EXHIBIT 10.30
ALLIANCE PARTNERING AGREEMENT
This ALLIANCE PARTNERING AGREEMENT (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 URBAN COOL NETWORK INC. a Delaware corporation ("Partner"),
having its principal place of business as set forth on the cover page of this
Agreement, effective as of 12/30/99 (the "Effective Date").
BACKGROUND
Akamai has deployed a worldwide network dedicated to web content
distribution and developed proprietary technology to efficiently deliver web
content from the Akamai network across the Internet. Partner is in the business
of providing professional services to businesses that require assistance
identifying, developing and implementing Internet strategies. Akamai and Partner
desire to enter into this Agreement whereby Partner will facilitate the
development of business relationships with potential customers for Akamai's
FreeFlow and related services (the "Akamai Services"), and Akamai will provide
supplementary support to Partner in representing the Akamai Services.
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 Partner
agree as follows:
1. AKAMAI ACTIVITES AND OBLIGATIONS. Akamai shall place a hyperlink to
Partner's website presently located at xxx.xxxxxxxxx.xxx ("Partner Website"). If
in the form of a logo link, such link shall be in the form and format of
Partner's logo as provided to Akamai by Partner. Akamai shall, subject to the
availability of personnel and other resources, provide (i) technical consulting
services to Partner, including general training of Partner's sales staff with
respect to the Akamai products and services and (ii) sales, marketing or
promotional literature, brochures and documentation; whitepapers; and
presentations relating to the Akamai products and services. Akamai's obligation
to provide technical consulting services pursuant to this Section 1 relate only
to the marketing of Akamai's products and services. Akamai shall make no
representations regarding Partner or its business, except as explicitly set
forth in this Agreement or contained in the marketing literature provided to
Akamai by Partner, without the prior written approval of Partner.
2. PARTNER ACTIVITIES AND OBLIGATIONS. Partner shall place a hyperlink to
Akamai's website presently located at xxx.xxxxxx.xxx ("Akamai Website"). If in
the form of a logo link, such link shall be in the form and format of Akamai's
logo as provided to Partner by Akamai. Partner shall refer to Akamai any (i)
requests for or (ii) any offer to purchase or (iii) orders for Akamai products
or services. Partner shall make no representations regarding Akamai or its
business or the Akamai products and services, except as explicitly set forth in
this Agreement or contained in the marketing literature provided to Partner by
Akamai, without the prior written approval of Akamai.
3. AUTHORIZED CONTACTS. Akamai shall designate a dedicated contact person
(the "Akamai Contact"), who shall supervise all Akamai activities hereunder.
Akamai may change the Akamai Contact from time to time upon written notice to
Partner. Partner shall designate an employee who shall be assigned by Partner to
coordinate Partner's involvement in all Partner activities hereunder (the
"Partner Contact"). Partner may change the Partner Contact from time to time
upon written notice to Akamai.
4. OTHER AGREEMENTS OF THE PARTIES. Each party shall be responsible for any
and all expenses it incurs in connection with its performance of this Agreement,
unless otherwise expressly provided herein. All
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press releases, announcements and other forms of publicity made by either Akamai
or Partner concerning any joint activities or business relationships between the
parties must be mutually approved by the parties in writing, except as expressly
set forth herein. Partner is not under any obligation to market the Akamai
products and services on an exclusive basis. Either party may market and offer
its own or third party products and services (through any means) which are the
same as or similar to and which are competitive with the other party's products
and services. The terms and conditions of the Confidential Disclosure Agreement
executed by the parties and dated 12/30/99 shall be incorporated herein by
reference.
5. TERM AND TERMINATION OF AGREEMENT. This Agreement shall become effective
as of the Effective Date and remain in full force and effect for an initial term
of one (1) year, unless terminated earlier as provided herein. Either party may
terminate this Agreement for any reason on sixty (60) days written notice to the
other party. This Agreement may be renewed for one or more consecutive annual
terms upon mutual written agreement of the parties no later than thirty (30)
calendar days prior to the expiration of the agreement term then in effect. In
the event this Agreement expires by lapse of time without renewal as provided
above, but the parties continue to operate as if it were in effect, this
Agreement shall be deemed to have been renewed for a consecutive term of one (1)
year from the date of its expiration.
6. TRADEMARKS. Akamai hereby grants Partner a limited, worldwide,
non-exclusive, non-transferable, revocable license to utilize those Akamai
trademarks, logos, insignia, and symbols ("Akamai Marks") provided by Akamai in
a Akamai Link and otherwise on the Partner Website in the form and format
provided by Akamai in accordance with the terms hereof. Partner hereby grants
Akamai a limited, worldwide, non-exclusive, non-transferable, revocable license
to utilize those Partner trademarks, logos, insignia, and symbols (collectively,
the "Partner Marks") provided by Partner in a Partner Link and otherwise on the
Akamai Website in the form and format provided by Partner in accordance with the
terms hereof.
7. INDEMNIFICATION AND LIABILITY.
7.1 Each party (the "Indemnifying Party") agrees to indemnify, defend and
hold the other party (the "Indemnified Party") and its affiliates, and their
respective officers, directors, agents and employees, harmless from and against
any and all liabilities, damages, losses, expenses, claims demands, suits, fines
or judgments, and costs and expenses incidental thereto (including court costs
and reasonable attorneys' fees), which may be suffered by, accrued against,
charged to or recoverable from the Indemnified Party or any of its affiliates,
or any of their respective officers, directors, agents or employees, arising out
of a claim either that the Akamai Services (in the case of Partner) or any other
materials (tangible or intangible) provided by the Indemnifying Party to the
Indemnified Party hereunder or any portion or use thereof, infringes or
misappropriates any United States patent, copyright, trade secret, trademark or
other proprietary right. The Indemnifying Party's duty to indemnify the
Indemnified Party and its affiliates hereunder is subject to (i) the Indemnified
Party promptly notifying the Indemnifying Party, in writing, of the suit, claim
or proceeding or a threat of suit, claim or proceeding; (ii) at Indemnifying
Party's reasonable request and expense, the Indemnified Party providing the
Indemnifying Party with reasonable assistance for the defense of the suit, claim
or proceeding; and (iii) the Indemnifying Party having control of the defense of
any claim and all negotiations for settlement or compromise, subject to the
Indemnified Party's approval, which may not be unreasonably withheld or delayed.
THE PROVISIONS OF THIS SECTION 7 STATE THE SOLE AND EXCLUSIVE OBLIGATIONS AND
LIMITATION OF LIABILITY OF EITHER PARTY FOR ANY PATENT, COPYRIGHT, TRADEMARK,
TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT AND ARE IN LIEU
OF ANY WARRANTIES OF NON-INFRINGEMENT, ALL OF WHICH ARE DISCLAIMED.
7.2 EACH PARTY'S ENTIRE LIABILITY FOR ANY CLAIM, LOSS, DAMAGE, OR EXPENSE
FROM ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT
OR TORT INCLUDING NEGLIGENCE, STRICT LIABILITY OR
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OTHERWISE, SHALL BE LIMITED TO DIRECT, PROVEN DAMAGES IN AN AMOUNT NOT TO EXCEED
TEN THOUSAND DOLLARS ($10,000) PER INCIDENT AND TEN THOUSAND DOLLARS ($10,000)
IN THE AGGREGATE FOR ALL SUCH CLAIMS, EXCEPT THAT THIS LIMITATION SHALL NOT
APPLY TO EACH PARTY'S INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS. IN NO
EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL,
CONSEQUENTIAL, OR ANY OTHER INDIRECT LOSS OR DAMAGE, INCLUDING LOST PROFITS,
ARISING OUT OF THIS AGREEMENT OR ANY OBLIGATION RESULTING THEREFROM, REGARDLESS
OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) STRICT
LIABILITY OR OTHERWISE.
8. WARRANTY DISCLAIMER. NEITHER PARTY MAKES ANY REPRESENTATIONS OR
WARRANTIES, EITHER EXPRESS OR IMPLIED, AND AKAMAI SPECIFICALLY DISCLAIMS ANY
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH
RESPECT TO THE AKAMAI SERVICES.
9. MISCELLANEOUS.
9.1 Independent Contractor. The relationship of Akamai and Partner
established by this Agreement is that of independent contractors, 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 ventures, 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.
9.2 Notices. Any notice required or permitted hereunder shall be in writing
and will be deemed given when given or deposited in the mails or with common
carriers. All communications will be sent by mail, facsimile or electronic mail
to the receiving party's contact person for notices listed on the cover page of
this Agreement.
9.3 Assignment. Partner may not, without the prior written consent of
Akamai, assign this Agreement, in whole or in part, either voluntarily or by
operation of law, and any attempt to do so shall be a material default of this
Agreement and shall be void. Akamai's rights and obligations, in whole or in
part, under this Agreement may be assigned or transferred by Akamai.
9.4 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 penalties on any other person or entity.
9.5 Governing Law. This Agreement shall be interpreted according to the
laws of the Commonwealth of Massachusetts without regard to or application of
choice-of-law rules or principles.
9.6 Entire Agreement and Waiver. This Agreement and the Confidential
Disclosure Agreement executed by the parties constitute the entire agreement
between Akamai and Partner with respect to the subject matter hereof and all
other prior agreements, representations, and statement with respect to such
subject matter are superceded hereby.
9.7 Severability. In the event any provision of this Agreement is held by a
court 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.
9.8 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,
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fire, flood, explosion, war, strike, embargo, government regulation, civil or
military authority, acts or omissions of carriers, transmitters, providers,
vandals, or hackers (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 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.
9.9 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.
9.10 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.
9.11 Survival of Obligations. Sections 4.4 and 7 through 9 shall survive
any termination, cancellation or expiration of this Agreement for any reason.
IN WITNESS WHEREOF, each of the parties, by its duly authorized
representative, has entered into this Agreement as of the Effective Date.
URBAN COOL NETWORK INC. (PARTNER) AKAMAI TECHNOLOGIES, INC.
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxx Name: Xxxxxx X. Xxxxxxxxx
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Title: CEO Title: Manager, Partner Programs
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