EXHIBIT 10.4
EXODUS COMMUNICATIONS, INC.
ALLIANCE PARTNER AGREEMENT
This Alliance Partner Agreement (this "Agreement") is made and effective
as of Nov. 11, 1999 (the "Effective Date"), by and between Exodus
Communications, Inc., a Delaware corporation ("Exodus"), and USA Video
Interactive, a Wyoming corporation ("Alliance Partner").
1. AUTHORITY
Subject to the terms and conditions of this Agreement, Exodus hereby
authorizes Alliance Partner to (i) demonstrate and market the Exodus Services
(as defined below) and (ii) solicit orders for the Exodus Services pursuant to
Exodus' standard Services Agreement in the form provided by Exodus to Alliance
Partner from time to time and Exodus' then-current price schedules. For purposes
of this Agreement, the term "Exodus Services" means Exodus' monthly recurring
facilities, bandwidth and managed services listed on Exodus' price lists as of
the Effective Date, other than (i) Exodus professional services; (ii) equipment
rentals, leases and purchases; (iii) services with non-recurring charges; (iv)
services and products which Exodus receives from a third party and is required
to pay such third party on a per customer basis, including, but not limited to,
telecommunications services and equipment; (v) services provided by subsidiaries
and affiliates of Exodus; (vi) any other services identified in writing by
Exodus.
2. ALLIANCE PARTNER OBLIGATIONS
2.1 Marketing and Solicitation. During the term of this Agreement,
Alliance Partner will use its commercially reasonable efforts to (i) market and
solicit orders for Exodus Services to Alliance Partner's customers, prospective
customers and others; and (ii) cooperate in joint marketing efforts as
reasonably requested by Exodus. Alliance Partner shall use and disseminate only
current forms of written Exodus sales and promotional materials.
2.2 Use of Exodus Trademarks. In connection with the performance of its
obligations under this Agreement, Alliance Partner may use certain Exodus
trademarks as authorized in writing by Exodus from time to time (the "Exodus
Marks"). Exodus hereby grants to Alliance Partner a non-exclusive, revocable
right during the term of this Agreement to use the Exodus Marks in the
performance of Alliance Partner's authorized obligations pursuant to this
Agreement. The Exodus Marks may not be used on Alliance Partner's products in
any way. Alliance Partner agrees to submit to Exodus, in advance of any proposed
use, samples of its use of the Exodus Marks for review. If in the reasonable
opinion of Exodus such proposed use is unacceptable, Alliance Partner shall be
prohibited from using the Exodus Marks as proposed.
2.3 Relationship with Exodus. Alliance Partner acknowledges and agrees
that the relationship between it and Exodus is that of independent contractors,
and nothing in this Agreement shall be construed as making Alliance Partner or
any of its employees an employee, partner or representative except as may be
expressly provided in this Agreement. Alliance Partner may, however, represent
itself as an authorized Exodus Alliance Partner and solicitation agent for
Exodus Services. Alliance Partner has neither the express nor implied authority
to accept orders from customers on behalf of Exodus nor to enter into or modify
contracts, whether oral or written, on behalf of Exodus. Alliance Partner shall
not represent that its products or services are affiliated with or endorsed by
Exodus.
2.4 Training. Alliance Partner may participate in the Exodus Alliance
Partner Program training activities as may be made available by Exodus from time
to time. Except as otherwise agreed to in writing by Exodus, such participation
shall be at Alliance Partner's sole cost and expense.
2.5 Exodus Services Warranties. Alliance Partner shall not make any
warranties, representations or statements regarding Exodus Services other than
those contained in Exodus' written marketing literature and promotional
materials.
1
2.6 Reporting. Alliance Partner will provide written reports to Exodus no
later than the last day of each month during the term of this Agreement. Such
reports will list the names of all potential customers that Alliance Partner has
solicited on behalf of Exodus and will indicate the status of each solicitation.
2.7 Competitive Activities. Alliance Partner agrees to notify Exodus prior
to entering into any agreements with any third parties to provide services
similar to those hereunder for such third parties or to assist any third party
in activities that are competitive with Exodus Services or Exodus' business.
3. EXODUS OBLIGATIONS; SOLICITATION FEES
3.1 Marketing and Solicitation Information. Exodus shall make available to
Alliance Partner all pertinent sales and marketing information and assistance,
including, but not limited to, current price and data information, sales aids,
counseling and assistance, including periodic visits by Exodus sales and
marketing personnel.
3.2 Use of Alliance Partner Trademarks. In connection with the performance
of its obligations under this Agreement, Exodus may use the Alliance Partner
name and certain other Alliance Partner trademarks, (the "Alliance Partner
Marks") (i) on the Exodus Web site to identify Alliance Partner as an authorized
Alliance Partner and briefly describe Alliance Partner's business; and (ii) as
otherwise authorized in writing by Alliance Partner from time to time. Alliance
Partner hereby grants to Exodus a non-exclusive, revocable right during the term
of this Agreement to use the Alliance Partner Marks in the performance of
Exodus' authorized obligations pursuant to this Agreement. Except for the
limited use of the Alliance Partner Marks on the Exodus Web site, Exodus agrees
to submit to Alliance Partner, in advance of any proposed use, samples of its
use of the Alliance Partner Marks for review. If in the reasonable determination
of Alliance Partner any use or proposed use is unacceptable, Exodus shall be
prohibited from using the Alliance Partner Marks as proposed.
3.3 Training. Exodus will conduct, at its expense, initial training for
Alliance Partner, and periodic training as deemed reasonably necessary by
Exodus.
3.4 Solicitation Fees. In consideration of the performance of Alliance
Partner's obligations under this Agreement, Exodus will pay to Alliance Partner
an amount equal to ten percent (10%) of all Exodus Services fees received by
Exodus from a Qualified Exodus Customer (as defined below) during the period
commencing on the date Exodus first begins providing Exodus Services to a
Qualified Exodus Customer and ending on the first (1 st ) anniversary of such
date. For purposes of this Agreement, the term "Qualified Exodus Customer" shall
mean an Exodus customer (i) who became an Exodus customer as a direct result of
Alliance Partner's solicitation of customer on behalf of Exodus, as determined
in good faith by Exodus and (ii) has agreed to purchase Exodus Services for a
period of not less than one (1) year. Exodus will tender any payments owed
Alliance Partner pursuant to this Agreement not later than sixty (60) days after
the end of each calendar quarter for applicable Exodus Services fees received
from a Qualified Exodus Customer during the quarter. Exodus may offset any
monies owed Exodus by Alliance Partner with any solicitation fees Exodus owes
Alliance Partner.
3.5 No Obligation to Provide Services. Nothing in this Agreement shall be
construed in any way to require Exodus to provide Exodus Services to any
potential customer, whether or not solicited by Alliance Partner pursuant to
this Agreement. Exodus reserves the right to determine whether, and under what
terms, it will provide Exodus Services to any potential customer.
4. TERM AND TERMINATION
4.1 Term. The initial term of this agreement shall be for a period of one
(1) year from the Effective Date and will renew automatically for additional one
(1) year terms unless either party provides the other party written notice at
least thirty (30) days prior to the end of the term that such party does not
want to renew this Agreement.
4.2 Termination.
(a) Either party may terminate this Agreement for convenience at any time
by providing thirty (30) days' prior written notice to the other party.
2
(b) Either party will have the right to terminate this Agreement if: (i)
the other party breaches any term or condition of this Agreement and fails to
cure such breach within ten (10) days after written notice of the same; (ii) the
other party becomes the subject of a voluntary petition in bankruptcy or any
voluntary proceeding relating to insolvency, receivership, liquidation, or
composition for the benefit of creditors; or (iii) the other party becomes the
subject of an involuntary petition in bankruptcy or any involuntary proceeding
relating to insolvency, receivership, liquidation, or composition for the
benefit of creditors, if such petition or proceeding is not dismissed within
sixty (60) days of filing.
4.3 No Liability for Termination. Neither party will be liable to the
other for any termination or expiration of this Agreement in accordance with its
terms.
4.4 Effect of Termination. Upon the effective date of expiration or
termination of this Agreement:
(a) Within thirty (30) days after such expiration or termination, each
party will return all Confidential Information (as defined below) of the other
party in its possession at the time of expiration or termination and will not
make or retain any copies of such Confidential Information except as required to
comply with any applicable legal or accounting record keeping requirement; and
(b) Exodus will continue to tender any solicitation fees owed to Alliance
Partner pursuant to the terms and conditions of this Agreement.
5. CONFIDENTIAL INFORMATION
5.1 Confidential Information. Each party acknowledges that it will have
access to certain confidential information of the other party concerning the
other party's business, plans, customers, technology, and products, including
the terms and conditions of this Agreement ("Confidential Information").
Confidential Information will include, but not be limited to, each party's
proprietary software and customer information, and in the case of Exodus will
include all non-public information Exodus provides to Alliance Partner. Each
party agrees that it will not use in any way, for its own account or the account
of any third party, except as expressly permitted by this Agreement, nor
disclose to any third party (except as required by law or to that party's
attorneys, accountants and other advisors as reasonably necessary), any of the
other party's Confidential Information and will take reasonable precautions to
protect the confidentiality of such information.
5.2 Exceptions. Information will not be deemed Confidential Information
hereunder if such information: (i) is known to the receiving party prior to
receipt from the disclosing party directly or indirectly from a source other
than one having an obligation of confidentiality to the disclosing party; (ii)
becomes known (independently of disclosure by the disclosing party) to the
receiving party directly or indirectly from a source other than one having an
obligation of confidentiality to the disclosing party; (iii) becomes publicly
known or otherwise ceases to be secret or confidential, except through a breach
of this Agreement by the receiving party; or (iv) is independently developed by
the receiving party.
6. NO WARRANTIES; LIMITATION OF LIABILITY
6.1 No Warranties. EXODUS DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL
EXPRESS AND/OR IMPLIED WARRANTIES REGARDING THE EXODUS SERVICES OR ANY MATERIALS
PROVIDED BY EXODUS TO ALLIANCE PARTNER PURSUANT TO THIS AGREEMENT, INCLUDING,
BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF
DEALING, USAGE, OR TRADE PRACTICE.
6.2 Limitation of Liability. IN NO EVENT WILL EXODUS BE LIABLE TO ALLIANCE
PARTNER OR OTHERS FOR ANY LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF
TECHNOLOGY, RIGHTS OR SERVICES, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL
DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING
NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
7. MISCELLANEOUS
7.1 No Licenses or Transfer of Rights. Except for the limited rights
granted herein by Exodus and Alliance Partner relating to use of the Exodus
Marks and Alliance Partner Marks, respectively, nothing in this Agreement shall
(i) serve to transfer to Alliance Partner any intellectual property rights in or
to the Exodus Services, Exodus Marks or other intellectual property owned or
claimed by Exodus; or (ii) serve to transfer to Exodus any
3
intellectual property rights in or to the Alliance Partner Marks. As between
Exodus and Alliance Partner, (i) Alliance Partner acknowledges and agrees that
Exodus has sole right, title and interest in and to all Exodus Services, Exodus
Marks and Exodus intellectual property and rights therein and thereto; and (ii)
Exodus acknowledges and agrees that Alliance Partner has sole right, title and
interest in and to all Alliance Partner Marks and Alliance Partner intellectual
property and rights therein and thereto.
7.2 Governing Law. This Agreement is made under and will be governed by
and construed in accordance with the laws of the State of California, United
States of America (except that body of law controlling conflicts of law).
7.3 Arbitration. Any dispute relating to the terms, interpretation or
performance of this Agreement (other than claims for preliminary injunctive
relief or other pre-judgment remedies) will be resolved at the request of either
party through binding arbitration. Arbitration will be conducted in Santa ▇▇▇▇▇
County, California, under the rules and procedures of the Judicial Arbitration
and Mediation Society ("JAMS"). The parties will request that JAMS appoint a
single arbitrator possessing knowledge of online services agreements; however
the arbitration will proceed even if such a person is unavailable.
7.4 Force Majeure. Neither party will be liable for any failure or delay
in its performance under this Agreement due to any cause beyond its reasonable
control, including act of war, acts of God, earthquake, flood, embargo, riot,
sabotage, labor shortage or dispute, governmental act or failure of the
Internet, provided that the delayed party: (a) gives the other party prompt
notice of such cause, and (b) uses its reasonable commercial efforts to correct
promptly such failure or delay in performance.
7.5 Severability. In the event any provision of this Agreement is held by
a tribunal of competent jurisdiction to be contrary to the law, the remaining
provisions of this Agreement will remain in full force and effect.
7.6 Waiver. The waiver of any breach or default of this Agreement will not
constitute a waiver of any subsequent breach or default, and will not act to
amend or negate the rights of the waiving party.
7.7 Assignment. Neither party may assign its rights or delegate its duties
under this Agreement either in whole or in part without the prior written
consent of the other party, except that this Agreement may be assigned in whole
as part of a corporate reorganization, consolidation, merger, or sale of
substantially all of its assets, provided that it notifies such other party at
least thirty (30) days prior to the effective date of such event. Any attempted
assignment or delegation without such consent will be void. This Agreement will
bind and inure to the benefit of each party's successors and permitted assigns.
7.8 Notices. Any notice or communication required or permitted to be given
hereunder may be delivered by hand, deposited with an overnight courier, sent by
confirmed facsimile, or mailed by registered or certified mail, return receipt
requested, postage prepaid, in each case to the address of the receiving party
indicated below, or at such other address as may hereafter be furnished in
writing by either party hereto to the other. Such notice will be deemed to have
been given as of the date it is delivered, mailed or sent by facsimile or
overnight courier, whichever is earlier.
Exodus Communications, Inc. Alliance Partner USA Video Interactive Corp.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Vice President, Finance Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Copy to: General Counsel
7.9 Entire Agreement; Counterparts. This Agreement, including all
documents incorporated herein by reference, constitutes the complete and
exclusive agreement between the parties with respect to the subject matter
hereof, and supersedes and replaces any and all prior or contemporaneous
discussions, negotiations, understandings and agreements, written and oral,
regarding such subject matter. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together shall constitute one and the same instrument.
4
7.10 Relationship of Parties. Exodus and Alliance Partner are independent
contractors and this Agreement will not establish any relationship of
partnership, joint venture, employment, franchise or agency between Exodus and
Alliance Partner. Neither Exodus nor Alliance Partner will have the power to
bind the other or incur obligations on the other's behalf without the other's
prior written consent, except as otherwise expressly provided herein
7.11 Survival. The following provisions will survive any expiration or
termination of the Agreement: Sections 2.7, 3.4, 3.5, 4.3, 4.4, 5, 6 and 7.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
causing their duly authorized representatives to sign below as of the day and
year first above written.
EXODUS COMMUNICATIONS, INC. ALLIANCE PARTNER
USA Video Interactive Corp.
-----------------------------------
(name)
Signature: /s/ S. ▇▇▇▇ ▇▇▇▇▇ Signature: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------- ------------------------
Print Name: S. ▇▇▇▇ ▇▇▇▇▇ Print Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Worldwide Program Manager Title: Chief Financial Officer
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇ Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
5