AKAMAI TECHNOLOGIES AND MICROSOFT CORPORATION
BROADBAND STREAMING INITIATIVE AGREEMENT
This Broadband Streaming Initiative Agreement (the 'Agreement') is
entered into and effective as of September 20, 1999 (the 'Effective Date') by
and between MICROSOFT CORPORATION, a Washington corporation located at One
Microsoft Way, Redmond, WA 98052 ('Microsoft') and AKAMAI TECHNOLOGIES, INC., a
Delaware Corporation located at 201 Broadway, Cambridge, MA 02139 ('Akamai').
RECITALS
Akamai offers a service that delivers Internet-related broadband multimedia
content (including live and on-demand broadband Streaming Media) and provides
related services for independent content providers and corporate customers
(referred to collectively as 'ICPs').
Microsoft is a developer of operating system technologies and tools for the
development and serving of Internet and other online content, including
broadband multimedia applications and Streaming Media.
Microsoft has established a 'Broadband Streaming Initiative,' whereby Microsoft
desires to promote adoption of Windows Media Technologies ('WMT') and other
Microsoft technologies for broadband multimedia services on the Internet.
Microsoft wishes to engage Akamai as, and Akamai wishes to become, a supplier
and promoter of broadband content delivery services for Streaming Media in
connection with Microsoft's upcoming Broadband Streaming Initiative.
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AGREEMENT
This Agreement is entered into with reference to the following information
('INITIAL DEFINITIONS TABLE') as well as the definitions set forth below:
AKAMAI INFORMATION: Corporate Name: Akamai Technologies, Inc.
Place of Incorporation: Delaware
Address for Notices: 201 Broadway, Cambridge,
MA 02139
AKAMAI CONTACT: Akamai Contact/Title: Paul Sagan, President and COO
Telephone Number: (617) 250-3006
Facsimile Number: (617) 250-3001
Email:paul@akamai.com
Copy to: Vice President and General Counsel
Facsimile Number: (617) 250-3001
AKAMAI NAME AND AKAMAI SERVICE Akamai Name: Akamai Technologies
NAME(S) Akamai Service Name(s): FreeFlow, FreeFlow
(for use in press release): Streaming
AKAMAI WEB SITE: www.akamai.com and any successors and
additional and/or new versions of such web site
owned or controlled by Akamai during the Term.
TERM: Beginning as of the Effective Date and continuing
through September 30, 2001, unless earlier
terminated in accordance with Section 9.
1. DEFINITIONS
1.1 ABOVE THE FOLD means the placement of Content (including an icon and/or
link) or other material on an Akamai Web Site page such that the
material is viewable on a computer screen at a 800 x 600 pixels
resolution when the user first accesses such web page and without
having to scroll down to view more of the web page.
1.2 AKAMAI SERVICES means Akamai's provision of delivery and/or other
services involving 'live' and 'on-demand' broadband Streaming Media,
including without limitation through Akamai's 'FreeFlow Streaming'
service offering and its successors.
1.3 AKAMAI SERVICES GUIDELINES means the guidelines and procedures related
to this Agreement with respect to how Akamai will be engaged by
Broadband Streaming Initiative ICP Participants to provide Akamai
Services and will apply Network Credits against such provision of
Akamai Services, as more fully described in Exhibit A.
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1.4 AKAMAI SOFTWARE means Akamai's proprietary software that is licensed in
connection with offering the Akamai Services, and any direct successor
thereto.
1.5 BROADBAND STREAMING INITIATIVE ICP PARTICIPANT means an ICP or other
customer designated by Microsoft in its sole discretion (including
without limitation Microsoft or any of its affiliates) to use Network
Credits in support of the Broadband Streaming Initiative as
contemplated by this Agreement.
1.6 CONFIDENTIAL INFORMATION means: (i) any source code of software
disclosed by either party to the other party; (ii) any trade secrets
and/or other proprietary non-public information not generally known
relating to either party's product plans, designs, costs, prices or
names, finances, marketing plans, business opportunities, personnel,
research, development or know-how; and (iii) the terms and conditions
of this Agreement. 'Confidential Information' does not include
information that: (i) is or becomes generally known or available by
publication, commercial use or otherwise through no fault of the
receiving party; (ii) is known and has been reduced to tangible form by
the receiving party prior to the time of disclosure and is not subject
to restriction; (iii) is independently developed by the receiving party
without the use of the other party's Confidential Information; (iv) is
lawfully obtained from a third party that has the right to make such
disclosure; or (v) is made generally available by the disclosing party
without restriction on disclosure.
1.7 CONTENT means data, text, audio, video, graphics, photographs, artwork
and other technology and materials.
1.8 MICROSOFT SOFTWARE means Windows NT Server (including Windows Media
Streaming Media Services, one of which is Windows Media Rights Manager)
and direct successors thereto.
1.9 NETWORK CREDITS means credits available to pay for Akamai Services,
which credits are equal in value to the Network Credits Fee Amount (as
defined in Section 2.1) having been paid by Microsoft from time to time
during the Term, less amounts having been applied pursuant to this
Agreement to reflect the provision of Akamai Services to Broadband
Streaming Initiative ICP Participants, as further set forth in Section
2.1 and Exhibit A.
1.10 STREAMING MEDIA means multimedia Content that is transmitted live or
held in archive on servers and played or displayed via the Web
incrementally, or in semi-real time, such that it can be heard, viewed
or received by an end user with minimal download delays, if any.
1.11 UPDATES means, as to any software, all subsequent public releases
thereof during the Term, including public maintenance releases, error
corrections, upgrades, enhancements, additions, improvements,
extensions, modifications and successor versions.
1.12 WINDOWS MEDIA FORMAT means (a) the Windows Media Audio format which
encodes files with the Microsoft Audio codec (.wma extension), (b) the
proposed industry standard format referred to as the 'Advanced
Streaming Format' (.asf extension), which as of the Effective Date is
in comment/revision processes within industry standards bodies, and (c)
any successors or replacements for such formats that may be designated
by Microsoft, regardless of the brand or trademark under which they are
made available from time to time.
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CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION. ASTERISK DENOTE OMISSION.
1.13 WINDOWS MEDIA PLAYER means the North American English version of the
upgrade to the Windows 95 and Windows 98 Microsoft Windows Media Player
client technology that displays Streaming Media in Windows Media
Format, other formats of Streaming Media, and other multimedia
data-types, and all successors and Updates to such technology which are
commercially released during the Term.
1.14 WINDOWS MEDIA TECHNOLOGIES or 'WMT' means, collectively and
interchangeably, Windows Media Player and Windows Media Streaming Media
services, including Windows Media Rights Manager, for the Windows NT
operating system.
All other initially capitalized terms shall have the meanings assigned to them
in this Agreement.
2. MICROSOFT OBLIGATIONS
2.1 Network Credits Fee. Microsoft agrees to pay to Akamai a total Network
Credits fee of One Million Dollars ($1,000,000.00) (the 'Network
Credits Fee Amount'), which fee is intended to pre-pay for Akamai
Services and other services offered by Akamai which Microsoft may
obtain, in accordance with this Agreement, either for Microsoft's
internal operations or for the benefit of Broadband Streaming
Initiative ICP Participants. Microsoft will pay the Network Credits Fee
Amount in [**] sub-parts, in accordance with the following schedule: an
initial payment of [**] shall be due after Akamai delivers an invoice
for such amount to Microsoft, which invoice Akamai may deliver on or
after the Effective Date; [**] of [**], shall be due on [**]; and [**]
of [**], shall be due on [**]. All amounts payable under this Agreement
shall be due on a net thirty (30) day basis. Akamai shall be obligated
to refund the Network Credits Fee Amount to Microsoft only to the
extent set forth in Section 9. The Network Credits Fee Amount shall
serve as a prepayment against which Microsoft or Broadband Streaming
Initiative ICP Participants may obtain Akamai Services and other
services offered by Akamai pursuant to Section 3.2(c) below.
2.2 Deployment Support. During the Term, Microsoft shall provide at no
charge to Akamai, and upon Akamai's request, up to a total of [**]
(i.e., a total of [**]) of high-level technical support in the United
States from (at Microsoft's option) Microsoft's developer relations
group or its product support group in order to assist Akamai with
deploying Windows Media Technologies in accordance with this Agreement.
Such support shall include providing reasonable on-site deployment
support services to Akamai. In addition, during the Term, Microsoft
shall provide [**] to Akamai, and upon Akamai's request, up to a total
of [**] (i.e., a total of [**]) of technical assistance from Microsoft
Consulting Services in order to assist Akamai in porting its
proprietary FreeFlow software to the Windows NT Server platform as
contemplated in Section 3.1(c). Microsoft's obligation to provide any
of the technical support and assistance contemplated by the preceding
sentence in this Section 2.2 shall be subject to the parties' entry
into a mutually-agreed standard technical support agreement (e.g., a
Microsoft Consulting Services Master Agreement). Microsoft shall be
entitled to charge Akamai at its then-current rates for any on-site
deployment support
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CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION. ASTERISK DENOTE OMISSION.
services or other technical assistance requested by Akamai which
exceeds the applicable [**] limitations set forth in this Section 2.2,
provided that Microsoft first notifies Akamai that Akamai has exceeded
the applicable [**] limitation.
2.3 Early Releases. During the Term, Microsoft will provide to Akamai, at
no charge, successive [**] ([**], and where practical as determined by
Microsoft in its sole discretion, [**]) of Microsoft Software in object
code form; provided, however, that nothing herein shall be deemed to
require that Microsoft release any additional versions of any Microsoft
Software during the Term. All Microsoft Software provided hereunder may
be used by Akamai only in accordance with the confidentiality and
license agreements accompanying such Microsoft Software and, in
addition, may be used solely in connection with supporting the
provision of Akamai Services that use Windows Media Technologies.
Akamai understands that [**] software is not intended for [**].
2.4 Promotion of Akamai Services. In conjunction with its Broadband
Streaming Initiative, Microsoft agrees to publicly announce, in a
manner commercially similar to the level of promotion provided to other
Content delivery service providers who are Broadband Streaming
Initiative participants, that Akamai is a Microsoft recommended
solution provider for ICPs who are using WMT to deliver high bandwidth
Streaming Media. Thereafter, during the Term, Microsoft will use
commercially reasonable, good faith efforts to include and promote
Akamai as a provider of broadband delivery and other services related
to Streaming Media, including without limitation as part of Microsoft's
applicable marketing efforts and materials, sales training, Web sites,
and other promotions, consistent with Microsoft's promotion of other
Broadband Streaming Initiative Content delivery service providers which
have entered into agreements with Microsoft on similar terms to this
Agreement.
2.5 Preconditions for Microsoft Sponsorship and Support Obligations. Each
of Microsoft's obligations under this Section 2 is expressly
conditioned upon Akamai's performance of its obligations under Sections
3.1 through 3.4 throughout the Term. In addition, because Akamai has
not shared with Microsoft Akamai's plans for the Akamai Services as of
the Effective Date, Akamai agrees to confer in good faith with
Microsoft promptly after the Effective Date in order to develop and set
forth in writing, no later than ninety (90) days after the Effective
Date, mutually approved performance objectives (the 'Performance
Criteria') for Akamai's participation in the Broadband Streaming
Initiative during the [**] of the Term. If Microsoft reasonably
believes that Akamai has not met or exceeded such Performance Criteria
during the [**] of the Term, then Microsoft may notify Akamai of such
determination by providing a written notice identifying the specific
Performance Criteria which Akamai has not met, provided that Microsoft
must issue any such notice within ninety (90) days after the [**]
anniversary of the Effective Date. If, after receiving such a notice,
Akamai does not notify Microsoft of Akamai's good faith disagreement
with Microsoft's determination and does not improve its performance
such that it meets the Performance Criteria within sixty (60) days
after receiving Microsoft's written notice hereunder, then Microsoft
may in its discretion terminate this Agreement effective thirty (30)
days after Microsoft provides written notice to Akamai of such
termination. If Akamai disagrees in good faith with Microsoft's
determination as set forth
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in such notice, the parties shall promptly undertake to resolve such
dispute as provided in Section 11.5 of this Agreement.
2.6 Reservation of Rights. Except as expressly licensed pursuant to this
Agreement, Akamai shall have no other rights in the Microsoft Software,
the Windows Media Player or any other Microsoft software, technology or
services provided to Akamai hereunder. Microsoft retains all right,
title and interest in and to the Microsoft Software, the Windows Media
Player and any other Microsoft software, technologies and services.
Nothing in this Agreement shall be construed, by implication, estoppel
or otherwise, as granting Akamai any rights to any Microsoft software,
technology, service or other intellectual property rights.
3 AKAMAI OBLIGATIONS
3.1 Use and Promotion of Windows Media Technologies and Windows Media
Format. Subject to Windows Media Technologies being a competitively
comparable solution to other Streaming Media technologies and platforms
(as reasonably determined based on technology, price, quality and
delivery timetables), throughout the Term, Akamai will deploy, describe
and promote Windows Media Technologies and the Windows Media Format to
all of its prospective and actual customers for Akamai Services
(including without limitation both ICPs and Internet Service Providers
('ISPs')) in a manner consistent with and commercially similar to all
other Streaming Media platforms or formats that it offers, promotes or
recommends for any Akamai Service.
Akamai's use and promotion of Windows Media Technologies and related
technologies shall further include, without limitation:
(a) Content Format. Within thirty (30) days after the Effective
Date, and continuing thereafter throughout the Term, except as
set forth below, all Streaming Media made available on the
Akamai Web Site shall be made available in Windows Media
Format; provided, however, that nothing herein shall be deemed
to prevent Akamai from making Streaming Media available on
such Web site in additional formats. Notwithstanding the
foregoing, it is understood and agreed that from time to time
during the Term Akamai, in conjunction with one or more third
parties, may enter into a program or opportunity that features
particular Streaming Media created for and/or formatted in a
specific platform or technology other than Windows Media
Format or Windows Media Technologies, and nothing contained
herein shall prevent Akamai from doing so, but in such event
Akamai will use commercially reasonable efforts promptly to
offer to Microsoft a similar program or opportunity.
(b) Deployment of New Applications and Services. Throughout the
Term, Akamai will promote and make available to its customers
and prospective customers all new Akamai services and products
related to Streaming Media on WMT and in Windows Media Format
concurrently with or sooner than Akamai makes such new
services or products available based on or in conjunction with
other Streaming Media
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technologies or formats, subject to the limitation that
Akamai's obligations hereunder with respect to release
schedule parity are conditioned on Microsoft providing
comparable competitive offerings to other commercially
available offerings of a particular technology or format
within a time frame that makes it commercially feasible for
Akamai to achieve the foregoing release schedule parity. If,
at any time, Microsoft provides a comparable competitive
offering later than necessary to enable Akamai to achieve such
release schedule parity, Akamai will use commercially
reasonable efforts to offer versions of its ongoing services
and products related to Streaming Media on WMT and in Windows
Media Format promptly after Microsoft provides the applicable
comparable competitive offering. Nothing in this Section
3.1(c) is intended to require Akamai to disclose any third
party confidential information to Microsoft with respect to
competitive services or offerings.
(c) Porting and Promotion of Akamai FreeFlow Server Software for
Windows NT. Akamai shall port its FreeFlow server software
(which software enables and supports FreeFlow, Akamai's
non-Streaming Media Web Content delivery service), and any new
versions and successors thereto that Akamai offers during the
Term, to operate on the Microsoft Windows NT operating system.
Further, Akamai agrees to make available and promote to
participants of Akamai's FreeFlow ISP program (and any
successor programs) during the Term hardware and Akamai
software that supports Akamai's FreeFlow service operating on
the Windows NT operating system. Nothing herein shall be
deemed to transfer to Microsoft any right, title or interest
in and to the Akamai FreeFlow server software, or any
enhancements, improvements, updates and upgrades thereto.
(d) Sponsorship. Beginning on the Effective Date and continuing
thereafter throughout the Term, Akamai shall include on all
pages of the Akamai Web Site that relate to or promote
Streaming Media or applications therefor (other than pages or
areas within the Akamai Web Site that are specific to a
particular Streaming Media format or technology) a prominent
'Get Windows Media Player' link logo (the 'Windows Media
Sponsorship Notice') which links to a Microsoft-authorized
Windows Media Player download site, in accordance with the
following terms:
(i) The Windows Media Sponsorship Notice shall appear no
less prominently than any other similar notices on
each Akamai Web Site page that contains or provides
access to Streaming Media or that materially features
any Akamai Service (other than pages or areas within
the Akamai Web Site that are specific to a particular
Streaming Media format or technology other than
Window Media).
(ii) On all pages of the Akamai Web Site, including
without limitation those described in Section
3.1(d)(i) (but subject to the exceptions set forth
therein), in the event Akamai includes any
information or notices concerning Streaming Media
technologies or formats other than Windows Media
Technologies and Windows Media Format, the Windows
Media Sponsorship Notice shall appear on such page in
a position at least as favorable in prominence, size
and
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CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION. ASTERISK DENOTE OMISSION.
positioning as any other such notice; provided,
however, that this provision shall not require the
Windows Media Sponsorship Notice (or any thereto) to
be placed on any pages or areas within the Akamai Web
Site that are specific to a particular Streaming
Media format or technology.
(iii) In all cases, the Windows Media Sponsorship Notice
shall be a minimum of 65 by 57 pixels (width by
height), and shall conform to all trademark usage
standards provided by Microsoft to Akamai from time
to time.
(iv) Microsoft shall be entitled to substitute from time
to time a different hypertext link and/or link logo
as the Windows Media Sponsorship Notice, subject to
the same pixel size restrictions as are set forth in
Section 3.1(d)(iii), in place of the 'Get Windows
Media Player' link logo for purposes of this
Agreement, including without limitation Akamai's
responsibilities under this Section 3.1(d), upon
Microsoft's reasonable advance written notice to
Akamai.
(e) Uses of the Get Windows Media Player Logo. All use by Akamai
of the 'Get Windows Media Player' link logo (or any successor
logo(s)) in connection with this Agreement is subject to
compliance with Microsoft's guidelines relating to the use of
such logo(s). The current version of such guidelines as of the
Effective Date is set forth in Exhibit B hereto.
3.2 Provision of Akamai Services to Broadband Streaming Initiative
Participants. Subject to Microsoft's performance of its
obligations under Sections 2.1 through 2.4, Akamai agrees to
perform the following obligations:
(a) Akamai agrees to provide, during the six (6) month period
commencing on the Effective Date, Akamai Services to be
comprised of broadband Streaming Media delivery services, at
no charge (either to Microsoft or the ICP, and without
applying Network Credits against the value of such services)
to each Broadband Streaming Initiative ICP Participant that
Microsoft designates in its discretion as a participant in the
Broadband Streaming Initiative; provided, however, that such
obligation shall not extend beyond the first six (6) months of
the Term of this Agreement, and the aggregate value of such
no-charge Akamai Services that Akamai agrees to provide for
and as used by all Broadband Streaming Initiative ICP
Participants, will not exceed [**]), as such usage is
calculated in accordance with Exhibit A. Akamai will use
commercially reasonable efforts to notify Microsoft in writing
at least thirty (30) days before it anticipates participants'
usage exceeding the foregoing maximum value of the relevant
Akamai Services. Notwithstanding the foregoing, Akamai's
obligation under this Section 3.2(a) will be subject to (i)
notification by Microsoft as to the names of participating
Broadband Streaming Initiative ICP Participants; (ii)
execution of Akamai's standard services agreement by each
Broadband Streaming Initiative ICP Participant; and (iii)
there being at least three (3) participating Broadband
Streaming Initiative ICP Participants, none of which will use
during any thirty (30) day period more than [**] worth of the
available no-charge Akamai Services that Akamai agrees to
provide pursuant to this Section 3.2(a).
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CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION. ASTERISK DENOTE OMISSION.
(b) At Microsoft's request and at no charge to Microsoft or the
applicable Internet service providers ('ISPs'), and without
applying Network Credits against the value of such services,
Akamai will install hardware and equipment, as well as copies
of the Akamai Software, and provide its standard level of
service related to such hardware and equipment and for such
software during the Term in order to support ISPs which
Microsoft has designated in its discretion to participate in
the Broadband Streaming Initiative. As a condition to Akamai
performing the foregoing obligations, each participating ISP
will first agree to comply with a separate written agreements
with Akamai and/or its resellers or other licensees with
respect to installation and support of the hardware, equipment
and Akamai Software, and nothing in this Agreement shall be
deemed to authorize Microsoft to install and/or support such
hardware, equipment or copies of the Akamai Software.
(c) In addition to the obligations of Akamai under Sections 3.2(a)
and (b), as contemplated in Section 2.1 above, Microsoft shall
be entitled to apply its prepaid Network Credits and thereby
obtain Akamai Services, at Microsoft's sole discretion, (i)
for the benefit of designated ICPs in accordance with this
Agreement (including without limitation Exhibit A) or (ii) for
Microsoft to obtain other services offered by Akamai,
including without limitation Akamai's FreeFlow services and
any new versions or successors thereto, subject to such
participants and/or Microsoft entering into Akamai's standard
services agreement. In the event that Microsoft authorizes
Akamai to provide Akamai Services that exceed in value (as
calculated pursuant to the terms set forth in Exhibit A) the
value of then-existing pre-paid balance of Network Credits,
Microsoft agrees to pay Akamai for such Akamai Services in
accordance with Akamai's then-current pricing to third parties
that are purchasing Akamai Services in aggregate volumes
comparable to those being purchased by Microsoft in connection
with the use of Network Credits under this Agreement.
Akamai's obligation under this Section 3.2(c) is further
subject to a partial, rolling expiration schedule to the
extent Microsoft (for its internal operations) or Broadband
Streaming Initiative ICP Participants do not use Akamai
Services or other services of Akamai that are equal in value
(as calculated pursuant to Exhibit A) to the prepaid Network
Credits Fee Amount as follows:
(i) to the extent that Akamai Services [**] to the first
payment of the prepaid Network Credits Fee Amount due under
Section 2.1 are not used by Microsoft or Broadband Streaming
Initiative ICP Participants by December 31, 1999, then up to
[**] of such first payment (i.e., up to [**]) may be carried
over for use during the next calendar quarter (i.e., for use
before March 31, 2000), and a further [**] of such first
payment (i.e., up to [**]) may be carried over for use during
a second succeeding calendar quarter (i.e., for use before
June 30, 2000), after which any remaining unused Network
Credits Fee Amount shall expire;
(ii) to the extent that Akamai Services equal to the
successive payments of sub-parts of the prepaid Network
Credits Fee Amount as due under Section 2.1 are not used by
Microsoft or Broadband Streaming Initiative ICP Participants
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CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION. ASTERISK DENOTE OMISSION.
during the calendar quarter beginning on the day they become
payable, then [**] of each such payment may be carried over
for use during the next succeeding calendar quarter, and a
further [**] of each such payment may be carried over for use
during the second succeeding calendar quarter, all in the same
manner as described in Section 3.2(c)(i) above, with the
result being that the last date on which Microsoft or a
Broadband Streaming Initiative ICP Participant might
potentially use any prepaid Akamai Services (or other services
of Akamai) under this Section 3.2(c), assuming unused and
unexpired Network Credits Fee Amounts have been carried over
as provided for herein, is June 30, 2001; and
(iii) notwithstanding subparagraph (ii) above, to the
extent that any prepaid Network Credits Fee Amount are not
used by Microsoft or Broadband Streaming Initiative ICP
Participants by June 30, 2001, then the unused portion shall
expire.
Except as provided in Section 9, Akamai shall be entitled to
retain all prepaid Network Credits Fees.
3.3 Publicity. Akamai will work with Microsoft to develop a mutually
agreeable press release to be released as soon as possible after the
Effective Date, provided that the text of such release must have been
approved in writing by each party before its release. In such release,
(a) Akamai shall designate Windows Media Technologies and the Windows
Media Format as being recommended by Akamai as one of its recommended
platforms and formats for broadband Streaming Media-related services,
(b) Microsoft shall designate Akamai's Streaming Media services as
being recommended by Microsoft as one of its recommended content
delivery services for broadband Streaming Media, (c) the parties shall
promote the availability of Akamai's FreeFlow and FreeFlow Streaming
services on the Windows NT Server platform, (d) Akamai may be
identified as a participant in Microsoft's Network Credits program, and
(e) Akamai may identify the Microsoft's Windows Media group as a
customer of Akamai. Further, subject to the limitations set forth in
the next sentence, Akamai agrees that (a) it will not release or
approve any press releases relating to broadband Streaming Media and
using its name or any descriptions of the Akamai Services, other than
in conjunction with promotions of Windows Media Technologies as
described above, during the period of September 20, 1999 through
October 17, 1999 (provided that Microsoft understands and accepts that
Akamai (i) has preexisting arrangements relating to the NetAid event
scheduled for October 9, 1999, and in conjunction therewith Akamai may
be party to one or more press releases related to such event, which
press releases may reference Streaming Media, and (ii) has preexisting
arrangements relating to announcing the migration of QuickTime TV onto
the Akamai Network, and (iii) intends to make a general 'FreeFlow
Streaming' announcement on or about October 4, 1999 in conjunction with
Internet World), and (b) at all times during the Term, it will not
issue or approve press releases from third parties relating to
broadband Streaming Media that are inconsistent with the spirit of this
Section 3.3. Notwithstanding the restrictions set forth in the previous
sentence, Akamai shall be entitled to perform under any contractual
obligation to which it is subject as of the Effective Date which
requires it to release or approve press releases or making other
announcements during the Term. During the Term, Akamai will also work
with Microsoft to develop and release additional joint press
announcements, provided that the
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details of each such announcements must have been approved in writing by
each party before it occurs, and Akamai agrees to provide Microsoft with
reasonably detailed information on use of Microsoft's technology in the
Akamai Services for inclusion in a case study which Akamai shall be
entitled to review and approve. With respect to all approvals contemplated
by this Section 3.3, the parties agree not to unreasonably withhold or
delay such approvals.
3.4 Reporting and Audits. By the tenth (10th) day of each calendar month
during the Term (other than the month in which the Effective Date
falls), Akamai shall provide a report to Microsoft setting forth the
following information concerning the provision of Akamai Services
related to Streaming Media during the previous calendar month, to the
extent Akamai's provision of such information to Microsoft does not
conflict with any contractual obligation of Akamai to a customer or
other third party:
(a) The URL and number of page views for pages on the Akamai Web
Site or third party web sites hosted by Akamai which contain
Streaming Media;
(b) The number of referrals of end users from the Akamai Web Site
or third party web sites hosted by Akamai to Microsoft's
Windows Media Player download site(s);
(c) Web browsing software share and Streaming Media player share
information for the Akamai Web Site and third party web sites
hosted by Akamai, including version information;
(d) The number of streams served, including the total number of
.wma, .asx and .asf format files served, by bit rate;
(e) The average length of a user stream for a single connection to
the Akamai Web Site and third party web sites hosted by
Akamai;
(f) The number of streams of pages with feature/streaming
technology; and
(g) The average number of .wma, .wmx, and .asx files on site.
Akamai shall provide all reports hereunder to Microsoft via Microsoft's
web reporting system located at
http://webevents.microsoft.com/report.asp, or any successor thereto.
In the event that Akamai has failed to provide a report as described in
this Section 3.4 on or before the twenty-fifth (25th) day of the
relevant calendar month, then Microsoft will be entitled to suspend its
performance under this Agreement (including without limitation its
payment obligations under Section 2.1) until such report has been
received. All information provided pursuant to this Section will be
deemed to be Confidential Information of Akamai.
3.5 Additional Trademark Use. Akamai further agrees to use all Windows
Media Technologies-related logos in accordance with the applicable logo
program requirements established by Microsoft in its sole discretion
from time to time. In the event that Akamai fails to comply with
Microsoft's then-current logo requirements for participation in the
Streaming Media Initiative at any time during the Term, then Microsoft
will be entitled, after providing Akamai with notice of breach and an
opportunity to cure such breach within thirty (30) days, to suspend its
performance under this Agreement and terminate this Agreement
(including without limitation Microsoft's payment obligations under
Section 2.1) upon further written notice to Akamai.
Microsoft Confidential & Proprietary
11
3.6 Reservation of Rights. Except as expressly licensed pursuant to this
Agreement, Microsoft shall have no other rights in the Akamai Services,
the Akamai Software or any other Akamai software, technology or
services provided to Microsoft hereunder. Akamai retains all right,
title and interest in and to the Akamai Services, Akamai Software and
any other Akamai software, technologies and services. Nothing in this
Agreement shall be construed, by implication, estoppel or otherwise, as
granting Microsoft any rights to any Akamai software, technology,
service or other intellectual property rights.
Microsoft Confidential & Proprietary
12
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION. ASTERISK DENOTE OMISSION.
4. ADDITIONAL UNDERSTANDINGS
4.1 Technology Development and Testing Discussions. Subject to the
commercial availability of appropriate technical personnel,
and to the parties' prior mutual written agreement with
respect to applicable intellectual property ownership and
licenses, the parties agree to cooperate in good faith to
discuss additional technical cooperation endeavors in
connection with the Akamai Services and Microsoft Software and
other commercial activities in relation to the following areas
of mutual interest concerning technology development: (a) [**]
into [**] (b) [**] of the [**] thereto into [**], and/or the
[**] thereto; and (c) other possible integration and support
opportunities consistent with the intent and purpose of this
Agreement.*
5. NON-EXCLUSIVE
Nothing in this Agreement shall be deemed to restrict either party's ability to
license, develop, sub-license, manufacture, deploy, support, promote, offer or
distribute software, Content, Streaming Media or any other format or technology,
whether or not similar to or competitive with Windows Media Technologies, Akamai
Services, or any products, services or technologies related to the products and
services of either party, subject to the obligations of the parties with respect
to Confidential Information.
6. CONFIDENTIALITY
6.1 Each party shall protect the other's Confidential Information from
unauthorized dissemination and use with the same degree of care that
such party uses to protect its own like information and in no event
using less than a reasonable degree of care. Neither party will use the
other's Confidential Information for purposes other than those
necessary to directly further the purposes of this Agreement. Neither
party will disclose to third parties the other's Confidential
Information without the prior written consent of the other party.
Except as expressly provided in this Agreement, no ownership or license
rights are granted in any Confidential Information. The other
provisions of this Agreement notwithstanding, either party will be
permitted to disclose the Confidential Information to their outside
legal and financial advisors; and to the extent required by applicable
law, provided however that before making any such required filing or
disclosure, the disclosing party shall first give written notice of the
intended disclosure to the other party, within a reasonable time from
the time disclosure is requested and in any event prior to the time
when disclosure is to be made, and the disclosing party will exercise
best efforts, in cooperation with and at the expense of the other
party, consistent with reasonable time constraints, to obtain
confidential treatment for all non-public and sensitive provisions of
this Agreement, including without limitation dollar amounts and other
numerical information.
6.2 The parties' obligations of confidentiality under this Agreement shall
not be construed to limit either party's right to independently develop
or acquire products without use of the other party's Confidential
Information. Further, either party shall be free to use for any
Microsoft Confidential & Proprietary
13
purpose the residuals resulting from access to or work with such
Confidential Information, provided that such party shall maintain the
confidentiality of the Confidential Information as provided herein. The
term 'residuals' means information in non-tangible form, which may be
retained by persons who have had rightful and good faith access to the
Confidential Information, including ideas, concepts, know-how or
techniques contained therein. Neither party shall have any obligation
to limit or restrict the assignment of such persons or to pay royalties
for any work resulting from the use of residuals. However, the
foregoing shall not be deemed to grant to either party a license under
the other party's copyrights or patents.
7. WARRANTIES AND DISCLAIMERS
7.1 Warranties. Each party warrants and covenants that it has the full
power and authority to enter into and perform according to the terms of
this Agreement.
7.2 DISCLAIMERS. ANY AND ALL SOFTWARE, TECHNOLOGY, SERVICES, CONTENT, OR
INFORMATION PROVIDED BY EITHER PARTY TO THE OTHER HEREUNDER IS PROVIDED
'AS IS,' WITHOUT WARRANTY OF ANY KIND. EACH PARTY DISCLAIMS ALL
WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE AND NONINFRINGEMENT, WITH RESPECT TO ANY SOFTWARE,
TECHNOLOGY, SERVICES, CONTENT, OR INFORMATION PROVIDED HEREUNDER.
Microsoft Confidential & Proprietary
14
8. INDEMNITY
8.1 Indemnity by Akamai. Akamai shall, at its expense and Microsoft's
request, defend any claim or action brought by a third party against
Microsoft, or Microsoft's affiliates, directors, or officers, to the
extent it is based upon a claim involving the Akamai Services and/or
the Akamai Web Site, including without limitation any claim that any
Akamai Services or any Content included in or uploaded to the Akamai
Web Site infringes or violates any copyright, patent, trademark, trade
secret, right of publicity, or other intellectual property, proprietary
or contractual right of a third party (all such claims or actions being
referred to hereinafter as 'Akamai Claims'), and Akamai will indemnify
and hold Microsoft harmless from and against any costs, damages and
fees reasonably incurred by Microsoft, including but not limited to
fees of outside attorneys and other professionals, that are
attributable to such Akamai Claims; provided, however, that Microsoft
shall: (a) provide Akamai reasonably prompt notice in writing of any
such Akamai Claims and permit Akamai, through counsel chosen by Akamai,
to answer and defend and have exclusive control over, subject to
Section 8.2, the answer and defense of such Akamai Claims; and (b)
provide the entity defending such claim information, assistance and
authority, at such entity's expense, to help defend such Akamai Claims.
Akamai will not be responsible for any settlement made by Microsoft
without Akamai's written permission, which permission will not be
unreasonably withheld or delayed. Reasonable withholding of permission
may be based upon, among other factors, editorial and business
concerns. Akamai will consult with Microsoft on Akamai's choice of
counsel under this Section 8.1. In the event Microsoft receives any
Akamai Claim or Microsoft has reason to believe it may be subject to
any Akamai Claim, Microsoft shall be entitled, upon written notice to
Akamai, to suspend performance under this Agreement with respect to the
applicable Akamai Service(s), Akamai Web Site or Content thereon until
Akamai has taken steps to Microsoft's reasonable satisfaction in order
to address the alleged infringement. If Akamai does not take
satisfactory steps to address the alleged infringement within ten (10)
days after Microsoft delivers such a notice of suspension, then
Microsoft in its discretion may terminate this Agreement upon written
notice to Akamai and such termination shall be deemed to be a
termination for cause for purposes of Section 9.
8.2 Settlement by Akamai. Unless Akamai obtains for Microsoft a complete
release of all Akamai Claims thereunder, Akamai may not settle any
Akamai Claim under Section 8.1 on Microsoft's behalf without first
obtaining Microsoft's written permission, which permission will not be
unreasonably withheld or delayed. Reasonable withholding of permission
may be based upon, among other factors, the ability for Microsoft to
ship any product. In the event Akamai and Microsoft agree to settle an
Akamai Claim, both parties agree not to disclose terms of the
settlement without first obtaining the other party's written
permission, which will not be unreasonably withheld or delayed.
8.3 Indemnification by Microsoft. Microsoft shall, at its expense and
Akamai's request, defend any claim or action brought by a third party
against Akamai, or Akamai's affiliates, directors, or officers, to the
extent it is based upon a claim relating to Microsoft's promotion of
any Akamai Services or Microsoft's promotional activities regarding the
Broadband Streaming Initiative (all such claims or actions being
referred to hereinafter as 'Microsoft
Microsoft Confidential & Proprietary
15
Claims'), and Microsoft will indemnify and hold Akamai harmless from
and against any costs, damages and fees reasonably incurred by Akamai,
including but not limited to fees of outside attorneys and other
professionals, that are attributable to such Microsoft Claims;
provided, however, that Akamai shall: (a) provide Microsoft reasonably
prompt notice in writing of any such Microsoft Claims and permit
Microsoft, through counsel chosen by Microsoft, to answer and defend
and have exclusive control, subject to Section 8.4, over the answer and
defense of such Microsoft Claims; and (b) provide Microsoft such claim
information, assistance and authority, at Microsoft's expense, to help
defend such Microsoft Claims. Microsoft will not be responsible for any
settlement made by Akamai without Microsoft's written permission, which
permission will not be unreasonably withheld or delayed. Reasonable
withholding of permission may be based upon, among other factors,
editorial and business concerns. In the event Akamai receives any
Microsoft Claim or Akamai has reason to believe it may be subject to
any Microsoft Claim, Akamai shall be entitled, upon written notice to
Microsoft, to suspend performance under this Agreement with respect to
the applicable obligations of Akamai under Section until Microsoft has
taken steps to Akamai's reasonable satisfaction in order to address the
alleged infringement. If Microsoft does not take satisfactory steps to
address the alleged infringement within ten (10) days after Akamai
delivers such a notice of suspension, then Akamai in its discretion may
terminate this Agreement upon written notice to Microsoft and such
termination shall be deemed to be a termination for cause for purposes
of Section 9.
8.4 Settlement by Microsoft. Unless Microsoft obtains for Akamai a complete
release of all Microsoft Claims thereunder, Microsoft may not settle
any Microsoft Claim under Section 8.3 on Akamai's behalf without first
obtaining Akamai's written permission, which permission will not be
unreasonably withheld or delayed. Reasonable withholding of permission
may be based upon, among other factors, the ability for Akamai to
provide any Akamai Services. In the event Microsoft and Akamai agree to
settle a Microsoft Claim, both parties agree not to disclose terms of
the settlement without first obtaining the other party's written
permission, which will not be unreasonably withheld or delayed.
9. TERMINATION
9.1 Termination By Either Party. Either party may suspend performance
and/or terminate this Agreement only as expressly provided elsewhere in
this Agreement or:
(a) Immediately upon written notice at any time, if the other
party is in material breach of any material warranty, term,
condition or covenant of this Agreement, other than those
contained in Section 6, and fails to cure that breach within
thirty (30) days after written notice thereof; or
(b) Immediately upon written notice at any time, if the other
party is in material breach of Section 6.
Microsoft Confidential & Proprietary
16
9.2 Effect of Termination.
(a) Neither party shall be liable to the other for damages of any
sort resulting solely from terminating this Agreement in
accordance with its terms.
(b) Termination of this Agreement shall not affect any other
agreement between the parties.
(c) Should either Akamai or Microsoft terminate for cause pursuant
to Section 8.1, 8.3, 9.1(a), or 9.1(b), neither party shall
have any further obligations to the other under Sections
2.1-2.5, Section 3.1-3.5, or Section 4, with the exception
that Microsoft shall be entitled to require Akamai to refund
the portion of the total Network Credits Fee Amount then
having been prepaid by Microsoft and not (as of the
termination date) used to provide Akamai Services or other
services for the parties and purposes specified in Section 2.1
and Exhibit A. Alternatively, in the event Microsoft
terminates this Agreement for cause pursuant to Section 8.1,
9.1(a) or 9.1(b), Microsoft may elect in its sole discretion
to retain and use, in accordance with the Network Credits
roll-over and expiration schedule set forth in Section 3.2(c),
any prepaid Network Credits Fee Amount then having been paid
by Microsoft and which has not been recouped via use of such
prepaid Networks Credits Fee Amount still outstanding as of
the date of termination. Without limiting the generality of
the foregoing, Microsoft will have no obligation following
termination of this Agreement to make any additional payments
or provide any further services to Akamai under Section 2 of
this Agreement, and, except as provided above, Akamai shall
have no obligation following termination of this Agreement to
provide any further services to Microsoft or any ICP.
9.3 Survival. In the event of termination or expiration of this Agreement
for any reason, Sections 1, 2.6, 3.6 and 5-11 shall survive termination
and continue in effect in accordance with their terms.
10. LIMITATION OF LIABILITIES
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT,
INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF
BUSINESS INFORMATION, AND THE LIKE, ARISING OUT OF THIS AGREEMENT OR THE USE OF
OR INABILITY TO USE THE MICROSOFT SOFTWARE OR EITHER PARTY'S CONFIDENTIAL
INFORMATION, CONTENT, OR SERVICES, EVEN IF A PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
THIS SECTION SHALL NOT APPLY TO SECTION 6 (REGARDING CONFIDENTIALITY), NOR TO
THE INDEMNITY OBLIGATIONS WITH RESPECT TO THIRD PARTY CLAIMS AS PROVIDED IN
SECTION 8 OF THIS AGREEMENT.
Microsoft Confidential & Proprietary
17
11. GENERAL PROVISIONS
11.1 Notices. All notices and requests in connection with this Agreement
shall be deemed given as of the day they are received either by
messenger, delivery service, or in the United States of America mails,
postage prepaid, certified or registered, return receipt requested. Any
such notices to Akamai should be sent to the address set forth in the
Initial Definitions Table on the first page of this Agreement, and sent
to the attention of the Akamai Contact named in such Initial
Definitions Table or to such other address as a party may designate
pursuant to this notice provision. Any such notices to Microsoft should
be addressed as follows:
ADDRESS:
Microsoft Corporation
One Microsoft Way
Redmond, WA 98052-6399
Attention: Patty Jackson
Phone: (425) 882-8080
Fax: (425) 936-7329
COPY TO: LAW AND CORPORATE AFFAIRS
Microsoft Corporation
One Microsoft Way
Redmond, WA 98052-6399
Attention: Law & Corporate Affairs
Phone: (425) 882-8080
Fax: (425) 936-7409
11.2 Independent Parties. Nothing in this Agreement shall be construed as
creating an employer-employee relationship, an agency relationship, a
partnership, or a joint venture between the parties.
11.3 Governing Law. This Agreement will be governed by the laws of the State
of Washington, without reference to the conflict of law principles
thereof. Any action or litigation concerning this Agreement brought by
Akamai will take place exclusively in the federal or state courts in
King County, Washington. Any action or litigation concerning this
Agreement brought by Microsoft will take place exclusively in the
federal or state courts in Boston, Massachusetts. The parties expressly
consent to jurisdiction of and venue in the courts specified in the
foregoing sentences and waive all defenses of lack of personal
jurisdiction and forum non conveniens with respect to such courts. Each
party hereby agrees to service of process by mail or other method
acceptable under the laws of the State of Washington.
11.4 Attorneys' Fees. In any action or suit to enforce any right or remedy
under this Agreement or to interpret any provision of this Agreement,
the prevailing party shall be entitled to recover its costs, including
reasonable attorneys' fees.
Microsoft Confidential & Proprietary
18
11.5 Dispute Resolution Procedures Related to Meeting Performance Criteria.
In the event a dispute between Akamai and Microsoft arises under
Section 2.5 of the Agreement, the parties shall attempt to settle such
dispute through consultation and negotiation between the responsible
Microsoft contact and Akamai contact in good faith and a spirit of
mutual cooperation. If the respective contacts are unable to resolve
the dispute, it shall be referred to a conflict resolution committee
comprised of one representative designated by each party. Except where
prevented from doing so by the matter in dispute, the parties agree to
continue performing their obligations under this Agreement while any
good faith dispute is being resolved unless and until such obligations
are terminated by the termination or expiration of any project or this
Agreement.
11.6 Assignment. This Agreement and any rights or obligations hereunder may
not be assigned by either party (including without limitation via
merger, stock purchase, a sale of substantially all assets, or
otherwise by operation of law) without the other party's prior written
approval, which approval will not be unreasonably withheld or delayed.
Any attempted assignment, sub-license, transfer, encumbrance or other
disposal which has not been so approved will be void and will
constitute a material default and breach of this Agreement for which
the non-breaching party may terminate this Agreement in accordance with
Section 9.1. Except as otherwise provided, this Agreement will be
binding upon and inure to the benefit of the parties' successors and
lawful assigns.
11.7 Force Majeure. Neither party shall be liable to the other under this
Agreement for any delay or failure to perform its obligations under
this Agreement if such delay or failure arises from any cause(s) beyond
such party's reasonable control, including by way of example labor
disputes, strikes, acts of God, floods, fire, lightning, utility or
communications failures, earthquakes, vandalism, war, acts of
terrorism, riots, insurrections, embargoes, or laws, regulations or
orders of any governmental entity.
11.8 Construction. If for any reason a court of competent jurisdiction finds
any provision of this Agreement, or portion thereof, to be
unenforceable, that provision of the Agreement will be enforced to the
maximum extent permissible so as to effect the intent of the parties,
and the remainder of this Agreement will continue in full force and
effect. Failure by either party to enforce any provision of this
Agreement will not be deemed a waiver of future enforcement of that or
any other provision. This Agreement has been negotiated by the parties
and their respective counsel and will be interpreted fairly in
accordance with its terms and without any strict construction in favor
of or against either party.
11.9 Execution in Counterparts and by Facsimile. This Agreement may be
executed in one or more counterparts, each of which will be deemed an
original, but all of which together will constitute one and the same
instrument. A facsimile copy of a signed counterpart shall be treated
the same as a signed original.
11.10 Entire Agreement. This Agreement does not constitute an offer by
Microsoft and it shall not be effective until signed by both parties.
This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and merges all prior
Microsoft Confidential & Proprietary
19
and contemporaneous communications. It shall not be modified except by
a written agreement dated subsequent to the date of this Agreement and
signed on behalf of Akamai and Microsoft by their respective duly
authorized representatives.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
Effective Date written above.
MICROSOFT CORPORATION AKAMAI TECHNOLOGIES, INC.
By: By:
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Title: Title:
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Date: Date:
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Microsoft Confidential & Proprietary
20
EXHIBIT A
AKAMAI SERVICES GUIDELINES
1. Approval of Program Participants
Subject to the restrictions and limitations contained in the Agreement,
Microsoft shall have sole discretion regarding the designation of Broadband
Streaming Initiative ICP Participants and allocation of Network Credits for use
by such entities and/or Microsoft's internal use under this Agreement. Microsoft
shall make reasonable efforts to provide Network Credits to shared customers
that Akamai recommends for the Broadband Streaming Initiative. In no event shall
either party provide any of the other party's Confidential Information to any
customer or prospective customer except with such other party's express written
approval. Microsoft shall notify Akamai from time to time in writing of approved
Broadband Streaming Initiative ICP Participants, the particular Akamai Services
to be used by each such entity pursuant to this Agreement, and the approved
allocation of Network Credits among such entities and Microsoft (if applicable),
and a copy of the standard Akamai Services agreement as executed by such
participant. Microsoft and Akamai will cooperate in good faith following the
Effective Date to develop and implement operational procedures to coordinate the
use of Network Credits in accordance with this Agreement.
2. Terms of Service
Notwithstanding anything to the contrary in the foregoing paragraph or
elsewhere in this Agreement, the relationship between Akamai and any Broadband
Streaming Initiative ICP Participant or any Microsoft participating ISP shall be
separate from Akamai's relationship with Microsoft and Akamai shall have the
right to choose, in its sole discretion, not to do business with any ISP or any
Broadband Streaming Initiative ICP Participant, or to refuse to provide Akamai
Services to any Broadband Streaming Initiative ICP Participants or to take steps
to prevent any Content from being routed to, passed through or stored on or
within the Akamai Network if Akamai determines in its sole discretion that such
Content is inappropriate or unacceptable. Akamai shall enter into a separate
agreement in a timely manner with each Broadband Streaming Initiative ICP
Participant to which Akamai intends to provide Akamai Services pursuant to this
Agreement and any ISP designated by Microsoft pursuant to Section 3.2(b), and
Akamai shall perform all such Akamai Services in a manner as mutually agreed
upon by Akamai and each such Broadband Streaming Initiative ICP Participant or,
as appropriate, each such ISP. Akamai shall be solely responsible for all
services it provides to Broadband Streaming Initiative ICP Participants,
including without limitation the Akamai Services, and for enforcing the terms of
any services or other agreements it enters into with Broadband Streaming
Initiative ICP Participants or ISPs.
At Microsoft's sole discretion, Akamai may perform Akamai Services for
Microsoft acting on behalf of a Broadband Streaming Initiative ICP Participant,
in which event such provision of Akamai Services shall be subject to the terms
of this Agreement and any further services agreement that Microsoft and Akamai
may mutually agree upon.
Microsoft Confidential & Proprietary
21
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION. ASTERISK DENOTE OMISSION.
3. Rate Schedule
In applying Network Credits under this Agreement for Microsoft's
internal use or provision to Broadband Streaming Initiative ICP Participants,
Akamai will calculate use of Network Credits on the basis of the lower of (a)
[**] of Akamai's standard retail list price (without regard to or adjustment for
any volume discounts), subject to Akamai's standard payment terms and conditions
and pricing methodology, and (b) [**] from time to time [**] by [**] group in
connection with this Agreement.
Microsoft Confidential & Proprietary
22
EXHIBIT B
GET WINDOWS MEDIA(TM) PLAYER
LINK LOGO GUIDELINES
Get Windows Media(TM) Player logo usage instructions
To put the logo and link on your Web site, follow these easy steps:
1. Read our policy below on using the Get Windows Media Player
logo.
2. Copy the Get Windows Media Player logo.gif file image to your
desktop.
[GRAPHIC OMITTED]
[GRAPHIC OMITTED]
3. Move the Get Windows Media Player logo .gif file from your
desktop to your Web server. 4. Insert the following HTML code
on your Web page. Be sure to point the (IMG SRC) to the
location of the Get Windows Media Player logo .gif file on
your server:
(BR)(CENTER)
(AHREF='http://www.microsoft.com/windows/mediaplayer/download
/default.asp')
(IMG SRC='type path to logo image here' WIDTH='65' HEIGHT='57'
BORDER='0'
ALT='Get Windows Media Player' VSPACE='7')(/A)
(/CENTER)(BR)
5. You can modify this HTML code to fit your formatting as long
as you follow the guidelines outlined below.
Get Windows Media(TM) Player logo usage guidelines
1. Except as Microsoft may authorize elsewhere, non-Microsoft Web sites
may display only the Get Windows Media(TM) Player logo provided above
('Logo'). By downloading the Logo to your Web site, you agree to be
bound by these Policies.
2. You may only display the Logo on your Web site, and not in any other
manner. It must always be an active link to the download page for the
Windows Media Player at
http://www.microsoft.com/windows/mediaplayer/download/default.asp.
3. The Logo GIF image includes the words 'Get Windows Media Player'
describing the significance of the Logo on your site (that the Logo is
a link to the download page for the Microsoft Windows Media Player, not
an endorsement of your site). You may not remove or alter any element
of the Logo.
4. The Logo may be displayed only on Web pages that make accurate
references to Microsoft or its products or services or as otherwise
authorized by Microsoft. Your Web page title and other trademarks and
logos must appear at least as prominently as the Logo. You may not
display the Logo in any manner that implies sponsorship, endorsement,
or license by Microsoft except as expressly authorized by Microsoft.
5. The Logo must appear by itself, with a minimum spacing (30 pixels)
between each side of the Logo and other distinctive graphic or textual
elements on your page. The Logo may not be displayed as a feature or
design element of any other logo.
Microsoft Confidential & Proprietary
23
6. You may not alter the Logo in any manner, including size, proportions,
colors, elements, or animate, morph, or otherwise distort its
perspective or appearance, except in the event expressly authorized by
Microsoft.
7. You may not display the Logo on any site that infringes any Microsoft
intellectual property or other rights, or violates any state, federal,
or international law.
8. These Policies do not grant a license or any other right to Microsoft's
logos or trademarks. Microsoft reserves the right at its sole
discretion to terminate or modify permission to display the Logo at any
time. Microsoft reserves the right to take action against any use that
does not conform to these Policies, infringes any Microsoft
intellectual property or other right, or violates other applicable law.
9. MICROSOFT DISCLAIMS ANY WARRANTIES THAT MAY BE EXPRESS OR IMPLIED BY
LAW REGARDING THE LOGO, INCLUDING WARRANTIES AGAINST INFRINGEMENT.
(C)1999 Microsoft Corporation. All rights reserved. Terms of Use.
Microsoft Confidential & Proprietary
24
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