1
Exhibit 10.9
Confidential Materials omitted and filed separately
with the Securities and Exchange Commission. Asterisk
denote omission.
STRATEGIC ALLIANCE AND JOINT DEVELOPMENT AGREEMENT
This STRATEGIC ALLIANCE AND JOINT DEVELOPMENT AGREEMENT (the
"Agreement") is made and entered into as of this 6th day of August, 1999, (the
"Effective Date") by and between CISCO SYSTEMS, INC., a California corporation,
with offices at 000 X. Xxxxxx Xxxxx, Xxx Xxxx, Xxxxxxxxxx 00000 ("Cisco"), and
AKAMAI TECHNOLOGIES, INC., a Delaware corporation, with offices at 000 Xxxxxxxx,
Xxxxxxxxx, XX 00000 ("Akamai").
RECITALS:
A. Cisco is in the business of developing, manufacturing and selling
routers, switches and other hardware and software products for use in computer
and communications networks ("Cisco Products"), including but not limited to
certain products for the caching and secure transmission of data and certain
protocols for the exchange of information.
B. Akamai has developed proprietary technology to efficiently deliver
content over the Internet and is in the business of providing content
distribution services ("Akamai Services"). To support its Akamai Services,
Akamai has, among other things, deployed a worldwide network dedicated to web
content delivery.
C. The parties wish to enter into a strategic development, integration
and joint marketing arrangement, and wherever practicable, Akamai is [**] and to
undertake such other obligations as are set forth herein, on the terms and
conditions contained in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises contained
herein, the parties agree as follows:
1. DEFINITIONS.
Capitalized terms used in this Agreement are defined throughout the Agreement.
Terms not defined therein shall be given their plain English meaning; provided,
however, that those terms, acronyms and phrases known in the computer software
industry which are not defined shall be interpreted in accordance with their
generally accepted industry meaning.
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2. INTENT AND PURPOSE OF ALLIANCE; PROJECT PLANS.
2.1 INTENT AND PURPOSE. This Agreement contemplates certain joint
development activities between Cisco and Akamai that are intended to facilitate
and promote faster and more efficient Internet content delivery by, among other
things, developing protocol specifications and algorithms enabling Cisco's
router and switch hardware and equipment technologies and capabilities to
interoperate with Akamai's Internet content delivery technologies, services and
capabilities. Pursuant to the foregoing, it is the current intent of the parties
to undertake the development and integration projects specified in Section 3
below (the "Projects").
2.2 PROJECT PLANS. Notwithstanding the provisions of Section 2.1 above,
the parties understand that the technical and commercial feasibility of the
Projects has not been established. Accordingly, while it is the present intent
of the parties to undertake the Projects, either party may at its sole
discretion decline to agree to undertake any or all of the Projects without
obligation or penalty. It is further understood and agreed that each Project
undertaken pursuant to this Agreement will be subject to the execution and
delivery by the Parties of a separate Project plan for each Project undertaken
(each, a "Project Plan"). When executed, each Project Plan will be attached to
and incorporated by reference into this Agreement, and the terms and conditions
of the Project Plan shall control to the extent inconsistent with the terms
contained herein. The Parties agree that each Project Plan will set forth, among
other things as the parties shall deem appropriate, the following:
- a detailed description of the Project;
- any design documents or specifications (unless the Project
contemplates creation or development of the same);
- Project deliverables, if any, that either or both Parties will
be responsible for creating and developing;
- tasks, responsibilities, covenants and agreements of each
Party relating to the Project;
- deadlines, interim milestones, and other matters relating to
timing and delivery or performance under the Project;
- Intellectual Property rights or licenses to the extent
different from the terms of this Agreement;
- exclusivity rights or other restrictions on use with or
marketing of competing technologies, if any;
- termination rights of the Parties relating to the Project;
- obligations of the Parties to manufacture, market or sell
implementations of the Project; and
- any other terms or conditions that vary from the terms and
conditions set forth in this Agreement.
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisk denote omission.
3. THE PROJECTS.
3.1 [**] PROJECT. Akamai and Cisco will jointly develop a [**] protocol
("[**] ") which will enable content delivery software (which shall include but
may not be limited to Akamai's proprietary FreeFlow software (the "FreeFlow
Software")) [**] products (the "[**]", which shall include but may not be
limited to Cisco's [**] products), and for the [**] to participate in [**]
Akamai's content delivery service, as follows:
(a) Akamai has delivered to Cisco an initial draft of a [**]
document ("[**] Document"). Engineering teams from both parties agree
to work jointly and negotiate in good faith to agree upon a final [**]
Document and a [**] Project Plan ("[**] Project Plan").
(b) The parties will establish by mutual agreement target
dates for the development of the [**] Document and the [**] Project
Plan.
(c) Akamai shall designate [**] as its Project Manager (as
defined below) for the [**] project, and Cisco shall designate [**] as
its Project Manager. Either Party may change its Project Manager and
appoint a substitute Project Manager for this Project.
(d) Subject to the ownership rights set forth in Section 8,
the Parties agree that all aspects of [**] jointly developed by the
Parties (the "Jointly Developed [**] Property") shall be [**]. Subject
to the provisions of Section 3.1(e) below, with respect to any Cisco
Property expressly incorporated into [**] as finally approved by both
Parties under this Agreement, [**] solely as incorporated into [**] and
any implementations thereof. Subject to the provisions of Section
3.1(e) below, with respect to any Akamai Property and any Jointly
Developed [**] Property expressly incorporated into [**] as finally
approved by both Parties under this Agreement, [**] solely as
incorporated into [**] and any implementations thereof. The parties
further agree that Confidential Information excludes [**] as finally
approved by both Parties.
(e) The parties agree that nothing contemplated in this
Section 3.1 shall prohibit: (i) [**] or other product or service of
Cisco [**] , provided that Cisco does not disclose to such third party
or use any Akamai Property or Akamai Confidential Information in
interfacing with such third party products); and (ii) [**] or other
product or service of Akamai [**], provided that Akamai does not
disclose to such third party or use any Cisco Property or Cisco
Confidential Information in interfacing with such third party
products).
(f) In addition to the foregoing, [**], during the term of
this Agreement and for a period of [**] following its termination,
[**], provided however that, subject to the other restrictions and
limitations provided herein, nothing in this Section 3.1(f) shall [**],
and provided further that the [**] in this Section 3.1(f) shall
terminate immediately upon any termination of this Agreement by Akamai.
[**], during the term of this Agreement
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisk denote omission.
and for a period of [**] following its termination, [**], provided
however that, subject to the other restrictions and limitations
provided herein, nothing in this Section 3.1(f) shall [**], and
provided further that the [**] in this Section 3.1(f) shall terminate
[**] any termination of this Agreement by Cisco.
3.2 [**]. In consultation with [**] will develop a [**] that will
enable [**] to be used by the each of the Parties to enhance the interoperation
of their products or services. By way of example (but without limitation), it is
anticipated that the following data may be included in such protocols, subject
to such data being available and capable of being readily exposed:
- [**];
- [**];
- [**];
- [**];
- [**];
- [**];
- [**].
(a) The parties will (i) establish by mutual agreement target
dates for the development of [**], and (ii) negotiate in good faith to
agree upon, execute and deliver an 2 Project Plan.
(b) Akamai shall designate [**] as its Project Manager for the
[**] project, and Cisco shall designate [**] as its Project Manager.
Either Party may change its Project Manager and appoint a substitute
Project Manager for this Project.
(c) Unless expressly agreed to in the [**] Project Plan or
otherwise in writing between the Parties with respect to a specific
portion: (i) the [**], including any derivatives, improvements or
modifications created under this Agreement, shall be considered [**]
Property under this Agreement,[**] as delivered to [**] solely to
implement certain of [**], in providing [**], to interoperate with and
fully utilize [**].
(d) [**] may establish and promote the [**] as an [**].
Accordingly, subject to the requirements of confidentiality with
respect to [**] confidential information, [**] may at any time and at
[**] discretion [**]. [**] will notify [**] if it intends to so [**].
3.3 [**] PROJECT. Akamai and Cisco will jointly develop, name and
implement one or more [**] that can be used in connection with, among other
things, [**], and to [**] which will provide the data resulting from [**], as
follows:
(a) The parties will (i) establish by mutual agreement target
dates for the development of the [**], and (ii) negotiate in good faith
to agree upon, execute and deliver a Project Plan relating to the
development of the [**].
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Securities and Exchange Commission. Asterisk denote omission.
(b) Akamai shall designate [**] as its Project Manager for the
[**] project, and Cisco shall designate [**] as its Project Manager.
Either Party may change its Project Manager and appoint a substitute
Project Manager for this Project.
(c) Subject to the ownership rights set forth in Section 8,
the parties agree that all aspects of the [**] by the parties (the
"[**]") shall be [**]. With respect to the [**], if any, expressly
incorporated by the parties into the [**] as finally approved by the
Parties under this Agreement, [**] solely as incorporated in the [**]
and any implementations thereof. With respect to the [**], if any,
expressly incorporated by the Parties into the [**] as finally approved
by the Parties under this Agreement, [**] solely as incorporated in the
[**] and any implementations thereof. Subject to foregoing, the
foregoing licenses do not grant either Party rights to any [**] created
by the other party subsequent to the version finally approved by the
Parties under this Agreement. The parties further agree that
Confidential Information excludes the [**] as finally approved by both
Parties.
(d) Notwithstanding the provisions of Section 8, the
ownership, license and confidentiality rights of each party with regard
to the [**] shall be set forth as in the Project Plan.
(e) Except as may be otherwise expressly provided in the
Project Plan, [**]. Accordingly, subject to the requirements of
confidentiality with respect to [**] Confidential Information, [**] at
any time and [**] to the [**]. [**] if it intends to [**].
3.4 DEVELOPMENT OF ALGORITHMS AND PROTOCOLS TO CONTROL CISCO SWITCHES
IN COMBINATION WITH AKAMAI'S CONTENT DELIVERY SYSTEM. Akamai and Cisco shall
form a working group to jointly develop, name and implement a next generation
switch with the ability to dynamically adapt to changing network conditions and
distribute content according to more sophisticated algorithms than is possible
with existing routing algorithms ("Switch Algorithms") and to develop protocols
which will provide the data resulting from such algorithms to Cisco Products and
to Akamai's software ("Switch Protocols"), as follows:
(a) The parties will (i) establish by mutual agreement target
dates for the development of the Switch Algorithms and Switch
Protocols, and (ii) negotiate in good faith to agree upon, execute and
deliver a Switch Algorithms and Switch Protocols Project Plan ("Switch
Project Plan").
(b) [**] shall designate [**] as its Project Manager for the
Switch Protocols project, and [**] shall designate as its Project
Manager. Either Party may change its Project Manager and appoint a
substitute Project Manager for this Project.
(c) Subject to the ownership rights set forth in Section 8,
the parties agree that all aspects of the Switch Protocols [**] (the
"[**] Switch Protocol Property") [**]. With
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisk denote omission.
respect to the [**], if any, expressly incorporated by the parties into
the Switch Protocols as finally approved by the Parties under this
Agreement, [**] solely as incorporated in the Switch Protocols and any
implementations thereof. With respect to the [**] and the Jointly
Developed Switch Protocol Property, [**] solely as incorporated in the
Switch Protocols and any implementations thereof. Subject to foregoing,
the foregoing licenses do not grant either Party rights to any Switch
Protocols created by the other party subsequent to the version finally
approved by the Parties under this Agreement. The parties further agree
that Confidential Information excludes the Switch Protocol as finally
approved by both Parties.
(d) Notwithstanding the provisions of Section 8, the
ownership, license and confidentiality rights of each party with
respect to any Switch Algorithms shall be set forth as in the Project
Plan.
(e) Except as may be otherwise expressly provided in the
Project Plan, [**]. Accordingly, subject to the requirements of
confidentiality with respect to [**] Confidential Information, [**] may
at any time and [**] the Switch Protocols to the [**].
[**] will notify [**] if it intends to [**].
3.5 [**]. Each party agrees to use commercially reasonable efforts and
explore, assess and investigate the possibility of [**]. Akamai shall designate
[**] to evaluate the project contemplated in this Section 3.5, and Cisco shall
assign [**]. Either Party may change its Project Manager and appoint a
substitute Project Manager for this Project.
3.6 [**]. Each party agrees to use commercially reasonable efforts and
explore, assess and investigate the possibility of developing modifications to
the Cisco Products and Akamai Services to support and enable more efficient
distribution of [**]. Akamai shall designate [**] to evaluate the Project
contemplated in this Section 3.6, and Cisco shall assign [**]. Either Party may
change its Project Manager and appoint a substitute Project Manager for this
Project.
3.7 ADDITIONAL DEVELOPMENT AND INTEGRATION OPPORTUNITIES. During the
term of this Agreement, the parties may explore and assess other possible joint
development or integration opportunities consistent with the intent and purpose
of this Agreement.
4. ADDITIONAL AGREEMENTS OF THE PARTIES.
4.1 STRATEGIC INVESTMENT IN AKAMAI BY CISCO. Concurrent with the
execution and delivery of this Agreement, Cisco and Akamai have executed and
delivered that certain Preferred Stock Purchase Agreement and all documents
ancillary thereto, pursuant to which Cisco has acquired 1,867,480 shares of
Akamai's Series E Preferred Stock, at an aggregate purchase price of
$49,000,807.72.
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisk denote omission.
4.2 LOGO USAGE; [**]. Cisco hereby grants Akamai the right to use
Cisco's logo, subject to logo usage guidelines to be provided by Cisco to
Akamai. Akamai hereby grants Cisco the right to use Akamai's logo, subject to
logo usage guidelines to be provided by Akamai to Cisco. During the term of this
Agreement, each party also agrees that it will whenever commercially feasible
[**]. Akamai will also notify Cisco from time to time [**]. Each party further
agrees that it shall not, during the term of this Agreement, [**]; provided,
however, that the foregoing restrictions shall not preclude a Party from (i)
providing support comments or quotes to third party press releases,
announcements or other marketing communications (provided the Party does not
initiate the issuance of such press release, announcement or communications);
and (ii) endorsing and promoting a Party's product or service solutions that
rely on or work in conjunction with competing third party products or services
(provided such endorsement is limited to the Party's product or service, and
only mentions or refers to the competing third party's products or services as
reasonably necessary to promote the Party's product or service).
4.3 PUBLICITY; PRESS RELEASES. The parties may by mutual consent agree
to issue a joint press release describing the collaboration of the parties. In
addition, each of Cisco and Akamai may, at such party's discretion: (a) identify
the other as a strategic partner; (b) hyperlink from an appropriate area within
its web site to the other's home page; and (c) display the other party's logo on
the its web site (in accordance with such party's guidelines for the use of such
xxxx). The parties shall also consult regularly during the term of the Agreement
and issue, as and when appropriate, such further press releases and/or other
publicity materials as may be appropriate. The contents of the any press
releases issued by the parties shall be subject to the approval of each party,
which approval shall not be unreasonably withheld or delayed.
4.4 USE OF NAME IN PROMOTIONAL MATERIALS. Each party shall, with prior
approval of the other party (which will not be unreasonably withheld or
delayed), be permitted to identify the other party as a strategic partner, to
use the other party's name in connection with proposals to prospective
customers, and to refer to the other party in print or electronic form for
marketing or reference purposes, provided however that such proposals and
marketing and reference materials [**].
4.5 MARKETING, DISTRIBUTION AND SUPPORT EFFORTS; PROMOTIONAL
ACTIVITIES. To the extent agreed upon by the Parties pursuant to the applicable
Project Plan or otherwise, each of Cisco and Akamai agree to undertake [**] from
the efforts undertaken pursuant to this Agreement. Each party agrees to serve as
a reference in the other party's proposals for a reasonable number of contacts
by prospective customers of the other party and for industry analysts. Each
party will undertake [**] from the efforts of the parties under this Agreement.
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Securities and Exchange Commission. Asterisk denote omission.
Under the direction of the Project Managers or the Project Leaders identified in
Section 7.1 below, the parties may by mutual agreement or plan undertake
joint-marketing or co-marketing programs or activities as appropriate to further
the intent of this Agreement and the alliance created hereby.
4.6 FREEDOM OF ACTION. Except as specifically provided herein or in any
Project Plan, either Party may market and offer its own or third party products
or services (through any means) which are the same as or similar to and which
are competitive with the other party's products and services. Neither Party
makes any assurances or representations to the other in connection with any
financial gain or other benefit that may result from the activities contemplated
in this Agreement.
5. PROJECT MANAGEMENT.
5.1 PROJECT MANAGERS; PROJECT LEADERS. Each of the parties agrees to
appoint and keep in place during the term of this Agreement one or more project
managers (individually, a "Project Manager") who will allocate such portion of
his or her working time as may be reasonably necessary to facilitate the
performance, on a timely basis and in accordance with any particular project
plan, of such party's obligations under this Agreement or any particular project
plan, design or development specification or other document contemplated hereby.
In addition, each party will name a Project Leader who will: (i) be the central
point of contact for all matters arising under this Agreement; (ii) oversee
project management and the resource allocations hereunder; and (iii) have
overall responsibility for the facilitation of the performance of the
obligations of the parties contemplated hereby. The Project Leaders for each
respective party shall be the following individuals or their respective
designated successors; provided, however, that it is the intent of the parties
that the Project Leaders named below shall remain assigned to the alliance for
the entire term of this Agreement:
AKAMAI: [**]
CISCO: [**]
5.2 MEETINGS. The Project Leaders agree to meet at least quarterly to
review the overall progress of the projects contemplated hereunder and to
provide overall supervision and oversight. [**] the meetings will be held at
[**] some alternative location, as the parties shall determine.
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Securities and Exchange Commission. Asterisks denote omissions.
6. DEVELOPMENT EFFORTS; RESOURCE COMMITMENT; EXPENSES.
6.1 COST SHARING AND REIMBURSEMENT. Except as may be provided in any
specific Project Plan or as may be otherwise agreed by the parties, each of
Akamai and Cisco agrees that it shall be responsible for its own expenses
incurred in conjunction with this Agreement and any attachments hereto, and with
any undertakings and obligations contemplated hereby. Notwithstanding the
foregoing, in the event development efforts are undertaken at either Cisco or
Akamai, then the host party agrees to provide the necessary office space at no
cost to the other party.
6.2 INDEPENDENT CONTRACTORS. Either party shall have the option to
utilize contractors in order to satisfy its obligation to supply personnel
resources to the projects contemplated hereunder, but only to the extent and
insofar as reasonably required in connection with the performance of the
obligations of the party retaining the Contractor under this Agreement, and
subject to the further requirements and limitations set forth herein.
7. DISPUTE RESOLUTION PROCESS.
7.1 INITIAL CONSULTATION AND NEGOTIATION. In the event a dispute
between Akamai and Cisco arises under the Agreement or a party's performance
thereunder, the matter shall first be escalated to Akamai's Project Leader and
Cisco's Project Leader in an attempt to settle such dispute through consultation
and negotiation in good faith and a spirit of mutual cooperation.
7.2 ESCALATION. If the Project Leaders are unable to resolve the
dispute, it shall be referred to a conflict resolution committee comprised of
one representative designated by each party. The initial members of the conflict
resolution committee shall be:
For Akamai: [**]
For Cisco: [**]
7.3 CONTINUED PERFORMANCE. Except where prevented from doing so by the
matter in dispute, the parties agree to continue performing their obligations
under this Agreement while any good faith dispute is being resolved unless and
until such obligations are terminated by the termination or expiration of any
project or this Agreement.
8. OWNERSHIP; LICENSES.
8.1 OWNERSHIP BY AKAMAI. As between Cisco and Akamai, Akamai shall own
all right, title, and interest in any Intellectual Property [**] under this
Agreement [**] during the term of this Agreement [**] under this Agreement, and
Cisco shall have no ownership interest therein. Cisco hereby irrevocably
transfers, conveys and assigns to Akamai all of its right, title, and interest
therein and in any property owned or to be owned by Akamai under this Agreement.
Cisco shall execute such documents, render such assistance, and take such other
action as Akamai may reasonably request, at Akamai's expense, to apply for,
register, perfect, confirm, and protect
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Securities and Exchange Commission. Asterisk denote omission.
Akamai's ownership rights set forth in this Section 8.1 and in Section 3, and
Akamai shall have the exclusive right to apply for or register any patents, mask
work rights, copyrights, and such other proprietary protections with respect
thereto.
8.2 OWNERSHIP BY CISCO. As between Cisco and Akamai, Cisco shall own
all right, title, and interest in any Intellectual Property [**] under this
Agreement [**] during the term of this Agreement [**] under this Agreement, and
Akamai shall have no ownership interest therein. Akamai hereby irrevocably
transfers, conveys and assigns to Cisco all of its right, title, and interest
therein and in any property owned or to be owned by Cisco under this Agreement.
Akamai shall execute such documents, render such assistance, and take such other
action as Cisco may reasonably request, at Cisco's expense, to apply for,
register, perfect, confirm, and protect Cisco's ownership rights set forth in
this Section 8.2 and in Section 3, and Cisco shall have the exclusive right to
apply for or register any patents, mask work rights, copyrights, and such other
proprietary protections with respect thereto.
8.3 WAIVER OF MORAL RIGHTS. Akamai hereby waives any and all moral
rights, including without limitation any right to identification of authorship
or limitation on subsequent modification that Akamai (or its employees, agents
or consultants) has or may have in the Cisco Property or any part thereof. Cisco
hereby waives any and all moral rights, including without limitation any right
to identification of authorship or limitation on subsequent modification that
Cisco (or its employees, agents or consultants) has or may have in the Akamai
Property or any part thereof.
8.4 PARTY AS ATTORNEY IN FACT. Akamai agrees that if Cisco is unable
because of Akamai's dissolution or incapacity, or for any other reason, to
secure Akamai's signature to apply for or to pursue any application for any
United States or foreign patents or mask work or copyright registrations
covering the inventions assigned to Cisco above, then Akamai hereby irrevocably
designates and appoints Cisco and its duly authorized officers and agents as
Akamai's agent and attorney in fact, to act for and in Akamai's behalf and stead
to execute and file any such applications and to do all other lawfully permitted
acts to further the prosecution and issuance of patents, copyright and mask work
registrations thereon with the same legal force and effect as if executed by
Akamai. Cisco agrees that if Akamai is unable because of Cisco's dissolution or
incapacity, or for any other reason, to secure Cisco's signature to apply for or
to pursue any application for any United States or foreign patents or mask work
or copyright registrations covering the inventions assigned to Akamai above,
then Cisco hereby irrevocably designates and appoints Akamai and its duly
authorized officers and agents as Cisco 's agent and attorney in fact, to act
for and in Cisco 's behalf and stead to execute and file any such applications
and to do all other lawfully permitted acts to further the prosecution and
issuance of patents, copyright and mask work registrations thereon with the same
legal force and effect as if executed by Cisco.
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Securities and Exchange Commission. Asterisk denote omission.
8.5 LICENSES. In addition to any licenses granted elsewhere in this
Agreement, [**] and all Intellectual Property rights with respect thereto solely
in connection with [**] hereunder and as may be reasonably necessary for [**]
its obligations under this Agreement. [**] during the term of this Agreement
[**] and all Intellectual Property Rights with respect thereto solely in
connection with [**] hereunder and as may be reasonably necessary for [**] its
obligations under this Agreement. For purposes of this Agreement, "Intellectual
Property" shall mean all works protectible by copyright, trademark, patent and
trade secret laws or by any other statutory protection obtained or obtainable,
and any Confidential Information (as defined below) of a party that meets on of
the foregoing criteria, including without limitation, any literary works,
pictorial, graphic and sculptural works, architectural works, works of visual
art, and any other work that may be the subject matter of copyright protection;
advertising and marketing concepts; information; data; formulae; designs;
models; drawings; computer programs, including all documentation, related
listings, design specifications, and flowcharts, trade secrets, and any
inventions including all methods, processes, business or otherwise; machines,
manufactures and compositions of matter and any other invention that may be the
subject matter of patent protection; and all statutory protection obtained or
obtainable thereon.
8.6 NO REVERSE ENGINEERING. Each of Cisco and Akamai agrees that it
shall not (i) copy, modify, create any derivative work of, or include in any
other products any Akamai Property (in the case of Cisco) or Cisco Property (in
the case of Akamai) or any portion thereof, or (ii) reverse assemble, decompile,
reverse engineer or otherwise attempt to derive source code (or the underlying
ideas, algorithms, structure or organization) from any such property, except as
specifically authorized in writing by the party owning the same or as
specifically provided under this Agreement.
8.7 COPYRIGHT NOTICES. Each party shall ensure that all copies of any
software or other property in its possession or control incorporates all
copyright and other proprietary notices in the same manner that the party owning
the same incorporates such notices, or in any other manner reasonably requested
by the owner. Each party shall promptly notify the other party in writing upon
its discovery of any unauthorized use of a party's property or the infringement
of such party's proprietary rights therein. Neither party shall license to any
third party the property of the other party if such other party has notified the
party that such third party may be involved in potential unauthorized use of the
property or other infringement of such party's proprietary rights thereunder.
9. TRADEMARKS, TRADE NAMES AND BRANDING.
9.1 USAGE GUIDELINES. Akamai shall comply with Cisco's logo, trademark
and branding usage guidelines, which Cisco shall provide to Akamai, and as the
same may be updated by Cisco from time to time. Cisco shall comply with Akamai's
logo, trademark and branding usage guidelines, which Akamai shall provide to
Cisco, and as the same may be updated by Akamai from time to time. Neither party
shall alter the other party's Marks.
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9.2 OWNERSHIP. All Cisco Marks are and shall remain, as between Akamai
and Cisco, the exclusive property of Cisco or its providers. All Akamai Marks
are and shall remain, as between Akamai and Cisco, the exclusive property of
Akamai or its suppliers. Neither party grants any rights in the Marks or in any
other trademark, trade name, service xxxx, business name or goodwill of the
other except as expressly permitted hereunder or by separate written agreement
of the parties and all use of a party's Marks shall inure to the benefit of the
owner of such Xxxx. Each party agrees that it shall not challenge or assist
others to challenge the rights of the other party or its suppliers or licensors
in the Marks or the registration of the Marks, or attempt to register any
trademarks, trade names or other proprietary indicia confusingly similar to the
Marks.
10. CONFIDENTIALITY.
10.1 AGREEMENT AS CONFIDENTIAL INFORMATION. The parties shall treat the
terms and conditions and the existence of this Agreement as Confidential
Information. Each party shall obtain the other's consent prior to any
publication, presentation, public announcement or press release concerning the
existence or terms and conditions of this Agreement.
10.2 DEFINITION OF CONFIDENTIAL INFORMATION. "Confidential Information"
means the terms and conditions of this Agreement, the existence of the
discussions between the parties, any information disclosed in connection with
the development and integration projects being undertaken as described in
Section 2 above, and any proprietary information a party considers to be
proprietary, including but not limited to, information regarding each party's
product plans, product designs, product costs, product prices, finances,
marketing plans, business opportunities, personnel, research and development
activities, know-how and pre-release products; provided that information
disclosed by the disclosing party ("Disclosing Party") in written or other
tangible form will be considered Confidential Information by the receiving party
("Receiving Party") only if such information is conspicuously designated as
"Confidential," "Proprietary" or a similar legend. Information disclosed orally
shall only be considered Confidential Information if: (i) identified as
confidential, proprietary or the like at the time of disclosure, and (ii)
confirmed in writing within thirty (30) days of disclosure. Confidential
Information disclosed to the Receiving Party by any affiliate or agent of the
Disclosing Party is subject to this Agreement.
10.3 NONDISCLOSURE. The Receiving Party shall not disclose or use,
except as permitted under this Agreement, the Confidential Information to any
third party other than employees and contractors of the Receiving Party who have
a need to have access to and knowledge of the Confidential Information solely
for the Purpose authorized above. The Receiving Party shall have entered into
non-disclosure agreements with such employees and contractors having obligations
of confidentiality as strict as those herein prior to disclosure to such
employees and contractors to assure against unauthorized use or disclosure.
10.4 EXCEPTIONS TO CONFIDENTIAL INFORMATION. The Receiving Party shall
have no obligation with respect to information which (i) was rightfully in
possession of or known to the Receiving Party without any obligation of
confidentiality prior to receiving it from the Disclosing Party; (ii) is, or
subsequently becomes, legally and publicly available without breach of this
Agreement; (iii) is rightfully obtained by the Receiving Party from a source
other than the
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Disclosing Party without any obligation of confidentiality; (iv) is developed by
or for the Receiving Party without use of the Confidential Information and such
independent development can be shown by documentary evidence; and (v) becomes
available to the Receiving Party by wholly lawful inspection or analysis of
products offered for sale. Further, the Receiving Party may disclose
Confidential Information pursuant to a valid order issued by a court or
government agency, provided that the Receiving Party provides the Disclosing
Party: (a) prior written notice of such obligation; and (b) the opportunity to
oppose such disclosure or obtain a protective order.
10.5 RETURN OR DESTRUCTION OF CONFIDENTIAL INFORMATION. Upon written
demand by the Disclosing Party, and in any event upon termination of this
Agreement, the Receiving Party shall: (i) cease using the Confidential
Information, (ii) return the Confidential Information and all copies, notes or
extracts thereof to the Disclosing Party within seven (7) days of receipt of
demand; and (iii) upon request of the Disclosing Party, certify in writing that
the Receiving Party has complied with the obligations set forth in this
paragraph.
10.6 INDEPENDENT DEVELOPMENT AND RESIDUALS. The terms of
confidentiality under this Agreement shall not be construed to limit either
party's right to develop independently or acquire products without use of the
other party's Confidential Information. The Disclosing Party acknowledges that
the Receiving Party may currently or in the future be developing information
internally, or receiving information from other parties, that is similar to the
Confidential Information. Accordingly, except as provided in this Agreement,
neither party shall be prohibited from developing or having developed for it
products, concepts, systems or techniques that are similar to or compete with
the products, concepts, systems or techniques contemplated by or embodied in the
Confidential Information provided that the Receiving Party does not violate any
of its obligations under this Agreement in connection with such development.
Further, subject to the other restrictions and limitations contained in this
Agreement, the residuals resulting from access to or work with such Confidential
Information shall not be subject to the confidentiality obligations contained in
this Agreement. The term "residuals" means non-specific information in
non-tangible form, which may be retained by persons who have had access to the
Confidential Information, including general ideas, concepts, know-how or
techniques contained therein. Neither party shall have any obligation to limit
or restrict the assignment of such persons or to pay royalties for any work
resulting from the use of residuals.
11. REPRESENTATIONS AND WARRANTIES.
11.1 AKAMAI'S REPRESENTATIONS AND WARRANTIES. Akamai represents and
warrants to Cisco as follows:
(a) Akamai and its licensors own or possess the necessary rights, title
and licenses necessary to perform its obligations hereunder. Akamai has the
right to enter into this Agreement and to perform its obligations hereunder.
Akamai will perform all of its development obligations in a workmanlike manner.
(b) Akamai warrants that any deliverables that are software will be
Year 2000 Ready. "Year 2000 Ready" means the ability to: (i) accept input and
provide output of data involving dates correctly and without ambiguity as to the
twentieth or twenty-first centuries; (ii) manage,
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store, sort, perform calculations, and otherwise process data involving dates
before, during, and after January 1, 2000 without malfunction, abends or aborts;
and (iii) correctly process leap years including the year 2000. The foregoing
warranty is subject to the condition that all other products (e.g., hardware,
software, and firmware) which interface with or are used with the deliverables
(including any Cisco Products) properly exchange date data with the software. In
the event Akamai becomes aware that any such software is not Year 2000 Ready,
Akamai shall immediately notify Cisco and promptly correct such software to
eliminate such problem. If Akamai fails to correct any such software that does
not meet the foregoing warranty within a reasonable period of time, Cisco shall
have the right to immediately terminate this Agreement.
EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 11.1, AKAMAI EXPRESSLY DISCLAIMS
ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO THE FULLEST EXTENT PERMITTED
BY LAW, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
11.2 CISCO'S REPRESENTATIONS AND WARRANTIES. Cisco represents and
warrants to Akamai as follows:
(a) Cisco and its licensors own or possess the necessary rights, title
and licenses necessary to perform its obligations hereunder. Cisco has the right
to enter into this Agreement and to perform its obligations hereunder. Cisco
will perform all of its development obligations in a workmanlike manner.
(b) Cisco warrants that any deliverables that are software will be Year
2000 Ready. "Year 2000 Ready" means the ability to: (i) accept input and provide
output of data involving dates correctly and without ambiguity as to the
twentieth or twenty-first centuries; (ii) manage, store, sort, perform
calculations, and otherwise process data involving dates before, during, and
after January 1, 2000 without malfunction, abends or aborts; and (iii) correctly
process leap years including the year 2000. The foregoing warranty is subject to
the condition that all other products (e.g., hardware, software, and firmware)
which interface with or are used with the deliverables (including any Akamai
Property) properly exchange date data with the software. In the event Cisco
becomes aware that any such software is not Year 2000 Ready, Cisco shall
immediately notify Akamai and promptly correct such software to eliminate such
problem. If Cisco fails to correct any such software that does not meet the
foregoing warranty within a reasonable period of time, Akamai shall have the
right to immediately terminate this Agreement.
EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 11.2, CISCO EXPRESSLY DISCLAIMS
ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO THE FULLEST EXTENT PERMITTED
BY LAW, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
12. INDEMNITY.
12.1 INDEMNIFICATION BY CISCO. Cisco shall defend, indemnify and hold
harmless Akamai and its officers, directors, employees, shareholders, agents,
successors and assigns from and against any and all loss, damage, settlement,
costs or expense (including legal expenses), as incurred, resulting from, or
arising out of (i) any claim against Akamai which alleges that any
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Cisco Property or Cisco deliverable infringes upon, misappropriates or violates
any patents, copyrights, trademarks or trade secret rights or other proprietary
rights of persons, firms or entities who are not parties to this Agreement; (ii)
any claim relating to negligence, misrepresentation, error or omission by Cisco,
its representatives, distributors, OEMs, VARs or other resellers; and (iii) any
warranties made by Cisco inconsistent with or beyond the scope of any warranties
made by Akamai under this Agreement.
12.2 CISCO EXCLUSIONS. Cisco shall have no obligation under Section
12.1 above to the extent any claim of infringement or misappropriation results
from: (i) use by Akamai of the Cisco Property in combination with any other
product, end item, or subassembly if the infringement would not have occurred
but for such combination; (ii) use or incorporation in the Cisco Property of any
design, technique or specification furnished by Akamai, if the infringement
would not have occurred but for such incorporation or use; or (iii) any claim
based on Akamai's use of the Cisco Property as shipped after Cisco has informed
Akamai of modifications or changes in the Product required to avoid such claims
and offered to implement those modifications or changes, if such claim would
have been avoided by implementation of Cisco's suggestions; (iv) use of the
deliverables other than as permitted under this Agreement, if the infringement
would not have occurred but for such use; or (v) compliance by Cisco with
specifications or instructions supplied by Akamai.
12.3 INDEMNIFICATION BY AKAMAI. Akamai shall defend, indemnify and hold
harmless Cisco and its officers, directors, employees, shareholders, agents,
successors and assigns from and against any and all loss, damage, settlement,
costs or expense (including legal expenses), as incurred, resulting from, or
arising out of (i) any claim against Cisco which alleges that any Akamai
Property or Akamai deliverable infringes upon, misappropriates or violates any
patents, copyrights, trademarks or trade secret rights or other proprietary
rights of persons, firms or entities who are not parties to this Agreement; (ii)
any claim relating to negligence, misrepresentation, error or omission by
Akamai, its representatives, distributors, OEMs, VARs or other resellers; and
(iii) any warranties made by Akamai inconsistent with or beyond the scope of any
warranties made by Akamai under this Agreement.
12.4 AKAMAI EXCLUSIONS. Akamai shall have no obligation under Section
12.3 above to the extent any claim of infringement or misappropriation results
from: (i) use by Cisco of the Akamai Property in combination with any other
product, end item, or subassembly if the infringement would not have occurred
but for such combination; (ii) use or incorporation in the Akamai Property of
any design, technique or specification furnished by Cisco, if the infringement
would not have occurred but for such incorporation or use; or (iii) any claim
based on Cisco's use of the Akamai Property as shipped after Akamai has informed
Cisco of modifications or changes in the Product required to avoid such claims
and offered to implement those modifications or changes, if such claim would
have been avoided by implementation of Akamai's suggestions; (iv) use of the
deliverable other than as permitted under this Agreement, if the infringement
would not have occurred but for such use; or (v) compliance by Akamai with
specifications or instructions supplied by Cisco.
12.5 CONTROL OF DEFENSE. As a condition to such defense and
indemnification, the party seeking indemnification will provide the other party
with prompt written notice of the claim and
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisk denote omission.
permit such other party to control the defense, settlement, adjustment or
compromise of any such claim. The party seeking indemnification may employ
counsel at its own expense to assist it with respect to any such claim.
12.6 DISCLAIMER. THE FOREGOING PROVISIONS OF THIS SECTION 12 STATE THE
ENTIRE LIABILITY AND OBLIGATIONS OF THE PARTIES AND THE EXCLUSIVE REMEDY WITH
RESPECT TO ANY VIOLATION OR INFRINGEMENT OF PROPRIETARY RIGHTS, INCLUDING BUT
NOT LIMITED TO ANY PATENT, COPYRIGHT, TRADEMARK, BY THE PRODUCTS OR SERVICES OF
CISCO AND AKAMAI, RESPECTIVELY, OR ANY PART THEREOF. EACH PARTY'S OBLIGATIONS
UNDER THIS SECTION 12 ARE SUBJECT TO THE LIMITATIONS SET FORTH IN SECTION 13.
13. LIMITATION OF LIABILITY.
13.1 LIMITATION OF DAMAGES. EXCEPT FOR BREACH OF THE OBLIGATIONS OF
CONFIDENTIALITY UNDER SECTION 10, NEITHER PARTY SHALL BE LIABLE WITH RESPECT TO
ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, STRICT LIABILITY,
NEGLIGENCE OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES OR LOST PROFITS, OR COST OF PROCUREMENT OF SUBSTITUTE
GOODS, TECHNOLOGY OR SERVICES.
13.2 LIMITATION OF LIABILITY. EXCEPT FOR BREACH OF THE OBLIGATIONS OF
CONFIDENTIALITY UNDER SECTION 10 AND THE INDEMNIFICATION OBLIGATIONS UNDER
SECTION 12, THE TOTAL DOLLAR LIABILITY OF EITHER PARTY UNDER THIS AGREEMENT OR
OTHERWISE SHALL BE LIMITED TO [**].
14. TERM AND TERMINATION.
14.1 TERM OF AGREEMENT. This Agreement shall be effective upon the
Effective Date and shall remain in force for a period of three (3) years, unless
otherwise terminated as provided herein. However, this Agreement shall continue
to remain in effect with respect to any project already agreed to hereunder at
the time of such termination, until such projects are themselves terminated or
performance thereunder is completed.
14.2 TERMINATION FOR CAUSE. This Agreement may be terminated by a party
for cause immediately upon the occurrence of and in accordance with the
following:
(a) Insolvency Event. Either may terminate this Agreement by
delivering written notice to the other party upon the occurrence of any
of the following events: (i) a receiver is appointed for either party
or its property; (ii) either makes a general assignment for the benefit
of its creditors; (iii) either party commences, or has commenced
against it, proceedings under any bankruptcy, insolvency or debtor's
relief law, which proceedings are not dismissed within sixty (60) days;
or (iv) either party is liquidated or dissolved.
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisk denote omission.
(b) [**]. In the event [**], Cisco may at its option terminate
this Agreement upon written notice.
(c) Default. Either party may terminate this Agreement
effective upon written notice to the other if the other party violates
any covenant, agreement, representation or warranty contained herein in
any material respect or defaults or fails to perform any of its
obligations or agreements hereunder in any material respect, which
violation, default or failure is not cured within [**] after notice
thereof from the non-defaulting party stating its intention to
terminate this Agreement by reason thereof.
14.3 TERMINATION FOR CONVENIENCE. This Agreement, or any Project except
as may be provided in such Project's Project Plan, may be terminated by either
party without penalty, for any or no reason, by providing [**] prior written
notice of such termination.
14.4 SURVIVAL OF RIGHTS AND OBLIGATIONS UPON TERMINATION. Sections
3.1(d), 3.1(e), 3.1(f), 3.2(c), 3.2(d), 3.3(c), 3.3(d), 3.3(e), 3.4(c), 3.4(d),
3.4(e), 4.6, 6, 8, 10, 11, 12, 13, 15 and this Section 14.4 shall survive any
expiration or termination of this Agreement or any project hereunder.
Furthermore, in the event of any termination or expiration of this Agreement or
such project: (i) all licenses expressly granted herein shall survive; and (ii)
except as otherwise expressly provided herein, any ownership provisions
(including but not limited to Section 8) shall survive.
15. MISCELLANEOUS.
15.1 FORCE MAJEURE. Neither party shall be liable to the other for
delays or failures in performance resulting from causes beyond the reasonable
control of that party, including, but not limited to, acts of God, labor
disputes or disturbances, material shortages or rationing, riots, acts of war,
governmental regulations, communication or utility failures, or casualties.
15.2 EXPORT. Each party hereby acknowledges that one or more
deliverables supplied under the Agreement are or may be subject to export or
import controls under the laws and regulations of the United States (U.S.). Each
shall comply with such laws and regulations, and, agrees not to knowingly
export, re-export, import or re-import, or transfer products without first
obtaining all required U.S. Government authorizations or licenses. Cisco and
Akamai each agree to provide the other such information and assistance as may
reasonably be required by the other in connection with securing such
authorizations or licenses, and to take timely action to obtain all required
support documents. Each party agrees to maintain a record of exports,
re-exports, and transfers of any such deliverables for five (5) years and to
forward within that time period any required records to the party needing the
same or, at such party's request, the U.S. Government. Each party agrees to
permit audits as required under the regulations to ensure compliance with this
Agreement.
15.3 RELATIONSHIP OF PARTIES. The parties are independent contractors
under this Agreement and no other relationship is intended, including a
partnership, franchise, joint venture,
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
agency, employer/employee, fiduciary, master/servant relationship, or other
special relationship. Neither party shall act in a manner which expresses or
implies a relationship other than that of independent contractor, nor bind the
other party.
15.4 NO THIRD PARTY BENEFICIARIES. Unless otherwise expressly provided,
no provisions of this Agreement are intended or shall be construed to confer
upon or give to any person or entity other than Cisco and Akamai any rights,
remedies or other benefits under or by reason of this Agreement.
15.5 EQUITABLE RELIEF. Each party acknowledges that a breach by the
other party of any confidentiality or proprietary rights provision of this
Agreement may cause the non-breaching party irreparable damage, for which the
award of damages would not be adequate compensation. Consequently, the
non-breaching party may institute an action to enjoin the breaching party from
any and all acts in violation of those provisions, which remedy shall be
cumulative and not exclusive, and a party may seek the entry of an injunction
enjoining any breach or threatened breach of those provisions, in addition to
any other relief to which the non-breaching party may be entitled at law or in
equity.
15.6 ATTORNEYS' FEES. In addition to any other relief awarded, the
prevailing party in any action arising out of this Agreement shall be entitled
to its reasonable attorneys' fees and costs.
15.7 NOTICES. Any notice required or permitted to be given by either
party under this Agreement shall be in writing and shall be personally delivered
or sent by a reputable overnight mail service (e.g., Federal Express), or by
first class mail (certified or registered), or by facsimile confirmed by first
class mail (registered or certified), to the Project Manager of other party.
Notices will be deemed effective (i) three (3) working days after deposit,
postage prepaid, if mailed, (ii) the next day if sent by overnight mail, or
(iii) the same day if sent by facsimile and confirmed as set forth above. A copy
of any notice shall be sent to the following:
Cisco Systems, Inc. Akamai Technologies, Inc.
000 Xxxx Xxxxxx Xxxxx 000 Xxxxxxxx
Xxx Xxxx, XX 00000 Xxxxxxxxx, XX 00000
Attn: VP Legal and Government Affairs Attn: VP and General Counsel
Fax: (000) 000-0000 Fax: (000) 000-0000
15.8 ASSIGNMENT. Neither party may assign its rights or delegate its
obligations hereunder, either in whole or in part, whether by operation of law
or otherwise, without the prior written consent of the other party. Any
attempted assignment or delegation without consent will be void. The rights and
liabilities of the parties under this Agreement will bind and inure to the
benefit of the parties' respective successors and permitted assigns. For
purposes of this Section, [**].
15.9 WAIVER AND MODIFICATION. 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.
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Any waiver, amendment or other modification of any provision of this Agreement
will be effective only if in writing and signed by the parties.
15.10 SEVERABILITY. If for any reason a court of competent jurisdiction
finds any provision of this Agreement 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.
15.11 CONTROLLING LAW. This Agreement and any action related thereto
shall be governed, controlled, interpreted and defined by and under the laws of
the State of California and the United States, without regard to the conflicts
of laws provisions thereof. The parties specifically disclaim the UN Convention
on Contracts for the International Sale of Goods.
15.12 HEADINGS. Headings used in this Agreement are for ease of
reference only and shall not be used to interpret any aspect of this Agreement.
15.13 ENTIRE AGREEMENT. This Agreement, including all exhibits which
are incorporated herein by reference, constitutes the entire agreement between
the parties with respect to the subject matter hereof, and supersedes and
replaces all prior and contemporaneous understandings or agreements, written or
oral, regarding such subject matter.
15.14 COUNTERPARTS. This Agreement may be executed in two counterparts,
each of which shall be an original and together which shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
persons duly authorized as of the date and year first above written.
CISCO SYSTEMS, INC. AKAMAI TECHNOLOGIES, INC.
Name: [Illegible] Name: /s/Xxxx Xxxxx
Title: Title: President
Date: August 6, 1999 Date: August 6, 1999
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