1
Exhibit 10.10
AGREEMENT BETWEEN MICROSOFT AND PROGRESSIVE NETWORKS ON MEDIA STREAMING
TECHNOLOGY
This "Agreement" is entered into and effective as of June 17, 1997 (the
"Effective Date") by and between MICROSOFT CORPORATION, a Washington
corporation located at Xxx Xxxxxxxxx Xxx, Xxxxxxx, XX 00000 ("Microsoft") and
PROGRESSIVE NETWORKS, INC., a Washington corporation located at 0000 Xxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000 ("PN").
1. DEFINITIONS
1.1 "Standard Code" means all of the PN and third party code (subject to
Section 2.2) used in PN's current version 4.0 streaming audio and video
client and server products, including, but not limited to, PN Internal
Tools, tools currently provided to third parties at no charge by PN [*]
and including bug-fixes developed by PN during the one year following
delivery by PN, for all operating system platforms, including but not
limited to all versions of Microsoft Windows, all versions of UNIX, the
Macintosh operating system, and the WebTV operating system. Standard
Code shall not include code PN's "Splitter" products or its Player Plus
software, nor shall it include future-developed technology for
advertisement insertion, datatypes other than audio or video (which are
not included in PN Clients or RA/RV Server), distributed networking
(such as Splitter finding), tools which are value-add technology on top
of base level encoders, billing and other value added technology
(technology which is not required for Compatibility purposes). It is
expressly understood that base level encoding and compression
technology is part of the Standard Code; further, thinning and
bandwidth negotiation are part of the Standard Code to the extent such
technologies are used in PN's current version 4.0 streaming audio and
video client and server products. Standard Code does not include added
PN or third party hardware or software technology bundled with Standard
Code as part of short term sales promotions.
1.2 "Internal Tools" means associated documentation, specifications, and
tools developed by either party, necessary to build and create
derivative works of the code.
1.3 [*]
1.4 "Term" means the three (3) year period commencing upon the Effective
Date.
1.5 "Confidential Information" means: (i) any trade secrets relating to
either party's product or service plans, designs, costs, prices and
names, finances, marketing plans, business opportunities, personnel,
research, development or know-how; and (ii) the specific terms and
conditions of this Agreement. "Confidential Information" shall not
include information that: (i) is or becomes generally known or
available, whether by publication, commercial use or otherwise,
without restriction on disclosure and through no fault of the
receiving party; (ii) is known and has been reduced to tangible form
by the receiving party at the time of disclosure and is not subject to
restriction; (iii) is independently developed or learned by the
receiving party without reference to any Confidential Information of
the disclosing party; and (iv) is lawfully obtained from a third party
that has the right to make such disclosure.
1.6 "PN Clients" means PN's RealAudio and RealVideo standard player,
versions 4.0.
1.7 "RA/RV Server" means PN's Easy Start RealAudio/RealVideo server
software version 4.0, with 60 user stream capability.
Page 1 of 14
[*] denotes confidential treatment requested
2
1.9 "Compatible" means audio/video client or server streaming software
which interoperates with the PN Clients or the RA/RV Server (including
current versions of the PN Clients and the RA/RV Server as of the date
of a subsequent delivery of Standard Code), respectively, or as the
parties may otherwise mutually agree. For purposes of this Agreement
"interoperates" means the clients and servers of both parties will
operate substantially as well with PN Clients and RA/RV Server
(including current versions of the PN Clients and the RA/RV Server as
of the date of a subsequent delivery of Standard Code) as with its own
products.
2. LICENSE GRANTS
2.1 Non-Exclusive License to Standard Code. PN hereby grants to Microsoft
a non-exclusive, perpetual, [*] worldwide, fully paid-up right and
license to: (i) [*] (ii) reproduce, license, rent, lease, broadcast
publicly display, transmit or otherwise distribute in any medium now
known or hereafter devised (collectively, "Distribute") and have
Distributed, to and by third parties, binary versions of the Standard
Code [*]
The foregoing license grants include a license under any current and
future patents owned or licensable by PN to the extent necessary: (i)
to exercise any license right granted herein; and (ii) to combine the
Standard Code and/or derivative works thereof with any hardware and
software.
2.2 [*]
2.3 Non-Exclusive License to PN Trademarks. PN hereby grants to Microsoft
a non-exclusive, perpetual, irrevocable, worldwide, fully paid- up
right and license to use and sublicense the use of any "XX Xxxxx" for
identification of, or in conjunction with, or as part of Microsoft
products which are
Page 2 of 14
[*] denotes confidential treatment requested
3
Compatible. For purposes of this Section 2.3, "XX Xxxxx" means PN
trademarks and related logos for "Real Audio" and "Real Video." If
Microsoft exercises its rights under Section 3.3, the XX Xxxxx will
also include those marks and associated logos which are used in
connection with the applicable versions of the Compatible PN Clients
and RA/RV Server.
PN agrees that it will license use of the XX Xxxxx to third parties
only for use with products that are Compatible. Microsoft may only
sublicense the XX Xxxxx for use in connection with third party
products which are Compatible, and which comply with the PN quality
control guidelines imposed on Microsoft under this Agreement.
Microsoft will use good faith efforts to ensure that its sublicensees
abide by PN's quality control guidelines, and will cooperate with PN
to remedy any violation thereof by its sublicensees.
Microsoft agrees that it will comply with PN's trademark usage
guidelines regarding the style and design of the XX Xxxxx, which PN
will deliver to Microsoft within two (2) weeks of the Effective Date.
Microsoft agrees to cooperate with PN in facilitating PN's reasonable
monitoring and review of the nature and quality of products and
services bearing the XX Xxxxx, and to supply PN with specimens of
Microsoft's use of the XX Xxxxx upon reasonable request Microsoft
understands and agrees that the use of any PN Xxxx in connection with
this Agreement shall not create any right, title or interest in or to
the use of the XX Xxxxx and that all such use and goodwill associated
with the XX Xxxxx will inure to the benefit of PN. [*]
2.4 [*]
Page 3 of 14
[*] denotes confidential treatment requested
4
[*]
2.5 Distribution of RA/RV Server. Until Microsoft distributes a
Compatible server product, Microsoft shall distribute the RA/RV Server
[*] Microsoft's website shall provide cross-links to PN's website for
additional information and support of the RA/RV Server. PN shall be
solely responsible for RA/RV Server end user support and shall have
the discretion to create appropriate support policies for end user
support.
2.6 [*]
2.7 Support. During the Term, each party shall use commercially practical
efforts to:
(a) [*]
(b) Provide consistent points of contact at the program manager
and executive level; and
(c) Provide each other reasonable level of technical support.
PN will receive such information at such quarterly meetings and to the
same extent provided to Microsoft's own internal streaming media
operations.
Page 4 of 14
[*] denotes confidential treatment requested
5
3. LICENSE FEE; DELIVERY; CONSULTING
3.1 Initial Delivery. On a date within thirty (30) days of signing this
agreement, such date to be set by Microsoft at its sole discretion, PN
shall make delivery to Microsoft of the Standard Code. At that time,
PN shall deliver to Microsoft PN's latest version of the Standard
Code, including any and all works in progress whether or not such
works have been released by PN. PN shall also provide Microsoft with
six (6) man-months of free consulting help by knowledgeable PN
employee's to train Microsoft with respect to the Standard Code,
including but not limited to how to build and create derivative works
of the Standard Code.
3.2 License Fee. In consideration for the rights and licenses granted
under this Agreement, Microsoft shall pay PN the sum of thirty millon
dollars ($30,000,000). Of this amount, twenty million dollars
($20,000,000) shall be paid [*] and ten million dollars ($10,000,000)
shall be paid [*]
3.3 [*]
3.4 Bug Fixes. PN shall deliver any bug fixes to the Standard Code on a
quarterly basis in the twelve (12) months following the initial [*]
3.5 UNIX Port. Regardless of whether Microsoft exercises its rights to
subsequent deliveries of Standard Code, PN shall deliver to Microsoft
any UNIX port of Microsoft Code which PN makes which PN does not
distribute or ceases to distribute. Such UNIX port shall be
considered licensed royalty-free to Microsoft under the terms of
Section 2.1.
4. PATENT ISSUES
4.1 Patent Covenant. PN covenants not to (a) xxx or (b) bring, prosecute,
assist or participate in any judicial, administrative or other
proceedings of any kind against Microsoft or its licensees (including
but not limited to OEMs and other distributors) for infringement of PN
Patents which occurs during the Immunity Period on account of the
manufacture, use, sale, importation, promotion or distribution of any
Microsoft audio and video client and server streaming functionality
included in any Microsoft products and technology (except Foundry
products and technology), regardless of whether such products and
technology is marketed under a Microsoft trademark regardless of
whether such products include Standard Code. "PN Patents" as used in
this Section 4.1 means (i) any and all patents (other than design
patents or the equivalent), or the inventions, ideas or applications
thereof, worldwide, whether currently existing, or later developed,
applied for, issued prior to the Term, or issuing during
Page 5 of 14
[*] denotes confidential treatment requested
6
the Term, and under which patents (or the inventions, ideas or
applications therefor) PN, or any of its Affiliates, now has or
obtains during the Term, the ability or right to license or grant
immunity from suit; and (ii) all extensions, divisionals,
continuations, continuations-in-art, re-examinations and reissue
patents of such patents, as well as patent applications thereof, to
the extent rights attach to such applications. The "Immunity Period"
shall commence upon the first to issue and shall terminate upon the
last to expire, of any of the PN Patents (in any jurisdiction).
For purposes of this Section 4, "Foundry" means a product or
technology manufactured, reproduced, sold, leased, licensed or
otherwise transferred ("Transferred") by one party to this Agreement
(the "Acting Party") to a third party, wherein the product or
technology is (i) designed by or for a third Party without substantial
input from the Acting Party and Transferred from the Acting Party to
such third party or such third party's customers on an exclusive or
substantially exclusive basis; or (ii) otherwise Transferred through
or by the Acting Party for the purpose of circumventing any patent
rights of the other Party to this Agreement.
4.2 Patent Covenant. Microsoft covenants not to (a) xxx or (b) bring,
prosecute, assist or participate in any judicial administrative or
other proceedings of any kind against PN or its licensees (including
but not limited to OEMs and other distributors) for infringement of
Microsoft Patents which occurs during the Immunity Period on account
of the manufacture, use, sale, importation, promotion or distribution
of any PN audio and video client and server streaming functionality
included in any PN products and technology (except Foundry products
and technology), regardless of whether such products and technology is
marketed under a PN trademark regardless of whether such products
include Microsoft Code. "Microsoft Patents" as used in this Section
4.2 means (i) any and all patents (other than design patents or the
equivalent), or the inventions, ideas or applications thereof,
worldwide, whether currently existing, or later developed, applied
for, issued prior to the Term, or issuing during the Term and under
which patents (or the inventions, ideas or applications therefor)
Microsoft, or any of its Affiliates, now has or obtains during the
Term, the ability or right to license or grant immunity from suit; and
(ii) all extensions, divisionals, continuations, continuations-in-art
re-examinations and reissue patents of such patents, as well as patent
applications thereof, to the extent rights attach to such
applications. The "Immunity Period" shall commence upon the first to
issue and shall terminate upon the last to expire, of any of the
Microsoft Patents (in any jurisdiction).
4.3 [*]
4.4 Covenants Personal and Non-Assignable. Each party agrees that the
respective covenant granted to it in Section 4.1 or Section 4.2 is
personal to it and may not be assigned, licensed or otherwise
transferred by it in whole or in part, to any third party, whether
under action of law or otherwise and including in connection with the
insolvency or bankruptcy of such party.
Page 6 of 14
[*] denotes confidential treatment requested
7
5. MEDIA FILE FORMAT AGREEMENT
Microsoft and PN shall work in good faith and use best efforts to conclude,
within ten (10) business days, the agreement currently being negotiated to
align media file formats and client technology.
6. [*]
6.1 [*]
6.2 [*]
6.3 [*]
7. INVESTMENT
7.1 Non-Voting Preferred Stock. PN agrees to sell to Microsoft, and
Microsoft agrees to purchase from PN, three million, three hundred
thirty-eight thousand, three hundred seventy-four (3,338,374) shares
of non-voting preferred stock of PN at a per share price of eight
dollars and ninety-nine cents ($8.99). These shares are convertible
into voting or non-voting common stock (at Microsoft's option) of PN.
Page 7 of 14
[*] denotes confidential treatment requested
8
These preferred shares will have terms and rights and preferences
comparable to existing preferred shares of PN.
7.2 Warrant. Simultaneously with the purchase of the preferred shares set
forth in Section 7.1, PN will grant to Microsoft a warrant to purchase
three million, seven hundred nine thousand, three hundred and five
(3,709,305) shares of non-voting preferred stock of PN, convertible
into voting or non-voting common stock (at Microsoft's option) of PN.
The purchase price of each share under the warrant shall equal
thirteen dollars and forty-eight cents ($13.48), subject to standard
adjustments for stock splits, stock dividends, reclassifications or
reorganizations. The warrant shall have a term of two and one-half
(2.5) years. In the event of an initial public offering ("IPO") of
PN, the warrant shall either be exercised by Microsoft on or before
the date of the IPO or shall expire.
7.3 Board of Directors. So long as Microsoft holds no less than (i)
3,338,374 shares of preferred stock (or common stock issued upon the
conversion of the preferred shares), or (ii) five percent (5%) of the
fully-diluted shares of PN, Microsoft shall have the right in its sole
discretion to have either (a) a Microsoft representative appointed to
the PN Board of Directors, or (b) a Microsoft representative appointed
as an observer to the PN Board of Directors. PN shall have the right
to approve such board member or observer, provided such approval shall
not be unreasonably withheld or delayed.
7.4 Approvals. Microsoft acknowledges that (i) PN's obligations under
this Section 7 are conditioned upon receiving certain shareholder
approvals and (ii) the warrant in Section 7.2 and all shares to be
purchased by Microsoft pursuant to this Section 7 will not have been
registered under the Securities Act of 1933, as amended, and therefore
may be issued and sold only upon Microsoft making such representations
and warranties as are customary in connection with the purchase of
restricted stock. Microsoft agrees to make such customary
representations and warranties. PN will use its reasonable best
efforts to obtain any necessary shareholder approvals identified by
this Section 7.4. In the event PN is unable to obtain such
shareholder approval(s) by 5 p.m., June 23, 1997, PN shall propose to
Microsoft alternative terms which do not require shareholder approval.
If Microsoft does not agree to such alternative terms, this Agreement
shall terminate. If Microsoft does agree to such alternative terms,
then notwithstanding such agreement by Microsoft and if PN convinces
its shareholders within twenty-five (25) days to accept the original
transaction, then the original terms shall apply. Absent such
shareholder approval of the original terms, the alternative terms
proposed by PN and agreed to by Microsoft shall be the basis of the
Agreement. Upon such termination, then notwithstanding anything to
the contrary herein (including but not limited to Section 11.5), this
Agreement shall terminate as though the parties never executed the
Agreement.
7.5 Definitive Agreements. Each party will use all reasonable efforts to
negotiate and close on any and all necessary agreements and approvals
required to perfect the investment set forth in this Section 7 within
thirty (30) days of the Effective Date.
7.6 Due Diligence. Microsoft's obligation to purchase preferred shares of
PN is subject to the satisfactory completion of due diligence by
Microsoft. PN will make available to Microsoft documents and
information as reasonably requested, so that Microsoft can perform a
full investigation of PN's business and legal conditions. Microsoft
will complete its due diligence within seven (7) days of notification
by PN that PN has collected and made available to Microsoft all the
due diligence materials requested by Microsoft.
7.7 Regulatory Approval. The parties acknowledge that a material
consideration of this Agreement is the ability to implement and
conclude the Agreement expeditiously. If, by 5 p.m., June 23, 1997,
either party, in its sole discretion, determines that any required
government or regulatory approvals (solely with respect to this
Agreement and not in combination with any other proposed or actual
transaction) could cause unacceptable delay in successfully
implementing and concluding the Agreement expeditiously, either party
may terminate this Agreement. Upon such termination, then
notwithstanding anything to the contrary herein (including but not
limited to Section 11.5), this Agreement shall terminate as though the
parties never executed the Agreement.
Page 8 of 14
9
8. CONFIDENTIALITY; ANNOUNCEMENTS
8.1 Announcement. The parties will announce their relationship under this
Agreement within thirty (30) days of the Effective Date. The precise
timing and content of any announcement of this Agreement must be
jointly agreed upon, but both parties will acknowledge the nature of
Microsoft's distribution of PN's technology, the fact of Microsoft's
investment in PN, and other matters of strategic importance agreed to
by the parties. [*] Upon such termination, then notwithstanding
anything to the contrary herein (including but not limited to Section
11.5), this Agreement shall terminate as though the parties never
executed the Agreement.
8.2 Restrictions on Use and Disclosure. Each party shall protect the
other's Confidential Information from unauthorized dissemination and
use with the same degree of care that such party uses to protect its
own like information. Neither party will use the other's Confidential
Information for purposes other than those necessary to directly
further the purposes of this Agreement. Each party will use its best
efforts not to disclose to third parties the other's Confidential
Information without the prior written consent (except with respect to
source code as set forth in Section 2.1) of the other party. Except
as expressly provided in this Agreement, no ownership or license
rights are granted in any Confidential Information.
9. [*]
Page 9 of 14
[*] denotes confidential treatment requested
10
9.1 [*]
9.2 [*]
Page 10 of 14
[*] denotes confidential treatment requested
11
10. [*]
10.1 [*]
10.2 [*]
11. TERMINATION
11.1 Term. Unless earlier terminated in accordance with Section 11.2, this
Agreement shall commence upon the Effective Date and continue in full
force and effect through the Term.
11.2 Termination By Either Party For Cause. Either party may suspend
performance and/or terminate this Agreement immediately upon written
notice at any time if the other party is in material breach of Section
8.2 and fails to cure that breach within five (5) days after written
notice thereof.
11.3 Dispute Resolution. If the a party is in material breach of any
material warranty, term, condition or covenant of this Agreement other
than those contained in Section 8.2, such party shall cure that breach
within forty-five (45) after written notice thereof. If a party
contests or disputes that material breach has so occurred, the parties
shall submit any dispute to structured negotiation as follows:
(a) Coverage. Other than actual or imminent material breaches of
Section 8.2, any dispute between the parties with respect to
this Agreement shall be submitted for structured negotiation.
The commencement, and any resolution reached as a result, of
any dispute resolution under Section 11.3 shall be considered
Confidential Information and protected under Section 8.
(b) Structured Negotiation. Either party may invoke this
procedure by giving written notice to the other party
designating a corporate officer with appropriate authority to
be its representative in negotiations relating to the dispute.
Upon receipt of such notice, the other party shall, within
five (5) business days, designate a corporate officer with
similar authority to be its
Page 11 of 14
[*] denotes confidential treatment requested
12
representative. The designated officers shall, following
whatever investigation each deems appropriate, but no event
later than twenty (20) business days after the original
notice, enter into discussions concerning the dispute. If
within an additional twenty (20) business days of their
initial meeting, the representatives do not resolve the
dispute, either party may submit the matter to binding
arbitration under Section 11.3(c).
(c) Binding Arbitration. Any dispute not settled by the parties
by structured negotiation (other than actions for injunctive
relief including specific performance) shall be submitted only
to binding arbitration. The arbitration will be conducted in
accordance with the procedures in this document and the
Arbitration Rides for Commercial Arbitration Rules of the AAA
("AAA Rules"). In the event of a conflict with such rules,
the provisions of this Agreement will control.
The arbitration shall take place in Seattle, Washington,
before a panel of three arbitrators appointed as follows:
each party shall select a single arbitrator, and the two (2)
selected arbitrators shall mutually agree upon a third. The
arbitrators selected shall have knowledge and experience in
the computer software business. The arbitrators shall rule on
the dispute by issuing a written opinion setting forth
findings of fact and the rationale for their decision within
thirty (30) days after the close of hearings. The decision
rendered by the arbitrators shall be final and binding and may
be entered as a judgment in any court of competent
jurisdiction. The arbitrator(s) shall control the scheduling
so as to process the matter expeditiously. The times
specified in this section may be extended upon mutual
agreement of the parties by the arbitrators upon a showing of
good cause.
Any issue concerning the extent to which any dispute is
subject to arbitration, or concerning the applicability,
interpretation or enforceability of these procedures,
including any contention that all or part of these procedures
are invalid or unenforceable, shall be governed by the Federal
Arbitration Act and resolved by the arbitrators. No potential
arbitrator may serve on the panel unless he or she has agreed
in writing to abide and be bound by these procedures.
All aspects of the arbitration shall be treated as
Confidential Information.
Unless provided otherwise in the Agreement, the arbitrators
may not award non-monetary or equitable relief of any sort.
They will have no power to award damages inconsistent with the
Agreement. In no event, even if any other portion of these
provisions is held to be invalid or unenforceable, shall the
arbitrators have power to make an award or impose a remedy
that could not be made or imposed by a court deciding the
matter in the same jurisdiction.
The parties may submit written briefs. Discovery shall be
controlled by the arbitrators and shall be permitted as
follows: each party may submit in writing to a party, and that
party shall so respond, to a maximum of any combination of
thirty-five (35) (none of which may have subparts) of
interrogatories, demands to produce documents, and requests
for admission.
Each party shall bear its own costs of the arbitration. A
party seeking discovery shall reimburse the responding party
the costs of production of documents (to include search time
and reproduction costs). The parties shall equally split the
fees of the arbitration and the arbitrators.
11.4 Effect of Termination.
(a) Neither party shall be liable to the other for damages of any
sort resulting solely from terminating this Agreement in
accordance with its terms.
(b) Any end user licenses already validly granted by PN as the
effective date of termination shall not be affected and shall
survive termination.
Page 12 of 14
13
11.5 Survival. In the event of termination or expiration of this Agreement
for any reason, Sections 2.1 (provided that Microsoft has paid the
applicable license fees set forth in Section 3), 2.2, 2.4(c), 3.2 (to
the extent fees are due and owing), 4, 8.2, 9, 10, 11, 12 and 13 shall
survive termination.
12. LIMITATION OF LIABILITIES
NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL,
PUNITIVE OR SPECIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
13. GENERAL
13.1 Notices. All notices and requests in connection with this Agreement
shall be deemed given as of the day they are received either by
messenger, delivery service, or in the United States of America mails,
postage prepaid, certified or registered, return receipt requested,
and addressed as follows:
To PN: To Microsoft:
Progressive Networks, Inc. Microsoft Corporation
0000 Xxxxx Xxxxxx, Xxxxx 0000 One Microsoft Way
Seattle, WA 98101 Xxxxxxx, XX 00000-0000
Attention: General Counsel Attention:
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Copy to:
Microsoft Corporation
Xxx Xxxxxxxxx Xxx
Xxxxxxx, XX 00000-0000
Attention: Law & Corporate Affairs
Fax: (000) 000-0000
or to such other address as a party may designate pursuant to this
notice provision.
13.2 Independent Contractors. PN is an independent contractor for
Microsoft and nothing in this Agreement shall be construed as creating
an employer-employee relationship, a partnership, or a joint venture
between the parties.
13.3 Taxes. In the event taxes are required to be withheld on payments
made under this Agreement by any U.S. (state or federal) or foreign
government, Microsoft may deduct such taxes from the amount owed PN
and pay them to the appropriate taxing authority. Microsoft shall in
turn promptly secure and deliver to PN an official receipt for any
taxes withheld. Microsoft will use reasonable efforts to minimize
such taxes to the extent permissible under applicable law.
13.4 Governing Law. This Agreement shall be governed by the laws of the
State of Washington as though entered into between Washington
residents and to be performed entirely within the State of Washington,
and PN consents to jurisdiction and venue in the state and federal
courts sitting in the State of Washington. In any action or suit to
enforce any right or remedy under this Agreement or to interpret any
provision of this Agreement, the prevailing party shall be entitled to
recover its costs, including reasonable attorneys' fees.
Page 13 of 14
14
13.5 Assignment. This Agreement shall be binding upon and inure to the
benefit of each party's respective successors and lawful assigns;
provided, however, that PN may not assign this Agreement, in whole or
in part, without the prior written approval of Microsoft. For purposes
of this Agreement, a merger, consolidation, or other corporate
reorganization, or a transfer or sale of any or all of a party's stock,
or of all or substantially all of its assets shall be deemed to be an
assignment; provided, however, that an IPO of PN stock shall not be
considered an assignment.
13.6 Construction. If for any reason a court of competent jurisdiction
finds any provision of this Agreement, or portion thereof, to be
unenforceable, that provision of the Agreement will be enforced to the
maximum extent permissible so as to effect the intent of the parties,
and the remainder of this Agreement will continue in full force and
effect. Failure by either party to enforce any provision of this
Agreement will not be deemed a waiver of future enforcement of that or
any other provision. This Agreement has been negotiated by the
parties and their respective counsel and will be interpreted fairly in
accordance with its terms and without any strict construction in favor
of or against either party.
13.7 Entire Agreement. This Agreement does not constitute an offer by
Microsoft and it shall not be effective until signed by both parties.
This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and merges all prior and
contemporaneous communications. It shall not be modified except by a
written agreement dated subsequent to the date of this Agreement and
signed on behalf of PN and Microsoft by their respective duly
authorized representatives.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
Effective Date written above.
--------------------------------------------------------------------------------
MICROSOFT CORPORATION PROGRESSIVE NETWORKS
--------------------------------------------------------------------------------
By: [s] Xxxx Xxxxxx By: [s] Xxx Xxxxxx
--------------------------------------------------------------------------------
Name (Print): Xxxx Xxxxxx Name (print): Xxx Xxxxxx
--------------------------------------------------------------------------------
Title: Group VP, Applications & Platforms Title: CEO
--------------------------------------------------------------------------------
Date: 6/17/97 Date: 6-17-97
--------------------------------------------------------------------------------
Page 14 of 14
[*] denotes confidential treatment requested
