EXHIBIT 10.11
iBEAM Network Membership
Agreement No._______________
This membership agreement (the "Agreement"), effective as of 8/23/1999 (the
---------
"Effective Date"), is entered into by Internet Ventures, ("Member") and iBEAM
- --------------- ------ -----
BROADCASTING CORPORATION, a Delaware corporation with primary business offices
- ------------------------
at 645 Almanor Avenue, Suite 100, Sunnyvale, CA 94086 ("iBEAM"). (iBEAM and
-----
Member individually a "Party" or together the "Parties")
----- -------
WHEREAS, iBEAM intends to provide a paid service which provides Internet service
providers with MaxCaster(TM)'s providing replication, live broadcast and on-
demand data streaming and,
WHEREAS, Member provides access to the Internet for its customers and,
WHEREAS, iBEAM offers and Member accepts the iBEAM service subject to the terms
and conditions set forth below.
NOW THEREFORE, for good and valuable consideration exchanged between the
Parties, Member and iBEAM agrees as follows:
1. DEFINITIONS
-----------
When used in this Agreement, the following terms shall have the following
meanings unless the subject or the context otherwise requires:
A. Content: data or data streams used in the Service.
-------
B. Webcast Distribution Service: The service provided by iBEAM, where iBEAM
----------------------------
copies and distributes Content from series of content providers to iBEAM
MaxCaster's using communications equipment and telecommunications services
(including, but not limited to satellite, broadcast and other networking
services).
C. Confidential Information: Confidential and trade secret information as set
------------------------
forth more specifically in Article 15 of this Agreement.
D. Disclosing Party. A party that discloses Confidential information to a
----------------
Receiving Party.
E. Receiving Party: A Party receiving Confidential Information from a
---------------
Disclosing Party.
F. MaxCaster(TM): A system of satellite downlink equipment, one or more
-------------
computer servers, other communications equipment and appropriate software
colocated with Member Network.
G. Member Network: The network operated by Member without the installation of
--------------
the iBEAM MaxCaster(s).
H. Content Provider: A person or entity who provides Content for dissemination
----------------
on Webcast Distribution.
2. SERVICE
-------
iBEAM will provide the Webcast Distribution Service to Member and Member
accepts the Service pursuant to the Terms and Conditions of this Agreement and
its Exhibits by incorporation.
3. OWNERSHIP AND USE AND DAMAGE
----------------------------
3.1 Ownership: Title to and ownership of the MaxCaster(TM), all copies of
documentation or instructions thereof and all data resident upon each MaxCaster,
including but not limited to any trademarks, servicemarks, tradedress,
copyrights (whether in literal or non-literal form) and/or patents shall be and
at all times remain with iBEAM, iBEAM's licensors or its agents or assigns.
Member will not reproduce or modify the MaxCaster or any portion thereof.
Member shall not rent, sell, lease, create or have created security interests in
the MaxCaster, have liens placed on the MaxCaster or otherwise transfer the
MaxCaster or any part thereof or use, or allow its use for the benefit of any
third party.
3.2 Use: member may transmit the Content resident on the MaxCaster to its end
users provided that the Content is unmodified or abridged in any manner. Member
shall not reverse assemble, reverse compile or reverse engineer the MaxCaster,
otherwise attempt to discover any MaxCaster source code or underlying
Confidential Information (as that term is defined below). Further Member agrees
that it will not modify, copy, display, distribute, use, market, promote,
perform, cache or transmit any of the Content residing within the MaxCaster or
intercept any transmission intended to place Content on the MaxCaster for the
heretofore mentioned reasons without the express permission of iBEAM.
3.3 In the event that Member breaches any provision of Articles 3.1 or 3.2
iBEAM shall have the right to bring immediate injunctive action to halt said
breach.
3.4 Damage to MaxCaster: Any damage caused to any portion of the MaxCaster,
while resident at Member location, by use outside the scope intended under this
Agreement will require Member to pay iBEAM to repair or replace the
MaxCaster(TM).
4. METHOD OF PAYMENT
-----------------
4.1 Invoicing shall be on a monthly basis and all payments shall be made net
30 days upon receipt of invoice to the address specified on each invoice.
4.2 All prices set forth herein are exclusive of taxes with regards to
membership and/or the Webcast Distribution Service. Member is responsible for
any taxes associated with membership and/or the Webcast Distribution Service.
4.3 Notwithstanding the above any Member located outside the United States
must make payments via wire transfer to the account specified within each
invoice.
5. LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES
----------------------------------------------------
5.1 NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT
MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO, TO THE OTHER
OR ANY OTHER THIRD PARTY, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR
OTHER THEORY (A) FOR ANY MONIES IN EXCESS OF $200,000.00, (B) FOR LOSS OR
INACCURACY OF DATA, COST OF PROCUREMENT OR SUBSTITUTE GOODS, SERVICES OR
TECHNOLOGY, OR (C) FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES
INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS, AND NEITHER
PARTY SHALL BE RESPONSIBLE FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.
UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY
OTHER THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR
EXEMPLARY DAMAGES, ARISING FROM ANY PROVISION OF THIS AGREEMENT, SUCH AS, BUT
NOT LIMITED TO LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS.
5.2 EXCEPT AS SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY, AND EACH
PARTY HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS
OR IMPLIED, REGARDING THE PRODUCTS AND SERVICES CONTEMPLATED BY THIS AGREEMENT,
INCLUDING ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF
PERFORMANCE OTHER THAN ANY REPRESENTATIONS OR WARRANTIES THAT CANNOT BE EXCLUDED
BY LAW.
5.3 iBEAM FURTHER DISCLAIMS THAT IT HAS WARRANTED THAT THE CONTENT PROVIDED
HEREUNDER IS UNDER iBEAM'S EDITORIAL CONTROL IN ANY MANNER WHATSOEVER OR THAT IT
IS NOT OBSCENE, INDECENT, OFFENSIVE OR HARMFUL TO MINORS.
6. TERM AND TERMINATION
--------------------
6.1 This Agreement shall commence on the Effective Date and shall continue
for thirty six (36) months. Member may, at its option, terminate with sixty (60)
days' notice prior to the one (1) year anniversary of the Effective Date,
thereafter termination may only be effectuated through a material breach by the
other party which is not cured within ten (10) days.
6.2 If this Agreement is terminated of r any reason each Party shall
expeditiously stop using, remove and/or return the other Party's proprietary
information including but not limited to Confidential Information, trademarks,
tradenames, and servicenames. Additionally, Member will disconnect all iBEAM
equipment from the Member Network, and provide iBEAM access to the equipment for
iBEAM retrieval of said equipment.
6.3 Notwithstanding the above, should iBEAM change prices as set forth in
Exhibit A, Member shall have the absolute right to terminate this Agreement with
thirty (30) days' notice from receipt of notification of price change.
6.4 In the event that this Agreement terminates for any reason, the following
Articles Shall survive the termination: Articles 5 and 16.
7. INTERPRETATION
--------------
7.1 Changes: All changes to this Agreement must be in writing, signed by each
Party and reference this Agreement and the Effective Date.
7.2 Order of Precedence: The Terms and Conditions of this Agreement shall
take precedence over those set forth within each Exhibit, Addendum or other
written document, signed by both parties and specified as an addition or change
to this Agreement.
8. WAIVER, REMEDIES CUMULATIVE
---------------------------
8.1 The waiver by either Party of a breach or default by the other Party of
any of the provisions of this Agreement shall not be construed as a waiver of
any succeeding breach or default of the same or any other provisions of this
Agreement shall not impair the exercise of any rights accruing to it under this
Agreement thereafter; nor shall any delay or omission on the part of either
Party to exercise or avail itself of any rights accruing to it under this
Agreement operate as a waiver of any breach or default by the other Party of any
of the said provisions.
8.2 All rights and remedies provided in this Agreement are cumulative and are
not exclusive of any rights or remedies provided by law.
9. NOTICES
-------
All communications in connection with this Agreement shall be in writing
and may be given by telecopy or mail to the recipient at the address set out in
this Agreement and sent to the Attention of General Counsel or Chief Financial
Officer.
10. COSTS
-----
Each Party shall bear its own legal, accounting and other costs, charges
and expenses of and incidental to this Agreement.
11. DENIAL OF PARTNERSHIP
---------------------
Nothing herein contained shall be construed as creating the relationship
of partnership, joint venture, fiduciary relationship or principal and agent
between the Parties. Neither Party may pledge or purport to pledge the credit of
the other Party or make or purport to make any representations, warranties or
undertakings for the other Party.
12. FORCE MAJEURE
-------------
12.1 Where a Party is unable, wholly or in part, by reason of force majeure,
to carry out any obligations under this Agreement, that obligation is suspended
so far as it is affected by force majeure during the continuance thereof.
12.2 In this Agreement, "force majeure" means an act of God, strike, lockout
or other interference with work, war declared or undeclared, blockade,
disturbance, lightning, fire, earthquake, storm, flood, explosion, network
failures, error in the coding of electronic files, software limitations, or
inability to obtain telecommunications services, governmental or quasi-
governmental restraint expropriation prohibition intervention direction or
embargo, unavailability or delay in availability of equipment or transport,
inability or delay in obtaining governmental or quasi-governmental approvals,
consents, permits, licenses, authorities or allocations, and any other cause
whether of the kind specified above or otherwise which is not reasonably within
the control of the Party affected.
13. ASSIGNMENT
----------
Except for (i) assignment to a successor who acquires substantially all
of the assets and business of iBEAM or Member, (ii) assignment to a subsidiary
company, parent company, or subsidiary of a parent company, or (iii) assignment,
pledge, or transfer by iBEAM of any interest in any payments to be received by
iBEAM hereunder, neither party hereto may assign this Agreement or any portion
thereof without the prior written consent of the other. Any assignment permitted
hereunder or otherwise agreed to by the other Party hereto will not relieve the
assigning Party of any obligations with respect to any covenant, condition, or
obligation required to be performed by the assigning Party under this Agreement.
14. PUBLIC ANNOUNCEMENT
-------------------
14.1 Each Party shall have the right to make public announcements and/or press
releases using the other Party's name provided they have obtained prior written
approval, which shall not be unreasonably withheld.
14.2 iBEAM may offer Member certain tradenames and/or logos for use on
Member's Internet web site. member may use these tradenames and/or logos only if
Member agrees to and abides by all usage requirements set forth within the
download area containing these tradenames and/or logos. Notwithstanding anything
to the contrary Member agrees to and abides by all usage requirements set froth
within the download area containing these tradenames and/or logos.
Notwithstanding anything to the contrary Member agrees to remove these
tradenames and/or logos, from any Member owned, operated or run in the name of,
equipment or storage device within twenty four (24) hours of receiving a request
by iBEAM to remove said tradenames and/or logos.
15. CONFIDENTIALITY
---------------
15.1 Each Party acknowledges that during the contractual relationship created
under the Agreement, situations may arise which require that they be given
access to Confidential Information (as defined more specifically in Article
15.2) owned by the other Party, its suppliers or customers.
15.2 The Receiving Party of the Confidential Information recognizes that the
disclosing Party has a proprietary interest in maintaining the confidentiality
of such Confidential Information. Receiving Party shall not, during the term of
this Agreement and for Three (3) years after the termination of this Agreement
disclose any Confidential Information of the Disclosing Party to any third party
or use any Confidential Information for its benefit or for the benefit of any
third party except as permitted herein, or to further the purposes of this
Agreement. Receiving Party shall take reasonable precautions to maintain the
confidentiality of all Confidential Information, and in no case lesser
precautions than Receiving Party takes with its own similar Confidential
Information. Upon termination of this Agreement for any reason, each Party
shall immediately return or destroy all Confidential Information of the other
Party in its possession or control.
15.3 Confidential Information shall mean all Information, whether in tangible
form or communicated orally, which is learned by the Receiving party in the
Course and performance of its obligations under this Agreement; (i) which is
labeled or stamped Confidential (or words to that effect); (ii) which is the
type that Receiving Party has been informed to be confidential; and (iii)
concerns the Disclosing Party's products, or contents thereof or services
(existing or potential), business affairs, pricing, suppliers, customers, and
distributors including without limitation, customer usage data, computer
hardware and software (in existence or under development), pending patent
applications, technical, sales and business reports, technical or research
notebooks, and information and data, whether owned by the Disclosing Party or a
third party, relating to the Disclosing Party's commercial activities. Excluded
from the foregoing definition is information which: (i) at the time of
disclosure, is, or, after disclosure, becomes generally known or available to
the public other than as a consequence of the Receiving Party breach of this
Agreement; (ii) was properly known or otherwise available to the Receiving Party
prior to the disclosure by the Disclosing Party; (iii) was disclosed by a third
party to the Receiving Party after the disclosure by the Disclosing Party if
such third party's disclosure neither violates any obligation of the third party
to the Disclosing Party nor is a consequence of the Receiving Party's breach of
this Agreement; (iv) the Disclosing Party authorizes a release.
15.4 The rights and obligations of the parties with respect to confidentiality
shall survive termination of this Agreement.
16. ACTS BY LAW
-----------
Neither Party shall be under any obligation to perform any service or
deliver any work should such service or delivery constitute a violation of any
applicable law.
17. GOVERNING LAW
-------------
This Agreement shall be governed by, and construed and enforced in
accordance with the laws of the state of California, without regards to its
choice of law provisions. The exclusive jurisdiction for any legal proceeding
regarding this Agreement shall be in the courts of the State of California and
the parties hereto expressly submit to the jurisdiction of said courts.
18. SEVERABILITY
------------
If any provision or provisions of this Agreement shall be held to be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining portions shall not in any way be affected or impaired thereby.
19. INTEGRATION
-----------
This Agreement supersedes and replaces any all prior agreements,
understandings or arrangements, whether oral or written, heretofore made between
the Parties and relating to the subject matter hereof and constitutes the entire
understanding of the parties with respect to the subject matter of this
Agreement. This Agreement may not be altered or amended except by an express
written agreement signed by both Parties hereto.
iBEAM Broadcasting Corporation Member
By:_____________________________ By: /s/ Reed Olson
-----------------------------------
Printed:________________________ Printed: Reed Olson
------------------------------
Title:__________________________ Title: COO
--------------------------------
Date:___________________________ Date: 8/23/99
---------------------------------
Exhibit A Membership Pricing and Special Conditions for Agreement
No.:______________________________
1. Pricing
Payment for all prices set forth hereunder shall be made in conformance with
Article 4 of the Agreement. Prices are as follows (sale representative choose
one (1) of the following):
1.1 ________X__________ $15,000.00 USD one time payment, $495.00 USD per
month, per MaxCaster, for the term of the Agreement.*
1.2_____________________ $995.00 USD per month, per MaxCaster, for the term
of the Agreement.
Prices and service subject to change during the term of this Agreement with
sixty (60) days notice. Upon any price or service change, Member has the right
to either accept said changes or terminate this Agreement as specified in
Article 6.3 of this Agreement.
2. Special Conditions
(sale representative choose one of the following. Should a special condition
exist, please check appropriate space and hand write the special condition in
the space provided)
____X____ _________ Special Condition
*Waive All Initiation Fees, 1 Year Waive of Membership Fee
iBEAM will waive the $15,000 initiation fee for the iBEAM service. In addition,
monthly membership dues are waive for first 12 months of service.
By:_____________________________ By: /s/ Reed Olson
-----------------------------------
Printed:________________________ Printed: Reed Olson
------------------------------
Title:__________________________ Title: COO
--------------------------------
Date:___________________________ Date: 8/23/99
---------------------------------
Exhibit B Statement of Work to Agreement No.______________________________
Party Responsibilities
1. iBEAM will be responsible for the following actions:
. A satellite pre-installation site survey of the facility by phone or at
iBEAM's option at customer site.
. The installation of the satellite dish utilizing a non-penetrating roof
mount on the roof of the facility or a designated area of the building.
. The running of coaxial cable to the data or rack room where the iBEAM
MaxCaster(TM) Indoor components will be racked.
. The racking and cabling of the server and switch components of the
MaxCaster.
. Registration and pointing of the satellite system.
. The activation of the system with the iBEAM Network operations monitoring
facility. This includes adding IP Addresses, Host ID names to the iBEAM
server and to Tier 1 NOC.
. Orientation of the customer technical staff to the equipment and to the
remote monitoring process.
2. The Member will be responsible for the following actions:
. Completion of the customer data network site survey. This information is
critical to the iBEAM Tier 1 NOC in the monitoring of the MaxCaster and
to the integration of the MaxCaster in the data network. The customer
will be required to provide IP Addresses, Host ID names, subject masks,
and gateway default as specified by iBEAM.
. Allow iBEAM NOC to monitor traffic to the switch & the server for the
following protocols, SNMP, FTP, Telnet, Ping, Traceroutes.
. Access to the data room for installation of the MaxCaster indoor
components and the roof structure for installation of the MaxCaster
satellite antenna. A smooth installation will be supported by on-time
access to the install areas.
. One "ACTIVE" twisted pair "analog" telephone line for termination to the
iBEAM MaxCaster internal modem card. This is to allow for "out of band"
monitoring and control of the iBEAM system.
. One port on each router/NAS in-line with the Layer 4 switch. The
MaxCaster layer 4 switch requires a connection to the bit path. Member is
responsible to pull data cables between router and MaxCaster.
. Access to 120 Volt AC from the Rack Power distribution harness for the
server and the switch.
. Adequate rack space for server and layer 4 switch. In addition, iBEAM
will need to know the type and model of racks used in the data room for
determining complementary shelves or rack guides for the server.
. Technical support and actual physical connection for the Layer 4 switch
into the bit stream and associated patching. The Member is responsible
for inserting the Layer 4 switch into the bit stream.
. Access to MaxCaster user logs for tracking purposes such as number of
users on the network.
. UPS support for 14-Volt Amp power requirement for a period of 60 minutes
to allow an orderly shutdown of the equipment.
. Keep area in which the MaxCaster is located at 80 or less degrees
Fahrenheit and 75% or less, non-condensing relative humidity.
. Alert iBEAM during power outage or any Member Network outage, whether
planned or otherwise, by telephone iBEAM at iBEAM specified numbers.
. Inform iBEAM whether the Member network is Multicast enabled at any time
during the contractual relationship.
iBEAM Broadcasting Corporation Member
By:_____________________________ By: /s/ Reed Olson
-------------------------------
Printed:________________________ Printed: Reed Olson
--------------------------
Title:__________________________ Title: COO
----------------------------
Date:___________________________ Date: 8/23/99
------------------------------