XXXXXXX.XXX
WEB CONTENT DISTRIBUTION AGREEMENT
This Web Content Distribution Agreement (hereinafter "Agreement") is made and
entered into on this 1st day of January, 2000 by and between XXXXXXX.XXX.
(hereinafter "Nettaxi"), a Nevada corporation with offices located at 0000 Xxxx
Xxxxxx Xxxxxxxx, Xxxxxxxxxx 00000 (hereinafter "Nettaxi") and White Sand
Communications, Inc., a company located at 0000X Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxx
000, Xxxxxxxxxx, Xxxxxxxxxx 00000 (hereinafter "Customer").
WHEREAS, Nettaxi provides a service whereby Internet content providers can
distribute a variety of content through the Internet and World Wide Web, and
WHEREAS, Customer wishes to have Nettaxi distribute Content through Internet
Servers using streaming technology,
NOW THEREFORE, for good and valuable consideration, the parties do hereby agree
as follows:
1. GENERAL TERMS
A. This document, along with the Content Management Service Order
("CMSO") agreement, shall comprise a complete and binding agreement
between Content Provider and Nettaxi. Each CMSO agreement, and any
amendments thereto, when dated and subscribed by Customer and Nettaxi,
shall incorporate the terms and conditions of this Agreement. In the
event of any conflict or inconsistency between this Agreement and the
terms set forth in a CMSO agreement, the terms of the CMSO agreement
shall in all cases prevail.
B. Web Content Management services shall consist of the distribution
of content provided by Customer through computer servers owned and/or
operated and/or controlled by Nettaxi.
2. STREAM MAGIC SERVICES
A. Content Preparation: Nettaxi shall prepare Content consisting of
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fully encoded audio or video product provided by Content Provider for
placement on Nettaxi servers. (Encoding may also be performed by
Nettaxi for an additional fee, as agreed by the parties). Customer
shall provide Nettaxi with timely access to its Content as required
for Nettaxi to prepare said Content and provide all services Customer
has elected to receive. Customer understands and acknowledges that
Nettaxi's performance depends, in part, upon Customer s assistance and
cooperation in all matters pertaining to this Agreement.
B. Connectivity and Content Streaming: Utilizing Nettaxi's servers,
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Customer shall be provided with Content storage and Internet
connectivity. Customer's content shall be distributed on an
"On-demand" basis on the Internet utilizing the Internet video formats
specified by Customer, including, but not limited to, Microsoft(R)
Windows Media Server(TM) ("WMS"), Real Networks(R) Real Server
("Real"), Apple(R) QuickTime Server ("QuickTime"), Server Push and Web
Page serving.
C. Technical Support/Maintenance: Nettaxi shall provide Customer with
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technical support upon Customer's request and in accordance with
Nettaxi's terms and conditions and any applicable fee.
3. LICENSES
Customer hereby grants Nettaxi a worldwide, non-exclusive license to
host, distribute, display, cache and transmit Content in connection
with the Web Content Distribution Services. Nettaxi will take
reasonable precautions to prevent the unauthorized reception and use
of the Content while being streamed onto the Internet, which includes
taking reasonable security measures to prevent unauthorized use or
copying of Content by third parties not intended to receive Content.
4. OWNERSHIP
Customer retains all right, title and interest in and to the Content
it places with Nettaxi. Nettaxi is the Licensee authorized to provide
streaming content services through the use of the licensed software,
hardware, products, equipment and any other applicable intellectual
properties. Nettaxi's Licensor, its heirs, successors and/or assigns
retain all right, title and interest in and to all software, hardware,
products, equipment and other intellectual properties created by or
for Nettaxi in connection with the Web Content Distribution Services.
5. MARKETING AND PROMOTION
Both Customer and Nettaxi shall have the right to create
advertisements, make public announcements and press releases using
each others names provided they have received prior written approval,
which shall not be unreasonably withheld.
6. TERM OF AGREEMENT
A. The term of this Agreement shall two(2) years unless otherwise
specified in the CMSO. Either party may terminate this agreement upon
thirty days (30) written notice.
B. Following the expiration of the Term or the failure of the Parties
to enter into a renewal, the services as enumerated in the then most
recent CMSO shall continue in effect on a month-to-month basis upon
the same terms and conditions specified herein, unless terminated by
either Customer or Nettaxi upon thirty (30) days prior written notice.
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7. TERMINATION
A. Either party shall have the right to terminate this agreement
should the other party breach a material term or condition of this
Agreement and fail to cure such breach within thirty (30) days after
receipt of written notice of the breach, except in the case of failure
to make timely payment to Nettaxi, which must be cured within ten (10)
days of the payment due date. Nettaxi has the option, at its sole
discretion, to terminate this Agreement should Customer become
insolvent or the subject of bankruptcy proceedings, a receivership,
liquidation or a sale for the benefit of creditors.
B. Upon termination or expiration of the Term or any subsequent
renewal, Customer agrees to do the following: (i) pay any outstanding
fees within ten (10) days of termination of service; (ii) return any
confidential information it has received from Nettaxi and (iii) return
any equipment or supplies that are the property of Nettaxi.
8. DEFAULT
A. If Customer fails to perform its obligations, or fails to pay for
services rendered hereunder, Nettaxi may, at its sole option and with
written notice, issue a default notice letter to Customer, demanding
the default condition be cured. If the default condition is not
remedied within thirty (30) days, Nettaxi may then, without the
necessity of any further notice, discontinue performance and terminate
this Agreement, for default, and pursue any other remedies available
at law or in equity, including reimbursement of the cost of collection
and reasonable attorney fees. Nettaxi's failure to exercise any of its
rights hereunder shall not constitute or be construed by Customer as
being a waiver of any past, present, or future right or remedy. In the
case of Customer's failure to cure any default within the thirty (30)
day time period, Nettaxi may discontinue any or all services for any
period of time as it deems appropriate without written notice to
Customer, and Nettaxi shall not deem such action a breach of this
Agreement.
B. Nettaxi may, without notice, suspend or terminate services to
customer if Customer is found to be engaged in unlawful activities or
upon the request to do so by any legal or governmental agencies.
9. PRICES AND PAYMENT TERMS
A. Customer shall pay Stream Magic in accordance with the most current
CMSO associated with this Agreement. Fees shall include, but are not
limited to, an initial set up fee, monthly minimum fees, Webcast
distribution fees and monthly storage fees. All payments will be made
in U.S. dollars. Late payments hereunder will accrue interest at a
rate of one and one-half percent (1 1/2) per month, or the highest
rate allowed by applicable law, whichever is lower. If in its judgment
Nettaxi determines that Customer is not creditworthy or is otherwise
not financially secure, Nettaxi may, upon written notice to Customer,
modify the payment terms to require assurances to secure Customer's
payment obligations hereunder.
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B. All payments required by this Agreement are exclusive of all
national, state, municipal or other governmental excise, sales,
value-added, use, personal property, and occupational taxes, excises,
withholding taxes and obligations and other levies now in force or
enacted in the future, all of which Customer will be responsible for
and will pay in full. Customer agrees to pay or reimburse Nettaxi for
any applicable taxes that are levied based on the transactions
hereunder, exclusive of taxes on income or real estate taxes. Any such
charges shall be invoiced and payable within the payment terms of this
Agreement. Nettaxi agrees to provide Customer with reasonable
documentation to support invoiced amounts applied to taxes within
thirty (30) calendar days of receipt of a Customer's written request.
C. Payments shall be due thirty (30) days from Customer's receipt of
each monthly invoice. Late payment charges will be calculated based on
1.5% per month of the unpaid amount
10. WARRANTIES AND INDEMNIFICATION
A. Customer warrants and represents that it owns or licenses all
rights in or has the right to distribute, the Content; that the
Content does not violate any trademarks, service marks or copyrights
or any right of privacy or publicity or otherwise infringe upon the
rights of any third party; that the Content does not violate any
federal, state or local laws, statutes or rules or regulations.
Customer shall indemnify and hold harmless Nettaxi, its officers,
directors, agents, contractors and employees, from and against any and
all third party claims, costs, expenses or liabilities arising from or
in connection with Customer's Content. Customer further agrees to
indemnify Nettaxi against Customer's acts of negligence resulting in
damage to third parties.
B. Nettaxi warrants and represents that it owns or licenses all right
in and to the technology associated with the Web Content Distribution
service, that, to the best of its knowledge, none of the technology it
uses for its services infringes upon or the intellectual property
right of any third party and that, to the best of its knowledge, the
operation of the Web Content Distribution Service does not violate any
applicable federal, state or local statutes, rules or regulations.
C. EXCEPT FOR THE WARRANTIES SET FORTH HEREIN, NEITHER PARTY MAKES ANY
OTHER WARRANTIES IN CONNECTION WITH THE SUBJECT MATTER OF THIS
AGREEMENT, WHETHER EXPRESSED OR IMPLIED, AND DISCLAIMS ANY SUCH
WARRANTIES, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, AND NON - INFRINGEMENT. NETTAXI SPECIFICALLY
DISCLAIMS ALL WARRANTIES THAT THE WEB CONTENT DISTRIBUTION SERVICE
WILL MEET ANY STANDARD OF PERFORMANCE OR ACCURACY OR THAT IT WILL BE
TIMELY OR FREE OF ERRORS.
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D. In the event of any breach, or reasonably anticipated breach, of
any of the foregoing warranties, in addition to any other remedies
available in law or equity, Nettaxi shall have the right, at Nettaxi's
sole discretion, to suspend Web Content Distribution Services if
deemed reasonably necessary by Nettaxi to prevent any harm to its
business.
11. LIMITATION OF LIABILITIES
A. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD
PARTY FOR SPECIAL, COLLATERAL, PUNITIVE, EXEMPLARY, INDIRECT
INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO,
LOSS OF GOODWILL, LOSS OF PROFITS OR REVENUES, LOSS OF USE,
INTERRUPTIONS OF BUSINESS OR CUSTOMER CLAIMS ALLEGED AS A RESULT OF
TORTIOUS CONDUCT OR BREACH OF ANY OF THE PROVISIONS OF THIS AGREEMENT,
EVEN IF EITHER PARTY HAS BEEN ADVISED BY THE OTHER OR ANY THIRD PARTY
OF THE POSSIBILITY OF SUCH DAMAGES.
B. THE LIABILITY OF NETTAXI FOR DAMAGES ARISING OUT OF THE SERVICES
PROVIDED HEREIN, INCLUDING, WITHOUT LIMITATION, MISTAKES, OMISSIONS,
INTERRUPTIONS, DELAYS, TORTIOUS CONDUCT OR ERRORS, WHETHER CAUSED BY
ACTS OF COMMISSION OR OMISSION, SHALL BE LIMITED TO A PRORATED REFUND
OF THE CHARGES PAID BY CLIENT FOR THE WEB CONTENT DISTRIBUTION
SERVICES. THE RECEIPT OF SUCH REFUNDS SHALL BE THE SOLE REMEDY
AFFORDED TO CUSTOMER.
12. CONFIDENTIAL INFORMATION
A. Each party acknowledges that during the term of this Agreement it
will have access to certain confidential information of the other
party concerning the other party's business plans, customers,
technology, financial status and products, including the terms and
conditions of this Agreement ("Confidential Information").
Confidential Information will include, but not be limited to, each
party's proprietary software and customer information. Each party
agrees that it will not use in any way, for its own account or the
account of any third party, except as expressly permitted by this
Agreement, nor disclose to any third party (except as required by law
or to that party's attorneys, accountants and other advisors as
reasonably necessary), any of the other party's Confidential
Information and will take reasonable precautions to protect the
confidentiality of such information.
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B. Information will not be deemed Confidential Information hereunder
if such information: (i) is known to the receiving party prior to
receipt from the disclosing party directly or indirectly from a source
other than one having an obligation of confidentiality to the
disclosing party; (ii) becomes known (independently of disclosure by
the disclosing party) to the receiving party directly or indirectly
from a source other than one having an obligation of confidentiality
to the disclosing party; (iii) becomes publicly known or otherwise
ceases to be secret or confidential, except through a breach of this
Agreement by the receiving party; or (iv) is independently developed
by the receiving party.
13. EXCUSED PERFORMANCE
Neither Party shall be liable to the other Party under this Agreement
for any failure nor delay in performance that is due to causes beyond
its reasonable control, including but not limited to, acts of nature,
governmental actions, fires, civil disturbances, interruptions of
power, or transportation problems.
14. ASSIGNMENT OR TRANSFER
Customer shall not assign or transfer the rights or obligations
associated with this Agreement, in whole or in part, without Nettaxi's
prior written consent.
15. GOVERNING LAW
This Agreement shall be governed and construed by the laws of the
State of California except as they pertain to its conflict of law
provisions. The courts of the State of California, County of Los
Angeles shall have jurisdiction over any legal disputes relating to or
in connection with this Agreement.
16. RELATIONSHIP OF PARTIES
The Parties to this Agreement shall be deemed independent contractors
and neither Party shall have the right or authority to bind the other
to any obligation not expressly agreed to in writing.
17. WAIVER
Conduct by either party amounting to a waiver of a breach or default
of any of the terms of this Agreement shall not be construed as a
waiver of any subsequent breach or default.
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18. NOTICES
All notices pertaining to this Agreement shall be in writing and
delivered via registered mail, return receipt requested, to the
addresses first written above or by facsimile or email, with a written
acknowledgement of receipt.
19. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding between the
parties and supercedes all other agreements, whether written or oral.
This Agreement may not be modified except in a writing, which is
signed, by both parties or their duly authorized representatives.
IN WITNESS WHEREOF the parties do hereby execute this Agreement as of the date
set forth below.
XXXXXXX.XXX WHITE SAND COMMUNICATIONS, INC.
By: /s/ Xxxx Xxxxxxxx By: /s/ VALDIR MANAGERS LIMITED, DIRECTOR
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Date: 1/1/00 Date: 1-1-00
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