EXHIBIT 10.19
AGREEMENT BETWEEN iBEAM BROADCASTING AND INTERPACKET GROUP
This agreement (the "AGREEMENT"), effective as of January 19, 2000 (the
"EFFECTIVE DATE"), is entered into by INTERPACKET GROUP INC., ("InterPacket")
a Delaware corporation with primary business offices at 0000 Xxxx Xxxxxx, Xxxxx
Xxxxxx, XX 00000 and iBEAM BROADCASTING CORPORATION ("iBEAM"), a Delaware
corporation with primary business offices at 000 Xxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxx, XX 00000. (iBEAM and InterPacket individually a "Party" or together
the "Parties").
WHEREAS, InterPacket supplies global satellite Internet services and,
WHEREAS, iBEAM wishes to use InterPacket's services,
WHEREAS, InterPacket and iBEAM mutually accept the terms and conditions set
forth below.
NOW, THEREFORE, for good and valuable consideration exchanged between the
Parties, InterPacket and iBEAM agree as follows:
1. DEFINITIONS
When used in this Agreement, the following terms shall have the following
meanings unless the subject or the context otherwise requires:
A. CONFIDENTIAL INFORMATION. Confidential and trade secret information as set
forth more specifically in Article 15 of this Agreement.
B. DISCLOSING PARTY. A Party that discloses Confidential Information to a
Receiving Party.
C. RECEIVING PARTY. A Party receiving Confidential Information from a
Disclosing Party.
D. MAXCASTER(TRADEMARK): A system of satellite downlink equipment, one or more
computer servers, other communications equipment and appropriate software,
as specified by iBEAM.
E. INTERPACKET NETWORK: All portions of networking owned, operated or provided
as part of the service contemplated herein by InterPacket, including but
not limited to all satellite up-link and downlink equipment provided by
InterPacket, all terrestrial networking supplied by InterPacket to provide
the service contemplated herein and all networking supplied by InterPacket
at each downlink site.
2. SERVICE
2.1 Service: iBEAM will install "head end" servers at the appropriate uplink
facilities within InterPacket's Network and InterPacket agrees to deploy a
minimum number of MaxCasters, as set forth below in Article 2.2, into
InterPacket's international points of presence. InterPacket will provide the use
of multiple teleports and satellite transportation to deliver data streams to
these international points of presence. InterPacket will provide[***]. iBEAM has
the ability to order Dedicated Bandwidth, Burstable Bandwidth and Selectable
Bandwidth [***]subject to availability on InterPacket Network. Any bandwidth
above [***] will be charged at [***].
2.2 Minimum Service Deployment/Requirements:
(A) The deployment of MaxCasters as specified in Article 2.1 above shall
have the following minimum requirements: [***], provided however that
InterPacket shall install MaxCasters only in locations where the point of
presence; i) is multi-homed, ii) uses a Cisco 3000 series router or equivalent
as defined by iBEAM at its sole discretion, iii) is an ISP which has at least
[***] end users which connect to the Internet, iv) has a well maintained, clean
air conditioned machine room with redundant power, and v) has 24x7 technical
support as set forth in Exhibit A. The Effective Date is on or after iBEAM and
InterPacket have agreed on the list of sites and the costs of installation. To
effectuate deployment of MaxCasters iBEAM will pay for such reasonable and
pre-approved expenses as are required to install MaxCasters internationally,
including without limitation, customs, duties and taxes related to the
installation. (B) In the event that an interruption of service occurs as a
result of a failure of InterPacket's network or satellite link, iBEAM will
receive a pro rata credit (the "Allowance") based on the time InterPacket's
network or satellite link is not operational during the service month. Credits
not exceeding 0.5% (one-half of one percent) of the monthly service charge will
be issued only upon request.
2.3 Testing: The Parties will mutually agree on what equipment will be required
for testing. Each Party will provide this equipment, once ascertained [***].
Testing shall in no event extend beyond [***]. If both parties agree that
testing concludes and iBEAM's equipment/service is unable to be implemented,
this Agreement will terminate pursuant to Article 9 without further liability to
either party.
2.4 Network Monitoring: InterPacket will monitor the InterPacket Network and
all points of presence where MaxCasters are installed; such monitoring will be
able to ascertain outages of satellite or such terrestrial/networking capacity
as is provided by InterPacket and use best efforts to repair and/or reroute such
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[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
outages within a minimal amount of time. Such aforementioned efforts will in no
way relieve InterPacket of its Allowance obligations as set forth above in
Article 2.2(B). In no event will InterPacket monitor in any manner whatsoever
the actual MaxCaster or its contents.
2.5 iBEAM acknowledges the importance of InterPacket's relationships with
InterPacket's ISP customers and agrees to rely on InterPacket for all
communication with InterPacket's ISP customers. iBEAM agrees not to contact
InterPacket's ISP customers without the prior written authorization from
InterPacket.
3. SERVICE EXPANSION
[***]
4. OWNERSHIP AND USE AND DAMAGE
4.1 Ownership: Title to and ownership of all iBEAM provided equipment and/or
software and all copies of documentation or instructions thereof and all data
residentany iBEAM equipment, including but not limited to any trademarks,
servicemarks, tradedress, copyrights (whether in literal or non-literal form)
and/or patents shall be and at all times remain with iBEAM, iBEAM's licensors or
its agents or assigns. InterPacket will not reproduce or modify any of the above
specified or any portion thereof. InterPacket shall not rent, sell, lease,
create or have created security interests in any equipment or software provided
by iBEAM, have liens placed on any equipment or software or otherwise transfer
the equipment or software provided by iBEAM or any part thereof or use, or allow
its use for the benefit of any third party.
4.2 Damage to Equipment: Any damage caused to any iBEAM provided equipment
including the MaxCaster, in whole or in part, while under the control of
InterPacket will require InterPacket to pay iBEAM the reasonable costs to
repair or replace the MaxCaster(TRADEMARK) provided damage is caused by the
negligence or intentional act of InterPacket and/or its agents and not
through any defect of iBEAM's Equipment, iBEAM's failure to disclose a
potential problem with the equipment or iBEAM's actions or failure to act.
4.3 Insurance: From the date of the equipment installation at the co-location
space, iBEAM agrees to carry Commercial General Liability with combined single
limits of $1,000,000 for each occurrence and "all risk" property insurance
covering all of iBEAM 's personal property located at the InterPacket
co-location space. iBEAM agrees that it will not pursue any claims against
InterPacket for any liability InterPacket may have under or relating to this
Agreement until iBEAM first makes claims against iBEAM's insurance provider(s)
and such insurance provider(s) finally resolve(s) such claims.
5. RESALE OF SERVICE AND SERVICE EVALUATION
5.1 Resale of Service: InterPacket shall not in any manner resell any iBEAM
service or repackage any ancillary effect of an iBEAM service.
6. PAYMENT
6.1 Revenue Share: [***]
6.2 Payment: Payment for Dedicated Bandwidth will be made in advance. Payment
for Burstable Bandwidth and Selectable Bandwidth services rendered will be made
net thirty (30) days in arrears from receipt of valid invoice for prices as set
forth above.
6.3 Revenue Share Payments: Not more than twenty-five (25) days after the end
of each calendar month iBEAM will produce a report which provides reasonable
detail as to all revenue shares as specified in Article 6.1. Concurrent with the
production of the report iBEAM will tender such payments as are due under
Article 6.1.
6.4 Taxes: InterPacket is responsible for any taxes associated with
InterPacket's percentage of the revenues paid to InterPacket by iBEAM.
6.5 Audit: iBEAM agrees to allow InterPacket to audit the accounts receivable
and other financial information necessary to verify the revenues for which
InterPacket's revenue share is based. iBEAM will make available to InterPacket
and/or its designated accountants such financial records on a quarterly basis
and within one (1) week upon written request from InterPacket.
7. WARRANTIES
7.1 InterPacket will make its best efforts to provide reliable Internet Access,
but makes no warranties or representations of any kind for such services or the
merchantability or fitness of such Internet Access for any particular purpose
whatsoever; except as expressed in section 2.2B of this Agreement. iBEAM agrees
that InterPacket makes no warranty regarding, and InterPacket shall not be
responsible or liable for, any loss or expense resulting from the use or
interrupted use of Internet Access, including, but not limited to, losses
resulting from delays, improper or incomplete delivery of information or email,
computer viruses, interruption of service or damage to equipment. InterPacket
does not guarantee any service provided by any third party carrier (including
but not limited to iBEAM's "upstream" link to InterPacket's hub) and iBEAM
agrees not to hold InterPacket responsible or liable for any loss resulting from
the use or interrupted use of any third party services, including without
limitation any satellite carrier, internet backbone service provider or content
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[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
provider. iBEAM also acknowledges that InterPacket is not responsible for any
breaches of iBEAM's (or any third party accessing through iBEAM) privacy
occurring over the Internet. Any legal action arising out of InterPacket's
services shall be brought within a period of one year of the occurrence or shall
be deemed waived.
7.2 iBEAM DISCLAIMS THAT IT HAS WARRANTED THAT THE CONTENT PROVIDED HEREUNDER
IS UNDER iBEAM'S EDITORIAL CONTROL IN ANY MANNER WHATSOEVER, IS INFRINGING,
VIOLATES ANY THIRD PARTY RIGHTS OF ANY KIND OR THAT IT IS NOT OBSCENE, INDECENT,
OFFENSIVE OR HARMFUL TO MINORS.
8 INDEMNIFICATION
In no event shall either party be liable to the other for consequential or
indirect losses or damages howsoever arising under this Agreement and whether
under contract, tort or otherwise (including, without limitation, third party
claims, loss of profits, loss of customers, or damage to reputation or
goodwill). iBEAM shall indemnify, defend and hold InterPacket harmless from
any and all claims, actions, losses, damages, costs and expenses suffered by
InterPacket as a result of or related to any content that is altered while on
the MaxCaster servers. InterPacket shall indemnify, defend and hold iBEAM
harmless from any and all claims, actions, losses, damages, costs and
expenses suffered by iBEAM as a result of or related to InterPacket's gross
negligence, willful misconduct, status as a telecommunications provider,
InterPacket's communication services or the Network.
9 LIMITATION OF LIABILITY
NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT
MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO, TO THE
OTHER OR ANY OTHER THIRD PARTY, UNDER ANY CONTRACT, NEGLIGENCE, STRICT
LIABILITY OR OTHER THEORY(A) FOR ANY MONIES IN EXCESS OF [***], (B) FOR LOSS
OR INACCURACY OF DATA , COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR
TECHNOLOGY, OR (C) FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES
INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS. AND
NEITHER PARTY SHALL BE RESPONSIBLE FOR ANY MATTER BEYOND ITS REASONABLE
CONTROL.
UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY
OTHER THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR
EXEMPLARY DAMAGES, ARISING FROM ANY ACT OR OMISSION, INCLUDING NEGLIGENT ACTS OR
OMISSIONS, OF THAT PARTY, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES, ARISING FROM ANY PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT
LIMITED TO LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS.
10.0 TERM AND TERMINATION
10.1 This Agreement shall continue with full force and effect for one (1) year
from the Effective Date (the "Initial Term") and shall thereafter renew for
successive one (1) year terms (each, a "Renewal Term") unless terminated by
either Party for any reason upon ninety (90) days notice prior to the end of the
Initial Term or any Renewal Term, as the case may be, to the other party (the
"Term"). Either Party may terminate this Agreement at any time, effective
immediately, upon written notice to the other Party, if such other Party: (i)
breaches any of its material obligations hereunder and fails to cure such breach
(or to provide evidence, to the other Party's reasonable satisfaction, that it
is working diligently towards curing and will have cured within an agreed-upon
timeframe) within thirty (30) days of receipt of written notice from the other
party; (ii) files a petition in bankruptcy; (iii) fails to meet its minimum
service criteria, as specified in Article 2.2(B) in any two (2) month period;
and/or (iv) makes an assignment for the benefit of its creditors.
Notwithstanding the above, either Party may terminate this Agreement at that
Party's sole convenience with ninety (90) days prior written notice. Any such
termination shall be without any liability to or obligation of the terminating
Party, other than with respect to any damages due as a result of breach of
obligations under this Agreement prior to termination.
10.2 InterPacket may discontinue any or all classes of service at its sole
discretion in the event that (i) InterPacket deems it necessary to protect the
integrity of InterPacket's network, (ii) iBEAM (or any third party accessing
InterPacket's network or the internet through iBEAM) engages in any of the
prohibited activities described in Section 10.3 below or (iii) failure to make
timely payments described in Section 2, or, (iv), any other breach of this
Agreement by iBEAM. If reasonably practical, InterPacket will notify iBEAM prior
to such discontinuation to afford iBEAM the opportunity to remedy any such
problems or defaults. InterPacket's right to discontinue service shall be in
addition to all of its other rights under this contract.
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[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
10.3 It shall be a breach of this Agreement if iBEAM engages in any of the
following behaviors: (1) Any course of action which compromises the performance,
security or integrity of servers or other computers or any other devices or
software connected directly or indirectly to the Internet; (2) Any material
increase in traffic levels for malicious purpose or with the result that the
traffic level causes a substantial degradation of performance or denial of
service to InterPacket, its clients or subsidiaries; (3) Any type of invasion or
unauthorized tampering with system security, password protection or encrypted
information; (4) Infringement of the legal rights of other Internet users,
service providers, content providers and users of InterPacket's Internet access;
(5) Any prohibited or unreasonably excessive use of electronic mail or similar
information delivery system; (6) Any other activity prohibited by applicable law
including, but not limited to, obscenity, defamation, infringement of trademark,
copyright, or telecommunications laws of the United States. If iBEAM operates
software that InterPacket determines may cause hazard, interference, or service
interruption to InterPacket provided equipment or services or the InterPacket
network, iBEAM shall immediately remove the offending software upon notice.
10.4 In the event that this Agreement terminates for any reason the following
Articles shall survive the termination; Articles 5 and 15.
10.5 In the event this Agreement terminates for any reason, InterPacket shall
de-install all iBEAM equipment and send such equipment to iBEAM. iBEAM will
reimburse InterPacket for all reasonable costs associated with de-installation
and shipment of the equipment, including customs, duties and taxes.
11. INTERPRETATION
11.1 Changes: All changes to this Agreement must be in writing, signed by each
Party and reference this Agreement and the Effective Date.
11.2 Order of Precedence: The Terms and Conditions of this Agreement shall take
precedence over those set forth within each Exhibit, Addendum or other written
document, signed by both parties and specified as an addition or change to this
Agreement.
12 WAIVER, REMEDIES CUMULATIVE
12.1 The waiver by either Party of a breach or default by the other Party of any
of the provisions of this Agreement shall not be construed as a waiver of any
succeeding breach or default of the same or any other provisions of this
Agreement and shall not impair the exercise of any rights accruing to it under
this Agreement thereafter; nor shall any delay or omission on the part of either
Party to exercise or, avail itself of any rights accruing to it under this
Agreement operate as a waiver of any breach or default by the other Party of any
of the said provisions.
12.2 All rights and remedies provided in this Agreement are cumulative and are
not exclusive of any rights or remedies provided by law.
13 NOTICES
All communications in connection with this Agreement shall be in writing and
may be given by telecopy or mail to the recipient at the address set out in
this Agreement and sent to the Attention of General Counsel or Chief
Financial Officer.
14 COSTS
Each Party shall bear its own legal, accounting and other costs,
charges and expenses of and incidental to this Agreement.
15 DENIAL OF PARTNERSHIP
Nothing herein contained shall be construed as creating the relationship of
partnership, joint venture, fiduciary relationship or principal and agent
between the parties. Neither Party may pledge or purport to pledge the credit
of the other Party or make or purport to make any representations, warranties
or undertakings for the other Party.
16 FORCE MAJEURE
16.1 Where a Party is unable, wholly or in part, by reason of force majeure, to
carry out any obligations under this Agreement that obligation is suspended so
far as it is affected by force majeure during the continuance thereof.
16.2 In this Agreement, "force majeure" means lightning, fire, earthquake,
storm, flood or other Acts of God, strike, lockout or other interference with
work, war declared or undeclared, blockade, disturbance,, explosion,
governmental or quasi-governmental restraint expropriation prohibition
intervention direction or embargo, unavailability or delay in availability of
equipment or transport, inability or delay in obtaining governmental or
quasi-governmental approvals consents permits licenses authorities or
allocations, and any other cause
whether of the kind specified above or otherwise which is not reasonably within
the control of the Party affected.
17 ASSIGNMENT
Except for (i) assignment to a successor who acquires substantially all of
the assets, stock and business of iBEAM or InterPacket, (ii) assignment to a
subsidiary company, parent company, or subsidiary of a parent company, or
(iii) assignment, pledge, or transfer by iBEAM of any interest in any
payments to be received by iBEAM hereunder, neither party hereto may assign
this Agreement or any portion thereof without the prior written consent of
the other. Any assignment permitted hereunder or otherwise agreed to by the
other Party hereto will not relieve the assigning party of any obligations
with respect to any covenant, condition, or obligation required to be
performed by the assigning Party under this Agreement.
18 PROMOTION AND PUBLIC ANNOUNCEMENT
18.1 Each Party shall have the right to make public announcements and/or press
releases using the other Party's name provided they have obtained prior written
approval.
19 CONFIDENTIALITY
19.1 Each Party acknowledges that during the contractual relationship created
under the Agreement, situations may arise which require that they be given
access to Confidential Information (as defined more specifically in
Article 15.2) owned by the other Party, its suppliers or customers.
19.2 The Receiving Party of the Confidential Information recognizes that the
Disclosing Party has a proprietary interest in maintaining the confidentiality
of such Confidential Information. Except as required by law, Receiving Party
shall not, during the term of this Agreement and for Three (3) years after the
termination of this Agreement disclose any Confidential Information of the
Disclosing Party to any third party or use any Confidential Information for its
benefit or for the benefit of any third party except as permitted herein, or to
further the purposes of this Agreement. Receiving Party shall take reasonable
precautions to maintain the confidentiality of all Confidential Information, and
in no case lesser precautions that Receiving Party takes with its own similar
Confidential Information. Upon termination of this Agreement for any reason,
each Party shall immediately return or destroy all Confidential Information of
the other Party in its possession or control.
19.3 Confidential Information shall mean all information, whether in tangible
form or communicated orally, which is learned by the Receiving Party in the
course and performance of its obligations under this Agreement: (i) which is
labeled or stamped Confidential (or words to that effect), (ii) which is of the
type that Receiving Party has been informed to be confidential, and (iii)
concerns the Disclosing Party's products, or contents thereof or services
(existing or potential), business affairs, pricing, suppliers, customers, and
distributors, including without limitation, customer usage data, computer
hardware and software (in existence or under development), pending patent
applications, technical, sales and business reports, technical or research
notebooks, and information and data, whether owned by the Disclosing Party or
a third party, relating to the Disclosing Party's commercial activities.
Excluded from the foregoing definition is information which: i) at the time
of disclosure, is, or, after disclosure, becomes generally known or available
to the public other than as a consequence of the Receiving Party breach of
this Agreement; ii) was properly known or otherwise available to the
Receiving Party prior to the disclosure by the Disclosing Party; iii) was
disclosed by a third party to the Receiving Party after the disclosure by the
Disclosing Party if such third party's disclosure neither violates any
obligation of the third party to the Disclosing Party nor is a consequence of
the Receiving Party's breach of this Agreement; iv) the Disclosing Party
authorizes a release.
19.4 The rights and obligations of the parties with respect to confidentiality
shall survive termination of this Agreement.
20. ACTS BY LAW
Neither party shall be under any obligation to perform any service or deliver
any work should such service or delivery constitute a violation of any
applicable law.
21. GOVERNING LAW
This Agreement shall be governed by, and construed and enforced in accordance
with the laws of the State of California, without regards to its choice of
law provisions. The exclusive jurisdiction for any legal proceeding regarding
this Agreement shall be in the courts of the State of California and the
Parties hereto expressly submit to the jurisdiction of said courts.
22. SEVERABILITY
If any provision or provisions of this Agreement shall be held to be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining portions shall not in any way be affected or impaired thereby.
23. INTEGRATION
This Agreement supersedes and replaces any and all prior agreements,
understandings or arrangements, whether oral or written, heretofore made between
the Parties and relating to the subject matter hereof and constitutes the entire
understanding of the Parties with respect to the subject matter of this
Agreement. This Agreement may not be altered or amended except by an express
written agreement signed by both Parties hereto.
24. ARBITRATION
In the event of a dispute regarding this contract, the parties
shall submit the dispute to arbitration at the American Arbitration Association
in Southern California ("AAA") and the parties agree to abide by AAA rules,
regulations, and decisions.
iBEAM Broadcasting Corporation InterPacket
Signed: /s/ X.X. Xxxxxxx Signed: /s/ Xxxxx X. Xxxxxx
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Name: X.X. Xxxxxxx Name: Xxxxx X. Xxxxxx
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Title: CEO Title: President
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Date: 1/20/00 Date: January 19, 2000
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CONFIDENTIAL TREATMENT
EXHIBIT A 24X7 MAINTENANCE
[EXHIBIT A WAS INTENTIONALLY OMITTED BY THE PARTIES ON THE DATE
OF EXECUTION OF THIS AGREEMENT.]
