Exhibit No. 10.18
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
EXHIBIT 10.18
AKAMAI -- MICROSOFT NON-STANDARD SERVICES AGREEMENT
TERMS AND CONDITIONS
1. AKAMAI SERVICE RESPONSIBILITIES. During the Term (as defined in Section
8), Akamai agrees to provide the services ordered by Customer (the "Services")
as set forth on one or more order forms attached hereto Each order form shall
include and define Services, pricing, service level maintenance and requirements
and identify software (Services, pricing, service level maintenance and
requirements and software requirements shall hereinafter be collectively
referred to as "Order Form" or "Order Forms"). Akamai and Customer may enter
into subsequent Order Forms which may supersede or complement prior Order Forms.
The Order Forms, any schedules or exhibits thereto, and these Terms &
Conditions, and any addenda hereto, shall collectively constitute the
"Agreement" between the parties. Akamai shall provide, maintain and operate on a
twenty-four hour per day, seven days per week, 365 days per year basis, Akamai's
geographically distributed network of web servers (the "Akamai Network"), all
network software and peripherals, and all Internet connectivity, as necessary to
perform the Services in accordance with these Terms & Conditions. Akamai shall
staff its Network Operating Center ("NOC") twenty-four hours per day, seven days
per week, 365 days per year. Where applicable, Akamai shall deliver to Customer
one copy of the Software (as defined in Section 3), together with all user IDs
and passwords as necessary for Customer to access the Akamai Network and utilize
the Services in accordance with these Terms & Conditions. Akamai shall exercise
preventative network security measures and keep in place network security as
reasonably necessary to monitor and protect against unauthorized access to
Customer Content (as defined in Section 2) while on or within the Akamai
Network. Customer acknowledges, however, that the portion of the Akamai Network
through which Customer Content will pass and the web servers on which Customer
Content will be stored will not be segregated or in a separate physical location
from web servers on which Akamai's other customers' content is or will be
transmitted or stored. Akamai shall maintain sufficient capacity on the Akamai
Network during the Term as necessary to meet Customer's committed network usage
as set forth in the Order Forms. Akamai shall provide Customer with such
installation, support, training or other additional services as may be specified
in the Order Forms or as may be requested by Customer from time to time during
the Term and set forth in a separate addendum agreed to and executed by both
parties.
2. CUSTOMER RESPONSIBILITIES. Customer is and shall be solely responsible
for the creation, renewal, updating, deletion, editorial content, control and
all other aspects of any files, software, scripts, multimedia images, graphics,
audio, video, text, data or other objects, including any third party content or
materials, originating or transmitted from any web site owned or operated by
Customer, and routed to, passed through and/or stored on or within the Akamai
Network or otherwise transmitted or routed using the Services ("Customer
Content"). Customer owns all right, title, and interest in the Customer Content,
or possesses or shall possess all legally valid rights in the Customer Content
necessary for the uses of the Customer Content contemplated by these Terms &
Conditions. Customer will not knowlingly transmit or route to the Akamai Network
or otherwise direct via the Services any Customer Content that (a) infringes any
copyright, trade secret, or other intellectual property right, (b) contains
libelous, defamatory, or obscene material, or (c) otherwise violates any laws or
regulations relating to content or content distribution. Customer shall be
responsible for utilizing (i) the Software as provided in the Documentation
(described in Section 3), (ii) the static string(s) provided by Akamai, or (iii)
such other method agreed to by the parties to tag the uniform resource locator
("URL") of the Customer Content to route such Customer Content to the Akamai
Network (an Akamai tagged URL is hereinafter referred to as an "ARL"). In the
event Customer has actual knowledge that any Customer Content infringes the
intellectual property or other rights of a third party or violates any
applicable laws or regulations (including, without limitation, laws and
regulations relating to indecency or obscenity), Customer shall (a) remove such
Customer Content from Customer's origin server, (b) remove the URL/tag from such
Customer Content, or (c) remove the ARLs for such Customer Content from
Customer's web site(s) or cause such ARLs to be removed from any third party web
site so that it will not be routed to and not pass through the Akamai Network.
Customer shall be solely responsible for maintaining the availability of its web
site(s), the connectivity of its web site(s) to the Internet, and all Customer
Content, IP addresses, domain names, hyperlinks, databases, applications and
other resources as necessary for Customer to operate and maintain its web
site(s) to meet Customer's business purposes and objectives.
3. SOFTWARE; RESTRICTIONS. In connection with the provision of the
Services, Akamai will provide to Customer, as necessary, software identified in
the applicable Order Form (the "Software") and/or documentation pertaining to
the Services (the "Documentation"), or a combination thereof, as required by the
Customer to use the Services. Akamai possesses the necessary rights, title and
licenses in and to the Software and Documentation (each defined herein)
necessary to license the Software and perform the Services hereunder. Akamai
grants Customer a limited, nontransferable and nonexclusive license to use,
during the Term, the Software, in object code form only, together with the
Documentation subject to the following restrictions: (i) Customer shall use the
Software and/or the Documentation for Customer's internal purposes only, solely
for renaming the URL of Customer Content; (ii) Customer shall use the Software
for Customer's internal purposes only, solely in conjunction with analyzing the
flow of Customer Content that is delivered using the Services; (iii) Customer
acknowledges that the Software contains certain third party software elements,
including without limitation software relating to the mapping functions, and
Customer is prohibited from replicating or distributing such mapping images or
otherwise using the same other than for Customer's internal business purposes;
and (iv) Customer shall not, for itself, any affiliate of Customer or any third
party sell, license, assign, or transfer the Software or any Documentation;
decompile, disassemble, or reverse engineer the Software; copy the
AKAMAI NON-STANDARD SERVICES AGREEMENT WITH TERMS AND CONDITIONS BETWEEN
MICROSOFT CORPORATION AND AKAMAI TECHNOLOGIES, INC. (PAGE 1)
Software or any Documentation, except that Customer may make a reasonable number
of copies of the Software for backup purposes (provided Customer reproduces on
such copies all proprietary notices of Akamai or its suppliers); nor remove from
the Software or Documentation any language or designation indicating the
confidential nature thereof or the proprietary rights of Akamai or its
suppliers. In addition, Customer shall not alter or duplicate any aspect of the
Software or Documentation, except as expressly permitted under these Terms &
Conditions; assign, transfer, distribute, or otherwise provide access to the
Software or Services to any third party; use the Software with or for the
benefit of any third party content; or export, re-export or permit any third
party to export or re-export the Software or Documentation where such export or
re-export is prohibited by U.S. or other applicable law without appropriate
licenses and clearances.
4. INTELLECTUAL PROPERTY RIGHTS. As between Customer and Akamai, Customer
shall own all right, title and interest in and to any Customer Content. During
the Term, Customer grants to Akamai a limited, non-exclusive, royalty-free
license to transmit the Customer Content over the Akamai Network as contemplated
by these Terms & Conditions and for Akamai to perform the Services as
contemplated hereunder. These Terms & Conditions do not transfer or convey to
Akamai or any third party any right, title or interest in or to the Customer
Content or any associated intellectual property rights, but only a limited right
of use revocable in accordance with the terms of these Terms & Conditions. As
between Customer and Akamai, Akamai shall own all right, title and interest in
and to the Software, Services and Documentation. These Terms & Conditions do not
transfer or convey to Customer or any third party any right, title or interest
in or to the Software, Documentation or Services or any associated intellectual
property rights, but only a limited right of use revocable in accordance with
these Terms & Conditions.
5. PUBLICITY; TRADEMARKS. Neither party shall issue press releases or
publicity that relates to this Agreement without the express written consent of
the other party. Akamai shall not use the name "Microsoft" or "Microsoft
Corporation" in any brochures, advertisements or sales presentations without the
express written consent of the Customer. Neither party may display or refer to
the other party's proprietary indicia, trademarks, service marks, trade names,
logos, symbols and/or brand names (collectively "Marks") or remove, destroy or
alter the other party's Marks. Each party agrees that it shall not challenge or
assist others to challenge the rights of the other party or its suppliers or
licensors in the Marks or the registration of the Marks, or attempt to register
any trademarks, trade names or other proprietary indicia confusingly similar to
the Marks.
6. FEES; PRICING AND PAYMENT TERMS; TAXES. Akamai's current fees for the
Services (including license fees, installation charges, service usage fees and
other fees) are set forth in the attached Order Forms. Akamai reserves the right
to amend the fees payable for the Services provided under such Order Form(s) at
any time after the Initial Term, as set forth in each Order Form, upon sixty
(60) days prior written notice to Customer; provided that if Akamai increases
the fees, Customer shall be entitled to terminate this Agreement upon thirty
(30) days prior written notice to Akamai. All prices are in United States
dollars and do not include sales, use, value-added or import taxes, customs
duties or similar taxes that may be assessed by any jurisdiction. Amounts due
hereunder are payable upon receipt of invoice. Customer agrees to pay a late
charge of 1.5% per month or the maximum lawful rate, whichever is less, for all
amounts not paid within forty-five (45) days of receipt of invoice. Any sales or
use taxes, duties, fees or governmental charges that (i) are owed by Customer
solely as a result of entering into this Agreement and the payment of the fees
hereunder, (ii) are required to be collected from Customer by Akamai under
applicable law, and (iii) are based solely upon the amounts payable under this
Agreement (such taxes the "Collected Taxes"), shall be stated separately as
applicable on Akamai's invoices, if such information is available at time of
invoicing, and/or any notice or bill thereof received by Akamai shall be
forwarded to Customer within sixty (60) days of receipt of such notice or bill
by Akamai. The payment for such Collected Taxes shall be remitted by Customer to
Akamai, whereupon, and as required, Akamai shall remit to Customer official tax
receipts indicating that such Collected Taxes have been collected by Akamai.
Customer agrees to pay reasonable attorneys' fees and court costs incurred by
Akamai to collect any unpaid amounts owed by Customer.
7. CONFIDENTIAL INFORMATION. The mutual Microsoft Non-Disclosure
Agreement, dated as of April 13, 1999 (the "NDA"), entered into by and between
the parties, applies to this Agreement as if fully set forth herein and that all
of the terms of this Agreement (including but not limited to its existence), and
all discussions and negotiations related thereto are considered confidential
information under the NDA. A copy of said NDA is attached hereto as Exhibit "A".
In addition to the confidentiality obligations of the NDA, each party agrees to
discuss with the other party any security problems identified by the other party
and to cooperate with the other party to prevent the disclosure of the
confidential information to unauthorized third parties.
8. TERM AND TERMINATION.
8.1 These Terms & Conditions shall become effective with respect
to each Order Form as of the Effective Date specified in each Order Form and
shall remain in full force and effect for the Initial Term as specified in such
Order Form(s). With respect to each Order Form, if the specified Initial Term is
one (1) year or greater, then, upon expiration of the Initial Term, these Terms
& Conditions, and any addenda hereto, with respect to the specified Services, in
such Order Form(s) shall be renewable for additional one (1) year periods (each,
a "Renewal Term"), provided each party delivers written notice to the other of
renewal at least thirty (30) days prior to the expiration of the applicable term
of the Services set forth in the specified Order Form(s). If (i) the parties do
not renew the Initial Term or Renewal Term, as applicable, in accordance with
the foregoing sentence and (ii) neither party delivers a written notice of
termination to the other party, the Agreement shall continue on a month-to-month
basis and may be terminated by either party by delivery of a written notice of
termination to the other party at least ten (10) days prior to the first day of
the following month.
8.2 Each Order Form shall specify an Effective Date and Initial
Term and shall be governed by these Terms & Conditions.With respect to each
Order Form, the Initial Term, together with any and all Renewal Terms, is
sometimes collectively referred to as the "Term." Either party may terminate
this Agreement in the event that the other party materially defaults in
performing any obligation under these Terms & Conditions and such default
continues unremedied for a period of thirty (30) days following written notice
of default, except that either party may immediately terminate this Agreement if
either party has breached this Agreement by violating Sections 7 and/or 11
hereof. This Agreement shall terminate, effective upon delivery of written
notice by either party to the other party: (i) upon the institution of
insolvency, receivership or bankruptcy proceedings or any other proceedings for
the settlement of debts of the other party;
AKAMAI NON-STANDARD SERVICES AGREEMENT WITH TERMS AND CONDITIONS BETWEEN
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(ii) upon the making of an assignment for the benefit of creditors by the other
party; (iii) upon the dissolution of the other party; or (iv) any material
breach of this Agreement if such breach, because of the nature of the breach,
cannot be cured. Either party may terminate the FreeFlowSM Services set forth in
the specific Order Form(s) at any time upon thirty (30) days prior written
notice to the other party during the Term set forth in such Order Form(s);
provided that if Customer terminates such Services during such period, Customer
agrees to pay Akamai all undisputed unpaid fees accrued as of the termination
date, including without limitation, any installation, set-up and training fees.
Except for FreeFlowSM Services and Services relating to a Live Event, either
party may terminate the Services set forth in the specific Order Form(s) during
the first sixty (60) days of the Initial Term set forth in such Order Form(s)
without liability upon written notice to the other party; provided that if
Customer terminates such Services during such period, Customer agrees to pay
Akamai all undisputed unpaid fees accrued as of the termination date, including
without limitation, any installation, set-up and training fees. Except for
FreeFlowSM Services and Services relating to a Live Event, Customer may cancel
the Service set forth in the specific Order Form(s) at any time after the first
sixty (60) days of the Initial Term as set forth in such Order Form(s) for
convenience upon written notice to Akamai, in which case Customer agrees to pay
to Akamai all undisputed unpaid Service fees as set forth in the specific Order
Form(s) accrued as of such cancellation date; plus (b) an early cancellation fee
equal to the minimum usage fees (as set forth in such Order Form(s)) that will
become due during the canceled portion of such Initial Term or Renewal Term, as
applicable. Except for Services relating to a Live Event, Customer may cancel
the Services set forth in the specific Order Form(s) at any time after any
respective Renewal Term for convenience upon written notice to Akamai, in which
case Customer agrees to pay to Akamai: (a) all undisputed unpaid Service fees as
set forth in the specific Order Form(s) accrued as of such cancellation date;
plus (b) an early cancellation fee equal to the minimum usage fees (as set forth
in such Order Form(s)) that will become due during the canceled portion of such
Renewal Term. The provisions of Sections 2 (with respect to Customer's
responsibility for Customer Content), 3, 6, 7, 8, 9, 10, 11, 12 and 13 (with
respect to third party beneficiaries, entire agreement and waiver, severability,
non-disclosure, construction, remedies and binding effect of the Agreement)
shall survive termination of this Agreement. All other rights and obligations of
the parties and/or any license granted hereunder shall cease upon expiration or
termination of this Agreement and/or the Services set forth in any Order Form.
9. DISPUTE RESOLUTION. In the case of any disputes under this Agreement,
the parties shall first attempt in good faith to resolve their dispute
informally, or by means of commercial mediation, without the necessity of a
formal proceeding.
10. REPRESENTATIONS AND WARRANTIES.
10.1 AKAMAI'S REPRESENTATIONS AND WARRANTIES. Akamai represents
and warrants to Customer as follows:
10.1.1 Services. The Services provided will be provided in a
workmanlike manner, consistent with industry standards. At all times while
performing the Services, Akamai's employees and/or agents shall conduct
themselves in a professional workman-like manner and in accordance with Akamai's
policies and procedures. Akamai will be responsible for the acts and omissions
of Akamai's employees and/or agents.
10.1.2 Y2K Compliant. The Software accurately manipulates,
processes, compares, displays and calculates date or time data from, into the
twenty-first century, including leap years; and such Software shall not be
interrupted or adversely affected by the manipulation, processing, comparison,
display or calculation of dates from, into the twenty-first century, including
leap years; but only if the Software is used in accordance with all accompanying
Documentation and Specifications, and provided that all hardware and software
products not provided by Akamai that are used in combination with the Software
properly exchange date data with them. Additionally, Akamai agrees to work with
Customer and provide all reasonably necessary information in a prompt manner
should Customer have any inquires regarding the Year 2000 readiness of Akamai or
any of the information or technology that is the subject of this Section.
10.2 INSURANCE. Akamai agrees to fully comply with the insurance
and risk allocation provisions as follows:
10.2.1 General. Prior to the commencement of this Agreement,
and throughout the entire Term of this Agreement, Akamai shall procure and
maintain insurance which shall comply with the following minimum requirements.
10.2.2 Commercial General Liability. Akamai shall obtain and
maintain a commercial general liability insurance policy with reputable insurers
with policy limits of not less than $1,000,000 each occurrence for bodily injury
and $1,000,000 each occurrence for damage to property. The policy shall be the
"occurrence" form and shall include coverage for premises and operations,
contractual liability (including insurable contractual liability assumed in this
Agreement), broad form property damage, and products and completed operations.
10.2.3 Intellectual Property Liability Insurance. Vendor
shall maintain policy limits of not less than $[**] each claim. Such insurance
shall include coverage for infringement of proprietary rights of any third
party, including without limitation copyright, trade secret and trademark
infringement as related to Vendor's performance under this Agreement. Throughout
the Term of this Agreement, the Intellectual Property Liability insurance's
retroactive coverage date will be no later than the Effective Date of this
Agreement. Upon expiration or termination of this Agreement, Vendor will either
maintain an active policy, or purchase an extended reporting period, providing
coverage for claims first made and reported to the insurance company within [**]
years after the end of the agreement.
10.2.4 General Requirements Applicable to Above Coverages.
The following general requirements shall be applicable to all coverages
referenced anywhere in this Section: (1) the above-referenced insurance policies
shall be primary; 2) all deductibles and premiums associated with the above
coverages shall be the responsibility of Akamai; and (3) the above referenced
insurance limits shall not in any way limit the liability of Akamai or the
liability of any Akamai subcontractor during their performance under this
Agreement, 4) Microsoft and Akamai shall evaluate the coverage requirements on
an annual basis. If, in the opinion of Microsoft, the amount of liability
coverage is with not adequate, or is not needed, by reason of experience or the
nature and content of Akamai's activities, Akamai shall adjust the insurance
coverage as reasonably required by Microsoft.
AKAMAI NON-STANDARD SERVICES AGREEMENT WITH TERMS AND CONDITIONS BETWEEN
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10.2.5 Certificates of Insurance. At Customer's request,
Akamai shall provide to Customer certificates of insurance evidencing
appropriate insurance coverage. Such certificates shall be kept current
throughout the entire period of the Agreement. Failure by Akamai to furnish
certificates of insurance or failure by Customer to request same shall not
constitute a waiver by Customer of the insurance requirements set forth herein.
10.2.6 Order of Precedence. If any of the provisions within
this Agreement are inconsistent with the provisions set forth in the previous
Insurance section, then the provisions set forth in the Insurance section shall
take precedence.
10.3 MUTUAL REPRESENTATIONS AND WARRANTIES. Each party represents
and warrants to the other party as follows:
(a) It has full and exclusive right and power to perform according
to the terms of this Agreement and that such performance will not materially
violate any other agreement.
(b) It shall materially comply with all applicable laws,
regulations, and ordinances relating to its performance hereunder.
11. INDEMNIFICATION. Akamai shall defend, indemnify and hold harmless
Customer from and against any suit, proceeding, assertion, damages, cost,
liability, and expenses (including court costs and reasonable attorneys' fees)
incurred as a result of claims by a third party against Customer and its
affiliates, licensors, suppliers, officers, directors, employees and agents
arising from or connected with a claim that [**]. If a claim of infringement
under this Section 11 occurs, or if Akamai determines that a claim is likely to
occur, Akamai shall have the right, in its sole discretion, to either: (i)
procure for Customer the right or license to continue to use the [**] free of
the infringement claim; or (ii) replace or modify [**] to make it non-infringing
provided that the replacement [**] substantially conforms to Akamai's
then-current specification for the [**]. If these remedies are not reasonably
available to Akamai, may, at its option, terminate this Agreement and return any
fees paid by Customer in advance. Despite the provisions of this Section 10,
Akamai has no obligation with respect to any claim of infringement that is based
upon or arises out of: (i) any modification to the [**] if the modification was
not made by Akamai; or (ii) the use or combination of the [**] with any
hardware, software, products, data or other materials not specified or provided
by Akamai; or (iii) Customer's use of the [**] other than in accordance with the
Documentation or Akamai's written directions or policies.
Customer acknowledges that by entering into and performing its obligations under
these Terms & Conditions, Akamai does not assume and should not be exposed to
the business and operational risks associated with Customer's business, or any
aspects of the operation or contents of Customer's web site(s). Accordingly,
Customer shall defend, indemnify, and hold harmless Akamai from and against any
suit, proceeding, assertion damages, cost, liability, and expenses (including
court costs and reasonable attorneys' fees) incurred as a result of claims of
customers or other third party claim against Akamai and its affiliates,
licensors, suppliers, officers, directors, employees and agents arising from or
connected with any Customer Content or Customer's web site(s) (including without
limitation any activities or aspects thereof or commerce conducted thereon),
Customer's misuse of the Services, unauthorized modification of the Software, or
unauthorized combination of the Software with any hardware, software, products,
data or other materials not specified or provided by Akamai.
Each party (the "Indemnifying Party") agrees to defend, hold harmless,
and indemnify the other party and/or it's the other party's subsidiaries,
affiliates, directors, officers, employees, agents, and assigns (the
"Indemnified Party"), from and against any and all claims, damages, losses,
suits, actions, demands, proceedings, expenses, and/or liabilities of any kind,
(including but not limited to reasonable attorneys' fees incurred and/or those
necessary to successfully establish the right to indemnification) threatened,
asserted or filed against the Indemnified Party, to the extent that such claims
arise out of or relate to (i) bodily injury or death to any person (and
including specifically bodily injury or death to any employee of the Indemnified
Party and/or any of the Indemnified Party's employees, subcontractor or agent);
(ii) loss, theft, disappearance, or damage to property of any person which
arises out of or is in any way connected with the Services to be performed
and/or products provided under this Agreement; and/or (iii) the negligence or
willful misconduct of the Indemnifying Party or the Indemnifying Party's
employees, subcontractor or agent, which arises out of the performance by the
Indemnifying Party of or is connected with the Services to be performed under
this Agreement, except to the comparative extent that such claims result from
the negligent or willful acts of the Indemnified Party.
The indemnified party shall (i) promptly notify the indemnifying party in
writing of any claim, suit or proceeding for which indemnity is claimed,
provided that failure to so notify will not remove the indemnifying party's
obligation except to the extent it is prejudiced thereby, and (ii) have the
right, at its own expense, to employ separate counsel and participate in the
defense thereof. In no event may either party enter into any third-party
agreements which would in any manner whatsoever affect the rights of, or bind
the other party in any manner to such third party, without the prior written
consent of the other party.
EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, EACH PARTY EXPRESSLY
DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO THE FULLEST EXTENT
PERMITTED BY LAW, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
12. LIMITATION OF LIABILITY AND DAMAGES.
EXCEPT FOR EACH PARTY'S LIABILITY ARISING OUT OF VIOLATIONS OF SECTIONS 7 AND 11
HEREOF, LIABILITY FOR ALL CLAIMS ARISING OUT OF THESE TERMS & CONDITIONS,
WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT OF FEES PAID
BY CUSTOMER TO AKAMAI UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS
PRECEDING THE CLAIM.
EXCEPT FOR VIOLATIONS OF SECTIONS 7 AND 11 HEREOF, IN NO EVENT SHALL EITHER
PARTY BE LIABLE TO THE OTHER FOR ANY LOSS OF DATA, LOSS OF BUSINESS PROFITS,
BUSINESS INTERRUPTION, OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR
INDIRECT DAMAGES ARISING FROM OR IN RELATION TO THESE TERMS & CONDITIONS OR THE
USE OF THE SERVICES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY. THIS
LIMITATION WILL APPLY EVEN IF SUCH PARTY
AKAMAI NON-STANDARD SERVICES AGREEMENT WITH TERMS AND CONDITIONS BETWEEN
MICROSOFT CORPORATION AND AKAMAI TECHNOLOGIES, INC. (PAGE 4)
HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
THIS SECTION 12 DOES NOT LIMIT EITHER PARTY'S RIGHT TO ENFORCE ANY OTHER
PROVISION OF THIS AGREEMENT.
13. MISCELLANEOUS. Any notice required or permitted hereunder shall be in
writing and shall be delivered to the contact person listed on the Order Forms
as follows (with notice deemed given as indicated): (i) by personal delivery
when delivered personally; (ii) by established overnight courier upon written
verification of receipt; (iii) by facsimile transmission when receipt is
confirmed orally; or (iv) by certified or registered mail, return receipt
requested, upon verification of receipt. Either party may change its contact
person for notices and/or address for notice by means of notice to the other
party given in accordance with this Section 13. Neither party may, without the
prior written consent of the other party, which such consent shall not be
unreasonably withheld, assign this Agreement, in whole or in part, and any
attempt to do so shall be a material default of this Agreement and shall be
void. Notwithstanding the foregoing, either party may assign its rights and
obligations under this Agreement to an affiliate or to any person or entity in
connection with a merger, spin-off, divestiture, reorganization or sale of
substantially all or all of the business, or part of the business; provided,
that if either party makes such an assignment, such party shall provide
reasonable notice to the other party of such assignment. Upon such notice of
assignment by a party, the other party may terminate this Agreement if it is
reasonably determined that the assignee's business or content materially: (i)
interferes with or is detrimental to the other party's interests, reputation or
business, (ii) subjects the other party to unfavorable regulatory action, (iii)
infringes the intellectual property or other rights of a third party, (iv)
contains any libelous, defamatory, or obscene material, (v) otherwise violates
any laws or regulations relating to content or content distribution, or (vi)
otherwise subjects the other party to liability for any reason. Except as
otherwise provided by the foregoing, any attempt by either party to assign this
Agreement in violation of this Section shall be a material default of this
Agreement and the Agreement shall be void. This Agreement shall be interpreted
according to the laws of the State of New York without regard to or application
of choice-of-law rules or principles. This Agreement and any addenda hereto
shall constitute the entire agreement between Akamai and Customer with respect
to the subject matter hereof and all prior agreements, representations, and
statements with respect to such subject matter are superceded hereby, including
without limitation any non disclosure agreement previously executed between the
parties. These Terms & Conditions shall control in the event of any
inconsistency with the terms of the Order Forms or other schedules or exhibits
attached hereto. These Terms & Conditions may be changed only by written
agreement signed by both Akamai and Customer. No failure of either party to
exercise or enforce any of its rights under these Terms & Conditions shall act
as a waiver of subsequent breaches; and the waiver of any breach shall not act
as a waiver of subsequent breaches. In the event any provision of these Terms &
Conditions is held by a court or other tribunal of competent jurisdiction to be
unenforceable, that provision will be enforced to the maximum extent permissible
under applicable law, and the other provisions of these Terms & Conditions will
remain in full force and effect. The parties further agree that in the event
such provision is an essential part of these Terms & Conditions, they will begin
negotiations for a replacement provision. If either party is prevented from
performing any of its obligations under this Agreement due to any cause beyond
the party's reasonable control, including, without limitation, an act of God,
fire, flood, explosion, war, strike, embargo, government regulation, civil or
military authority, acts or omissions of carriers, transmitters, providers, or
acts of vandals, or hackers (a "force majeure event") the time for that party's
performance will be extended for the period of the delay or inability to perform
due to such occurrence; provided, however, that Customer will not be excused
from the payment of any sums of money owed by Customer to Akamai for Services
provided prior to the force majeure event; and provided further, however, that
if a party suffering a force majeure event is unable to cure that event within
thirty (30) days, the other party may terminate this Agreement. Neither these
Terms & Conditions nor the Order Forms (and other schedules and exhibits
thereto) may be construed as creating or constituting a partnership, joint
venture, or agency relationship between the parties. Neither party will have the
power to bind the other or incur obligations on the other's behalf without the
other's prior written consent. These Terms & Conditions shall be construed and
interpreted fairly, in accordance with the plain meaning of its terms, and there
shall be no presumption or inference against the party drafting this Agreement
in construing or interpreting the provisions hereof. Except as provided herein,
the rights and remedies of the parties set forth in this Agreement are not
exclusive and are in addition to any other rights and remedies available to it
at law or in equity. These Terms & Conditions shall be binding upon and shall
inure to the benefit of the respective parties hereto, their respective
successors in interest, legal representatives, heirs and assigns. Each party
shall comply with all applicable laws, regulations, and ordinances relating to
their performance hereunder.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
AKAMAI NON-STANDARD SERVICES AGREEMENT WITH TERMS AND CONDITIONS BETWEEN
MICROSOFT CORPORATION AND AKAMAI TECHNOLOGIES, INC. (PAGE 5)
[AKAMAI LOGO]
AKAMAI FREEFLOW(SM) SERVICES ORDER FORM
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
Effective Date written below.
MICROSOFT CORPORATION ("CUSTOMER") AKAMAI TECHNOLOGIES, INC.
By /s/ Arne Josefberg By /s/ Don Hatfield
------------------ Name Don Hatfield
Name Arne Josefberg Title Director
Title General Manager Signature Date June 27, 2002
Signature Date: June 27, 2000
Akamai Technologies, Inc. - Confidential
-6-
[AKAMAI LOGO]
AKAMAI FREEFLOW(SM) SERVICES ORDER FORM
ADDENDUM
This Addendum, dated as of November 1, 2001 (the "Addendum"), amends
and supersedes certain of the provisions of the Akamai Microsoft Non-Standard
Services Agreement Terms & Conditions (the "Terms & Conditions") and Akamai
FreeFlow Services Order Form (the "Order Form") entered into by and between
Akamai Technologies, Inc. and Microsoft, Inc., dated as of June 29, 2000, to
which this Addendum is attached. This Addendum takes the place of and supersedes
those portions of any article or sections of the Terms & Conditions or Order
Form that deal with the subject matter as provided for in this Addendum and if
the provisions of this Addendum and the Terms and Conditions or Order Form
conflict, then the provisions of this Addendum shall control. Unless otherwise
defined herein, all capitalized terms used herein shall have the meanings
assigned to such terms in the Terms & Conditions or Order Form.
NOW, THEREFORE, in consideration of the following as set forth in this Addendum,
the parties agree as follows:
1. The chart entitled "Committed Inf $/mbps" set forth in Schedule B-1
of the Order Form is hereby amended as follows:
Total [**] FreeFlow Usage* + Domestic Traffic** International Traffic**
- ----------------------------- ------------------ -----------------------
up to [**] Mbps $[**]/Mbps $[**]/Mbps
[**] Mbps $[**]/Mbps $[**]/Mbps
[**] Mbps $[**]/Mbps $[**]/Mbps
[**] Mbps $[**]/Mbps $[**]/Mbps
[**] - above Mbps $[**]/Mbps $[**]/Mbps
FreeFlow Services may be used by Microsoft and Microsoft Affiliates (as defined
below) whose origin server is located in the territories set forth on Exhibit C
(as may be amended from time to time) provided Akamai and Microsoft accept the
order by executing a separate Order Form for FreeFlow Service which identifies
the Microsoft Affiliate. Akamai hereby grants any such Microsoft Affiliate the
right to use the FreeFlow Services and associated Software in accordance with
the Agreement (including the licensing restrictions and confidentiality
provisions thereof); provided that, so long as Microsoft and Akamai have
accepted the order with respect to a given Microsoft Affiliate as provided for
above, all other rights and obligations under the Agreement shall remain with
Microsoft and Microsoft shall be fully responsible for any breach of the
Agreement by its Affiliates. With respect to any order relating to a given
Microsoft Affiliate Microsoft and Akamai have accepted under the terms hereof,
Akamai shall bill Microsoft and Microsoft shall pay for the FreeFlow Services
used by Microsoft and any such Microsoft Affiliates. Support will be provided
directly to Microsoft for FreeFlow Services used by Microsoft and Microsoft
Affiliates. The parties have waived the requirement to execute a separate Order
Form in order to accept the order with respect to msnbc.com, a Microsoft
Affiliate, and msnbc.com may use the FreeFlow Services in accordance with the
terms of the Agreement.
For purposes of this Agreement, "Affiliate" shall mean any entity now or
hereafter directly or indirectly controlling or controlled by or in common
control with a party, where "control" is defined as the ownership of at least
50% of the equity or beneficial interest of such entity or the right to vote for
or appoint a majority of the board of directors or other governing body of such
entity, and any other entity with respect to which party (i) sold a majority
interest and retained at least 10% ownership of the equity or beneficial
interest of such entity and (ii) has management or operational responsibility
(including the authority to act on behalf of and legally bind such entity)
(collectively "Management or Operational Responsibility") provided that such
entity shall be deemed to be an Affiliate only so long as such "control" exists
or party has Management or Operational Responsibility for such entity. For the
avoidance of doubt, this Agreement shall not apply to any affiliates of
Microsoft Affiliates.
Akamai Technologies, Inc. - Confidential
-7-
[AKAMAI LOGO]
AKAMAI FREEFLOW(SM) SERVICES ORDER FORM
Akamai subsidiaries or affiliates may provide all of the duties and/or
obligations provided hereunder as determined by Akamai in its sole and
reasonable discretion but Akamai shall retain responsibility for the work
performed by such subsidiaries or affiliates. In the course of conducting its
business, Akamai collects and processes certain information about its customers,
business partners, prospects, suppliers and other business contacts. This
information might include the name, business address, telephone number, e-mail
address, and other business-related information about an employee of one of
these entities. As a global company, Akamai's business processes extend to more
than one country and may result in worldwide processing and use of such data
internally, and in appropriate circumstances, with Akamai's business partners
and subcontractors. Microsoft acknowledges and agrees that Akamai may use and
share such information within its enterprise and with Akamai business partners
and subcontractors solely to provide products and services to Microsoft.
Microsoft agrees to cooperate with Akamai to fulfill the legal requirements
necessary, if any, to make such disclosures, use, and transfer of such
information lawful.
+ Based on 95th Percentile Method. Does not include [**] is billed
separately as set forth below.
** Microsoft's 95th Percentile usage level will be divided [**] for each
measured sample according to [**]
IN WITNESS WHEREOF, and intending to be legally bound hereby, the
parties hereto have caused this Amendment to be duly executed and
delivered by their respective duly authorized officers as an instrument
under seal as of the date and year first above written.
Agreed and Accepted: Agreed and Accepted:
AKAMAI TECHNOLOGIES, INC. MICROSOFT, INC.
By: /s/Michael Brent By: Greg Furman
Name: Michael Brent Name Greg Furman
Title: Regional Sales Manager Title: Director - Partner Mgmt
Date: March 18, 2002 Date: March 29, 2002
Akamai Technologies, Inc. - Confidential
-8-
[AKAMAI LOGO]
AKAMAI FREEFLOW(SM) SERVICES ORDER FORM
Exhibit C
[**]
Akamai Technologies, Inc. - Confidential
-9-
[AKAMAI LOGO]
AKAMAI FREEFLOW(SM) SERVICES ORDER FORM
ADDENDUM
This Addendum, dated as of December 1, 2002 (the "Addendum"), amends
and supersedes certain of the provisions of the Akamai Microsoft Non-Standard
Services Agreement Terms & Conditions (the "Terms & Conditions") and Akamai
FreeFlow Services Order Form (the "Order Form") entered into by and between
Akamai Technologies, Inc. and Microsoft, Inc., dated as of June 29, 2000, as
previously amended by the Addendum between the parties dated as of November 1,
2001. This Addendum takes the place of and supersedes those portions of any
article or sections of the Terms & Conditions or Order Form that deal with the
subject matter as provided for in this Addendum and if the provisions of this
Addendum and the Terms and Conditions or Order Form conflict, then the
provisions of this Addendum shall control. Unless otherwise defined herein, all
capitalized terms used herein shall have the meanings assigned to such terms in
the Terms & Conditions or Order Form.
NOW, THEREFORE, in consideration of the following as set forth in this Addendum,
the parties agree as follows:
2. The chart entitled "Committed Inf $/mbps" set forth in Schedule B-1
of the Order Form is hereby amended as follows:
[**] [**] [**]
TOTAL TRAFFIC TOTAL TRAFFIC TRAFFIC
MONTHLY RATE MONTHLY RATE RATE
[**]TRAFFIC (PER [**] TRAFFIC (PER (PER
(MBPS) MBPS) (MBPS) MBPS) MBPS)
- -------------------- ------------------------------
[**] $[**] [**] [**] $[**] $[**]
- -------------------- ------------------------------
[**] $[**] [**] [**] $[**] $[**]
- -------------------- ------------------------------
[**] $[**] [**] [**] $[**] $[**]
- -------------------- ------------------------------
[**] $[**] [**] [**] $[**] $[**]
- -------------------- ------------------------------
[**] $[**] [**] [**] $[**] $[**]
- -------------------- ------------------------------
[**] $[**]
- --------------------
* Measurements are based on 95th Percentile Method. When a volume tier
is obtained, all traffic for that month is priced at that rate.
** Does not include [**] is billed separately as set forth below, and
[**] pricing will remain unchanged at $[**] or $[**] per region with a
peak load of [**] per region.
*** [**] traffic will be charged at [**] rates.
**** For purposes of determining the applicable volume tier from the
above tables, Microsoft's 95th Percentile usage level will be [**] for
each measured sample according to [**]. For invoicing purposes [**]
will then be further divided, measured on 95th percentile usage, [**].
***** FreeFlow Services may be used by Microsoft and Microsoft
Affiliates (as defined below) whose origin server is located in the
territories set forth on Exhibit C (as may be amended from time to
time) provided Akamai and Microsoft accept the order by executing a
separate Order Form for FreeFlow Service which identifies the Microsoft
Affiliate. Akamai hereby grants any such Microsoft Affiliate the right
to use the FreeFlow Services and associated Software in accordance with
the Agreement (including the licensing restrictions and confidentiality
provisions thereof); provided that, so long as Microsoft and Akamai
have accepted the order with respect to a given Microsoft Affiliate as
provided for above, all other rights and obligations under the
Agreement shall remain with Microsoft and Microsoft shall be fully
responsible for
Akamai Technologies, Inc. - Confidential
-10-
[AKAMAI LOGO]
AKAMAI FREEFLOW(SM) SERVICES ORDER FORM
any breach of the Agreement by its Affiliates. With respect to any
order relating to a given Microsoft Affiliate Microsoft and Akamai have
accepted under the terms hereof, Akamai shall bill Microsoft and
Microsoft shall pay for the FreeFlow Services used by Microsoft and any
such Microsoft Affiliates. Support will be provided directly to
Microsoft for FreeFlow Services used by Microsoft and Microsoft
Affiliates. The parties have waived the requirement to execute a
separate Order Form in order to accept the order with respect to
msnbc.com, a Microsoft Affiliate, and msnbc.com may use the FreeFlow
Services in accordance with the terms of the Agreement.
For purposes of this Agreement, "Affiliate" shall mean any entity now
or hereafter directly or indirectly controlling or controlled by or in common
control with a party, where "control" is defined as the ownership of at least
50% of the equity or beneficial interest of such entity or the right to vote for
or appoint a majority of the board of directors or other governing body of such
entity, and any other entity with respect to which party (i) sold a majority
interest and retained at least 10% ownership of the equity or beneficial
interest of such entity and (ii) has management or operational responsibility
(including the authority to act on behalf of and legally bind such entity)
(collectively "Management or Operational Responsibility") provided that such
entity shall be deemed to be an Affiliate only so long as such "control" exists
or party has Management or Operational Responsibility for such entity. For the
avoidance of doubt, this Agreement shall not apply to any affiliates of
Microsoft Affiliates.
Akamai subsidiaries or affiliates may provide all of the duties and/or
obligations provided hereunder as determined by Akamai in its sole and
reasonable discretion but Akamai shall retain responsibility for the
work performed by such subsidiaries or affiliates. In the course of
conducting its business, Akamai collects and processes certain
information about its customers, business partners, prospects,
suppliers and other business contacts. This information might include
the name, business address, telephone number, e-mail address, and other
business-related information about an employee of one of these
entities. As a global company, Akamai's business processes extend to
more than one country and may result in worldwide processing and use of
such data internally, and in appropriate circumstances, with Akamai's
business partners and subcontractors. Microsoft acknowledges and agrees
that Akamai may use and share such information within its enterprise
and with Akamai business partners and subcontractors solely to provide
products and services to Microsoft. Microsoft agrees to cooperate with
Akamai to fulfill the legal requirements necessary, if any, to make
such disclosures, use, and transfer of such information lawful.
2. For purposes of clarification, the parties acknowledge that, in
accordance with Section 8.1 of the Terms and Conditions, the Order Form
and the FreeFlow Services provided thereunder are being provided on a
month-to-month basis and are subject to termination by either party by
delivery of a written notice of termination to the other party at least
ten (10) days prior to the first day of the following month.
3. In consideration of the pricing being extended by Akamai in this
Addendum, Microsoft agrees to have all of its international downloads
for its download.microsoft.com website delivered using Akamai's
FreeFlow Service.
Akamai Technologies, Inc. - Confidential
-11-
[AKAMAI LOGO]
AKAMAI FREEFLOW(SM) SERVICES ORDER FORM
IN WITNESS WHEREOF, and intending to be legally bound hereby, the
parties hereto have caused this Amendment to be duly executed and
delivered by their respective duly authorized officers as an instrument
under seal as of the date and year first above written.
Agreed and Accepted: Agreed and Accepted:
AKAMAI TECHNOLOGIES, INC. MICROSOFT, INC.
By: /s/ Robert Ball By: /s/ Greg Furman
Name: Robert Ball Name: Greg Furman
Title: VP - Business Development Title: Director - Partner Mgmt.
Date: December 16, 2002 Date: December 11, 2002
Akamai Technologies, Inc. - Confidential
-12-
[AKAMAI LOGO]
AKAMAI FREEFLOW(SM) SERVICES ORDER FORM
Exhibit C
[**]
Akamai Technologies, Inc. - Confidential
-13-
----------- ----------- ----------- -----------
EFFECTIVE DATE: 6-29-00 BILLING DATE: 7-13-00 INITIAL TERM: 12 months CONTRACT
7-13-00 to REF. NO.:
7-13-01
----------- ----------- ----------- -----------
----------- -----------
PURCHASE ORDER #: SALES REP.: David Fox
----------- -----------
CUSTOMER INFORMATION: CUSTOMER CONTACT FOR NOTICES:
Company: Microsoft Corporation Name: Neal Piliavin
------------------------------------------- ------------------------------------------------
Address: One Redmond Way Phone: 425-936-8013
------------------------------------------- ------------------------------------------------
Redmond, Wa. 98052 Fax:
------------------------------------------- ------------------------------------------------
E-Mail: nealp@microsoft.com
------------------------------------------- ------------------------------------------------
BILLING CONTACT: (if different than Customer Contact) TECHNICAL CONTACT:
Name: Name: Scott Hogan
------------------------------------------- ------------------------------------------------
Phone: Phone: 425-705-5747
------------------------------------------- ------------------------------------------------
Fax: Fax:
------------------------------------------- ------------------------------------------------
E-Mail: E-Mail: shogan@microsoft.com
------------------------------------------- ------------------------------------------------
UPGRADE/ACCOUNT CHANGE AUTHORITY: (Check contacts with authority to upgrade contract)
[X] Customer Contact [ ] Billing Contact [ ] Technical Contact [ ] Other (See Special Instructions)
AKAMAI SALES CONTACT: AKAMAI CONTACT FOR NOTICES:
Name: David Fox Name: General Counsel
------------------------------------------- ------------------------------------------------
Address: 1400 Fashion Island Blvd. San Mateo Ca. Akamai Technologies, Inc.
94404
------------------------------------------- ------------------------------------------------
Phone: 650-627-5208 Address: 500 Technology Square, Cambridge, MA, 02139
------------------------------------------- ------------------------------------------------
Fax: 650-627-5272 Phone: 617-250-3000
------------------------------------------- ------------------------------------------------
E-Mail: dfox@akamai.com Fax: 617-250-3695
------------------------------------------- ------------------------------------------------
DESCRIPTION OF FREEFLOW SERVICES:
The FreeFlow Services consist of access to (i) Akamai's global network of
content distribution servers, (ii) the Akamai DNS system, (iii) the
reporting tools (to be provided as part of the FreeFlow Services or
licensed to Customer for a fee) and (iv) the [**] (to be provided as part
of the FreeFlow Services). FreeFlow Services will (a) allow Customer
Content designated by Customer to be tagged for inclusion on the Akamai
Network and delivered to web users accessing Customer's website(s) and (b)
enable independent monitoring by Customer of certain aspects of the Akamai
Network. Akamai will provide the FreeFlow Services in accordance with the
service levels set forth in Section I of the Service Level Agreement
attached to this FreeFlow Services Order Form as Exhibit A.
Customer hereby orders from Akamai Technologies, Inc., a Delaware
corporation, and from any of its affiliates or subsidiaries ("Akamai"),
the FreeFlow Services described in this FreeFlow Services Order Form, the
attached Service Level Agreement and any other schedules or exhibits
attached hereto (this "FreeFlow Services Order Form"). This FreeFlow
Services Order Form, which is issued pursuant and subject to the attached
Akamai Services Terms & Conditions ("Terms & Conditions"), shall become
valid when executed by Customer and accepted by an authorized
representative of Akamai. This FreeFlow Services Order Form, Terms &
Conditions, any other Akamai services order form(s), and any addenda
thereto, executed by the parties, shall collectively constitute the
"Agreement" between the parties. This Agreement is effective as of the
last date of signature set forth on this FreeFlow Services Order Form,
unless otherwise agreed to by the parties and set forth in the "Special
Instructions" section of this FreeFlow Services Order Form (the
"Effective Date"). Billing for FreeFlow Services set forth on this
FreeFlow Services Order Form shall commence two weeks after the Effective
Date (the "Billing Date") and Customer shall be billed monthly. The
initial term of this Agreement is for a term of one (1) year from the
Billing Date (the "Initial Term"), renewable pursuant to the Terms &
Conditions. Capitalized terms used in this FreeFlow Services Order Form
and not otherwise defined have the meanings ascribed to them in the Terms
& Conditions.
CUSTOMER AND AKAMAI AGREE THAT THE TERMS AND CONDITIONS OF THIS AGREEMENT
SUPERSEDE ANY PROVISIONS OF ANY CUSTOMER DRAFTED PURCHASE ORDER AND
SUPERSEDE ALL PROPOSALS, WRITTEN OR ORAL, AS WELL AS OTHER COMMUNICATIONS
BETWEEN CUSTOMER AND AKAMAI RELATING TO THIS AGREEMENT. IN THE EVENT OF
ANY CONFLICT BETWEEN THE TERMS OF THIS FREEFLOW SERVICES ORDER FORM,
SERVICE LEVEL AGREEMENT AND THE TERMS & CONDITIONS, THE TERMS &
CONDITIONS SHALL TAKE PRECEDENCE.
ACCEPTED BY CUSTOMER: ACCEPTED BY AKAMAI:
- ------------------------------------------------------- -------------------------------------------------------------------
SIGNATURE /s/ ARNE JOSEFBERG SIGNATURE /s/ DON HATFIELD
- ------------------------------------------------------- -------------------------------------------------------------------
NAME ARNE JOSEFBERG DATE 06/29/2000 NAME DON HATFIELD DATE 06/30/2000
- ------------------------------------------------------- -------------------------------------------------------------------
TITLE GENERAL MANAGER TITLE DIRECTOR
Akamai Technologies, Inc. - Confidential
-14-
AKAMAI PRODUCTS & SERVICES CONFIGURATION AND DESCRIPTIONS
SUMMARY OF CHARGES:
- -----------------------------------------------------------------------------------------------------------------------------------
ONE TIME RECURRING
FEES FEES
- ---------------------------------------------------------------------------------------------------------------------------------
ACTIVATION FEE: One-time fee after activation is complete ($[**] per Mbps;
$[**] minimum) NA
- ---------------------------------------------------------------------------------------------------------------------------------
PRICE PER MBPS: Rate per Mbps for FreeFlow Services $ See Schedule B 1______
- ---------------------------------------------------------------------------------------------------------------------------------
COMMITTED INFORMATION RATE (CIR): Minimum Committed Monthly Usage of
FreeFlow Services (in Mbps) ____[**]mbps__
- ---------------------------------------------------------------------------------------------------------------------------------
MONTHLY RECURRING FREEFLOW FEES: Monthly fees billed in advance (based on CIR) = Price per SEE
Mbps x CIR SCHEDULE B1
- ---------------------------------------------------------------------------------------------------------------------------------
PERFORMANCE MONITORING: Keynote NA
- ---------------------------------------------------------------------------------------------------------------------------------
Akanote(TM) - Independent Performance Reporting NA
- ---------------------------------------------------------------------------------------------------------------------------------
REPORTING TOOLS: Akamai Reporter(TM) $[**]
- ---------------------------------------------------------------------------------------------------------------------------------
Akamai traffic Analyzer(TM) NA
- ---------------------------------------------------------------------------------------------------------------------------------
PROFESSIONAL SERVICES FEES: Web Integration Consulting Fees SEE BELOW
- ---------------------------------------------------------------------------------------------------------------------------------
AKAMAIZATION(TM) SOFTWARE: LAUNCHER(TM), Akamaizer(TM), Akamai Adapter(TM) or Akamai static
strings NA
=================================================================================================================================
SUB-TOTAL ONE TIME FEES:
- ---------------------------------------------------------------------------------------------------------------------------------
ADJUSTMENTS: Adjustments for One Time Fees (if applicable) NA
- ---------------------------------------------------------------------------------------------------------------------------------
TOTAL ONE TIME FEES:
- ---------------------------------------------------------------------------------------------------------------------------------
SUB-TOTAL MONTHLY RECURRING FEES: SEE SCHEDULE
B1
- ---------------------------------------------------------------------------------------------------------------------------------
ADJUSTMENTS: Adjustments for Monthly Recurring Fees (if applicable) NA
- ---------------------------------------------------------------------------------------------------------------------------------
TOTAL MONTHLY RECURRING FEES: SEE SCHEDULE
B1
- ---------------------------------------------------------------------------------------------------------------------------------
METHODS FOR BILLING CIR:
- Committed Information Rate fees are billed in advance using the 95th
Percentile Method.
- For purposes of this Agreement, the "95th Percentile Method" shall
mean the process of (i) measuring actual data transmission in Mbps
over 5 minute intervals, (ii) ranking such measurements from largest
to smallest, (iii) discarding the largest 5% of the measurements; and
(iv) billing based on the measurement at the 95th percentile.
- Bandwidth usage in excess of two (2) times the actual 95th percentile
usage in a month, as defined above, during the remaining 5% period of
a month, as defined above, will be billed at a rate of $.[**] per
megabyte transferred (the "Additional Fees"). These Additional Fees
will be in addition to the fees billed for the 95th percentile
bandwidth usage during the month. [**] during the month, [**] the 95th
percentile bandwidth usage [**]. Additionally, if the 5% period
bandwidth usage in any given month, is consistent with following month
95th percentile usage, Akamai may, in its sole discretion, waive the
Additional Fees for any given month.
- Changes to the types of services, amount or frequency of services, and
other similar factors may result in overages or surcharges.
SPECIAL INSTRUCTIONS:
*This Agreement will serve as a global purchase agreement for Microsoft and
subsidiaries.
This Order Form will cover the Free Flow services only; Customer shall be
required to execute a separate Order Form for any other products and
services provided by Akamai.
Commencing on and until termination of the Agreement, the base minimum
Committed Information Rate ("CIR") with which Customer agrees to maintain
with Akamai is [**]. Customer has the discretion to increase CIR at any
time, but cannot decrease below its monthly scheduled CIR. Akamai Account
Management and the Customer contract administrator will reconcile billing
on a monthly and quarterly basis.
Customer's bill will be reviewed monthly in arrears and if Customer exceeds
this bandwidth threshold in any given month, Customer's bill will be
reconciled in accordance with the actual usage based on the payment
schedule set forth in Schedule B1 and credited for the difference. Such
credits [**] at the end of this Agreement.
Schedule B1 prices are set at [**] increments. If actual exceeds the [**]
increments based on the 95th percentile model sustained bandwidth, customer
will qualify for the next level of pricing.
* Customer will be assigned a dedicated account team to serve as a
centralized point of contact for all Properties to address all issues with
respect to billing and customer care. In addition, based on the level the
of Customer's issue, Customer shall receive support from Akamai's Customer
Care team, [**], and the Network Operations Center (the "NOC"). Akamai`s
Customer Care and the NOC will provide customer support to Customer 24
hours a day, 7 days a week, 365 days a year.
Akamai Technologies, Inc. - Confidential
-15-
Effective June 29, 2000, all existing FreeFlow Services Agreement with
Customer will be automatically superseded by the terms of this Agreement.
Web integration and consulting fees and/or On-site Installation fee shall
be billed at $[**] per day.
As part of the Services, Akamai shall grant Customer the right to use and
provide Customer with a copy of the [**]. See Schedule A for [**]
description.
Akamai Technologies, Inc. - Confidential
-16-
EXHIBIT A
STANDARD SERVICE LEVEL AGREEMENT
I. SERVICE LEVELS AND CREDITS
Akamai agrees to provide a level of service demonstrating:
(a) Measurable Performance Enhancement: The Akamai FreeFlow
service will deliver content measurably faster than the
Customer's web site.
(b) 100% Uptime: The Akamai FreeFlow service will serve content
100% of the time.
(c) Credits: If the Akamai FreeFlow service fails to meet either
of the above service levels, the Customer will receive a
credit equal to fees for the day in which the failure occurs.
II. SLA MONITORING METHODOLOGY
The following methodology will be employed to measure FreeFlow service
availability and performance enhancement:
Agents and Polling Frequency
(a) From six (6) geographically and network-diverse locations in
major metropolitan areas, Akamai will simultaneously poll a
test file residing on the Customer's production servers and on
Akamai's network
(b) The polling mechanism will perform two (2) simultaneous http
GET operations:
one GET operation will be performed on a test file
residing on the appropriate customer server (e.g.,
http://www.customerxyz.com/images/test/gif.com
the other GET operation will be performed from the
Akamai Free Flow Servicegif http://
a564.g.akamaitech.net/7/564/24/2c1db485/
www.customerxyz.com/images/test gif.
(c) The Akamaized test GIF must be of typecode 7 to ensure that it
is a live object.
(d) The test GIF will be a file of 20 Kbytes or greater in size.
(e) Polling will occur at approximately 12-minute intervals.
(f) Based on the http GET operations described in II(b) above, the
response times received from the two sources, (a) the Customer
server, and (b) the Akamai network, will be compared for the
purpose of measuring performance metrics and Outages.
III. PERFORMANCE METRIC
The performance metric will be based on a daily average of performance
for the FreeFlow service and the Customer's production web server,
computed from data captured across all regions and hits. Each time will
be weighted to reflect peak traffic conditions or "primetime" usage.
The primetime period is 10 AM to 8 PM EST. All times recorded during
this period will be weighted by a factor of three. If on a given day
the Akamai weighted daily average time exceeds the Customer's weighted
daily average time, then the Customer will receive a credit equivalent
to fees for that day of service.
IV. OUTAGES
An "Outage" is defined as a 12-minute period of consecutive failed
attempts by a single agent to "get" a file from the FreeFlow network
while succeeding to "get" the test file from the Customer web site. If
an Outage is identified by this method, the customer will receive a
credit equivalent to the fees for the day in which the failure
occurred.
Akamai Technologies, Inc. - Confidential
-17-
SCHEDULE A
[**] SPECIFICATION DOCUMENT
PURPOSE OF DOCUMENT:
To document the proposed functionality of the [**]. The intention is to
properly communicate functionality expectations to ensure a smooth and
successful implementation of Akamai's FreeFlow service.
SYSTEM BENEFITS:
- By installing Akamai's FreeFlow [**] Microsoft's [**], Microsoft will
[**] Microsoft content.
- Microsoft will have [**] Akamai [**].
- [**] Microsoft [**] Microsoft [**].
- Akamai's [**]
FUNCTIONALITY REQUIREMENTS:
- Microsoft will be [**] Microsoft [**] FreeFlow [**]Akamai's [**]
Microsoft [**] Akamai [**] Microsoft [**] Microsoft [**] Akamai [**]
Microsoft may [**] FreeFlow will [**] described in the next paragraph.
- Microsoft will have [**] of Microsoft [**] Microsoft [**] Microsoft
[**] Microsoft [**] Akamai [**]. The Akamai FreeFlow system will [**]
Microsoft [**]. For Example, Microsoft may [**] Microsoft [**]
Microsoft [**] Akamai [**] Microsoft [**] Akamai [**].
- Microsoft will [**] which will be [**]. This will allow Microsoft [**]
to be [**], Microsoft will also have the [**]. Example: Microsoft [**]
Microsoft [**] Microsoft [**] Microsoft [**] Microsoft [**] will be
[**] MSN dial-up customers [**] Microsoft [**]FreeFlow [**]will be for
[**] will be [**].
Akamai Technologies, Inc. - Confidential
-18-
MICROSOFT SCHEDULE B1
Microsoft Pricing
For Akamai FreeFlow Service
- --------------------------------------------------------------------------------------------------------------------------------
2000 2001
Jun Jul Aug Sep Nov Dec Jan Feb Mar Apr May
15 15 15 15 15 15 15 15 15 15 15
Price per mbps [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
------------------------------------------------------------------------------------------------------------
CIR* [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
------------------------------------------------------------------------------------------------------------
Monthly
Commitment [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
- --------------------------------------------------------------------------------------------------------------------------------
* Commencing on billing term start date. Base minimum commitment Microsoft
agrees to maintain with Akamai is [**] mbps over the life of the contract.
Microsoft has the discretion to increase CIR at any time but cannot decrease
below its monthly CIR.
Akamai account management and Microsoft contract administrator will reconcile
the billing on a monthly and quarterly basis.
Customer's bill will be reviewed monthly in arrears and if customer exceeds this
bandwidth threshold in any given month, Customer's bill will be reconciled in
accordance with the actual usage based on the payment schedule set forth in
Schedule B1 and credited for the difference.
Committed Inf $ mbps
[**] [**]
[**] [**]
[**] [**]
[**] [**]
[**] [**]
[**] [**]
Microsoft Pricing Schedule B1, based on aggregate demand
- -------------------------------------------------------------------------------
[**]
Monthly Commitment [xx] Rate (CIR)
- -------------------------------------------------------------------------------
[**] [**] [**] [**] [**] [**] [**]
Monthly Commitment Information Rate (CIR)
Schedule B1 prices are set at mbps increments. If actual usage exceeds the
increments based on the 95th percentile method sustained bandwidth, Customer
will qualify for the next level of pricing.
Akamai Technologies, Inc. - Confidential
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Akamai [**] Feature Pricing
For each calendar quarter, Customer in its sole discretion shall elect to have
the Akamai [**] Feature billed at either (i) $[**] per mbps served per month or
(ii) at flat fee per month of $[**] per Data Center. For each calendar quarter,
customer must notify Akamai of the pricing terms it elects prior to the first
day of such calendar quarter. The elected pricing feature shall remain in effect
for the remainder of the calendar quarter. If customer fails to elect pricing
feature prior to the first day of a calendar quarter, the pricing feature for
the applicable calendar quarter will default to the pricing for the previous
quarter.
Akamai Technologies, Inc. - Confidential
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