
situated. If the Company elects to utilize satellite connections at any
Facilities, BellSouth will acquire reasonable and appropriate roof rights at any
Facilities as needed. Company acknowledges that BellSouth's only connections to
its IP services network at the Facilities are through physical facilities owned
or operated by BellSouth's regulated telephone network. Notwithstanding any
other provision of this Agreement to the contrary, in no event shall BellSouth
be obligated to incur any expense, acquire any equipment, or undertake any
construction buildout to accommodate any situation in which Company may elect to
obtain local loop circuits/services from any party other than BellSouth.
J. Removal of Company Equipment. Company shall have the right and
obligation, upon (and only upon) any termination of this Agreement (or
de-activation of any Facility) as provided herein, to remove all of the Company
Equipment at each Facility affected by such termination or de-activation. Such
removal shall be performed promptly following such termination or de-activation,
subject to and in accordance with BellSouth's standard access policies and
procedures for vendors to BellSouth. If BellSouth effects any such removal, it
shall store any removed Company Equipment in a secure location for a reasonable
period of time, at Company's expense, until Company retakes possession thereof
K. End User IP Address Information. BellSouth shall provide to Company the
IP address blocks used by BellSouth for all Internet services users connected at
the Facilities to whom the Company's Service might be distributed pursuant to
this Agreement.
L. Insurance And Physical Damage. Company shall insure the Company
Equipment and the operation and maintenance thereof against commercial general
liability for a combined single limit of $2,000,000 per occurrence for bodily
injury and property damage to third parties. Company agrees to insure against
workers' compensation for $2,000,000 and employers' liability for $2,000,000.
Any such insurance shall be primary to the extent of Company's indemnity
obligations hereunder. Upon written request, Company shall provide a certificate
of insurance evidencing the coverages and limits set forth above. BellSouth
shall obtain and maintain insurance or self-insurance that covers any real or
personal property of BellSouth, commercial general liability, workers'
compensation and employers' liability, in each case which is reasonable and
customary in the industry. Any such insurance or self-insurance shall be primary
to the extent of BellSouth's
A-3
indemnity obligations hereunder. BellSouth shall provide certificates of
insurance evidencing the coverages and limits with respect to the Facilities
upon written request by Company. Company and BellSouth intend that damage and
destruction to their respective property and business interruption shall be
covered by insurance, and accordingly Company and BellSouth shall each look
solely to, and seek recovery only from, their respective property insurance
carriers in the event of a loss that is covered by such insurance (or would have
been covered by such insurance if it had been obtained and maintained as
required hereunder). All policies of insurance required hereunder will, to the
extent reasonably obtainable from the relevant insurance providers, contain
waivers of subrogation in favor of the other Party.
II. Representations, Warranties and Covenants Re: Facilities and Equipment
A. BellSouth represents and warrants as of the date hereof and covenants
that during any period in which Company Equipment is located at any Facility:
1. Such Facility meets the requirements for suitable space for the
Company Equipment as set forth in this Agreement.
2. BellSouth has sufficient right, title and interest in the
Facility to install or permit the installation of any applicable Company
Equipment in such Facility and to allow Company to operate, repair and
maintain the Company Equipment in the Facility as contemplated by this
Agreement. BellSouth has no existing, and will not create, suffer or allow
any, liens on the contents of the Facility that could attach to or
otherwise be placed on the Company Equipment. In the event that any such
lien arises, BellSouth shall bond over such lien within (30) days after
receipt of written notice of such lien. BellSouth will not take any action
or omit to take any action that would or would have the effect of: (i)
co-mingling the Company Equipment with the personal property of BellSouth
or any other party, or (ii) pledging or granting a security interest in
the Company Equipment. BellSouth shall perform such acts, execute such
documents and provide any notices reasonably requested by Company as
necessary or desirable to protect the Company Equipment from claims, liens
or other rights of creditors of BellSouth and its affiliates.
3. BellSouth will perform, or cause to be performed, such janitorial
services, environmental systems maintenance, power plant maintenance, and
other actions with respect to each Facility as are usually and customarily
performed by or for BellSouth in such Facility with respect to keeping
such Facility in an orderly and safe condition suitable for the operation
of its own equipment or that of its affiliates used in the provisioning or
support of its Internet-related services in such Facility.
4. BellSouth will provide access to each Facility for personnel,
agents and service representatives of Company, including Company
dispatched service personnel from vendors and suppliers that provide
equipment to Company in accordance with BellSouth's standard access
policies and procedures for vendors to BellSouth, including expedited
access in emergencies in accordance with such standard policies and
procedures. BellSouth will provide information regarding such policies and
procedures as they relate to the Company Equipment to Company from time to
time upon request, and such standards shall be substantially the same as
those applied by BellSouth with respect to its own equipment or
A-4
that of its affiliates used in the provisioning or support of its
Internet-related services in the applicable Facilities.
B. Company represents and warrants as of the date hereof and covenants
during any period in which Company Equipment is located at any Facility that
with respect to such Facility:
1. Company will enter such Facility solely for the purposes of
operating, maintaining and repairing the Company Equipment as set forth in
this Agreement.
2. Company will not interfere with or prohibit the use of such
Facility by BellSouth or other authorized occupants of the Facilities.
3. Company shall notify BellSouth prior to the performance by
Company of any repair, maintenance and removal functions and shall perform
all such functions in accordance with and subject to BellSouth's standard
access policies and procedures for vendors.
4. Company will perform such repair, maintenance and related work in
a safe manner consistent with industry standards and practices.
5. Company will perform any such work so as to minimize interference
with the operation of the Facility and the occupants' activities and
businesses.
6. Company will obtain necessary federal, state and municipal
permits, licenses and approvals for any such work.
Attachment "A-I"
to Internet Linking and Content Storage/Distribution Agreement
between
BellSouth and iBEAM Broadcasting Corporation
Anticipated Maintenance/Repair Procedures
I. Outage/Trouble Procedures
A. Prerequisites (Company):
1. Company will provide BellSouth with technical information that
will assist BellSouth's Network Operations Center (NOC) to accommodate the
Company Equipment within their network monitoring tools. Company will help
identify critical areas of concern to be monitored.
2. Company will provide BellSouth's NOC with a test account to be
used by NOC personnel to help confirm an outage.
3. Company will provide BellSouth's NOC with escalation points and
specific phone numbers for notification of and acknowledgment of problem
identification and resolution.
A-5
B. Prerequisites (BellSouth):
1. BellSouth will provide Company with escalation points and
specific phone numbers for notification of and acknowledgment of problem
identification and resolution. This will include contacts within BellSouth
NOC and engineering groups.
C Procedures for Outages/Interruption of Services
1. BellSouth can remotely monitor the Company cabinet for specific
alarms (as indicated from Company). If BellSouth receives an alarm from
the Company cabinet, BellSouth's NOC may try to ensure that the ADSL
backbone is functioning and the connectivity to the cabinet is working by
examining the port connection and pinging the server.
2. If the outage is related to a BellSouth function then the
following steps will occur:
(a) BellSouth NOC staff will open a ticket for the trouble and alert
Company as to the problem. The Company will be given an estimated
time-to-repair and a contact point for further inquiries.
(b) Once the problem has been resolved, BellSouth NOC staff will
close the ticket and contact Company that the problem has been corrected.
(c) Any interim inquiries as to the nature and estimated
time-to-repair will be the responsibility of Company.
3. If the outage is related to the Company network, service or
content, then maintenance and repair will follow the steps to be mutually
determined.
X-0
Xxxxxxxxxx "X-0"
to Internet Linking and Content Storage/Distribution Agreement
between
BellSouth and iBEAM Broadcasting Corporation
Site Activation Form
THIS SITE ACTIVATION FORM IS A PART OF THE AGREEMENT BETWEEN iBEAM
BROADCASTING CORPORATION AND BELLSOUTH DATED MAY 15, 2000 AND IS SUBJECT TO ALL
OF THE TERMS AND CONDITIONS IN SUCH AGREEMENT AND IN THE EVENT OF A CONFLICT,
THE AGREEMENT SHALL CONTROL. ONCE EXECUTED, THIS SITE ACTIVATION FORM SHALL BE
DEEMED A PART OF, AND ENFORCEABLE IN ACCORDANCE WITH, SUCH AGREEMENT.
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Site Address: Site Hours:
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Manned/Unmanned? Access Key available? Access Procedures:
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Contact Person: Email Address: Cell Phone: Pager:
--------------------------------------------------------------------------------
Title: Phone:
--------------------------------------------------------------------------------
Facility Email Address: Cell Phone: Pager
Owner/Contact
--------------------------------------------------------------------------------
Title: Phone:
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Rack/Cabinet Location: CLLI code Power Type Available:
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Type of connection: Install Date
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Specify below any additional mutually agreed upon information specific or
relevant to the activation of this particular Facility for distribution of the
Company's Service to BellSouth's Internet services users from this Facility:
BellSouth Telecommunications, Inc iBEAM Broadcasting Corporation
By: its agent, XxxxXxxxx.xxx Inc. [Company]
By:______________________________ By:___________________________________
Name:____________________________ Name:_________________________________
Title:___________________________ Title:________________________________
X-0
Xxxxxxxxxx "X"
to Internet Linking and Content Storage(Distribution Agreement
between
BellSouth and iBEAM Broadcasting Corporation
Changes to or Limitations on the Company's Service
I. Limitations on Nature of Company's Service
Company acknowledges that this Agreement and BellSouth's willingness (and
possibly regulatory ability) to facilitate the distribution of the Company's
Service pursuant hereto at the rates and fees set forth herein is based upon the
express assumption and condition that (i) the Company's Service shall be
transmitted to the Company Equipment over the connections to be established by
Company hereunder and shall be stored on the Company Equipment for distribution
to BellSouth's Internet services users, (ii) that traffic from such users shall
not be carried out of the Facilities over such Company connections, and (iii)
the nature of the Company's Service is limited to streaming media and static web
page content. Company shall not materially change the nature or manner of
delivery of the Company's Service to the Facilities or its connections to
Facilities or the Company Equipment so as to render any of the assumptions or
conditions set forth in clauses (i)-(iii) in this Section invalid or untrue
without BellSouth's prior consent, which consent shall not be unreasonably
withheld, delayed or conditioned.
B-1
Attachment "C"
to Internet Linking and Content Storage/Distribution Agreement
between
BellSouth and iBEAM Broadcasting Corporation
Pricing/Additional Consideration
1. Trial Period for Initial Facility. Promptly upon execution of this
Agreement, the parties will mutually agree upon and execute a Product Evaluation
Agreement for the lab Facility in Atlanta, Georgia, and arrange for the
installation and operation of the Company Equipment at such Facility in
accordance therewith. Such equipment as are used for testing in this lab
environment will not be NEBS compliant. Once NEBS compliance is achieved for all
the Company's equipment, the parties will mutually agree upon and execute a Site
Activation Form for the initial Facility in Atlanta, Georgia, at which the
Company Equipment will be tested for a trial period not to exceed ninety (90)
days after installation of the Company Equipment at such Facility during which
the Company's Service will be distributed to BellSouth Internet services users
from the initial Facility and the parties will verify various technical,
operating and business assumptions in order to determine whether to proceed with
activation of additional Facilities. Each additional Facility to be activated,
if any, shall be subject to the execution of a mutually-acceptable Site
Activation Form for such Facility as provided in this Agreement.
2. Fees. As compensation for the rights of Company to connect to the
BellSouth Internet services network and to distribute the Company's Service to
BellSouth Internet services users over such network as provided in this
Agreement, Company shall pay BellSouth the following fees:
(a) Installation Fee. Company will pay to BellSouth a fee of not more than
[*] per installation (an "Installation Fee") for each activated Facility. Such
fee shall be based upon BellSouth's labor and materials used in connection with
the installation at commercially reasonable rates. Where Company's connections
to the Company Equipment will be by satellite circuits as permitted hereunder,
Company will manage and pay for satellite dish installation, which will meet
standard BellSouth Facility specifications. This cost, to be paid to BellSouth,
will be in addition to the above installation fee and is not to exceed $1,000.00
per dish installation.
(b) Minimum Revenue Share. As measured from installation at each location
Company will pay BellSouth each month a fee equal to the greater of (i) the
product obtained by multiplying the sum of [*] times the number of Facilities at
which Company Equipment is then installed pursuant to this Agreement; and (ii)
[*] of the total BellSouth Derived Revenue (as defined below) for such month. At
the end of the month six (6), as measured from installation at each location,
Company and BellSouth shall evaluate the revenue share, based on total traffic
delivered, where total traffic delivered shall include traffic delivered on all
sites within BellSouth's network, and the number of BellSouth's broadband users,
where broadband users shall be counted as users are counted in the Warrant
Agreement, in the following manner: in the event that: a) Company reaches
* Confidential material redacted and filed separately with the
Commission.
C-1
[*] in total traffic and BellSouth reaches at total of [*] broadband users then
the Parties will change the minimum stated in Article 2(b)(i) to [*] b) Company
reaches [*] in total traffic and BellSouth reaches at total of [*] broadband
users then the Parties will change the minimum stated in Article 2(b)(i) to [*],
and c) Company reaches [*] in total traffic and BellSouth reaches at total of
[*] broadband users then the Parties will change the minimum stated in Article
2(b)(i) to [*]. In the event that the above does not allow for an equitable
remedy for one or both Parties the Parties agree to negotiate in good faith to
equitably adjust the minimum Article 2(b)(i). In the event that Company fails to
meet such agreed minimums in aggregate in any three (3) month period either
Party may remove such individual sites as failed individually to meet such
minimums. In the event that the Parties deinstall a site, Company shall pay to
BellSouth a deinstallation charge of [*] per site deinstalled.
3. Revenue Definitions. The term "BellSouth Derived Revenue" as used
herein shall mean all gross revenues recognized by Company and attributable to
the Company's Service distributed to BellSouth Internet services users as
provided hereunder. Such calculation shall be based on a normalized number
(ie... value) calculated by multiplying total traffic volume transferred through
the Company servers located in the BellSouth network by the weighted average
revenue per unit of traffic derived by Company from its content customers. It is
the expectation of the parties that BellSouth will participate in non-transport
based revenues associated with the servers deployed in BellSouth's network on a
basis comparable to transport revenues. The parties will negotiate and agree
upon how the revenue share will be calculated and implemented in a mutually
agreeable manner within thirty days of the effective date of` this agreement. .
5. Other Arrangements.
(a) Company will provide BellSouth a channel guide to promote traffic and
drive revenues. iBEAM and BellSouth's portal group will use commercially
reasonable efforts to develop appropriate linking agreements and customizable
features
(b) Company will provide monthly reports to BellSouth showing exact
bandwidth served through the Company's Service distributed to BellSouth Internet
services users as provided hereunder, as well as all BellSouth Derived Revenue.
BellSouth may also collect usage data and reconcile results.
(c) Company will include BellSouth in any additional revenue share
opportunities offered generally to ISPs. BellSouth will receive most favored ISP
status (of comparable size and deployment), for all current and future Company
deals, including, but not limited to, terms and revenue share.
(d) Company will provide BellSouth with the opportunity and will negotiate
in good faith with BellSouth to enter into a mutually acceptable reseller
agreement wherein BellSouth would be granted the right to resell the Company's
Service or other services offered by the Company on terms at least as favorable
to BellSouth as those granted by Company to its other resellers (of comparable
size and deployment).
* Confidential material redacted and filed separately with the
Commission.
C-2
Attachment "D"
to Internet Linking and Content Storage/Distribution Agreement
between
BellSouth and iBEAM Broadcasting Corporation
The Marks
BellSouth Marks
BellSouth
BellSouth Internet Services
BellSouth Corporation
BellSouth Telecommunications, Inc.
-----------------
BELLSouth Graphic
-----------------
Company Marks
per iBEAM's standard usage guide
D-1
Attachment "E"
Terms and Conditions
These terms and conditions apply to the relationship between BellSouth
Telecommunications, Inc. ("BellSouth") and each company ("Company") which enters
into an Internet Linking and Content Caching/Distribution Agreement or similar
agreement however denominated ("Agreement") with BellSouth for the linking of
the Company's Service to the BellSouth Site, (and vice-versa) and distribution
of the Company's Service to BellSouth's Internet users, all as defined in the
Agreement. All references to the Agreement herein shall be deemed to include the
Agreement entered into by the relevant Company, all Attachments thereto, and
these Terms and Conditions.
1. Nature of Relationship. The parties acknowledge that the relationship
of Company to BellSouth is that of an independent contractor and that nothing
contained in the Agreement shall be construed to place BellSouth and Company in
the relationship of principal and agent, master and servant, partners or joint
venturers. Neither party shall have, expressly or by implication, or shall
represent itself as having, any authority to make contracts or enter into any
agreements in the name of the other xxxxx, or to obligate or bind the other
party in any manner whatsoever.
2. Use of Marks. Each party hereby grants the other a non-exclusive,
non-transferable, royalty free license to use and display the names, trade
names, trademarks, service names, and service marks of the granting party
identified on Attachment "D" to the Agreement, together with any other trade
names, trademarks, service names and service marks used by the granting party in
connection with the Company's Service or the BellSouth Site respectively
(collectively, the "Marks"), solely in conjunction with the distribution of the
Company's Service to BellSouth's Internet service users, the establishment of
any hyperlinks provided for in the Agreement, and in conjunction with
advertising or promotion of the Company's Service and/or the BellSouth Site as
permitted in the Agreement. Prior to the first use of any of the other party's
Marks in the manner permitted herein, the party using such Marks shall submit a
sample of such proposed use to the other party for its prior written approval,
which shall not be unreasonably withheld or delayed. Without limiting the
generality of the foregoing, each party shall strictly comply with all standards
with respect to the other party's Marks which may be furnished by such party
from time to time, and all uses of the other party's Marks in proximity to the
trade name, trademark, service name or service xxxx of any other person shall be
consistent with the standards furnished by the other party from time to time.
Further, neither party shall create a combination xxxx consisting of one or more
Marks of each party. All uses of the other party's Marks shall inure to the
benefit of the party owning such Xxxx. Each party hereby acknowledges and agrees
that, as between the parties hereto, the other party is the owner of the Marks
identified as its Marks on the applicable Attachment to the Agreement. Either
party may update or change the list of Marks usable by the other party hereunder
at any time by written notice to the other party.
3. License. Company hereby grants to BellSouth, solely for distribution
through BellSouth services that allow viewers to select the Content from Content
Provider web site and which are then redirected to Company equipment located in
or connected to BellSouth facilities, and BellSouth accepts, a non-exclusive
license to use, reproduce, distribute, display, cache, and transmit Content in
connection with the Services herein contemplated for the purposes of this
Agreement.
4. Objectionable Material. (a) BellSouth reserves the right, but does not
accept any obligation, to remove, block or otherwise disable the transmission to
its Internet services users of any portion of the Company's Service or any
description, advertisement or listing about the Company's Service on the
BellSouth Site or in any related materials if the screens, images or other
content presented to users who access the Company's Service through the
BellSouth Internet services network are deemed by BellSouth in it's sole
discretion to be objectionable for any reason. BellSouth will, as a general
rule, give Company notice of and consult with Company regarding any decision by
BellSouth to implement any such removal, blocking or disabling. In such event,
the Company shall, if requested by BellSouth, promptly remove all links to the
BellSouth Site and all uses of the BellSouth Marks from the Company's Service.
(b) Each party reserves the right to refuse the placement of
advertisements or other materials within its respective site or service which it
deems offensive or inappropriate.
5. Confidentiality. (a) All non-public information received by one party
(the "receiving party") from the other party (the "disclosing party") in
connection with or relating to its performance under the Agreement
("Information") will be held in strict confidence by the receiving party, and
the receiving party shall not disclose such Information, in whole or in part, to
any person other than its employees officers, directors, agents, employees and
representatives, including financial, technical and legal advisers, or those of
its affiliated companies (collectively, "representatives") who need to know such
Information in connection with the receiving party's performance hereunder and
who have been informed by the receiving party of the confidential nature of the
Information and who shall be required by the receiving party to agree to treat
such Information confidentially. Within ten (10) days after written request from
the disclosing party, the receiving party will deliver to the disclosing party
all tangible materials containing or embodying the Information received from the
disclosing party; providing that any portion of the Information which has been
incorporated into analyses, compilations, comparisons, studies or other
documents prepared by the receiving party shall be held by the receiving party
and kept confidential as provided above, or shall be destroyed.
(b) The term "Information" as used herein does not include any data or
information which is already known to the receiving party at the time it is
disclosed to the receiving party, or which before being divulged by the
receiving party (i) has become generally known to the public through no wrongful
act of the receiving party; (ii) has been rightfully received by the receiving
party from a third party without restriction on disclosure and without, to the
knowledge of the receiving party, a breach of an obligation of confidentiality
running directly or indirectly to the other party hereto; (iii) has been
approved for release by a written authorization by the other party hereto; (iv)
has been disclosed pursuant to a requirement of a governmental agency or of law
without similar restrictions or other protections against public disclosure, or
is required to be disclosed by operation of law; (v) is independently developed
by the receiving party without use, directly or indirectly, of the Information
received from the other party hereto; or (vi) is furnished to a third party by
the disclosing party hereunder without restrictions on the third party's right
to disclose the information.
(c) The disclosure or receipt of Information shall not constitute or imply
any promise or intention to make any purchase of products or services by either
party or any commitment by either party with respect to the present or future
marketing of any product or service. None of the Information which may be
disclosed or exchanged by the parties shall constitute any representation,
warranty, assurance, guarantee or inducement by either party to the other of any
kind, and in particular, with respect to the accuracy or completeness of any
Information.
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(d) No license under any patents, copyrights, trademarks, trade secrets,
mask works, or other intellectual property rights of the disclosing party is
granted by any disclosure of Information hereunder. Each party agrees to
reproduce and not to remove or obscure proprietary rights legends (such as
trademark and service xxxx symbols and copyright notices) or disclaimers
included in the Information or the BellSouth Site, the Company's Service or with
any documents or materials provided in connection with the Agreement (whether in
electronic form or otherwise).
(e) For the purpose of complying with the obligations set forth herein,
the party receiving any Information shall use efforts commensurate with those
that such party employs for the protection of corresponding sensitive
information of its own for the term of the Agreement and for three (3) years
thereafter. Such receiving party shall not be liable for any inadvertent
disclosure of Information provided that (i) it has used substantially the same
degree of care to avoid disclosing such Information as it uses for its own
information of like importance, and (ii) upon discovery of any inadvertent
disclosure it shall use reasonable efforts to prevent further disclosure of such
Information.
6. Representations, Warranties and Indemnities.
(a) Company represents and warrants to BellSouth as follows:
(i) that it owns all right, title, and interest in and to, or has
sufficient authority to use and distribute or make available in the manner
contemplated by the Agreement, the Company's Service (including all
related Marks and all text, other graphics, audio files, materials,
information and other content developed by or for Company for the
Company's Service or for inclusion in the BellSouth Site or related
materials in connection with the linking of the Company's Service),
collectively the "Company Content", including all intellectual property
rights incorporated in each of the foregoing, including, without
limitation, all trademarks, service marks, copyrights, names and
likenesses; and
(ii) that, to the best of its knowledge, none of the Company Content
does or will infringe any trademark, service xxxx, copyright, or other
intellectual property right of a third party, or constitute a libel or
defamation or false, deceptive or unfair advertising or disparagement
under applicable law, or fail to comply with any applicable law,
including, without limitation, licensing requirements and administrative
or professional rules, or constitute an invasion of the right of privacy
or publicity of any person.
(b) Company shall defend, indemnify and hold harmless BellSouth and its
affiliates and their respective officers, directors, employees and agents from
and against any and all loss, cost, liability or expenses (including reasonable
attorneys' fees and amounts paid in settlement) arising from a breach of the
representations and warranties of Company set forth above or from a claim that
the use or distribution of the Company Content, each in the form delivered by
Company to BellSouth, infringes any patent, trademark, or any copyright or any
other proprietary right of a third party enforceable in the U.S., provided that
BellSouth notifies Company promptly in writing of any such action and gives
Company sole control of the defense and any negotiations for settlement or
compromise of such action; provided, further that the foregoing indemnification
by Company shall not apply to the extent that any action by BellSouth gives rise
to or otherwise enhances any such claim.
(c) BellSouth represents and warrants to Company as follows:
(i) that it owns all right, title, and interest in and to, or has
sufficient authority to use and distribute in the manner contemplated by
the Agreement any advertising or other materials submitted by BellSouth
for inclusion on the Company's Service (collectively, the "BellSouth
Materials"), including all intellectual property rights incorporated in
each of the foregoing, including, without limitation, all trademarks,
service marks, copyrights, names and likenesses; and
(ii) that, to the best of its knowledge, neither the BellSouth
Materials nor any of the BellSouth Marks does or will infringe any
trademark, service xxxx, copyright, or other intellectual property right
of a third party, or constitute a libel or defamation or false, deceptive
or unfair advertising or disparagement under applicable law, or fail to
comply with any applicable law, including, without limitation, licensing
requirements and administrative or professional rules, or constitute an
invasion of the right of privacy or publicity of any person.
(d) BellSouth shall defend, indemnify and hold harmless Company and its
affiliates and their respective officers, directors, employees and agents from
and against any and all loss, cost, liability or expenses (including reasonable
attorneys' fees and amounts paid in settlement) arising from a breach of the
representations and warranties of BellSouth set forth above or from a claim that
the use or distribution of the BellSouth Materials or the BellSouth Marks, each
in the form provided by BellSouth to Company, infringes any patent, trademark,
or any copyright or any other proprietary right of a third party enforceable in
the U.S., provided that Company notifies BellSouth promptly in writing of any
such action and gives BellSouth sole control of the defense and any negotiations
for settlement or compromise of such action; provided, further, that the
foregoing indemnification by BellSouth shall not apply to the extent that any
action by Company gives rise to or otherwise enhances any such claim.
7. Disclaimers: Limitations of Liability.
(a) EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, NEITHER PARTY MAKES
ANY, AND EACH PARTY HEREBY EXPRESSLY DISCLAIMS ANY, REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE COMPANY'S SERVICE, THE BELLSOUTH
SITE, OR ANY OTHER SERVICE, CONTENT, TOOLS OR RELATED DOCUMENTS OR MATERIALS (IN
ELECTRONIC FORM OR OTHERWISE) PROVIDED HEREUNDER, INCLUDING, WITHOUT LIMITATION,
ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR
NONINFRINGEMENT AND IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING OR
COURSE OF PERFORMANCE. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, COMPANY
EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING THE PERFORMANCE,
AVAILABILITY, FUNCTIONALITY OR ANY OTHER ASPECT OF THE COMPANY'S SERVICE. EXCEPT
AS EXPRESSLY SET FORTH IN THE AGREEMENT, BELLSOUTH EXPRESSLY DISCLAIMS ANY
REPRESENTATION OR WARRANTY REGARDING THE PERFORMANCE, AVAILABILITY,
FUNCTIONALITY, NUMBER OF SUBSCRIBERS OR ANY OTHER ASPECT OF THE BELLSOUTH SITE
OR BELLSOUTH'S INTERNET SERVICES.
(b) EXCEPT FOR BREACHES OF SECTION 2 OF
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THESE TERMS AND CONDITIONS (USE OF MARKS) OR PURSUANT TO THE INDEMNIFICATION
PROVISIONS CONTAINED IN THESE TERMS AND CONDITIONS, IN NO EVENT SHALL EITHER
PARTY BE LIABLE TO THE OTHER PARTY, WHETHER IN CONTRACT OR IN TORT OR UNDER ANY
OTHER LEGAL THEORY (INCLUDING STRICT LIABILITY), FOR ANY I) DIRECT DAMAGES IN
EXCESS OF $1,000,000.00 OR II) INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE,
SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFIT'S, REVENUE, DATA OR
USE, OR FOR INTERRUPTED COMMUNICATIONS, INCURRED BY EITHER PARTY IN CONNECTION
WITH THIS AGREEMENT, EVEN IF THE OTHER PARTY OR ANY OTHER PERSON HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. Indemnification. Each party hereby indemnifies and agrees to hold the
other party and its affiliates harmless from and against all claims, cost,
liabilities, judgments, expenses or damages (including reasonable attorneys'
fees) arising out of or in connection with the party's breach of any warranties
made herein or any claim based on the infringement of intellectual property
rights. The other party shall promptly notify the indemnifying party of any
third party action, suit, proceeding or investigation ("Proceeding") for which
indemnification is sought, provided that any failure to so notify the
indemnifying party will not relieve the indemnifying party from any liability or
obligation which it may have to any indemnified person except to the extent of
any material prejudice to the indemnifying party resulting from such failure. If
any such Proceeding is brought against an indemnified person, the indemnifying
party will be entitled to assume and control the defense thereof. Each
indemnified person will be obligated to cooperate reasonably with the
indemnifying party, at the expense of the indemnifying party, in connection with
such defense and the compromise or settlement of any such Proceeding.
9. Termination. (a) Unless sooner terminated by either party or extended
for a specific additional term by mutual written agreement, the Agreement will
automatically be extended for successive one-year terms until terminated by
either party as provided herein. Either party may terminate the Agreement at any
time during or after the initial term upon at least sixty (60) days prior
written notice to the other party.
(b) If either party breaches any provision of the Agreement and fails to
cure such breach within thirty (30) days after receipt of written notice
thereof, the other party may upon written notice to the breaching party
terminate the Agreement immediately, without liability to the breaching party.
Either party may, upon written notice to the other, terminate the Agreement
immediately without liability to the other party, if such other party has
breached any of the provisions of the Agreement relating to confidentiality or
the use of the Marks.
(c) Anything herein to the contrary notwithstanding, the provisions of the
Agreement relating to indemnification, confidentiality and any other provisions
which by their nature should survive termination shall survive the expiration or
termination of the Agreement for any reason.
10. Assignment. Neither party may assign the Agreement without the prior
written consent of the other; provided, however, that no consent shall be
necessary for BellSouth to assign the Agreement to any affiliate of BellSouth or
to any entity acquiring all or substantially all of BellSouth's Internet
services operations, or for either party to assign the Agreement to an entity
acquiring all or substantially all of the stock or assets of such party.
11. Notices: All notices from either party to the other shall be delivered
either personally or by first-class, pre-paid U.S. mail. Notice to either party
shall be sent to the respective address as set forth in the Agreement, unless
written notice of a change of address shall have been previously given by either
party. In addition, a copy of any changes in address for notices and any notices
of termination or any claimed default by BellSouth shall be contemporaneously
given to counsel for BellSouth at the following address:
XxxxXxxxx.xxx Inc.
000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: General Counsel
Addresses for notices may be changed at any time by giving thirty (30)
days prior written notice as provided above.
12. Publicity. Neither party will make any public announcement with
respect to the business arrangement contemplated by this Agreement without the
other party's prior written consent, unless in the opinion of such party's legal
counsel, such announcement is required by applicable law.
13. Waiver. No failure on the part of any party hereto to exercise, and no
delay in exercising any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any right, power or
remedy by any such party preclude any other or further exercise thereof or the
exercise of any other right, power or remedy. No express waiver or assent by any
party hereto to any breach of or default in any term or condition of this
Agreement shall constitute a waiver of or an assent to any succeeding breach of
or default in the same or any other term or condition hereof.
14. Miscellaneous. This Agreement shall be governed by, and interpreted
and construed in accordance with, the laws of the State of Georgia, without
giving effect to the conflict of law rules of such state. Any litigation arising
hereunder shall be filed in either the Federal District Court for the Northern
District of Georgia or the Superior Court of Dekalb County, Georgia and Company
consents to the jurisdiction of such courts. This Agreement (including the
Attachments to this Agreement and these Terms and Conditions contained in this
Attachment "E", all of which are hereby incorporated herein by reference for all
purposes) contains the entire agreement between the parties relating to the
subject matter contained herein, and supersedes any and all other agreements,
representations or warranties of the parties in connection with such subject
matter. This Agreement cannot be modified, changed or terminated orally, and no
changes, amendments or modifications to this Agreement shall be binding unless
in writing and duly executed by the party to be charged therewith. If any
provision of this Agreement is held invalid, unenforceable or illegal for any
reason, such provision shall be deemed to apply only to the maximum extent
permitted by law, and the remainder of this Agreement shall remain valid and
enforceable in accordance with its terms. Whenever possible, the terms of this
Agreement and any Attachments hereto shall be construed so as to be consistent
with, and not in conflict with, each other and these Terms and Conditions.
However, in the event of any conflict between the terms of this Agreement or any
Attachments hereto and the provisions of these Terms and Conditions, the
Attachments shall control over the Agreement and the Agreement shall control
over the Terms and Conditions. This Agreement may be executed by facsimile and
in one or more counterparts, each of which shall be deemed to be an original,
but all of which shall constitute on and the same instrument.
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