Exhibit 10.17
*** Text Omitted and Filed Separately
Confidential Treatment Requested
Under 17 C.F.R. (S)(S) 200.80(b)(4),
200.83 and 230.406
MICROSOFT LIMITED PROTOCOL SPECIFICATION LICENSE
AGREEMENT
WINDOWS MEDIA PROTOCOLS - DISTRIBUTION ONLY
This Microsoft Limited Protocol Specification License Agreement ("Agreement") is
made and entered into as of _________________ ("Effective Date"), by and between
Microsoft Corporation, a Washington corporation with offices at Xxx Xxxxxxxxx
Xxx, Xxxxxxx, XX 00000 ("Microsoft"), and Licensee as specified immediately
below.
Licensee Name SkyCache, Inc.
& Address: 000 Xxxxxx Xxx. Xxxxxx, XX 00000
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State of Incorp.: Delaware
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Licensee Xxxx Xxxxxxxx xxxxx@xxxxxxxx.xxx
Contact Phone: 000-000-0000 x0000 ------------------
Information FAX 000-000-0000
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Microsoft Contact/Title:Xxxx X'Xxxxxx/Program Manager
Contact Phone: (000) 000-0000
Information: Fax: (000) 000-0000
Email: xxxxxx@xxxxxxxxx.xxx
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Licensee SkyCache MSBD Satellite Streamer
Product:
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Term: Effective Date through March 31, 2001.
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Recitals
Microsoft is the exclusive owner and/or authorized licensor of certain
protocols, specifications and associated documentation related to Microsoft's
Windows Media Server and Windows Media Player software technology (as defined
below, the "Protocols").
The Protocols are confidential and proprietary to Microsoft.
Licensee wishes to obtain a limited license to confidential materials regarding
the Protocols solely for use solely in accordance with the terms of this
Agreement.
The parties hereby agree as follows:
Agreement
1. Definitions
1.1 "Authorized Product" means a Licensee Product which is a Content Proxy
Server.
1.2 "Confidential Information" means: (a) the Protocols; (b) Confidential
Materials; (c) any source code of software disclosed by Microsoft; (d) any trade
secrets and/or other proprietary non-public information not generally known
relating to either party's product plans, designs, costs, prices and names,
finances, marketing plans, business opportunities, personnel, research,
development or know-how; and (e) the terms and conditions of this Agreement.
"Confidential Information" shall not include information that: (i) is or becomes
generally known or available by publication, commercial use or otherwise through
no fault of the receiving party; (ii) is known and has been reduced to tangible
form by the receiving party prior to the time of disclosure and is not subject
to restriction; (iii) is independently developed by the receiving party without
the use of the Confidential Materials or other party's Confidential Information
and by personnel that have not had any access to the Confidential Materials or
Confidential Information; (iv) is lawfully obtained from a third party that has
the right to make such disclosure; or (v) is made generally available by the
disclosing party without restriction on disclosure.
1.3 "Confidential Materials" means the materials specifically described on
Exhibit A related to the Protocols.
1.4 "Confidential Materials Implementation" means solely that portion of an
Authorized Product source code which implements, incorporates or otherwise
discloses the Confidential Materials.
1.5 "Content Proxy Server" means a Licensee Product that is a server or
related product for Windows Platforms or non-Windows Platforms that manages
Windows Media Content for purposes of distribution and tracking.
1.6 "Content" means data, text, audio, video, animation, graphics,
photographs, artwork and other technology and materials.
1.7 "Independent Contractor" means a third party who is under written
agreement with Licensee to design and develop or assist with the design and
development of the Licensee Product as an Authorized Product, solely on behalf
of and for the benefit of Licensee, where such written agreement is in
accordance with the terms and conditions of this Agreement, including Sections 2
and 3. Microsoft shall have the right to be notified and approve of any
Independent Contractor, which approval shall not be unreasonably withheld or
delayed.
1.8 "Licensee Product" means Licensee's product identified in table on page
1 of this Agreement.
1.9 "Protocols" means the networking protocols specifications specifically
related to Windows Media Server and Windows Media Player, as set forth in
Exhibit A.
2.
1.10 "Streaming Media" means Content that is transmitted and played,
displayed, executed or otherwise experienced incrementally, or in semi-real
time, such that it can be heard, viewed or received by an end user with minimal
download delays, if any.
1.11 "Windows Media Content" means Streaming Media served or streamed
originally by a Windows Media Server or Windows Media Encoder.
1.12 "Windows Media Encoder" means Microsoft's real-time encoding
technology for encoding Streaming Media.
1.13 "Windows Media Player" means Microsoft's component software for
Windows Platforms that displays Streaming Media formats and other multimedia
data-types.
1.14 "Windows Media Server" means versions 4.0 and later, as publicly
released by Microsoft during the Term, of Microsoft's Streaming Media services
for Windows Platforms.
1.15 "Windows NT4" means version 4 (service pack 4) of Microsoft's Windows
NT server operating system running Windows Media Server.
1.16 "Windows Platforms" means Microsoft's Windows NT4 and Windows 2000
operating system platforms, successor operating system platforms, and any
upgrades, updates and/or modifications to the foregoing publicly released by
Microsoft during the Term, regardless of naming conventions, version numbers
and/or other nomenclatures.
2. Limited License
2.1 License Rights. During the Term and expressly subject to Licensee's
compliance with Sections 2.2 and 2.3, Microsoft hereby grants to Licensee a non-
exclusive, non-transferable, non-assignable, limited license to: (i) Review and
reference the Confidential Materials solely for purposes of designing and
developing the Licensee Product as an Authorized Product; (ii) reproduce and
have reproduced the Confidential Materials Implementation solely in object code
form and solely as part of the reproduction of the Authorized Product; and (iii)
license, rent, lease, sell or otherwise distribute ("Distribute") and have
Distributed the Confidential Materials Implementation solely in object code form
and solely as part of the Distribution of the Authorized Product.
2.2 Express Conditions Regarding Confidential Materials. Licensee's rights
---------------------------------------------------
under Section 2.1 are expressly conditioned upon Licensees compliance with each
of the following conditions:
(a) Licensee may not modify the Confidential Materials. Licensee may
copy the Confidential Materials as reasonably necessary to exercise its license
rights in Section 2.1. Licensee may only review and reference the Confidential
Materials for purposes of designing and developing an Authorized Product.
Licensee may not use the Confidential Materials for any purposes not expressly
set forth in this Agreement.
3.
(b) Licensee shall use its commercially reasonable efforts to ensure
that the use or distribution of the Licensee Product as an Authorized Product
shall not in any way disclose or reveal the Confidential Materials, including
the Confidential Materials Implementation. Other than authorized Independent
Contractors, Licensee shall not allow or enable any third party or sublicensee
to use or access the Confidential Materials.
(c) Nothing in this Agreement shall be construed as altering, limiting
or abridging in any way any license terms or obligations (including end user
license agreements) associated with the use of Windows Platforms.
2.3 Further Express Conditions.
--------------------------
(a) [ *** ]
(b) Licensee Product must adhere to the product and packaging
guidelines set forth in Exhibit B.
(c) To the extent an Authorized Product incorporates the features set
forth in Section 2.3(a) or 2.3(b), Licensee's licenses (including end user
license agreements) for the Authorized Product shall restrict use of the
Authorized Product as set forth in this Section 2.3(a) and 2.3(b); provided,
that Licensee's obligations to abide by the obligations set forth in this
Section 2.3(d) shall terminate if any other Microsoft licensee is not similarly
bound to abide by the obligations set forth in Sections 2.3(a), 2.3(b) and this
2.3(d).
2.4 Ownership.
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(a) Except as expressly licensed to Licensee in Section 2.1, Microsoft
retains all right, title and interest in and to the Confidential Materials and
to any feedback regarding the Confidential Materials provided by Licensee under
this Agreement.
(b) Licensee retains all right, title and interest in and to Licensee
Products, including Licensee Products as Authorized Products, Confidential
Materials Implementation (except to the extent that such Confidential Materials
Implementation incorporates Confidential Materials) and to any feedback
regarding Licensed Products which may be provided by Microsoft under this
Agreement. Microsoft retains all right, title and interest in and to any trade
secret information related to the Confidential Materials in the Confidential
Materials Implementation. Licensee retains all right, title and interest in and
to any copyright and any other trade secret information in the Confidential
Materials Implementation.
2.5 No Other Rights. Except as expressly granted in this Agreement,
---------------
Licensee shall have no other rights in the Confidential Materials. Under no
circumstances will the license grant set forth in Section 2.1 be construed as
granting, by implication, estoppel or otherwise, a license to any Microsoft
technology other than the Confidential Materials.
*** Confidential Treatment Requested
4.
2.6 Delivery and Other Microsoft Support. Following initial delivery of the
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Confidential Materials, Microsoft shall be under no obligation to update or
deliver further versions of the Confidential Materials. Microsoft shall have no
obligation to provide Licensee any source code under this Agreement.
2.7 Joint Marketing. The parties shall work with each other to develop a
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mutually agreeable press release as soon as possible after the Effective Date.
In such press release, Licensee shall endorse Windows Media Technologies and
Windows Media Formats as a leading platform and set of formats for Streaming
Media; and (ii) Microsoft shall endorse Licensee's Content distribution
infrastructure as a leading solution for caching, network infrastructure and
content distribution and/or management. Further, during the Term, neither party
shall issue or approve from third parties press releases that are inconsistent
with the spirit of this Section 2.7. During the Term, Licensee will also provide
Microsoft with reasonably detailed information on Licensee's use of Microsoft
technology in its business for inclusion in a case study which Licensee shall be
entitled to review and approve, with such approval not be unreasonably withheld
or delayed. In addition, during the Term the parties will work together in good
faith to enter into joint sales and marketing plans and joint promotion of their
relationship. Licensee and Microsoft agree that each party may use such
trademarks, tradenames and/or designs on their respective web-sites to promote
their relationship; provided, that, each party uses only the logos and designs
supplied and approved in writing by the other party for such purpose.
3. Confidentiality
3.1 The license grant in Section 2.1 is expressly conditioned upon Licensee
retaining in confidence all Confidential Information, and Licensee will make no
use of the Confidential Information except under the terms and during the
existence of this Agreement.
3.2 Licensee may disclose Confidential Information as required by
governmental or judicial order, provided Licensee gives Microsoft prompt notice
of such order and complies with any protective order (or equivalent) imposed on
such disclosure. Licensee may disclose the terms of this Agreement to a third
party in connection with discussions with such third party regarding a proposed
joint venture, merger, acquisition or sale of assets of substantially all the
assets of Licensee; provided, that, such third party is bound under the terms of
an agreement which protects Licensee confidential information; and provided
further that disclosure of such terms of this Agreement shall not imply that
Licensee may assign this Agreement without the prior written consent of
Microsoft. Licensee may further disclose Confidential Information to the extent
that such Confidential Information has been embedded in a Confidential Materials
Implementation solely and to the extent necessary to meet its obligations under
a source code escrow obligation that requires such a beneficiary to maintain the
confidentiality of such Confidential Information and to use such Confidential
Information solely to the extent to support such beneficiaries' use of an
Authorized Product. Microsoft will be notified in writing within five (5)
business days of any deliver of the Confidential Materials Implementation into
such an escrow obligation.
3.3 Licensee shall not reproduce, duplicate, copy or otherwise disclose,
distribute, or disseminate the Confidential Information in any media. Any use of
the Confidential Information shall take place solely on Licensee's premises by
Licensee's employees and authorized
5.
Independent Contractors under agreement to protect the Confidential Information
(an agreement which protects Licensee confidential information and which covers
the Confidential Information is sufficient).
3.4 Licensee shall be free to use for any purpose the residuals resulting
from access or work with such Confidential Information, provided that such party
shall maintain the confidentiality of such Confidential Information as provided
in this Section 3. The Term "residuals" means information in non-tangible form,
which may be retained by persons who have had access to the Confidential
Information, including ideas, concepts, know-how or techniques contained
therein, provided such persons have not intentionally memorized such ideas,
concepts, know-how or techniques. Licensee shall not have any obligation to pay
royalties for any work resulting from the use of residuals. The foregoing shall
not be deemed to grant to Licensee a license under Microsoft's copyrights or
patents. Further, the foregoing shall not be deemed to grant Licensee a license
to directly access the Confidential Materials for any purpose other than that
provided in Section 2.1.
3.5 Licensee's obligations under this Section 3 shall survive any
termination or expiration of the Agreement and shall extend to the earlier of
such time as the Confidential Information is in the publicly domain or ten (10)
years following termination or expiration of this Agreement.
4. Disclaimer of Warranty
4.1 Microsoft represents, warrants and covenants that it has it has the
full power to enter into this Agreement. Licensee represents, warrants and
covenants that it has it has the full power to enter into this Agreement.
4.2 EXCEPT AS SET FORTH IN SECTION 4.1, THE CONFIDENTIAL INFORMATION IS
PROVIDED TO LICENSEE AS IS WITHOUT WARRANTY OF ANY KIND. THE ENTIRE RISK AS TO
THE RESULTS AND PERFORMANCE OF THE CONFIDENTIAL INFORMATION IS ASSUMED BY
LICENSEE. MICROSOFT DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT, WITH RESPECT TO THE
CONFIDENTIAL INFORMATION.
5. Limitation of Liability
IN NO EVENT SHALL MICROSOFT BE LIABLE FOR ANY DIRECT, CONSEQUENTIAL,
INDIRECT, INCIDENTAL, SPECIAL OR OTHER DAMAGES WHATSOEVER, INCLUDING WITHOUT
LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF
BUSINESS INFORMATION, AND THE LIKE, ARISING OUT OF THIS AGREEMENT OR THE USE OF
OR INABILITY TO USE ANY CONFIDENTIAL INFORMATION, EVEN IF MICROSOFT HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.
EXCEPT FOR A BREACH OF SECTIONS 2.1, 2.2(a), 2.2(b) AND/OR 3, IN NO EVENT
SHALL LICENSEE BE LIABLE FOR ANY DIRECT, CONSEQUENTIAL, INDIRECT, INCIDENTAL,
SPECIAL OR OTHER DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR
LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION,
AND THE LIKE, ARISING OUT OF THIS AGREEMENT, EVEN IF LICENSEE HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
6. Term and Termination
6.1 Term. This Agreement shall continue through the Term unless earlier
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terminated in accordance with this Section 6.
6.2 Termination. Either party may suspend performance and/or terminate this
Agreement:
(a) Immediately upon written notice at any time, if the other party is
in material breach of any material warranty, term, condition or covenant of this
Agreement, other than those contained in Section 2.1 and/or 3, and fails to cure
that breach within thirty (30) days after written notice thereof; or
(b) Immediately upon written notice at any time, if the other party is
in material breach of Sections 2.1 and/or 3.
6.3 Effect of Termination. If this Agreement is terminated by Microsoft for
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any reason, Licensee shall (i) return all copies of the Confidential Materials
and Confidential Information, and related materials in Licensee's possession or
under its control within ten (10) days following the effective date of
termination or expiration of the Term of this Agreement and (ii) cease all
further Distribution of Confidential Materials Implementations. If requested by
Microsoft, Licensee shall provide a declaration signed by an officer of Licensee
attesting that all such copies have been returned to Microsoft. If the Term of
this Agreement expires, or if this Agreement is terminated by Licensee for
Microsoft's material breach, then: (a) Licensee may retain two (2) copies of
Confidential Materials then in its possession; (b) if Licensee has terminated
this Agreement, Licensee may use the Confidential Materials (as such materials
have been delivered as of the effective date of termination) in accordance with
the license rights under Sections 2.1 (so long as Licensee continues to comply
with the obligations of Sections 2.2 and 2.3) through the end of the original
Term, (c) Licensee may use the Confidential Materials solely for purposes of
supporting (as of the effective date of termination) versions of Authorized
Products developed through the end of the Term; and (d) Licensee's rights under
Section 2.1(b) shall survive such termination or expiration of the Term for a
period of four (4) years provided that Licensee continues to comply with the
obligations of Sections 2.2 and 2.3.
6.4 Survival. The provisions of Sections 2.4, 2.5 and 3 (for the period
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specified in Section 3.4), 4, 5 and 6 shall survive termination of this
Agreement.
7.
7. General
7.1 Notices. All notices and requests in connection with this Agreement
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shall be deemed given as of the day they are received either by messenger,
delivery service, or in the United States of America mails, postage prepaid,
certified or registered, return receipt requested, and addressed as set forth on
page 1 of this Agreement. Copies of such notices shall be addressed to each
party's General Counsel.
7.2 Governing Law. This Agreement shall be construed and controlled by the
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laws of the State of Washington as though entered into between Washington
residents and to be performed entirely within the State of Washington, and
Licensee consents to jurisdiction and venue in the state and federal courts
sitting in the State of Washington. In any action or suit to enforce any right
or remedy under this Agreement or to interpret any provision of this Agreement,
the prevailing party shall be entitled to recover its costs, including
reasonable attorneys' fees.
7.3 Independent Parties. Neither this Agreement, nor any terms and
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conditions contained herein, shall be construed as creating a partnership, joint
venture, agency relationship or as granting a franchise.
7.4 Enforceability. If any provision of this Agreement shall be held by a
--------------
court of competent jurisdiction to be illegal, invalid or unenforceable, the
remaining provisions shall remain in full force and effect.
7.5 Assignment. Licensee may not assign this Agreement, or any rights or
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obligations hereunder, whether by contract or by operation of law, except with
the express written consent of Microsoft, which approval will not be
unreasonably withheld or delayed. Any attempted assignment by Licensee in
violation of this Section shall be void. For purposes of this Agreement, an
"assignment" by Licensee under this Section shall be deemed to include, without
limitation, the following: (a) a change in beneficial ownership of Licensee of
greater than twenty percent (20%) (whether in a single transaction or series of
transactions) if Licensee is a partnership, trust, limited liability company or
other like entity; (b) a merger of Licensee with another party, whether or not
Licensee is the surviving entity; (c) the acquisition of more than twenty
percent (20%) of any class of Licensee's voting stock (or any class of non-
voting security convertible into voting stock) by another party (whether in a
single transaction or series of transactions); or (d) the sale of more than
fifty percent (50%) of Licensee's assets (whether in a single transaction or
series of transactions). In the event of such assignment or attempted assignment
by Licensee, Microsoft shall have the right to immediately terminate this
Agreement.
7.6 Export Licenses. Licensee acknowledges that the Confidential
---------------
Information may be subject to the export control laws and regulations of the
United States, as amended. Licensee confirms that with respect to the
Confidential Information it will not export or re-export it, directly or
indirectly, to: (i) any countries that are subject to United States export
restrictions (currently including, but not necessarily limited to, Cuba, the
Federal Republic of Yugoslavia (Serbia and Montenegro), Iran, Iraq, Libya, North
Korea, South Africa (military and police entities), and Syria); (ii) any end
user who Licensee knows or has reason to know will utilize the Confidential
Information in the design, development or production of nuclear, chemical or
biological weapons; or (iii) any end user who has been prohibited from
participating in the United States export transactions by any federal agency of
the United States government.
8.
Licensee further acknowledges that the Confidential Information may include
technical data subject to export and re-export restrictions imposed by United
States law.
Licensee shall, at its own expense, obtain and arrange for the maintenance
in full force and effect of all governmental approvals, consents, licenses,
authorizations, declarations, filings, and registrations as may be necessary or
advisable for the performance of all of the terms and conditions of the
Agreement including, but not limited to, foreign exchange approvals, import and
offer agent licenses, fair trade approvals and all approvals which may be
required to realize the purposes of the Agreement.
7.7 Entire Agreement. This Agreement constitutes the entire agreement
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between the parties with respect to the subject matter hereof and supersedes all
prior and contemporaneous agreements or communications. It shall not be modified
except by a written agreement dated subsequent to the date of this Agreement and
signed on behalf of Licensee and Microsoft by their respective duly authorized
representatives. No waiver of any breach of any provision of this Agreement
shall constitute a waiver of any prior, concurrent or subsequent breach of the
same or any other provisions hereof, and no waiver shall be effective unless
made in writing and signed by an authorized representative of the waiving party.
In Witness Whereof, the parties have entered into this Agreement as of the
Effective Date written above.
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Microsoft Corporation Licensee
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By: /s/ Xxxx X'Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
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Name (print): Xxxx X'Xxxxxx Name (print): Xxxxxx X. Xxxxxxxx
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Title: Group Program Mgr. Title: EXECTUTIVE VICE PRESIDENT
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Date: 2/17/00 Date: 12/15/99
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9.
Exhibit A
DESCRIPTION OF CONFIDENTIAL MATERIALS
The Confidential Materials consist of any non-public information disclosed to
Licensee under Section 2.5(b), and the following documents:
[ *** ]
*** Confidential Treatment Requested
Exhibit B
LICENSEE PRODUCT AND PACKAGING GUIDELINES
Licensee will use Microsoft's "Windows Media Compatible" logo in Licensee
Product, packaging and website in accordance with Microsoft's standard logo
guidelines. Licensee must execute and comply with the branding requirements and
Trademark Usage Guidelines of Microsoft's Logo License Agreement for "Plays
Windows Media," which are attached to this Exhibit B.
