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Redacted portions have been marked with asterisks (****). Confidential treatment
has been requested for the redacted portions. The confidential redacted portions
have been filed separately with the Securities and Exchange Commission.
CONFIDENTIAL TREATMENT
EXHIBIT 10.4
Proprietary and Confidential
MASTER ALLIANCE AGREEMENT
BETWEEN
INTEL INTERNET DATA SERVICES
AND
XXXXXXXX COMMUNICATIONS, INC.
THIS MASTER ALLIANCE AGREEMENT (this "Agreement") between Xxxxxxxx
Communications, Inc. ("Xxxxxxxx"), a Delaware corporation, and Intel Corporation
("Intel") on behalf of its Internet Data Services business, ("IDS"), is
effective May 24, 1999 ("Effective Date") contingent upon the Parties completing
their due diligence activities, to be concluded by June 15, 1999, and the
simultaneous execution by the Parties of the Securities Purchase Agreement.
Xxxxxxxx and Intel are individually referred to, together with their respective
Affiliates, as a "Party" and collectively referred to as the "Parties." Persons
or entities that Intel or Xxxxxxxx Controls are referred to as "Affiliates" of
such Controlling Party. Unless otherwise explicitly set forth, the use of
"Intel" or "Xxxxxxxx" shall be deemed to include the respective Affiliates of
such Party. Control means the possession, directly or indirectly, of the legal
power and authority to direct or cause the direction of the management and
policies by one person or entity or a group of related persons or entities
acting in concert; provided, however, that the legal or beneficial ownership of
more than fifty percent (50%) of any such person or entity shall be deemed
"Control".
RECITALS
WHEREAS, Intel directly or through its Affiliates intends to provide mission
critical Internet web-hosting services on a global basis;
WHEREAS, Xxxxxxxx directly or through its Affiliates is a nationwide, single
source provider of business communications equipment and integration services
for data, voice, video and advanced applications on a retail basis and a
provider of network services for delivery of voice and data on a wholesale basis
and intends to expand such business internationally;
WHEREAS, the capabilities of each Party are complementary, and the relationship
contemplated by this Agreement (the "Alliance") will serve to broaden the base
of potential competitive opportunities for network services and other
applications for all market segments;
WHEREAS, the Parties or their Affiliates are entering into additional agreements
to implement the Alliance;
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WHEREAS, the Parties are entering into this Master Alliance Agreement to set
forth general provisions concerning the Alliance; and
NOW THEREFORE, in consideration of the mutual covenants herein contained, Intel
and Xxxxxxxx agree as follows:
1. RELATIONSHIP OF THE PARTIES
1.1. Allocation of Responsibilities
1.1.1. Agreements
The Parties or their Affiliates are entering into the
following agreements to implement the Alliance, in addition
to this Agreement: (1) a Services Agreement ("SA") to cover
the following: (i) Xxxxxxxx' provision of domestic transport
services (with possibility of expansion to include
international transport services), (ii) Xxxxxxxx' provision
of professional consulting services, (iii) Xxxxxxxx'
provision of collocation opportunities, and (iv) Intel's
provision of IDS hosting services, and (2) a Co-Marketing
Agreement (the "CMA") to cover the sales and marketing
arrangement between Xxxxxxxx and IDS. Collectively, those two
Agreements, together with this Agreement, are referred to as
the "Alliance Agreements."
The Parties are in the process of negotiating the final terms
and conditions the Alliance Agreements. The Parties shall
complete and execute the Alliance Agreements by June 15,
1999, or such later date as the Parties may agree. In the
event the Parties cannot reach agreement by such date, either
Party may terminate the negotiations, in which event this
Master Alliance Agreement, and the Securities Purchase
Agreement shall terminate. Neither Party shall be liable for
any damages as a result of such termination.
1.1.2. Primary Responsibilities
Pursuant to the Alliance Agreements, Xxxxxxxx will be the
"Supplying Party" for (a) domestic transport services (and,
if applicable, international transport services) in
accordance with the SA, (b) professional consulting services
in accordance with the SA, and (c) collocation opportunities
in accordance with the SA. IDS will be the "Supplying Party"
for hosting services in accordance with the SA. The term
"Supplying Party" means the Party supplying a product or
service to the other Party under any of the Alliance
Agreements and the term "Procuring Party" means the Party
procuring a product or service from the Supplying Party under
any of the Alliance Agreements. The Parties will co-market
and sell each others services, as identified and as specified
in the CMA.
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1.2. Strategic Supplier Relationship
Intel and Xxxxxxxx will make **** to find joint solutions for IDS'
telecommunications needs for US-based backbone, Internet connectivity
and International-based backbone. To facilitate the provision of
Xxxxxxxx' products and services and to further Xxxxxxxx understanding
of IDS data transport needs, Intel will ****. Additional teams or
committees will be formed as appropriate pursuant to the process set
forth in Section 10. Intel will assign an IDS Executive Sponsor to
Xxxxxxxx to assist Xxxxxxxx in its supplier relationship with IDS.
Intel would encourage Xxxxxxxx to put POPs into IDS data centers, where
possible and mutually agreeable.
Notwithstanding the foregoing, subject to Xxxxxxxx' compliance with
pricing and quality of service provisions as further set forth in
Section 1.3, Intel will purchase from Xxxxxxxx **** of all IDS domestic
backbone transport requirements ("Domestic Commitment") as measured
annually based on the aggregate bandwidth miles IDS has agreed to
purchase over the preceding 12-month period.
Subject to pricing and quality of service provisions as set forth
herein, Intel will select Xxxxxxxx as one of its IDS IP transport
carriers. ****
1.3. Pricing of Products and Services
1.3.1. Subject to compliance with any minimum purchase commitment(s) as may be
set forth in the Alliance Agreements, a Party shall receive "MFC
Pricing" with respect to any procurement under the Alliance Agreements.
"MFC Pricing" shall mean that the Procuring Party shall receive pricing
from the Supplying Party which is **** that price provided by the
Supplying Party to any third party for the service or product provided
**** Notwithstanding the foregoing, MFC Pricing shall not include any
pricing provided by the Supplying Party to ****. With regard to pricing
provided to ****, the Procuring Party shall receive pricing which is
**** that provided to **** as measured by the extent of the ****. In
either instance, the obligation to offer MFC Pricing
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**** Confidential material has been omitted and filed separately with the
Securities and Exchange Commission.
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shall not apply to (i) any transaction where a substantial portion of the
consideration received by either Party for the offered product or service is in
the form of equity, products or services from a third party, (ii) rates
provided by Supplying Party to Affiliates of the Supplying Party or
intraWilliams or intraIntel transfer rates (except for such rates for services
that are resold to third parties),; or (iii) rates provided by the Supplying
Party to any department, branch or agency of a federal, state or local
government within the United States. For MFC Pricing exclusions regarding rates
provided by the Supplying Party to any foreign (i.e. Non-U.S.) government
entity, the Parties shall mutually agree on such exclusions on a case by case
basis.
1.3.2. No Investment Obligation
The Supplied Party will not be required to make any initial capital or
ongoing investment beyond the commitment of business pursuant as
further set forth in Section 1.2 and the Alliance Agreements.
1.3.3. Condition Precedent of Procurement via Competitive Pricing
The Procuring Party shall not be obligated to purchase a
product or service from the Supplying Party unless the offered
price is as low as the lowest price for which the Supplied
Party can acquire the product or service from third parties
with similar terms, conditions and product quality and/or
quality of service. The Procuring Party will discuss with the
Supplying Party any issues pertaining to the pricing of
products and services to be provided to the Procuring Party
compared to the market price for comparable products and
services, or third party offers otherwise available to the
Procuring Party to ensure that competitive pricing is
maintained.
1.3.4. Resale Restrictions
If IDS resells the transport capacity acquired from Xxxxxxxx
pursuant to the SA ("SA Capacity") by means of a wholesale
distribution channel or similar business structure that is
established or maintained for the purpose of offering the SA
Capacity to customers doing business in the United States that
are primarily engaged in the business of distributing
transport capacity to other third parties (e.g., carriers),
then Xxxxxxxx shall no longer be bound to offer MFC Pricing
to IDS with respect to such resold SA Capacity. If Xxxxxxxx
resells the hosting services acquired from Intel pursuant to
the SA ("SA Hosting Service") except in accordance with the
provisions of the CMA, then Intel shall no longer be bound to
offer MFC Pricing to Xxxxxxxx with respect to such SA Hosting
Service.
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1.4. Future Services
The Parties recognize that the telecommunications industry is
undergoing dramatic transformation due to radical technological
improvements and regulatory developments. Thus, notwithstanding the
alliance pricing system set forth in this Section, subject to
regulatory restraints, each Party will develop a mechanism to ****
to the other the benefits of increased efficiencies (e.g., due to
technology development or regulatory evolution).
1.5. Use of Facilities
Nothing in any Alliance Agreement shall be construed to prohibit either
Party from using its own facilities or services owned or leased as of
the Effective Date.
1.6. Ownership and Control
The Supplying Party will retain ownership and/or control of the assets
used to provide services or products to the Procuring Party and the
Supplying Party can use these assets to provide services or products to
third parties.
2. EFFECTIVE DATE AND TERM
This Agreement shall become effective on the Effective Date and shall
continue for a term of **** years (the "Term"). All other Alliance
Agreements shall have an initial term of **** years, with a rolling
renewal provision for additional one (1) year terms, to be exercised
within thirty (30) days of the Effective Date anniversary each year
commencing with the completion of the first year of the initial term
and subject to good faith negotiations between the Parties.
3. AUDIT RIGHTS
3.1. Audit
Supplying Party will maintain complete and accurate records of the
services performed under this Agreement for a period of three (3) years
after the completion of these services. Records relating to the
performance of this Agreement shall be made available to the Procuring
Party for audit upon reasonable notice. Each Party may, at any time,
but not more than once per calendar year request an audit of the other
Party (the "Audited Party"), with respect to services and other
deliverables provided under the Alliance Agreements (an "Audit"),
including, without limitation, to determine the accuracy and integrity
of any of the following:
3.1.1. The calculation of pricing as set forth in Section 1, including the
duty to provide MFC Pricing.
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Securities and Exchange Commission.
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3.2. Initiation
At the request of the Party requesting the Audit (the "Initiating
Party"), the Parties shall mutually agree on a nationally recognized
accounting firm as a third party auditor (the "Auditor") to Audit the
Audited Party's books, contracts and records with respect to the
matters specified in Section 3.1 (or any other matter as agreed by the
Parties). The Initiating Party shall request an Audit by giving written
notice of such request to the other Party, whereupon the Parties shall
enter into good faith negotiations to effectuate the Audit provisions
as set forth herein in a timely manner.
3.3. Engagement of Auditor
The Parties will agree on the scope and materiality standards aspects
of the Audit and jointly instruct the Auditor. The terms of the
engagement of the Auditor shall:
3.3.1. Specifically define the scope of the Audit and materiality standards.
3.3.2. Require, in the case of a quantitative evaluation, a valid statistical
sampling of any information reviewed.
3.4. Cooperation
The Audited Party shall cooperate fully with the Auditor and its
representatives in connection with any Audit, providing reasonable
access to any and all relevant books and records and causing its
employees, accountants and other representatives and agents to
cooperate fully with the Auditor.
3.5. Report
The Auditor shall provide a copy of its report to both Parties, and the
report shall specify the conformity or extent of non-conformity with
the Audited Party's obligations under an Alliance Agreement that were
the subject of the Audit. The Auditor must keep confidential the names
and specific pricing applicable to all other purchasers of similar
products and services from the Audited Party. The determination of the
Auditor will be final and binding on both Parties.
3.6. Cost
The Parties will share equally the cost of the Auditor, provided that
(1) if the net dollar amount of any identified errors favors the
Initiating Party and exceeds three percent (3%) of the total dollar
amount of xxxxxxxx covered by the Audit, then the Audited Party shall
pay all of the costs of the Audit, and (2) if the net dollar amount of
any identified errors does not favor the Initiating Party, then the
Initiating Party shall pay all of the costs of the Audit. In the event
that the Auditor determines that the Audited Party is not in compliance
with its obligations relating to pricing that were the subject of the
Audit, the Audited Party will adjust pricing on a retroactive basis in
accordance with the findings of the Auditor.
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4. DISPUTE RESOLUTION
4.1. Disputes.
Prior to initiating any litigation, the Parties shall attempt in good
faith to resolve any controversy, dispute or claim arising out of or
relating to any of the Alliance Agreements or the breach, termination,
enforceability or validity thereof (collectively, a "Dispute") as
follows:
The senior management of both Parties shall meet to attempt to resolve
such Disputes. If the Disputes cannot be resolved by the senior
management, either Party may make a written demand for formal Dispute
resolution and specify therein the scope of the Dispute. Within thirty
days after such written notification, the Parties agree to meet for one
day with an impartial mediator and consider Dispute resolution
alternatives other than litigation. If an alternative method of Dispute
resolution is not agreed upon within thirty days after the one day
mediation, either Party may begin litigation proceedings.
Notwithstanding the foregoing, either Party shall have the right,
without the requirement of first seeking a remedy through mediation, to
seek preliminary injunctive or other equitable relief in any proper
court in the event that such Party determines that eventual redress
through mediation will not provide a sufficient remedy for any
violation of an Alliance Agreement by the other Party. The Parties
agree that preliminary injunctive or other equitable relief will be a
necessary and proper remedy in the event of misuse by one Party of the
other Party's intellectual property. Each Party further agrees that in
the event such equitable relief is granted in the United States, it
will not object to Non-U.S. courts granting provisional remedies
enforcing such U.S. judgments.
All negotiations pursuant to this Section 4.1 shall be confidential and
shall be treated as compromise and settlement negotiations. Nothing
said or disclosed, nor any document produced, in the course of such
negotiations which is not otherwise independently discoverable shall be
offered or received as evidence or used for impeachment or for any
other purpose in any current or future alternate dispute resolution
process or litigation.
5. CONFIDENTIAL
5.1. General
The existence, terms, and conditions of this Agreement and of the
Alliance Agreements, together with any information exchanged by the
Parties in performance of their respective obligations hereunder, are
confidential and neither Party may make any
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disclosures with respect thereto without the express prior written
consent of the other, with the following exceptions:
a. subject to (c) below, as otherwise may be required by law or legal
process, to legal and financial advisors in their capacity of
advising a Party in such matters; or
b. any disclosure required by federal or state securities laws, or by
requirement of the Securities Exchange Commission or applicable
state blue sky commission; or
c. during the course of litigation so long as the disclosure of such
terms and conditions are restricted in the same manner as is the
confidential information of other litigating Parties and so long
as (i) the restrictions are embodied in a court-entered Protective
Order and (ii) the disclosing Party informs the other Party in
writing in advance of the disclosure; or
d. in confidence to its legal counsel, accountants, banks and
financing sources and their advisors solely in connection with
complying with financial requirements and transactions.
Disclosures of confidential and proprietary information by either Party
to the other Party shall otherwise be governed by the Intel/Xxxxxxxx
Corporate Non-disclosure Agreement ("CNDA") number _______, and related
Confidential Information Transmittal Records ("CITR(s)") or other
non-disclosure agreements as appropriate and executed in writing by the
Parties. Attached as Exhibit A is the above referenced CNDA.
5.2. Nondisclosure Agreements
To the extent that a disclosing Party agrees to allow the receiving
Party to disclose the disclosing Party's confidential information to
any third party person or entity, the receiving Party shall assure that
such third party agrees in writing to be bound to protect and not to
disclose such confidential information on substantially equivalent
conditions as exist between the Parties with respect to such
confidential information.
5.3. Other Agreements Regarding Confidentiality
The personnel of either Party may be required to enter into additional
agreements regarding confidential information as a pre-condition of
gaining access to the other Party's premises. Personnel of one Party
present at the premises of the other Party shall refrain from obtaining
access to information that is proprietary to the customers of the other
Party. Such personnel shall comply with the other Party's reasonable
measures established to restrict such access.
6. ADDITIONAL COVENANTS
6.1. Insurance
At all times during the term of the Alliance, each Party shall carry
and maintain workers' compensation and employers' liability insurance
adequate to insure fully
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against losses or damages to Intel's or Xxxxxxxx' personnel, customers,
property or other contractor's personnel or property caused by their
respective activities. If requested, each Party will furnish to the
other certificates of insurance or other appropriate documentation
(including evidence of renewal of insurance) evidencing all coverage
referenced above and naming the other Party as an additional insured.
Each Party will furnish the other notice of the expiration of
cancellation of any insurance policy required pursuant hereto.
6.2. No Solicitation
During the term of the Alliance for a period of twelve months
thereafter, neither Party nor such Party's Affiliates shall, directly
or indirectly, for itself or on behalf of any other person, actively
induce or attempt to induce any employee of the other Party's
Affiliates engaged in Alliance activities to leave his or her
employment. However, general employment advertisements in media of
general or industry specific circulation shall be permissible. Nothing
contained herein shall prevent an employee of one of the Parties from
independently seeking and obtaining employment from the other Party so
long as such employee does not do so in violation of his employment
agreement with the other Party.
7. TERMINATION AND TRANSITION
7.1. General
While the Parties intend to develop a long term relationship, under the
following circumstances, the Alliance may be terminated in whole or in
part by either Party.
If either Party breaches any Alliance Agreement in a manner that has a
material adverse effect on the commercial value of the Alliance to the
other Party; **** Party, becomes incapable of meeting the requirements
set forth in the **** . In such event, the right to cure set as set
forth in Section 7.2 shall only apply if the condition giving rise to
the right to terminate is capable of being cured, without the
likelihood of its recurrence.
7.1.1. The Party having the right to terminate shall exercise its termination
right within a reasonable period of time, but in no event more than 180
days from actual notice of the event or circumstances permitting
termination by such Party.
7.2. The rights to terminate provided in this Section 7 are contingent upon
the Party seeking to terminate providing written notice of its intent
to terminate, and the passage of a sixty-day (60) period during which
the non-terminating Party, if applicable, may cure the conditions
giving rise to such right to terminate. Provision of such cure
extinguishes the right to terminate on the basis for which the cure has
been provided.
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Securities and Exchange Commission.
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8. REPRESENTATIONS AND WARRANTIES OF THE PARTIES
Intel hereby represents and warrants to Xxxxxxxx as follows:
8.1. Organization, Standing and Authority.
Intel, and each of its Affiliates executing an Alliance Agreement, has
all requisite corporate power and authority to enter into the Alliance
Agreement(s) to which it is a party and to consummate the transactions
contemplated thereby. All corporate acts and other proceedings required
to be taken by Intel and its Affiliates to authorize the execution,
delivery and performance of the Alliance Agreements to which it is a
party and the consummation of the transactions contemplated thereby
have been duly and properly taken. Each of the Alliance Agreements to
which it is a party has been duly executed and delivered by it and
constitutes the legal, valid and binding obligation of it, enforceable
against it in accordance with its terms.
8.2. No Violation
The execution and delivery by Intel and its Affiliates of the Alliance
Agreements to which it is a Party and the consummation of the
transactions contemplated thereby and compliance with the terms thereof
will not, (i) conflict with or result in any violation of any provision
of the certificate of incorporation or by-laws of any of them, or the
comparable organizational documents of any of them, (ii) conflict with,
result in a violation or breach of, or constitute a default, or give
rise to any right of termination, revocation, cancellation, or
acceleration, under, any material contract, except for any such
conflict, violation, breach, default or right which is not reasonably
likely to have a material adverse effect on the ability of Intel and
its Affiliates to consummate the material transactions contemplated by
the Alliance Agreements or (iii) conflict with or result in a violation
of any judgment, order, decree, writ, injunction, statute, law,
ordinance, rule or regulation applicable to Intel or any of its
Affiliates or to the property or assets of Intel or any of its
Affiliates, except for any such conflict or violation which is not
reasonably likely to have such a material adverse effect.
8.3. Consents and Approvals
Except as set forth in any Alliance Agreement, no consent, approval,
license, permit, order or authorization of, registration, declaration
or filing with, or notice to, any domestic or foreign court,
administrative or regulatory agency or commission or other governmental
authority or instrumentality (each, a "Governmental Entity") is
required to be obtained or made by or with respect to Intel or any of
Intel' Affiliates in connection with the execution and delivery of the
Alliance Agreements or the consummation of the transactions
contemplated thereby.
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9. REPRESENTATIONS AND WARRANTIES OF XXXXXXXX
Xxxxxxxx hereby represents and warrants to Intel as follows:
9.1. Organization, Standing and Authority
Xxxxxxxx is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. Xxxxxxxx has all
requisite corporate power and authority to enter into the Alliance
Agreements and to consummate the transactions contemplated thereby. All
corporate acts and other proceedings required to be taken by Xxxxxxxx
to authorize the execution, delivery and performance of the Agreement
and the Alliance Agreements to which it is a party and the consummation
of the transactions contemplated thereby have been duly and properly
taken. Each of the Alliance Agreements has been duly executed and
delivered by Xxxxxxxx and constitutes the legal, valid and binding
obligation of it, enforceable against it in accordance with its terms.
9.2. No Violation
The execution and delivery by Xxxxxxxx of the Alliance Agreements to
which it is a party do not, and the consummation of the transactions
contemplated thereby and compliance with the thereof will not (i)
conflict with or result in any violation of any provision of the
certificate of incorporation or by-laws of Xxxxxxxx, (ii) conflict
with, result in a violation or breach of, or constitute a default, or
give rise to any right of termination, revocation, cancellation, or
acceleration, under, any material contract, except for any such
conflict, violation, breach, default or right which is not reasonably
likely to have a material adverse effect on the ability of Xxxxxxxx to
consummate the material transactions contemplated by the Alliance
Agreements or (iii) conflict with or result in a violation of any
judgment, order, decree, writ, injunction, statute, law, ordinance,
rule or regulation applicable to Xxxxxxxx or to the property or assets
of Xxxxxxxx, except for any such conflict or violation which is not
reasonably likely to have such a material adverse effect.
9.3. Consents and Approvals
Except as set forth in any Alliance Agreement, no consent, approval,
license, permit, order or authorization of, registration, declaration
or filing with, or notice to, any Governmental Entity is required to be
obtained or made by or with respect to Xxxxxxxx in connection with the
execution and delivery of the Alliance Agreements or the consummation
of the transactions contemplated thereby.
10. ALLIANCE GOVERNANCE
During the Term, the Parties shall designate and maintain one
individual from each Xxxxxxxx to serve as its representative for the
activities of the Parties under this Master Alliance Agreement or any
of the Alliance Agreements (the "Representative"). Neither
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Representative need be dedicated to the Alliance, but needs to be
available as the primary day-to-day interface between the Parties.
Either Party may change their designated Representative upon notice to
the other Party pursuant to Section 12.13.
In addition, the Representative shall be responsible for initiating any
requests to form ad-hoc or permanent committees. If mutually agreed,
the Parties shall form such committees which would be empowered to
discuss and implement specific concepts or to oversee certain activity.
In any such event, the Parties will establish such committee by way of
written amendment to this Agreement (but not for regular meetings of
the Parties' employees in the ordinary course of doing business with
one another) specifying the purpose of the committee, membership,
meeting times, and any authority such committee may have.
11. SPECIAL COVENANT NOT TO XXX
11.1. Definitions
"Assert" means to bring an action of any nature before any legal, judicial,
arbitration, administrative, executive or other type of body or tribunal that
has or claims to have authority to adjudicate such action in whole or in part.
Examples of such body or tribunal include, without limitation, United States
State and Federal Courts, the United States International Trade Commission and
any foreign counterparts of any of the foregoing.
****
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****
11.2. Covenant Not To Xxx
Covenant Not to Xxx. Xxxxxxxx agrees that for so long as Intel **** as defined
and specified in the Securities Purchase Agreement, Xxxxxxxx shall not Assert
any **** against Intel, its subsidiaries or affiliates, or their customers
(direct or indirect), distributors (direct or indirect), agents (direct or
indirect) and contractors (direct or indirect) for **** Intel does not Assert
**** against Xxxxxxxx, its subsidiaries or affiliates, or their customers
(direct or indirect), distributors (direct or indirect), agents (direct or
indirect) and contractors (direct or indirect) for ****. This covenant not to
xxx shall survive any termination or expiration of this Agreement and shall
remain in full force and effect until mutually agreed otherwise by the Parties.
11.3. Assignment.
If Xxxxxxxx assigns or attempts to **** to a third party not bound by this
covenant not to xxx (whether directly or by operation of law), then effective
immediately prior to such assignment or attempted assignment, Xxxxxxxx agrees
that Intel shall have ****. This **** shall survive any termination or
expiration of this Agreement and shall remain in full force and effect until
mutually agreed otherwise by the Parties.
12. GENERAL PROVISIONS
12.1. Further Agreements
Further agreements to implement the Alliance may be appropriate.
Therefore, upon reasonable request of a Party, the Parties shall meet
and negotiate in good faith to determine if additional Alliance
Agreements are appropriate and the terms and conditions of any such
agreements.
12.2. Assignment
Except for the assignment of the Agreement by either Party pursuant to
the sale or transfer of all or substantially all of such Party's
assets, neither Party may assign nor delegate any of its rights or
obligations under this Agreement without the written consent of the
other Party, provided that each Party may assign this Agreement to any
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Securities and Exchange Commission.
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Affiliate, so long as such assigning Party guarantees the Affiliate's
performance. Notwithstanding the foregoing, the Parties mutually Agree
that as of the Agreement Effective Date, Intel had not yet determined
the final legal entity status for its IDS business and that Intel
Corporation may assign this Agreement, including any Alliance
Agreements executed pursuant hereto, to such IDS legal entity when
finally determined and established by Intel.
12.3. Force Majeure
If either Party's performance of this Agreement or any obligation
(other than the obligation to make payments for services rendered under
one of the Alliance Agreements) hereunder is prevented, restricted or
interfered with by causes beyond its reasonable control including, but
not limited to, acts of God, fire, explosion, vandalism, power grid
outages (beyond any required battery back-up or generator capacity),
storm or other similar occurrence including rain fade or other
atmospheric conditions, any law, order, regulation, direction, action
or request of the United States Government or national, state or local
governments, or of any department, agency, commission, court, bureau,
corporation or other instrumentality of any one or more of said
governments, or of any civil or military authority, or by national
emergencies, insurrections, riots, wars, acts of terrorism, strikes,
lockouts or work stoppages or other labor difficulties, supplier
failures, shortages, breaches or delays, then the Party affected by
such force majeure event (the "Affected Party") shall be excused from
such performance for a time period commensurate with the duration of
such prevention, restriction or interference. The Affected Party shall
use commercially reasonable efforts under the circumstances to avoid
and remove such causes of non-performance and shall proceed to perform
with reasonable dispatch whenever such causes cease.
12.4. Regulatory Compliance
The Parties acknowledge that the services provided by Xxxxxxxx to Intel
under the Services Agreement are subject to federal and state statutes
and regulations, including without limitation the Communications Act of
1934 (as amended from time to time) (the "Act") and the regulations
promulgated by the Federal Communications Commission ("FCC").
Notwithstanding anything to the contrary contained in any Alliance
Agreement, the Parties will not take any action in connection with the
Alliance which would constitute a violation of applicable law or take an
action which requires FCC or other approval without first obtaining such
approval.
12.5. Third Party Warranties
Each Party shall enforce any rights, warranties, licenses, terms and
conditions and other benefits accruing to it under each of its
agreements with third parties participating in or providing equipment,
software or other services used in connection with the provision of
services under the Alliance Agreements wherever and whenever such
Party's failure to enforce any such rights, warranties, licenses,
terms, conditions and
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other benefits could materially impair its ability to provide such
services in accordance with the terms and conditions of the Alliance
Agreements.
12.6. Costs and Expenses
Except as otherwise specifically agreed to by the Parties in writing,
each Party will be responsible for its own expenses arising under this
Agreement.
12.7. Amendment
No amendment of this Agreement shall be valid or binding on the Parties
unless such amendment shall be in writing and duly executed by an
authorized representative of each Party.
12.8. Headings
Headings contained herein shall in no way limit the subject matter they
introduce and shall not be used in construing this Agreement.
12.9. Publicity
Neither Party shall make a public announcement or disclosure about this
Agreement or the Parties' discussions related to any aspect of it
without the written consent of the other Party. Subject to obligations
of confidentiality as set forth in Section __5__, either of the Parties
may at anytime make announcements which are required by applicable law,
regulatory bodies, or stock exchange or stock association rules, so
long as the Party so required to make the announcement, promptly upon
learning of such requirement, notifies the other Party of such
requirement and discusses with the other Party in good faith that exact
wording of any such announcement.
12.10. Execution
This Agreement shall be executed in two duplicate copies, one for each
Party, each of which copies shall be deemed an original.
12.11. Limitation of Liability
Except as may otherwise be expressly set forth in a specific Alliance
Agreements with regard thereto, neither Party, nor its officers,
employees, agents, partners, Affiliates or subcontractors shall be
liable to the other Party, its officers, employees, agents, partners,
Affiliates or subcontractors for claims for incidental, indirect,
consequential, exemplary, punitive, or other special damages,
including, but not limited to, damages for a loss of profits or
opportunity costs, connected with or resulting from any performance or
lack of performance under any Alliance Agreement regardless of whether
a claim is based on contract, warranty, tort (including negligence),
theory of strict liability, or any other legal or equitable principle.
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12.12. Relationship of Parties
The Alliance Agreements individually or in the aggregate shall not be
construed to create a partnership, joint venture, or any other form of
legal entity.
12.13. Notices
Any notice, request, instruction or other document to be given
hereunder by any Party to any other Party under any section of this
Agreement shall be in writing and shall be deemed given upon receipt if
delivered personally or by telex or facsimile, the next day if by
express mail or three days after being sent by registered or certified
mail, return receipt requested, postage prepaid to the following
addresses (or at such other address for a Party as shall be specified
by like notice provided that such notice shall be effective only after
receipt thereof):
If to IDS: Intel Internet Data Services
00000 XX Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: General Manager
(000) 000-0000 - voice
(000)000-0000 - fax
with a copy
(which shall
not constitute
notice) to: Intel Corporation
0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, XX 00000
Attn: General Counsel
(000) 000-0000 - voice
(000) 000-0000 - fax
If to Xxxxxxxx: Xxxxxxxx Communications, Inc.
Xxx Xxxxxxxx Xxxxxx, Xxxxx 00-X
Xxxxx, XX 00000
Attn: Contract Administration
Fax: 000-000-0000
Telephone: 000-000-0000
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with a copy Xxxxxxxx Communications, Inc.
(which shall One Xxxxxxxx Center, Suite 4100
not constitute Xxxxx, XX 00000
notice) to: Attn: General Counsel
Fax: 000-000-0000
Telephone: 000-000-0000
12.14. Severability
In case any one or more of the provisions contained in this Agreement
shall for any reason be held to be invalid, illegal or unenforceable in
any respect by a court or other authority of competent jurisdiction,
such invalidity, illegality or unenforceability shall not affect any
other provision hereof and this Agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been contained
herein and, in lieu of each such illegal, invalid or unenforceable
provision, there shall be added automatically as a part of this
Agreement a provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid and
enforceable, it being the intent of the Parties to maintain the benefit
of the bargain for both Parties.
12.15. Governing Law
Any claims arising under or relating to this Agreement shall be
governed by the internal substantive laws of the State of Delaware or
federal courts located in Delaware, without regard to principles of
conflict of laws. Each Party hereby agrees to jurisdiction and venue in
the courts of the State of Delaware for all disputes and litigation
arising under or relating to this Agreement. This provision is meant to
comply with 6 Del. C. Section 2708(a).
12.16. Rules of Construction
Words used in this Agreement, regardless of the gender specifically
used, shall be deemed and construed to include any other gender as the
context requires. As used in this Agreement, the word "including" is
not limiting, and the word "or" is not exclusive. Except as
specifically otherwise provided in this Agreement in a particular
instance, a reference to a Section, Schedule or Exhibit is a reference
to a Section of this Agreement or a Schedule or Exhibit hereto, and the
terms "this Agreement," "hereof," "herein," and other like terms refer
to this Agreement as a whole, including the Schedules to this
Agreement, and not solely to any particular part of this Agreement. The
descriptive headings in this Agreement are inserted for convenience of
reference only and are not intended to be part of or to affect the
meaning or interpretation of this Agreement. The Parties to this
Agreement do not intend that any other Person shall obtain any rights
as third party beneficiaries of this Agreement.
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12.17. Survival and Provisions Applicable to Other Alliance Agreements
Sections 1, 3, 4, 5, 8, 9, and 12 of this Agreement shall apply to and
be deemed incorporated into the other Alliance Agreements and shall
continue to be in force for the duration of such Alliance Agreements,
regardless of the term of this Agreement. Upon any expiration or
termination of this Agreement, Sections hereof which by their nature
ought to survive shall so survive.
INTEL CORPORATION XXXXXXXX COMMUNICATIONS, INC.
------------------------------- ----------------------------------
Signature Signature
------------------------------- ----------------------------------
Printed Name Printed Name
------------------------------- ----------------------------------
Title Title
------------------------------- ----------------------------------
Date Date
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