Exhibit 10.18
*** Text Omitted and Filed Separately
Confidential Treatment Requested
under 17 C.F.R Sections 200.80(b)(4),
200.83 and 240.24b-2.
VSTREAM SERVICES AGREEMENT
This Services Agreement ("Agreement") is made effective as of November 17, 1999
(the "Effective Date") by VStream, Inc. a Delaware corporation having a place of
business at 0000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000 ("VStream"),
and At Home Corporation, a Delaware corporation having a place of business at
000 Xxxxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000 d.b.a Excite@Home ("Excite@Home").
VStream and Excite@Home may be collectively referred to herein as the "Parties"
and individually as a "Party."
RECITALS
A. Excite@Home desires to provide new voice-related technologies to users of
Excite@Home's Mail, Clubs, Personals and other products.
B. Excite@Home desires to provide Excite@Home users access to VStream's
telecommunications and streaming media functionality currently known as
"Beep", which allows a user to call a telephone number and imbed an audio
message in the form of an Microsoft "ASF" or "RealPlayer 5.0/G2" file type
into a web page or append it to an email message.
C. VStream is looking for distribution of their telecommunications products and
services.
D. VStream is looking for additional revenue opportunities to be achieved by
driving traffic from Beep to other "for pay" premium services either at
Excite@Home's "Xxxx.xxx" business side (in development) or to a co-branded
premium service site with the Excite@Home Content group and increasing
traffic to the xxx.xxxxxxx.xxx site.
E. VStream is seeking branding opportunities through advertising and
promotional placements across the Excite@Home network.
NOW, THEREFORE, in consideration of the mutual promises set forth below,
the Parties agree as follows:
1. Definitions
1.1 "Beep" shall mean the service provided by VStream to Excite@Home pursuant
to the terms of this Agreement which service has the functionality set out
in Exhibit A.
1.2 "Best of Breed" shall mean that the Beep and Premium Services, collectively
or separately as the context requires, when compared to any other
substantially similar telecommunications and streaming media services
available on the Internet among the top two of the market leaders in terms
of the following criteria, taken as a whole: (i) integrated functionality;
(ii) timeliness; and (iii) reputation and ranking based upon a cross-section
of a minimum of three third
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party reviewers in terms of features, functionality, quality and other
qualitative factors that the Parties mutually deem material in nature.
1.3 "Co-Branded Page" shall mean any page on the Excite@Home Network which
includes both the VStream and Excite@Home brands.
1.4 "Cost of Integration" shall mean the costs incurred by Excite@Home in
integrating the Beep and Premium Services on the Excite@Home Network as
set out in Exhibit E.
1.5 "End Users" shall mean those users of the Excite@Home Network.
1.6 "Excite@Home Network" shall mean any Excite-branded or @Home-branded
sites, including without limitation Xxxxxx.xxx, xxxxxxxxxx.xxx, Xxxx.xxx
and any other Excite or @Home owned, co-owned, operated or jointly
operated sites branded with the "Excite" or "@Home" trade marks whether in
the United States or internationally.
1.7 "Intellectual Property" shall mean, on a world-wide basis, any and all now
known or hereafter known tangible and intangible (i) rights associated
with works of authorship including, without limitation, copyrights, moral
rights and mask-works, (ii) trademark and trade name rights and similar
rights, (iii) trade secret rights, (iv) patents, designs, algorithms and
other industrial property rights, (v) all other intellectual and
industrial property rights of every kind and nature and however
designated, whether arising by operation of law, contract, license or
otherwise, and (vi) all registrations, initial applications, renewals,
extensions, continuations, divisions or reissues thereof now or hereafter
made, existing, or in force (including any rights in any of the
foregoing).
1.8 "Net Advertising Revenues" shall mean gross advertising revenues minus
cost of agency fees and commissions.
1.9 "Premium Services" shall mean the existing audio-conferencing and content
co-browsing tools, and collaboration tools which have been created or will
be created by VStream and which shall be provided to Excite@Home pursuant
to the terms of this Agreement. Premium Services shall include the
Xxxx.xxx Premium Services that are further described in Exhibit I.
1.10 "Term" shall mean the period set out in Article 10.1 of this Agreement.
1.11 "User Data" shall mean any data received by either Party as a result of
the provision of services pursuant to this Agreement.
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2. VStream Products and Services Provided to Excite@Home
2.1 Beep
(a) VStream will provide the Beep service for use on the Excite@Home
Network as set out in Exhibit A.
(b) VStream will encode all Beep audio messages in the format(s)
determined by Excite@Home from those formats supported by VStream.
Initially this format shall be Microsoft's "ASF" format; provided, however
the Parties recognize and acknowledge that VStream's ability to encode in
Microsoft's "ASF" format is dependent upon Microsoft providing VStream with
a source code for player on or before November 17, 1999. In the event that
Microsoft does not deliver the source code to VStream on or before November
17, 1999, then VStream's obligations with respect to Beep integration as
set forth in this Agreement, will be extended one day for each day that
Microsoft delays in providing the source code to VStream. Excite@Home may
choose any other additional format that is supported by VStream upon thirty
(30) days written notice to VStream.
(c) VStream reserves the right to allow End Users to author Beep audio
messages by means of a toll-free telephone line or a local telephone line.
The Parties agree to discuss additional terms regarding the authoring of
audio messages using a microphone through a personal computer. Toll-free
access shall be the default access method for Excite@Home users.
Notwithstanding the foregoing, VStream or Excite@Home may select to have
the Beep Service provided to End Users via long distance telephone service
upon 15 days written notice.
(d) VStream reserves the right to suggest, develop and implement an
alternative access method for each application of VStream's services at
Excite@Home subject to mutual agreement by the Parties.
(f) VStream agrees to assist in the integration of Beep into the
Excite@Home Network as set out in Exhibits B and I.
2.2 Premium Services
(a) VStream shall provide the Premium Services to Excite@Home for use
on the Excite@Home Network as set out in Exhibit I.
(b) Excite@Home shall integrate components of the Premium Services on
portions of the Excite@Home Network as set out in Exhibit I. VStream shall
assist in such integration as set out in Exhibit B.
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(c) VStream agrees that the Beep and the Premium Services shall
support either the Microsoft "ASF" and/or RealNetworks "G2" file formats or
their successor formats during the term of the Agreement.
(d) VStream or Excite@Home may periodically suggest additional new
uses of VStream's services that may be implemented from time to time on the
Excite@Home Network, subject to mutual agreement by the Parties.
3. Excite@Home Products and Services Provided to VStream
3.1 During the Term, Excite@Home will integrate Beep into the Excite@Home
products listed in Exhibit C.
3.2 To the extent that Beep is integrated into the Excite@Home Network,
Excite@Home may create a VStream and Excite@Home Co-Branded page from which
End Users shall have access to Beep (the "Co-Branded Pages").
3.3 At Excite@Home's sole discretion, Excite@Home may choose at any time to
create a new (separate from a Xxxx.xxx site) site for integration of the
Premium Services and may choose to drive traffic to this site instead of or
in addition to the Xxxx.xxx Site. If Excite@Home creates a new site the
financial terms to apply to such new site will be subject to negotiation
between the Parties but in any event will be the same or less than the
financial terms outlined in Exhibit E.
4. Intellectual Property & Exclusivity
4.1 Excite@Home shall retain all right, title and interest in all Excite@Home
Intellectual Property which was in existence prior to the execution of this
Agreement and which may be developed by Excite@Home or its agents
independently of access to any of VStream's Intellectual Property or
technology.
4.2 VStream shall retain all right, title and interest in all VStream
Intellectual Property that was in existence prior to the execution of this
Agreement and which may be developed by VStream or its agents independently
of access to any Excite@Home Intellectual Property or technology.
4.3 The Parties agree that any developments or improvements made or discovered
by any Party pursuant to this Agreement, whether patentable or not, which
are not solely related to or based on either VStream's Intellectual
Property or Excite@Home's Intellectual Property, or relate to or are based
on the combination of VStream's Intellectual Property and Excite@Home's
Intellectual Property and discovered or made solely as a result of the work
carried out hereunder (hereinafter the "Joint Technology") shall be jointly
owned by the Parties. Excite@Home and VStream each agree to grant to the
other an irrevocable, royalty free, exclusive license to make, use and sell
products under any and all of the other Party's right, title and interest
in and to the Joint Technology.
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4.4 Excite@Home will grant to VStream the non-exclusive, non-transferable right
to reprint the "Excite" and the "Excite@Home" logos and other trademarked
materials to fulfill the terms of this Agreement subject to Excite@Home's
reasonable usage guidelines as these are published from time to time over
the term of this Agreement.
4.5 VStream will grant to Excite@Home the non-exclusive, non- transferable
right to reprint the "VStream" logo and other trademarked materials to
fulfill the terms of this Agreement subject to VStream's reasonable usage
guidelines as these are published from time to time over the term of this
Agreement
4.6 Each Party hereby grants to the other a limited, non-exclusive license to
use the trademarks currently used by such Party (the "Trademarks") to carry
out the purposes of this Agreement. Each Party acknowledges that the
Trademarks belong to the granting Party and that the non-granting Party
shall have no rights in such Trademarks except for the purposes set forth
in this Agreement. Neither Party shall use the Trademarks in any manner
that is disparaging or that otherwise portrays a Party in a negative light.
Neither Party may alter, modify or change the Trademarks except as
otherwise set forth in this Agreement. At no time during or after the term
of the Agreement will a Party challenge or assist others to challenge the
Trademarks or the registration thereof or attempt to register any
trademarks, marks or trade names confusingly similar to the Trademarks. At
a Party's reasonable request, all depictions of Trademarks that a Party
intends to use will be submitted to the other Party for approval of design,
color, or other details or will be exact copies of those used by a Party.
In the event a Party does not approve of such depiction, the other Party
shall cease using such depiction upon reasonable notice.
4.7 The rights and licenses granted in this Agreement are made on non-exclusive
terms to both Parties.
5. VStream Maintenance, Support and Performance Obligations
5.1 VStream will be responsible for providing maintenance and technical support
for all Beep and Premium Service End Users as set forth in Exhibit D.
5.2 VStream will provide Excite@Home the performance and uptime guarantees for
the Beep and the Premium Service as set forth in Exhibit D.
6. Financial Terms
6.1 VStream will purchase advertising and promotional placements as described
in Exhibit F from Excite@Home pursuant to the financial terms set out in
Exhibit E.
6.2 VStream will pay Excite@Home sponsorship and advertising fees as set out in
Exhibits E and F during the term of this Agreement.
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6.3 VStream will pay Excite@Home the Cost of Integration fees set out in
Exhibit E.
6.4 VStream agrees to pay Excite@Home all amounts set out in Exhibit E as
provided in Exhibit E on the first day of each quarter in advance of the
Excite@Home performance set out in Exhibit E.
6.5 To the extent Excite@Home chooses to direct traffic to Premium Services
that are not Xxxx.xxx Premium Services, Excite@Home and VStream agree that
the terms thereof shall be as set out in Exhibits E and I.
6.6 Excite@Home may elect to allow VStream to sell some or all of the audio
advertisements subject to Excite@Home's sales policies. VStream will share
[...**...]% of the Net Advertising Revenue from such sales with the
Excite@Home
6.7 Subject to 6.6, in the event audio advertising is sold within the Premium
Service offering, Excite@Home will, at its option, be solely responsible
for selling such advertising and will share [...**...]% of the Net
Advertising Revenue generated from such sales with VStream.
6.8 VStream shall allow Excite@Home to sell advertisements and promotional ad
placements within the Premium Services and Beep as set out in Exhibit H.
Net Advertising Revenue generated from such sales will be[...**...].
7. Sales, Marketing and Public Relations
7.1 Excite@Home will display the advertising and promotional placements on the
portions of the Excite@Home Network as set out in Exhibit E and according
to the schedule set out in Exhibit E.
7.2 All End User traffic driven to the Xxxx.xxx Site will be subject to the
terms set forth in Exhibit I.
8. Branding
8.1 All Co-Branded Pages will reside on the Excite Web site and Excite will
control the "look and feel" of the Co-Branded Pages; provided, however,
that any such Co-Branded Pages will be in a manner and form consistent with
Excite@Home's page; (ii) treat VStream's name and logo in a manner
consistent with the treatment of Excite@Home's name and logo; and (iii)
VStream's name and logo will not be subject to any modification or change.
Further, all rights and associated goodwill arising from or relating to the
Co-Branded Pages shall remain the respective property of each Party.
8.2 At Excite@Home's sole discretion, all Beep integration into the Excite@Home
Network communities' products such as Mail, Clubs, People Finder as
described
*Confidential Treatment Requested
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in Exhibit C, will be provided with "powered by VStream branding" or with
other branding to be mutually agreed by the Parties.
8.3 At Excite@Home's sole discretion, all Beep integration into the Excite@Home
Network Commerce products ("Personals") as described in Exhibit C, will be
provided with VStream branding as described in Exhibit F or with other
branding to be mutually agreed by the Parties.
8.4 All new Beep integrations or other product integrations not described in
this Agreement upon execution will receive "powered by VStream" branding or
other branding and hyperlinks to be mutually agreed by the Parties.
9. User Data and Usage Reports
9.1 Excite@Home will retain ownership of all legacy User Data except as set
forth in this Agreement and any amendments thereto.
9.2 To the extent that VStream collects any User Data as part of this
Agreement, Excite@Home shall have co-equal rights with VStream to all such
User Data.
9.3 Terms of use and ownership for User Data are set forth in Exhibit H.
9.4 Any individually identifiable User Data collected as part of this Agreement
by the Parties will be treated as confidential and will be subject to
TRUSTe or other Excite@Home and VStream privacy policies as they may be
published by either Party from time to time.
9.5 VStream agrees to deliver monthly dumps of User Data in a form to be
mutually agreed by the Parties.
9.6 The Parties will provide each other usage reports as set forth in Exhibit
G.
10. Term and Termination
10.1 Term. The Term of the Agreement shall be two (2) years from the Effective
Date. The Agreement shall automatically renew for additional one (1) year
periods unless terminated by either Party upon sixty (60) days prior
written notice to the other Party.
10.2 Termination. Each Party may terminate this Agreement upon written notice to
the other Party if the other Party (i) materially breaches any term or
provision of this Agreement and fails to cure such breach within sixty (60)
days after receipt of written notice of intention to terminate from the
other Party; (ii) suspends or terminates the conduct of its business; or
(iii) initiates or has initiated against it, any act, process or proceeding
under any insolvency law, the Federal Bankruptcy Act, or any other statute
or law providing for the modification or adjustment of the rights of
creditors.
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10.3 Termination for Change of Control. Each Party will have the right to
terminate this Agreement on thirty (30) days written notice to the other
Party if all or substantially all of that Party's assets are acquired by a
third party who is a direct or indirect competitor of the other Party. The
Party changing control will provide the other Party with at least twenty-
four (24) hours notice before the public announcement of any such
transaction and will cooperate with the Party changing control to
communicate with common End Users regarding the transaction, subject to
applicable securities laws.
10.4 Termination for Best of Breed. In the event that VStream fails to ensure
that the services offered to Excite@Home by VStream are "Best of Breed"
for one continuous thirty (30) day period, Excite@Home may terminate this
agreement on 30 days written notice if VStream is unable to bring the
services up to a comparable standard within thirty (30) days of receiving
written notice from Excite@Home.
10.5 Effects of Termination. Upon termination of this Agreement for any reason,
(i) each Party will promptly return all Confidential Information of the
other Party, (ii) each Party will pay all outstanding amounts owed to the
other Party under this Agreement within forty-five (45) days after the
effective date of such termination, (iii) VStream will provide the User
Data to Excite@Home in a well-defined format to be agreed on by the
Parties, and (iv) all Beeps or other audio or User Data stored by VStream
will be delivered to Excite@Home in a series of three or more data dumps
in a form and format that allows for the easy reintegration of all such
data into the Excite@Home site.
10.6 Migration. Unless this Agreement is terminated by VStream pursuant to
Section 10.2 or 10.3 due to a material, uncured breach by Excite@Home, or
change of control, upon termination of this Agreement, for a period of up
to sixty (60) days, VStream will provide consulting services to
Excite@Home, as Excite@Home may reasonably request and for reasonable fees
to be paid to VStream, such fees to be agreed upon in writing by the
Parties, to assist Excite@Home in providing a seamless transition to End
Users. VStream will have no obligation to provide such services to
Excite@Home to the extent that VStream's personnel and resources are
unavailable in the amounts requested by Excite@Home or if the Parties are
unable to agree on the reasonable fees to be paid to VStream for such
services. VStream will not be required, in the course of providing such
consulting services to Excite@Home, to disclose or transfer to Excite@Home
any proprietary information, software, or Intellectual Property of VStream
or any of its suppliers.
11. Confidentiality
11.1 Definition of Confidential Information. For purposes of this Agreement,
"Confidential Information" of a Party means the information and documents
identified in this Agreement as confidential information of such Party, as
well as any and all other information that (i) such Party considers to be
confidential or
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proprietary to its business (including trade secrets, technical
information relating to ongoing research and development, business
strategies, marketing plans, customer lists, and financial data) and (ii)
either (A) is clearly labeled or identified as confidential or proprietary
when disclosed to the other Party or (B) the other Party knew, or under
the circumstances should have known, was considered confidential or
proprietary by the other Party.
11.2 General Confidentiality Obligations. Each Party agrees that it will (i)
not disclose the other Party's Confidential Information to any third party
(other than independent contractors as provided below); (ii) use the other
Party's Confidential Information only to the extent necessary to perform
its obligations or exercise its rights under this Agreement; (iii)
disclose the other Party's Confidential Information only to those of its
employees and independent contractors who need to know such information
for purposes of this Agreement and who are bound by confidentiality
agreements containing terms no less restrictive than those in this Section
11.2; and (iv) protect all Confidential Information of the other Party
from unauthorized use, access, or disclosure in the same manner as it
protects its own confidential information of a similar nature, and in no
event with less than reasonable care.
11.3 Exceptions. Each Party's obligations with respect to any portion of the
other Party's Confidential Information will terminate when the receiving
Party can document that (i) such Confidential Information was in the
public domain at the time it was communicated to the receiving Party by
the disclosing Party; (ii) such Confidential Information entered the
public domain after it was communicated to the receiving Party by the
disclosing Party through no fault of the receiving Party; (iii) such
Confidential Information was in the receiving Party's possession free of
any obligation of confidence at the time it was communicated to the
receiving Party by the disclosing Party; or (iv) such Confidential
Information was developed by employees or agents of the receiving Party
independently of and without reference to any information communicated to
the receiving Party by the disclosing Party. In addition, Section 11.2
will not be construed to prohibit any disclosure that is (A) necessary to
establish the rights of either Party under this Agreement or (B) required
by a valid court order or subpoena, provided in the latter case that the
Party required to make such disclosure notifies the other Party (whose
Confidential Information is to be disclosed) thereof promptly and in
writing and cooperates with the other Party if the other Party seeks to
contest or limit the scope of such disclosure.
11.4 Terms of Agreement. Neither Party will disclose the existence or any terms
of this Agreement to anyone other than its attorneys, accountants, and
other professional advisors, except (i) pursuant to a mutually acceptable
press release or otherwise approved by the other Party in writing; (ii) in
connection with a contemplated change of control of such Party or sale of
such Party's business (provided that any third party to whom the terms of
this Agreement are to be
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disclosed signs a confidentiality agreement reasonably satisfactory to the
other Party hereto before such disclosure is made); or (iii) as may be
required by law.
11.5 Press Release: Excite@Home and VStream both agree to issue mutually
acceptable press releases announcing this Agreement. Both Parties may
issue additional press releases regarding the specific product launches as
mutually agreed. An initial announcement of the investment will be
released within 30 days of the closing of this Agreement. Executive
officers, i.e., the chief executive officer ("CEO") of the Parties will be
quoted in the initial announcement, as set out in Exhibit K.
12. Warranty and Indemnification
12.1 Power and Authority. Each Party hereby represents and warrants that such
Party is duly organized and validly existing under the laws of the state
of its organization, and has full power and authority to enter into this
Agreement and to carry out the provisions hereof.
12.2 Due Authorization. Each Party hereby represents and warrants that such
Party is duly authorized to execute and deliver this Agreement and to
perform its obligations hereunder.
12.3 Binding Obligation. Each Party hereby represents and warrants that this
Agreement is a legal and valid obligation binding upon it and is
enforceable in accordance with its terms. The execution, delivery and
performance of this Agreement by such Party does not conflict with any
agreement, instrument or understanding, oral or written, to which it is a
Party or by which it may be bound, nor violate any law or regulation of
any court, governmental body or administrative or other agency having
authority over it.
12.4 Proprietary Rights. Each Party represents and warrants to the other that
their respective Intellectual Property shall not in any way constitute an
infringement or other violation of any patent, copyright, trade secret,
trademark or other proprietary rights of any other party.
12.5 Performance. Each Party represents and warrants to the other that their
respective Intellectual Property when used in conjunction with the
designated hardware will perform in all material respects according to any
and all specifications, representations and functional specifications
identified in the descriptions and technical specifications contained in
the documentation related to each Party's Intellectual Property (as such
documentation and specifications shall be amended from time to time).
However, the Parties do not warrant that their respective Intellectual
Property will be otherwise free of all errors or "bugs" as that term is
commonly used in the trade. Each Party shall provide reasonable
programming services to correct errors or "bugs" identified by the other
Party, or shall, at its option, replace their respective Intellectual
Property.
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12.6 Year 2000. Each Party represents and warrants to the other that the
occurrence in or use by their respective Intellectual Property of dates on
or after January 1, 2000 ("Millennial Dates") will not adversely affect
their performance with respect to date-dependent data, computations,
output, or other functions (including, without limitation, calculating,
comparing and sequencing) and that their respective Intellectual Property
will create, store, process and output information related to or including
Millennial Dates without errors or omissions and at no additional cost to
the other Party. If requested by a Party, the other Party will provide
sufficient evidence to demonstrate the adequate testing of their
respective Intellectual Property to meet the foregoing requirements.
12.7 Ownership of Trademarks. As of the Effective Date, each Party represents
and warrants to the other that (a) it is the sole owner of all right,
title and interest in and to the Trademarks and (b) it has the absolute
right to the use of the Trademarks and to grant the license granted in
Section 4.6.
12.8 Limitation of Liability. EXCEPT WITH RESPECT TO EACH PARTY'S RESPECTIVE
INDEMNIFICATION OBLIGATIONS UNDER ARTICLE 13, IN NO EVENT SHALL EITHER
PARTY, ITS AFFILIATES, OR ANY OF ITS OR THEIR DIRECTORS, OFFICERS,
EMPLOYEES OR AGENTS, BE RESPONSIBLE OR LIABLE FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES
(INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES OR LOSS OF PROFITS), EVEN
IF THAT PARTY, ITS AFFILIATES, OR ANY OF ITS OR THEIR DIRECTORS, OFFICERS,
EMPLOYEES OR AGENTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, ARISING
OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT OR ITS IMPLEMENTATION.
13. INDEMNIFICATION
13.1 Indemnification Obligation. Each Party (the "Indemnifying Party") shall
defend, indemnify and hold harmless the other Party and each of its
officers, directors, employees, agents and stockholders (the "Indemnified
Parties"), from and against any and all claims, losses, liabilities,
costs, settlements, damages or expenses of any kind (including reasonable
attorneys' fees and disbursements) (collectively, "Indemnified Amounts")
incurred by the Indemnified Parties which arise out of, relate to or are
based upon (i) any claim that a Party's Intellectual Property infringes
upon the intellectual property or other proprietary rights of a third
party or (ii) any Party's negligence or breach of a representation or
warranty or breach of a covenant obligation or agreement made by a Party
under this Agreement, except to the extent such Indemnified Amounts are
due to the gross negligence or willful misconduct of any Indemnified
Party.
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13.2 Indemnity Procedures. Each Indemnified Party agrees to give the
Indemnifying Party prompt written notice of any matter upon which such
Indemnified Party intends to base a claim for indemnification (an
"Indemnity Claim") under this Article __. The Indemnifying Party shall
have the right to participate jointly with the Indemnified Party in the
Indemnified Party's defense, settlement or other disposition of any
Indemnity Claim. With respect to any Indemnity Claim relating solely to
the payment of money damages that could not result in the Indemnified
Party's becoming subject to injunctive or other equitable relief or
otherwise adversely affect the business of the Indemnified Party in any
manner, the Indemnifying Party shall have the sole right to defend, settle
or otherwise dispose of such Indemnity Claim, on such terms as the
Indemnifying Party, in its sole discretion, shall deem appropriate,
provided that the Indemnifying Party shall provide reasonable evidence of
its ability to pay any damages claimed and with respect to any such
settlement shall have obtained the written release of the Indemnified
Party from the Indemnity Claim. The Indemnifying Party shall obtain the
written consent of the Indemnified Party, which shall not be unreasonably
withheld, prior to ceasing to defend, settling or otherwise disposing of
any Indemnity Claim if as a result thereof the Indemnified Party would
become subject to injunctive or other equitable relief or the business of
the Indemnified Party would be adversely affected in any manner. The
Indemnified Party may, at its sole cost and expense, participate in any
such suit or action with counsel of its own choice.
14 DISPUTE RESOLUTION
14.1 The Parties agree that any breach of either of the Parties' obligations
regarding trademarks, service marks or trade names and/or confidentiality
would result in irreparable injury for which there is no adequate remedy
at law. Therefore, in the event of any breach or threatened breach of a
Party's obligations regarding trademarks, service marks or trade names
and/or confidentiality, the aggrieved Party shall be entitled to seek
equitable relief in addition to its other available legal remedies in a
court of competent jurisdiction. For the purposes of this section only,
the Parties consent to venue in either the state courts of the county in
which Excite@Home has its principal place of business or the United States
District Court for the Northern District of California.
14.2 In the event of disputes between the Parties arising from or concerning in
any manner the subject matter of this Agreement, other than disputes
arising from or concerning trademarks, service marks or trade names and/or
confidentiality, the Parties shall first attempt to resolve the dispute(s)
through good faith negotiation. In the event that the dispute(s) cannot be
resolved through good faith negotiation, the Parties shall refer the
dispute(s) to a mutually acceptable mediator for hearing in Redwood City,
California if VStream initiates the dispute or Boulder, Colorado if
Excite@Home initiates the dispute.
14.3 In the event that disputes between the Parties arising from or concerning
in any manner the subject matter of this Agreement, other than disputes
arising from or
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concerning trademarks, service marks or trade names and/or
confidentiality, cannot be resolved through good faith negotiation and
mediation, the Parties shall refer the dispute(s) to the American
Arbitration Association for resolution through binding arbitration by a
single arbitrator pursuant to the American Arbitration Association's rules
applicable to commercial disputes. The arbitration shall be held Redwood
City, California if VStream initiates the arbitration or Boulder, Colorado
if Excite@Home initiates the arbitration, and the decision reached by such
arbitrator shall be entered as a judgment in any court of competent
jurisdiction.
15 EXCITE@HOME TO INVEST IN VSTREAM.
15.1 Excite@Home will invest in common stock of VStream as set out in Exhibit
J.
16 GENERAL
16.1 Relationship of Parties. Nothing in this Agreement will be construed as
creating any agency, partnership, or other form of joint enterprise
between the Parties. Neither Party will have the authority to act or
create any binding obligation on behalf of the other Party, and neither
Party will represent to any third party that it has the authority to act
or create any binding obligation on behalf of the other Party.
16.2 Notices. All notices, consents, waivers, and other communications intended
to have legal effect under this Agreement must be in writing, must be
delivered to the other Party at the address set forth at the top of this
Agreement by personal delivery, certified mail (postage pre-paid), or a
nationally recognized overnight courier, and will be effective upon
receipt (or when delivery is refused). Any such notices sent to VStream
must be addressed to the attention of its General Counsel. Each Party may
change its address for receipt of notices by giving notice of the new
address to the other Party.
16.3 Governing Law. This Agreement will be governed by and interpreted in
accordance with the laws of the State of California as such laws apply to
contracts made between California residents to be performed entirely
within California. The United Nations Convention for the Sale of
International Goods will not apply to this Agreement.
16.4 Waiver. The failure of either Party to require performance by the other
Party of any provision of this Agreement will not affect the full right to
require such performance at any time thereafter; nor will the waiver by
either Party of a breach of any provision of this Agreement be taken or
held to be a waiver of the provision itself.
16.5 Severability. If any provision of this Agreement is unenforceable or
invalid under any applicable law or is so held by applicable court
decision, such unenforceability or invalidity will not render this
Agreement unenforceable or
13
invalid as a whole, and such provision will be changed and interpreted so
as to best accomplish the objectives of such unenforceable or invalid
provision within the limits of applicable law or applicable court
decisions.
16.6 Assignment. Neither this Agreement nor any rights or obligations of either
Party under this Agreement may be assigned in whole or in part without the
prior written consent of the other Party except in connection with a
merger or sale of all or substantially all of the business or assets of
the assigning party. Any attempted assignment in violation of the
preceding sentence will be void. This Agreement will bind and inure to the
benefit of the respective successors and permitted assigns of the Parties.
NOTWITHSTANDING THE FOREGOING, in the event that the xxxx.xxx organization
within Excite@Home becomes a separate entity from Excite@Home, the Parties
agree that the terms of this Agreement as they relate to the provision and
use of the Premium Services shall apply to both xxxx.xxx and to
Excite@Home. Further, in the event of such a split between Excite@Home and
xxxx.xxx, the fees set out in Exhibit E which are identified for xxxx.xxx
service and or placements, shall be paid to xxxx.xxx and fees incurred by
either Excite@Home or Xxxx.xxx in relation to the Premium Service shall be
paid to VStream by the entity incurring the fee; provided, however, that
VStream and xxxx.xxx must enter into an agreement mutually satisfactory to
the parties setting forth the performance terms and financial arrangements
between VStream and xxxx.xxx and that this Agreement be amended in a
manner reasonably satisfactory to the Parties.
16.7 Force Majeure. Neither Party shall be liable for failure to perform or
delay in performing any obligation under this Agreement if such failure or
delay is due to any event directly impacting such Party's delay or failure
to perform and beyond such Party's reasonable control, including fire,
flood, earthquake, strike, war (declared or undeclared), embargo,
blockade, legal prohibition, governmental action, riot, insurrection,
damage, destruction, failures or delays in transportation or
communication, failure or substitutions of equipment, labor disputes,
accidents, shortages of labor, fuel, raw materials or equipment or
technical failures or any other similar cause; provided that the Party
claiming such force majeure event makes reasonable efforts to exercise
such control. The Party affected by such event of force majeure shall not
later than seven (7) days after the commencement of such event give notice
to the other Party of such event and shall use its best efforts to resume
full performance of its obligations under this Agreement as soon as
commercially possible.
16.8 Construction. The section headings appearing in this Agreement are
inserted only as a matter of convenience and in no way define, limit,
construe, or describe the scope or extent of such section or in any way
affect this Agreement. Unless otherwise expressly stated, when used in
this Agreement the word "including" means "including but not limited to."
14
16.9 Entire Agreement and Amendment. This Agreement together with its Exhibits
completely and exclusively states the agreement of the Parties regarding
its subject matter. It supersedes, and its terms govern, all prior
understandings, agreements, or other communications between the Parties,
oral or written, regarding such subject matter. This Agreement may be
executed in counterparts and may be amended only in a document signed by
both Parties.
16.10 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS HEREOF, the Parties have caused this Agreement to be executed by
their duly authorized representatives as of the date first written above.
VStream, Incorporated
By: ____________________________________________________
Xxxx Xxxxxxxxx, Chief Executive Officer and Chairman
Date: ____________________________________________________
At Home Corporation.
By: _____________________________________________________
Xxxx Xxxxxxx, Executive Vice President,
Corporate Business Development
Date: _____________________________________________________
15
EXHIBIT A
---------
DESCRIPTION OF BEEP SERVICES
VStream provides an Internet Communications service called, Beep which provides
the services described in the Beep Technical Manual published by VStream 1999
and all updates and additions to that Manual during the Term
Beep is a service allowing end-users to author voice messages over their
telephone for streamed playback over the Internet and distributed through a link
in an e-mail or embedded in an application such as a message board posting or
added to a web page.
The Beep service, is available from VStream's website at xxxx://xxx.xxxxxxx.xxx.
Messages may be up to two (2) minutes in length and will be stored for thirty
(30) days, unless otherwise mutually agreed upon.
1
EXHIBIT B
---------
ENGINEERING SERVICES PROVIDED TO EXCITE@HOME
1. Description of Work to Be Done by VStream
a) VStream and Excite@Home will work together to integrate the Beep
service into the Excite@Home products listed in Exhibit C.
b) Beeps are categorized on input by the portal from which they originate.
In these cases, Excite@Home will be the originating site. Because of
the volume of Beeps that will be performed through the period of the
contract, VStream will construct a separate database infrastructure to
support this traffic.
2. When is complete work to be delivered/Milestones
Beep will be integrated on the Excite Network as per the following
timetable:
VStream service delivery plans:
On or before December 15, 1999: VStream will deliver the ability to
perform two hundred and fifty thousand (250,000) beeps per day.
On or before March 15, 2000: VStream will deliver the ability to
perform one million (1,000,000) beeps per day.
If the number of Beeps exceed the performance numbers listed above
the system will fail over to a temporary "service busy" type of
message (exact text to be determined) until such time that the peak
load falls under the numbers listed above.
Excite@Home product integration suggested timeline:
Excite Personals: User Interface Design:
Engineering work for Beep integration into Excite Personals will
last 1-2 months, beginning November 1999.
QA/Testing of Beep service for one week beginning at the beginning
of November. Live push of Beep service integrated into Excite
Personals in January 1999.
Excite Personals: User Interface Design,
Engineering work for Beep integration into Excite Personals will
last 1-2 months, beginning November 1999.
2
Integration of Beep will occur in two phases.
Phase 1: Add Beep to Personals Ads.
Phase 2: Add Beep to email replies.
QA/Testing of Beep service for two weeks beginning at the beginning
of December.
Live push of Phase I Beep service integrated into Excite Personals
in Q1 2000.
Live push of Phase 2 Beep service integrated into Excite Personals
in February 2000.
Excite Clubs Invite Service: User Interface Design,
Engineering work for Beep integration into Excite Clubs Invite
Service will last 1-2 months, beginning January 2000.
QA/Testing of Beep service for one week beginning in February 2000.
Live push of Beep service integrated into Excite Invite Service at
the end of February 2000.
Excite Clubs: User Interface Design,
Engineering work for Beep integration into Excite Personals will
last 2-3 months, beginning January 2000. QA/Testing of Beep service
for one week beginning at the beginning of March 2000. Proposed live
push of Beep service integrated into Excite Clubs in March 2000.
Excite Member Directory: All integration timelines are to be
determined but are anticipated to be sometime during the period of
Q4 1999 until Q2 2000.
Excite Mail/Voicemail: User Interface Design & Engineering
Engineering work (including UI design) for Beep integration into
Excite Mail/Voicemail will begin in November 1999 and last for 1-2
months. QA/Testing of Beep service is expected to begin in January
2000 and will take 1-2 weeks. The proposed live push of the Beep
service in Excite Mail/Voicemail will be in February 2000.
3
All of the above integration timetables assume that Microsoft delivered to
VStream the source code for Window's Media Player on or before November 17,
1999. In the event that Microsoft does not deliver to VStream the source code
for Window's Media Player on or before November 17, 1999, then VStream's
integration obligations with respect to Beep, as set forth in the Agreement,
will be extended one day for each day that Microsoft delays in delivering the
source code for Window's Media Player to VStream.
3. Technical Specifications The following is a summary of how Beep integration
will work. The specific integration process may vary depending upon the
needs of the specific products involved.
The Co-Branded Pages or product integration external site, at some point in
it's flow, needs to send a URL to VStream to indicate that a voice message
is to be created (this will be called the Beep Request below). This message
can take the following parameters:
A unique ID to be associated with this voice mail request. If the external site
is sending out its own message or web page to the end user, then they should
pass us this unique ID so that they can include it in their page/email to later
request the voice message (e.g. they might embed an image in their page that
when clicked will make a URL request from VStream to play the voice message.
This request would require passing the unique ID.). However, if the external
site is going to rely on VStream to send an email containing the voice message
link, then this parameter can be left off, and we will create a unique ID on our
own.
The URL of a page that will display the phone # and message ID to use to record
the Beep (called the Dial Instructions page below). The Beep Request will
reserve a line and message ID and then redirect to Dial Instructions page,
passing the phone # and message ID as parameters. The Dial Instructions page
should display these values along with instructions on how to make the call. It
can reside at VStream or on the external site.
i) (optional) The email address of the sender, and a comma
separated list of recipient email addresses. This information is
required if VStream will be sending the emails with the voice
message links, but not if the external site is sending these.
ii) (optional) A parameter indicating whether the sender should get
notified when their Beeps are played.
a) The sender then needs to make the phone call and leave their message.
b) If VStream is sending emails, when the call is complete, VStream will
send an email with a link to play the voice message to the sender and
the recipients.
4
c) There are many options for how the recipients access the voice message. If
VStream sends an email, then the email simply has a link to play the stream.
Clicking this link will bring up a page that is on VStream's site. This page
checks if the Beep is still active, and if so calls up the appropriate media
player and plays the message.
d) If the external site is sending an email, then their email will typically
contain a link to some page they are presenting to the user. This page
should contain some mechanism for checking with VStream to see if the voice
message was recorded, and if so to play the stream. This can be done in
several ways such as:
i) The external page could contain an image that says something to
the effect of "Click here to listen to your voice message". This
image would be located on VStream's site. When this image is
requested from the external site's page, VStream checks its
database and determines if the sender ever successfully completed
the phone call. If so, then VStream passes back the real image,
otherwise we pass back a one pixel transparent gif, so the user's
page effectively does not have the "play the message" image.
ii) Or the external page could be a page that calls a VStream URL and
the VStream URL checks the status of the voice message and then
redirects to a page on the external site passing the status as a
parameter. This secondary external site page would then take the
status as input and put up a different page depending on whether
the Beep had been recorded or not.
iii) Or the external page could have an embedded call to VStream that
requests the status (e.g. doesn't exist, available expired) of the
specific recording clip and then uses this status to render a
specific user experience for the End User.
5
EXHIBIT C
---------
EXCITE@HOME INTEGRATION PLANS
Excite@Home shall integrate VStream's Beep services into the following products:
1. Excite Mail
a) The Beep product will be integrated into the Excite Mail and Excite
Voicemail in the "Compose" page of Excite Mail. Subject to UI design, it
is envisioned that the user will be able to send a Beep message by
checking on that option within the Compose Message screen. User will see
another page, where VStream will provide the Excite user with a unique
ID (and telephone number) associated with the request so that the
voicemail message can be recorded. This page will be a Co-Branded Page.
b) The notification option ("your email & voicemail (Beep) message was
read") to the Excite user can also be integrated into the product.
Subject to UI design, the additional option can be added on the page
where the unique ID & telephone number information is presented. This is
currently accomplished via an email notification mechanism. This can be
turned off at Excite@Home's discretion.
2. Excite Clubs
a) There are many areas within the Excite Club's product in which we can
integrate Beep. Beep could be integrated into the invitation service,
into individual Excite Club's applications as an additional way for end
users to leave announcements, discussions, messages or comments. Beep
could also be integrated with the textual description on the welcome
page and uploaded files.
b) We intend to integrate Beep into Excite Clubs in stages. The first stage
will be attaching a Beep to an email in the invitation service. The
second stage will be adding Beeps to the threaded discussion comment
boxes. From the user reaction, we will see if adding Beeps into
descriptions or other places is warranted.
c) Specific integration points include:
i) Invitations to join a club.
. The invite service sends email messages to prospective club
members. A beep could be attached to these emails. The compose page
for the email will contain the telephone number and unique ID
number to add a voice message. The instructions on how to add the
message will also be on this page.
6
. The recipient will receive an email that will contain a link to a
community page. This page should have a way to check with VStream
to see if the voice message was recorded, and if so to play the
message.
. This work will take six weeks of development and QA time. It is
scheduled to start in mid-January, 2000.
ii) Leaving a voice comment
Announcements, Discussions, Calendar, Links, Contact list, Photos
and Files all have comment boxes. A user would have the
opportunity to leave a voice comment in addition to a textual
comment. The instructions, telephone number and unique ID would
either be on the same page as the comments box, or on a separate
page linked from that discussion page.
. Once recorded, the message will appear as a link within the
threaded discussion. Users will listen to the message by clicking
the link causing the message to play if recorded.
. This work is expected to take twelve (12) weeks of development
and QA time. It is scheduled to begin at the end of February.
iii) Descriptions with text and voice
. The welcome page, links and uploaded files and photos, contacts
and calendar events have a textual description. These
descriptions could be enhanced with a Beep. We will look into
this implementation once we receive feedback from using Beep in
these other areas.
3. Excite Personals
a) Excite Personals has two areas of Beep integration:
i) Place Personal Ads
. Users will be able to include a voice message along with their
other static text information to appear in their personal ad
(HTML page). This integration of Beep would occur in the `place
ad' and `detail page rendering' processes.
ii) Respond to Personal Ads
. Users that respond to personal ads can attach a voice message
along with their email response. This integration would occur in
the `send email message' process.
7
4. Excite Member Directory
a) Integration into the Excite Member Directory pages such that users can
record voice messages for playback as part of their personal profile.
The integration process and plans will be similar to other integration
efforts as described above.
8
EXHIBIT D
---------
MAINTENANCE AND SUPPORT
VStream shall provide the following support, maintenance, performance and uptime
guarantees to Excite@Home for the BEEP and the Premium Services:
1. Maintenance
a) VStream shall provide during 6:00AM-6:00PM Pacific Time on VStream's
normal business days, telephone consulting services to Excite@Home's
designated personnel to assist such personnel in resolving problems,
obtaining clarification relative to Beep and Premium Services and
providing assistance regarding suspected defects or errors in Beep and
Premium Services.
b) VStream will also provide email development support to Excite@Home.
Excite@Home's use of such support shall be restricted to calls related
to Severity 1 and Severity 2 issues as those terms are defined in
Exhibit D. VStream will make all reasonable efforts to respond to
Excite@Home's "after hours" support requests within the standards set
out in Exhibit D prior to the next business day following receipt of the
request.
c) By mutual agreement of the parties, VStream shall furnish qualified
personnel for on site assistance to Excite@Home to resolve problems and
to assist in customization.
d) VStream agrees to diligently work for the prompt resolution of defects
and errors in Beep and Premium Services. VStream agrees to respond to
Excite@Home by using a dedicated contact telephone number for each
support call.
e) Notwithstanding the forgoing, in the case of a system down condition,
(i.e. Severity 1, as defined below) attributable to VStream, VStream may
utilize other means of communication for both reporting of errors and
the conditions thereof.
f) VStream shall respond to and complete correction of errors, defects and
malfunctions, in accordance with the following schedule:
Severity 1 Causes data corruption or system crash or Excite@Home cannot
make effective use of Beep and/or Premium Services;
Severity 2 Feature does not work as documented, no reasonable work
around exists and Excite@Home has a critical need of the
feature;
9
Severity 3 Feature doesn't work as documented but a reasonable work
around exist or Excite@Home can wait for the next release for
a fix;
Severity 4 Enhancement request.
g) VStream shall make an initial response to a Severity 1 normal
maintenance call within two hours after receipt Severity 1 calls shall
be responded to on a 24 hour by 7 day a week basis. VStream shall use
best efforts to provide a fix, work around, or to patch Severity 1 bugs
within twenty four (24) hours after the bug is replicated by VStream and
confirmed as a bug by VStream.
h) Provided that maintenance calls are received within VStream's normal
maintenance hours, VStream shall make an initial response to Severity 2
maintenance calls within four hours after receipt. VStream shall make
commercially reasonable efforts to provide a fix or work around for
Severity 2 bugs within five business days.
i) Provided that maintenance calls are received within VStream's
maintenance hours. VStream shall make an initial response to Severity 3
maintenance calls within twenty-four (24) hours after receipt. VStream
shall make reasonable efforts to identify a resolution to Severity 3
bugs within thirty (30) days and to incorporate Severity 3 fixes in the
next upcoming release of the product.
j) Provided that all maintenance calls are received within VStream's
business hours, VStream shall make an initial response to Severity 4
maintenance call within forty-eight (48) hours after receipt. Severity 4
issues will be dealt with on a case-by-case basis and no blanket
commitments will be made.
k) Excite@Home shall appoint one person as the principle point of contact
for the communication of bugs and errors to VStream and for the receipt
of bug and error fixes, work around and updates, if any. Additionally
Excite@Home may appoint another person as a back up of the principle
contact.
2. Uptime Guarantee
a) The portions of Beep and or Premium Services which are operated by
VStream shall have at least the following uptime as measured monthly
excluding planned downtime: for the first six months of commercial
availability of Beep and Premium Services, 98.8%, with a goal of 99.8%;
for months 7-12, 99.4% with a goal of 99.8%, and for months thirteen and
after during the term of the Agreement, 99.8%. In addition, the portion
of Beep and Premium Services operated by VStream will not experience
more than two outages (unscheduled downtime) of more than two hours in
10
any month. The GUI hosted by Excite@Home shall meet this standard and
the VUI and other components hosted by VStream shall meet this
standard.
b) VStream will notify Excite@Home within fifteen (15) minutes of any
known and verified unscheduled downtime of the Services and update the
status to Excite@Home each and every hour until the service is back up.
VStream will immediately notify Excite@Home when the service is
restored. Excite@Home will notify VStream within (15) minutes of any
known and verified unscheduled downtime of the Services and update the
status to VStream every hour until the service is back up.
c) Scheduled downtime shall be no greater than four hours bi-weekly and
shall happen at a regularly scheduled time during off-peak periods. The
current plan is for scheduled downtime to occur every two weeks between
10PM and 2AM Pacific Time on Saturday evenings. Actual scheduled
downtime for the VUI components of the Excite@Home UM service will
normally not exceed fifteen (15) minutes. A mechanism will be put in
place by which users are notified of scheduled down time expected to be
over one hour at least seventy-two (72) hours before downtime occurs.
d) Components of the system, where technically feasible, shall be
redundant and fault tolerant for both Excite@Home and VStream's
operations.
3. System Performance
a) Latency of any data from the time VStream's server receives the request
to serve such data to the time when VStream's server begins to serve
such data shall be less than or equal to three seconds, outside of the
PIN number example given in Exhibit D, Section 3b, the next section.
b) Latency of PIN numbers during registration being served from VStream to
Excite@Home or Excite@Home to VStream shall be no greater than four
seconds (e.g. PIN numbers during registration.), in at least 90% of
cases, and in no case shall PIN presentment be in excess of 10 seconds,
independent of network or Internet conditions.
c) Throughput of all data being served directly to the end user shall be
sustained at least 50Kbits/sec as measured by Excite@Home's monitoring
stations, in at least 80% of monitoring cases, and assuming such
monitoring stations can receive sustained data rates in excess of
50Kbits/sec from most other locations on the Excite@Home site.
4. Performance Measurement
VStream will provide outage reports to Excite@Home when necessary.
11
EXHIBIT E
---------
FINANCIAL TERMS
VStream shall make payments to Excite@Home under the following terms:
During the Term of this Agreement, VStream will pay Excite@Home [...**...]% of
gross receipts (less cost of long distance services, taxes and credits) from End
Users of the Premium Services originating from Xxxx.xxx site. Such payment will
be credited towards the then current quarterly payment for slotting fees and
startup costs set out in Exhibit E (no quarter to quarter carry forward is
allowed). VStream shall be allowed to suspend payment of the slotting fees set
forth in this Exhibit E after the end of any quarter for the Term of this
Agreement if (i) the VStream services have been completely integrated into
Xxxx.xxx (except where such integration has not occurred due to VStream default)
or (ii) VStream has not sold Premium Service to customers who purchased and used
the Premium Services through xxxx.xxx as follows:
At least [..**..] customers by March 31, 2000; and
At least [..**..] customers in each subsequent quarter during Term of the
Agreement thereafter.
Notwithstanding the foregoing, if VStream's obligation to make scheduled
payments is suspended, the obligation will resume once the conditions set forth
in the preceding sentence are satisfied and VStream agrees that it shall resume
payments of the slotting fees at the point of suspension and Excite@Home has
the option to extend the Term of the Agreement for same period of any suspension
to assure Excite@Home that the full value of the slotting fees shall be paid by
VStream. Notwithstanding the foregoing, Excite@Home's right to extend the
Agreement pursuant to this section shall not exceed seven additional quarters.
During any extension, all other terms relating to Xxxx.xxx will still apply.
The only difference is that payments are then due in arrears instead of in
advance, and any missed quotas during the extension period(s) do not translate
to additional extensions.
In the event audio advertising is sold within the service offering, Xxxx.xxx
will, at its option, be responsible for selling such advertising and will share
[...**...]% of the Net Advertising Revenue with VStream. Xxxx.xxx may choose,
however, to allow VStream to sell some or all of the advertisements. The selling
party will be compensated for sales commissions up to [...**...]%. The serving
party will be compensated for reasonable serving and tracking costs.
In the event that the Premium Services are incorporated on the Excite@Home
Network outside of the Xxxx.xxx site, Excite@Home shall, at its option, be
responsible for selling advertising and will share [...**...]% of the Net
Advertising Revenue with VStream. Excite@Home may choose, however, to allow
VStream to sell some or all of the advertisements.
* Confidential Treatment Requested
12
Further to the extent that the Premium Services are incorporated on the
Excite@Home Network outside of the Xxxx.xxx site, VStream will pay Excite@Home
[...**...]% of gross receipts (less cost of long distance services) from End
Users of the Premium Services originating from Excite@Home (excluding End Users
originating from the Xxxx.xxx site).Contract Spending Plan Excite
*Confidential Treatment Requested.
13
Contract Spending Plan Excite
EXCITE Q4 99 Q1 00 Q2 00 Q3 00 Q4 00 Q1 01 Q2 01 Q3 01 Q4 01 Q1 02
----------------------------------------------------------------------------------------------------------------------------------
Sponsorships PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE
----------------------------------------------------------------------------------------------------------------------------------
Classifieds 2000
Personals
----------------------------------------------------------------------------------------------------------------------------------
Home Pge
Resources Link $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
----------------------------------------------------------------------------------------------------------------------------------
Place Ad Pages $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
----------------------------------------------------------------------------------------------------------------------------------
Email Response $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
Pages
----------------------------------------------------------------------------------------------------------------------------------
Excite Communities
----------------------------------------------------------------------------------------------------------------------------------
Voice Chat Room $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
Module
----------------------------------------------------------------------------------------------------------------------------------
Directory Page $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
Modules (all
categories listed on
client check list)
----------------------------------------------------------------------------------------------------------------------------------
Excite Voice Mail $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
(Graphic Module)
----------------------------------------------------------------------------------------------------------------------------------
Excite Mail Module $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
(Text Link)
----------------------------------------------------------------------------------------------------------------------------------
TOTAL EXCITE $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
SPONSORSHIPS
----------------------------------------------------------------------------------------------------------------------------------
TOTAL EXCITE $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
----------------------------------------------------------------------------------------------------------------------------------
EXCITE Q2 02 Q3 02 Total
-------------------------------------------------------
Sponsorships PRICE PRICE PRICE
-------------------------------------------------------
Classifieds 2000
Personals
-------------------------------------------------------
Home Pge
Resources Link $[..**..] $[..**..] $[..**..]
-------------------------------------------------------
Place Ad Pages $[..**..] $[..**..] $[..**..]
-------------------------------------------------------
Email Response $[..**..] $[..**..] $[..**..]
Pages
-------------------------------------------------------
Excite Communities
-------------------------------------------------------
Voice Chat Room $[..**..] $[..**..] $[..**..]
Module
-------------------------------------------------------
Directory Page $[..**..] $[..**..] $[..**..]
Modules (all
categories listed on
client check list)
-------------------------------------------------------
Excite Voice Mail $[..**..] $[..**..] $[..**..]
(Graphic Module)
-------------------------------------------------------
Excite Mail Module $[..**..] $[..**..] $[..**..]
(Text Link)
-------------------------------------------------------
TOTAL EXCITE $[..**..] $[..**..] $[..**..]
SPONSORSHIPS
-------------------------------------------------------
TOTAL EXCITE $[..**..] $[..**..] $[..**..]
-------------------------------------------------------
EXCITE CONTENT Q4 99 Q1 00 Q2 00 Q3 00 Q4 00 Q1 01 Q2 01 Q3 01 Q4 01 Q1 02
INTEGRATION
----------------------------------------------------------------------------------------------------------------------------------
PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE
----------------------------------------------------------------------------------------------------------------------------------
Communities
----------------------------------------------------------------------------------------------------------------------------------
Integration Cost $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
----------------------------------------------------------------------------------------------------------------------------------
Personals
----------------------------------------------------------------------------------------------------------------------------------
Integration Cost $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
----------------------------------------------------------------------------------------------------------------------------------
Total $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
TOTAL EXCITE $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
Content Integration
----------------------------------------------------------------------------------------------------------------------------------
EXCITE CONTENT Q2 02 Q3 02 Total
INTEGRATION
-----------------------------------------------------
PRICE PRICE PRICE
-----------------------------------------------------
Communities
-----------------------------------------------------
Integration Cost $[..**..] $[..**..] $[..**..]
-----------------------------------------------------
Personals
-----------------------------------------------------
Integration Cost $[..**..] $[..**..] $[..**..]
-----------------------------------------------------
Total $[..**..] $[..**..] $[..**..]
-----------------------------------------------------
-----------------------------------------------------
TOTAL EXCITE $[..**..] $[..**..] $[..**..]
Content Integration
-----------------------------------------------------
*Confidential Treatment Requested
14
Contract Spending Plan Excite
XXXX.XXX Q4 99 Q1 00 Q2 00 Q3 00 Q4 00 Q1 01 Q2 01 Q3 01 Q4 01
---------------------------------------------------------------------------------------------------------------------------
Sponsorships PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE
---------------------------------------------------------------------------------------------------------------------------
Sponsorships $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
---------------------------------------------------------------------------------------------------------------------------
Xxxxx $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
---------------------------------------------------------------------------------------------------------------------------
TOTAL XXXX.XXX $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
SPONSORSHIPS
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Banners PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE
---------------------------------------------------------------------------------------------------------------------------
Banners $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
---------------------------------------------------------------------------------------------------------------------------
TOTAL XXXX.XXX BANNERS $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Miscellaneous PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE
---------------------------------------------------------------------------------------------------------------------------
Cost of Integration $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
---------------------------------------------------------------------------------------------------------------------------
TOTAL XXXX.XXX $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
Miscellaneous
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
TOTAL XXXX.XXX $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
ACCOUNT MANAGEMENT Q4 99 Q1 00 Q2 00 Q3 00 Q4 00 Q1 01 Q2 01 Q3 01 Q4 01
---------------------------------------------------------------------------------------------------------------------------
Production Services PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE
---------------------------------------------------------------------------------------------------------------------------
Account Director $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
---------------------------------------------------------------------------------------------------------------------------
Account Manager $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
(Excite)
---------------------------------------------------------------------------------------------------------------------------
Ad Coordinator $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
---------------------------------------------------------------------------------------------------------------------------
Total Account Management $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Grand Total Excite $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
---------------------------------------------------------------------------------------------------------------------------
XXXX.XXX Q1 02 Q2 02 Q3 02 Total
---------------------------------------------------------------------
Sponsorships PRICE PRICE PRICE PRICE
---------------------------------------------------------------------
Sponsorships $[..**..] $[..**..] $[..**..] $[..**..]
---------------------------------------------------------------------
Xxxxx $[..**..] $[..**..] $[..**..] $[..**..]
---------------------------------------------------------------------
TOTAL XXXX.XXX $[..**..] $[..**..] $[..**..] $[..**..]
SPONSORSHIPS
---------------------------------------------------------------------
---------------------------------------------------------------------
Banners PRICE PRICE PRICE PRICE
---------------------------------------------------------------------
Banners $[..**..] $[..**..] $[..**..] $[..**..]
---------------------------------------------------------------------
TOTAL XXXX.XXX BANNERS $[..**..] $[..**..] $[..**..] $[..**..]
---------------------------------------------------------------------
---------------------------------------------------------------------
Miscellaneous PRICE PRICE PRICE PRICE
---------------------------------------------------------------------
Cost of Integration $[..**..] $[..**..] $[..**..] $[..**..]
---------------------------------------------------------------------
TOTAL XXXX.XXX $[..**..] $[..**..] $[..**..] $[..**..]
Miscellaneous
---------------------------------------------------------------------
---------------------------------------------------------------------
TOTAL XXXX.XXX $[..**..] $[..**..] $[..**..] $[..**..]
---------------------------------------------------------------------
---------------------------------------------------------------------
ACCOUNT MANAGEMENT Q1 02 Q2 02 Q3 02 Total
---------------------------------------------------------------------
Production Services PRICE PRICE PRICE PRICE
---------------------------------------------------------------------
Account Director $[..**..] $[..**..] $[..**..] $[..**..]
---------------------------------------------------------------------
Account Manager $[..**..] $[..**..] $[..**..] $[..**..]
(Excite)
---------------------------------------------------------------------
Ad Coordinator $[..**..] $[..**..] $[..**..] $[..**..]
---------------------------------------------------------------------
Total Account Management $[..**..] $[..**..] $[..**..] $[..**..]
---------------------------------------------------------------------
---------------------------------------------------------------------
Grand Total Excite $[..**..] $[..**..] $[..**..] $[..**..]
---------------------------------------------------------------------
*Confidential Treatment Requested
EXHIBIT F
---------
SALES AND MARKETING
1. Excite@Home Communities Placements
a) Excite@Home will provide VStream with the following advertising and
promotional placements:
b) Voice Chat Module: Today, our Voice Chat audience is largely made up of
18-30 year olds. VStream can target their age demographic, which will
attract college students, and young adults (age 21-33 is 33% of Voice
Chat traffic). The placement is a graphic module 100x30 2k in size, and
two lines of text, one line an active link.
c) Directory Pages Module: Upon entering Excite People and Chat, users
drill down by category prior to entering a community, chat room, or
message boards. VStream can target all desirable categories, i.e.
Business, Shopping, Auto's etc. The placement is a graphic module
100x30 2k in size, and two lines of text, one line an active link --
right hand navigation.
d) Excite Voicemail: Excite Voicemail, offers users the ability to receive
Voicemail and faxes, in their Excite Mail Inbox. Excite Voicemail is
the only service available nation wide, and available toll free nation
wide. Messages are left via 800#ers, users have personal pins, messages
are retrieved via Excite Mail Inbox in the form of audio files.
VStream's demographic highlight for Excite Voicemail will be the early
adopters age 21-33 is 33% of the prospective traffic. The placement is
a graphic module 100x30 2k in size, and two lines of text, one line an
active link.
e) Excite Mail: Excite Mail is experiencing an average of 5M page views
per day and growing rapidly. Excite Mail recently recorded more than
one million members using their Mail account at least once during the
week (Xxxxxxxxx Research). The placement is a graphic module 100x30 2k
in size, and two lines of text, one line an active link.
2. Excite@Home Personals Placements
a) The homepage of Personals will promote VStream by including a text link
calling out the Beep functionality in the `Resources' area. This link
from the homepage will lead to a splashpage that provides a description
of Beep and how it works within Personals in more detail. This page
could feature VStream's other products and include a "More about
VStream" link or other link to be mutually agreed on. This link could
take users to the Xxxx.xxx Premium Services or Excite Premium Services
areas.
16
b) Branding of VStream (or Beep depending on preference) through inclusion
of a static (non-linked) logo at every product integration point (on
place ad pages and send message pages) or as a hyperlink to a co-
branded page agreed upon by both parties.
17
Detail of Communities and Placements Impressions -- Q499 thru Q300
EXCITE Q4 99 Q4 99 Q1 00 Q1 00 Q2 00 Q2 00 Q3 00 Q3 00 Year One Year One
---------------------------------------------------------------------------------------------------------------------------------
Sponsorships IMP PRICE IMP PRICE IMP PRICE IMP PRICE IMP PRICE
Classifieds 2000 Personals
---------------------------------------------------------------------------------------------------------------------------------
Home Page Resources Link [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
---------------------------------------------------------------------------------------------------------------------------------
Place Ad Pages [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
---------------------------------------------------------------------------------------------------------------------------------
Email Response Pages [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
Excite Communities
---------------------------------------------------------------------------------------------------------------------------------
Voice Chat Room Module [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
---------------------------------------------------------------------------------------------------------------------------------
Directory Page Modules (all [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
categories listed on
client check list)
---------------------------------------------------------------------------------------------------------------------------------
Excite Voice Mail (Graphic [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
Module)
---------------------------------------------------------------------------------------------------------------------------------
Excite Mail Module (Text [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
Link)
TOTAL EXCITE SPONSORSHIPS [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
---------------------------------------------------------------------------------------------------------------------------------
TOTAL EXCITE [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
---------------------------------------------------------------------------------------------------------------------------------
*Confidential Treatment Requested
Detail of Communities and Placements Impressions -- Q400 thru Q301
EXCITE Q4 00 Q4 00 Q1 01 Q1 01 Q2 01 Q2 01 Q3 01 Q3 01 Year Two Year Two
---------------------------------------------------------------------------------------------------------------------------------
Sponsorships IMP PRICE IMP PRICE IMP PRICE IMP PRICE IMP PRICE
---------------------------------------------------------------------------------------------------------------------------------
Classifieds 2000 Personals
---------------------------------------------------------------------------------------------------------------------------------
Home Pge Resources Link [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
---------------------------------------------------------------------------------------------------------------------------------
Place Ad Pages [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
---------------------------------------------------------------------------------------------------------------------------------
Email Response Pages [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
---------------------------------------------------------------------------------------------------------------------------------
Excite Communities
---------------------------------------------------------------------------------------------------------------------------------
Voice Chat Room Module [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
---------------------------------------------------------------------------------------------------------------------------------
Directory Page Modules (all [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
categories listed on
client check list)
---------------------------------------------------------------------------------------------------------------------------------
Excite Voice Mail (Graphic [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
Module)
---------------------------------------------------------------------------------------------------------------------------------
Excite Mail Module (Text [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
Link)
TOTAL EXCITE SPONSORSHIPS [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
---------------------------------------------------------------------------------------------------------------------------------
TOTAL EXCITE [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
---------------------------------------------------------------------------------------------------------------------------------
*Confidential Treatment Requested.
Detail of Communities and Placements Impressions -- Q401 thru Q302
EXCITE Q4 01 Q4 01 Q1 02 Q1 02 Q2 02 Q2 02 Q3 02 Q3 02 Year Three Year Three
---------------------------------------------------------------------------------------------------------------------------------
Sponsorships IMP PRICE IMP PRICE IMP PRICE IMP PRICE IMP PRICE
---------------------------------------------------------------------------------------------------------------------------------
Classifieds 2000 Personals
---------------------------------------------------------------------------------------------------------------------------------
Home Pge Resources Link [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
---------------------------------------------------------------------------------------------------------------------------------
Place Ad Pages [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
---------------------------------------------------------------------------------------------------------------------------------
Email Response Pages [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
---------------------------------------------------------------------------------------------------------------------------------
Excite Communities
---------------------------------------------------------------------------------------------------------------------------------
Voice Chat Room Module [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
---------------------------------------------------------------------------------------------------------------------------------
Directory Page Modules [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
(all categories listed
on client check list)
---------------------------------------------------------------------------------------------------------------------------------
Excite Voice Mail [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
(Graphic Module)
---------------------------------------------------------------------------------------------------------------------------------
Excite Mail Module [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
(Text Link)
TOTAL EXCITE SPONSORSHIPS [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
---------------------------------------------------------------------------------------------------------------------------------
TOTAL EXCITE [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
---------------------------------------------------------------------------------------------------------------------------------
*Confidential Treatment Requested.
3. VStream Marketing and Promotion Requirements
When possible, VStream will market or describe the relationship with
Excite@Home on their web site.
4. Co-Branded Advertising Purchased by VStream
In the case that VStream purchases advertising from the Excite@Home Network
that promotes the Premium services or any other co-branded VStream services
with a revenue sharing component, the rates for such advertising will be as
follows:
Banner advertisements will be offered at [...**...]% of the then
current rate card
All other advertising products and sponsorships will be offered
VStream at [...**...]% of the then current rate card
*Confidential Treatment Requested.
22
EXHIBIT G
---------
USAGE REPORTS
All usage reports shall be delivered on a weekly basis by email or in other
formats to be mutually agreed.
1. VStream will provide the following usage reports:
a) Total beeps served by product.
b) Total beeps attempted (did not result in a completed call) by product
c) Average duration of beep calls by product
23
EXHIBIT H
---------
LINKS AND OWNERSHIP
The Agreement has a large number of interaction points where data and
advertising opportunities are created. One or more of the parties may own
advertising registrations and other data resulting from this Agreement.
Furthermore, the relationship of what VStream advertising points to where is
complex and intertwined with the data question above. The picture below creates
a basis from which we can understand where data is created and where the
ownership of that data lies.
[FLOW CHART APPEARS HERE]
1. Advertising
a) Let's begin by looking at VStream advertising. This advertising comes
from a variety of sources and has restrictions on where they can direct
traffic. These include:
Ad buy mandated by the Xxxxxx.xxx term sheet can point to:Xxxxxx.xxx
VStream co-branded site/services, Xxxx.xxx co-branded site/services,
or the VStream site.
Ad buy mandated by the Xxxx.xxx term sheet can only point to the
Xxxx.xxx co-branded site/services.
3rd party ad buy that VStream makes on its own can point anywhere.
Ad inventory created as a result of the fulfillment of the VStream
service (such as inventory/hyperlinks in confirmation emails,
notification emails, etc.)
24
From Xxxxxx.xxx generated users can point to Xxxxxx.xxx VStream
integrated services or Xxxx.xxx co-branded site/services.
From Xxxx.xxx generated users can only point to the Xxxx.xxx co-
branded site/services.
From VStream generated users can point anywhere.
This inventory can also be sold to third parties, at the approval
of both Excite@Home and VStream, under the terms defined above.
b) Product Level Integration such as the VStream logo or name
(hyperlinked) within the co-branded property can only point to co-
branded content.
2. User Data Ownership and Rights
a) If the user was generated from an integrated service on Xxxxxx.xxx or
Xxxx.xxx then that user is tied to that origin and henceforth
considered an Xxxxxx.xxx or Xxxx.xxx customer (as appropriate). (A user
being defined as a customer who has used one of the integrated Premium
Services or registered within one of the Premium Services/sites.) If
that user was generated from the XXxxxxx.xxx site, that user is a
VStream user.
b) At the termination of the Agreement between Excite@Home and VStream,
Excite@Home retains the rights to the User Data as defined in the
Agreement for the period of six (6) months from the date of
termination. After this period, each party has independent right to the
User Data.
c) The origin of the user must be maintained with the user records for
that user along with the origination date. Once identified, a user is
always tied to that origination source. VStream will make monthly dumps
to Xxxxxx.xxx and Xxxx.xxx originated user data to Excite@Home in a
mutually agreed to format.
d) Xxxxxx.xxx retains the right for users originating at Xxxxxx.xxx to:
Approve all correspondence and marketing messages to users (VStream may
cross-promote other co-branded services at the approval of
Xxxxxx.xxx).-Best effort will be made to give content approval within
one business day, with a maximum of three business days taken.
Market directly to those users if they are `opt-in' users of the
Premium Services.
Market to those users integrally as part of the Premium Service
(in confirmation emails, etc.).
Choose the tools for delivering notification/confirmation emails
(e.g. VStream or DeliverE).
25
e) VStream will make an attempt to Opt-in each user it acquires for itself
or on behalf of Xxxxxx.xxx or Xxxx.xxx. If a user is not opted-in, no
correspondence, marketing, etc. will be delivered to that user other
than that which is standard for the service (such as notify and
confirmation emails.) Every registration/data entry page must present
an opt-in opportunity. An opt-in MUST be presented at every opportunity
that a user enters personal information.
26
Exhibit I
---------
Terms for Integration of Premium Services
------------------------------------------
within Xxxx.xxx
---------------
1. Premium Services Definition
Premium Services shall mean the VStream NetCall Service which is
described in the NetCall Technical Manual published by VStream 1999 and
any additions to such Manual, and that includes all of the following
Audio Conferencing and Web Collaboration component services:
a) Audio Conferencing: any "real-time" two-way use of audio over the PSTN
(Public Switched Telephone Network) capable of three or more
participants.
b) Web Collaboration: the ability of two or more people or groups to
exchange and manipulate data and information over the Internet in
"real-time". All of the following services (C-I) are collectively
referred to as Web Collaboration Services.
c) Streaming: the delivery of live or archived media files over the
Internet upon user request wherein the playing of the media file begins
without the file being completely downloaded.
d) Full Text Chat: The ability for a user to send text messages to another
individual user or to multiple users in "real-time" over the Internet.
e) Application Sharing: The ability for a user to share any Windows
Application with one or more participants over an Internet. Such
sharing includes the ability to share or transfer control of the
application to other participants, even though the actual document
being manipulated (such as an Excel spreadsheet) and the software that
controls the document (in the aforementioned example, Excel) are not
resident on the participants' computers.
f) Web Touring: The ability to lead one or more participants through a
controlled series of live Internet web pages.
g) Polling: the ability of a NetCall moderator to poll End Users within a
given NetCall session
h) Voice over IP ("VoIP") conferencing: the ability for End Users within a
NetCall session to chat with each other or the moderator using spoken
voice instead of text.
i) Voting: similar to polling the ability for End Users within a given
NetCall session to vote on issues presented to them by a NetCall
moderator
27
2. Premium Services Pages
a) At Execution VStream will deliver web pages containing the complete
content and functionality of the NetCall Service described in Section 1
of this Exhibit ("Premium Services Pages") for display on the Xxxx.xxx
portion of the Excite@Home Network.
b) The Premium Services Pages will be in accordance with Guidelines that
Excite@Home has provided VStream which include but are not limited to
page performance standards, header and other design/user interface
standards.
c) The Premium Services Pages will carry both Xxxx.xxx branding (or other
branding chosen by Excite@Home) and VStream branding, both visually and
aurally, displayed in substantially equivalent location, size and
prominence. All Excite@Home branding will be displayed as consistent
with the rest of the Excite Network.
d) The "look and feel" of the Premium Services Pages will be consistent
with the "look and feel" of the Excite Network. The final approval over
the "look and feel" of the Premium Services Pages will be for
Excite@Home.
e) VStream will host the Premium Services Pages but they will be served
from a "Xxxx.xxx" domain name (or such other domain(s) Excite@Home may
determine in its sole discretion) so that Excite@Home can get reach and
page view credit.
3. Terms for Use of Premium Services on the Xxxx.xxx
a) Subject to any agreements executed by Excite, Inc. or At Home
Corporation for technology that is available for integration on the
Excite@Home Network, and to the terms of this Agreement, VStream will
be the sole provider of Premium Services within Xxxx.xxx for the Term
of the Agreement.
b) Notwithstanding section 3(a) of this Exhibit, Excite@Home may at any
time integrate third party vendor technology to the Xxxx.xxx site that
includes various component features of the Premium Services but which
does not include all or substantially all of the complete Premium
Services functionality as a single integrated service similar to
NetCall.
c) Subject to section 3(b), Excite@Home shall give VStream thirty(30)days
written notice of its intent to integrate such features, which notice
shall set forth all material terms of such integration.
28
d) Subject to section 3(b), VStream may agree to provide such features to
Excite@Home as part of an enhanced NetCall offering (Premium Service)
on the terms set forth in such notice where such VStream services are
comparable to the Excite@Home proposed service in terms of
functionality, performance, price and time to market, Excite@Home and
VStream will enter into an agreement for the integration of such
services. Nothing in this section shall prevent Excite from offering
such component services as components on the Excite@Home Network.
e) The Premium Services Pages will be prominently featured within Xxxx.xxx
pursuant to the terms of this Agreement.
f) Subject to the terms of this Agreement, Premium Services will receive
no less prominence than any other telephony service featured in
Xxxx.xxx (exclusive of ad buys).
g) VStream shall ensure that the Premium Services as an aggregate, and
each component thereof are at all times "Best of Breed".
h) During the Term, and subject to VStream full compliance with Section
3(e) above, the Xxxx.xxx portion of the Excite@Home Network shall not
promote any other aggregated Audio Conferencing and Web Collaboration
services on the Xxxx.xxx site. Notwithstanding the foregoing,
Excite@Home may promote services as required by agreements executed
prior to this Agreement, and Excite@Home may promote services which
have features similar to individual component features of the Premium
Services, but which do not contain the complete functionality of the
Premium Services (e.g. Excite@Home may offer file upload services to
Xxxx.xxx users, and such file upload services could include streaming
as a secondary product feature).
i) If at any time during the Term of this Agreement, VStream cannot offer
Best of Breed quality for the Premium Services, or any component
thereof, Excite@Home will notify VStream in writing of its intention to
remove the non-Best of Breed component of the Premium Services from the
Excite@Home Network. On VStream's receipt of any such Notice, VStream
will be allowed two (2) weeks to propose a mutually acceptable remedy
to re-establish the Premium Services and all components as Best of
Breed. VStream agrees that any such plan must be fully implemented
within thirty days of notice to from VStream. (VStream shall have 90
days to remedy the default if the component is a new feature that was
requested for inclusion by Excite; provided however such new feature
must be in a format supported by VStream). If VStream is unable to
submit an acceptable plan to Excite@Home or if VStream confirms that it
cannot provide the requested expanded capabilities, Xxxx.xxx shall be
able to immediately replace that non-Best of Breed portion of the
Premium Services with an alternate vendor.
29
j) The Premium Services shall at all times allow End Users to view MS
PowerPoint files, JPEG's or GIF images, ask questions to the moderator
via a modified chat capability, and view the names of other
participants in the collaborative event.
k) In order for the Premium Services to retain their Best of Breed status,
VStream will integrate, within six (6) months of the Xxxx.xxx Launch
Date, into the Premium Services a separate platform that will include
the majority of the following features on a Best of Breed basis:
. Polling,
. Full Text Chat,
. Web Touring,
. Application Sharing
. VoIP Conferencing, and
. Voting.
The minimum Web Collaboration functionality to be available to Excite@Home
to provide End Users in a form that is fully functional and bug free in
place by the end of January 2000 shall include Full Text Chat, Application
Sharing And Web Touring Functionality ("Minimum Web Collaboration
Functionality").
Should VStream fail to deliver Minimum Web Collaboration Functionality by
end of January 2000, then Excite@Home will not be obligated to feature any
VStream Web Collaboration services and Excite@Home may develop alternate
relationships with other vendors to provide similar services to End Users.
All of the above integration timetables assume that Microsoft delivered to
VStream the source code for Window's Media Player on or before November
17, 1999. In the event that Microsoft does not deliver to VStream the
source code for Window's Media Player on or before November 17, 1999, then
VStream's integration obligations with respect to Beep, as set forth in
the Agreement, will be extended one day for each day that Microsoft delays
in delivering the source code for Window's Media Player to VStream.
l) VStream will provide best commercial (most favored nation) pricing to
Excite@Home End Users of the Premium Services. No other portal
partner (i.e. Yahoo!, Lycos, etc.) users of Premium Services shall
receive more favorable end-user pricing than End Users -- whether
through direct license from VStream, or through any other
distribution points through which VStream provides Premium Services.
m) VStream cannot market any other services outside of this Agreement to
End Users without prior written approval to Xxxx.xxx users.
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n) All materials presented to End Users by VStream, through any medium,
will be co-branded Excite@Home (or any other proprietary brand of
Excite@Home) and VStream with equal or greater prominence to
Excite@Home.
o) VStream has the right to develop and enhance its Premium Services, and
promote those enhancements to Xxxx.xxx End Users, so long as those
enhancements: a) reasonably fall within the services that Excite
originally contracted with VStream to provide, and b) are a part of the
Premium Services which Excite@Home may elect to provide on any portion
of the Excite@Home Network. Excite@Home and VStream must mutually agree
to any such promotion.
p) If Xxxx.xxx chooses to offer any streaming services or video
conferencing services to its user base, separate from the automated
conferencing service provided by VStream, where such streaming services
are not components of other product offerings, VStream has the right of
first refusal to be the provider for those services.
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4. Terms for Use of Premium Services on the Excite@Home Network
To the extent Excite chooses to offer the Premium Services elsewhere on the
Excite Network and separate from the Xxxx.xxx URL the following additional
terms shall apply.
a) Excite@Home may integrate the Premium Services on the Excite@Home Network
in areas outside of Xxxx.xxx in its sole discretion provided that
Excite@Home and VStream shall share revenue from the pages on the
Excite@Home Network which incorporate Premium Services as set out in
Exhibit E and Article 6 of the Agreement.
b) There shall be no restrictions on Excite@Home's use or promotion of third
party services not included in the Premium Services or component portions
of the Premium Services (including without limitation any Audio
Conferencing, Web Collaboration or streaming media services) on non-
Xxxx.xxx portions of the Excite@Home Network.
c) If commercially reasonable, Excite@Home may, at its discretion, ask VStream
to integrate the Premium Services Pages with Excite@Home's Universal
Registration System. VStream will integrate according to Excite@Home's
technical and operational specifications. Each party will pay their own
costs related to the integration.
d) At Excite's discretion all Xxxx.xxx branding and URL's may be replaced with
Excite branding and URLs.
e) Linking to the Premium Services Pages from Excite URLs and products will be
subject to the approval of VStream with such approval not to be
unreasonably withheld. Notwithstanding the forgoing Excite may place links
to the Premium Services Pages or integrate the Premium Services into the
Co-Branded Pages at Excite's discretion.
f) The use or promotion of the Premium Services on or from the Excite site,
separate from the Xxxx.xxx site, shall in no way increase any obligations
to which the Xxxx.xxx URL may be subject as per the terms of this
Agreement.
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