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EXHIBIT 10.25
[INTERVU LOGO]
May 9, 1999
DIGITAL ENTERTAINMENT NETWORK, INC.
AND
INTERVU INC.
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INTERNET MULTIMEDIA-STREAMING VIDEO CONTENT
MANAGEMENT & DELIVERY SERVICES AGREEMENT
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This agreement (the "Agreement") defines the terms and conditions of the
understanding between Digital Entertainment Network, Inc. (">EN") and INTERVU
Inc. ("ITVU"), (collectively, the "Parties" and each a "Party"). The Parties
hereby agree as follows:
1) The term of this Agreement shall begin as of May 9, 1999 and shall continue
until August 31, 1999 at which time all services shall terminate. Except as
otherwise agreed by the Parties, in order to extend the term of this
Agreement, both parties must approve an amendment to this Agreement no
later than August 10, 1999.
2) ITVU shall provide to >EN, video-on-demand streaming media services
utilizing [*] with the >EN infrastructure for up to [*] simultaneous
streams. Without the prior consent of ITVU, >EN may not resell, lease or
otherwise transfer the services set forth in this Section 2 to any other
person or organization.
3) At >EN's option, and upon at least 36 hours' prior notice from >EN, ITVU
will provide to >EN content storage and hosting services for >EN content
utilizing the INTERVU Network. Content will be stored on INTERVU native
format streaming
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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INTERVU CONFIDENTIAL
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media servers (i.e., RealPlayer, MediaPlayer and Quicktime) on the INTERVU
Network. Content stored on the INTERVU Network will be subject to standard
monthly storage fees according to a per-Gigabyte ("GB") per month accounting
method (pricing listed below). >EN will be able to access this content at
anytime through a dedicated file transfer protocol account which ITVU will
furnish for >EN.
STORAGE PRICING SCHEDULE:
Total GB Stored per Month Cost per GB Stored
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0-4 $[*]
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5-10 $[*]
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11-15 $[*]
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16-30 $[*]
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31 and over $[*]
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4) At >EN's option, and upon at least 36 hours' prior notice from >EN, ITVU
shall provide streaming media delivery services utilizing the INTERVU
Network. Such streaming media delivery services will be priced according to
a total GB delivered per month accounting model. >EN may determine how much
of their content stored on the INTERVU Network to make available for
on-demand viewing through management of the dedicated FTP account. All VOD
content that is delivered via the INTERVU Network must be stored on the
INTERVU Network. Monthly reports will determine the GB transferred per
month and associated costs.
DELIVERY PRICING SCHEDULE:
Total GB Transferred per Month Cost per GB Delivered
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0-999 $[*]
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1,000-4,999 $[*]
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5,000-9,999 $[*]
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10,000-19,999 $[*]
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20,000-29,999 $[*]
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30,000 and over $[*]
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5) ITVU shall provide to >EN the services set forth in Section 3 and 4, [*]
according to the rates set forth in Section 3 and 4.
6) In connection with the delivery services set forth in Section 4, and upon
>EN's specific request, ITVU will provide to >EN ITVU network consulting
services for the duration of this Agreement. All ITVU Network consulting
services provided to >EN will be billed on a per-hour basis to be charged
at $[*] per hour. ITVU and >EN will exchange all relevant employee contact
information including names, addresses and numbers. ITVU personnel will be
available to >EN on a 24/7 basis. ITVU shall assign a liaison acceptable to
>EN who shall have the primary responsibility for communicating and
coordinating with >EN in connection with this Agreement.
7) ITVU will provide to >EN a monthly billing statement that will detail all
services performed during the month, including supporting INTERVU Network
reports. >EN will pay all billing statements within 30 days of receipt of
each statement.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
INTERVU CONFIDENTIAL 2
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8) During the term of this agreement, >EN shall notify ITVU of any
request for proposals ("RFP") covering services provided by ITVU
to >EN and ITVU may respond to any such RFP in accordance with
the terms of such RFP.
9) ITVU shall provide to >EN on a weekly basis via e-mail statistical
reporting on stream names, maximum simultaneous streams, megabits
delivered and total streams requested. This information shall be
considered proprietary to >EN by ITVU. ITVU shall not release this
information to any third parties for any reason without >EN's prior
written consent which may be given or withheld at >EN's sole
discretion.
10) ITVU shall perform its obligations under this Agreement in a
workmanlike manner and in accordance with best-of-industry standards
and practices.
11) ITVU acknowledges and agrees that >EN shall own all rights, title
and interest in and to any and all content of any kind whatsoever
that >EN provides to ITVU in connection with this Agreement and ITVU
shall not use, exploit, reproduce or distribute any such content
except as is necessary to perform its obligations under this
Agreement.
12) ITVU represents and warrants that (i) ITVU has and shall maintain all
rights necessary to fully perform its obligations under this
Agreement and (ii) ITVU's full performance under this Agreement will
not violate any obligation of ITVU to a third party or result in a
breach of any agreement between ITVU and a third party. ITVU shall
promptly notify >EN of any breach of any of the foregoing
representations and warranties.
13) The Non-Disclosure Agreement entered into by and between ITVU and >EN
dated as of the date hereof is hereby incorporated into this
Agreement and all references to potential business opportunities
shall be deemed to include this Agreement.
14) This Agreement, and its validity, construction and effect shall be
governed, interpreted and enforced in accordance with the laws of
California (without reference to the conflicts of laws provisions
thereof), and the Parties agree to the jurisdiction of the courts
therein. This Agreement and its performance shall be binding on the
parties hereto, their heirs, administrators, successors and assigns.
This Agreement may not be assigned by ITVU without the prior written
consent of >EN. >EN may assign its rights under this Agreement in
whole or in part, provided that >EN may not assign its rights under
Section 2 of this Agreement without the prior written consent of ITVU.
15) Either party may terminate this Agreement if the other party
materially breaches this Agreement and fails to cure such breach
within 30 days' written notice.
16) Each Party shall defend, indemnify, save and hold harmless the other
Party and its affiliates, and all officers, directors and employees
thereof, from and against any claims, actions, damages or losses,
including, without limitation reasonable outside attorneys' fees and
costs, arising out of or in connection with such Party's material
breach of this Agreement or any material breach of such Party's
representations, warranties or covenants under this Agreement.
17) EXCEPT AS PROVIDED IN SECTION 15, IN NO EVENT WILL EITHER PARTY BE
LIABLE TO THE OTHER PARTY FOR DAMAGES IN EXCESS OF
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THE AMOUNT OF FEES TO BE PAID UNDER THIS AGREEMENT, IF ANY, OR SPECIAL,
COLLATERAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
18) ITVU shall be an independent contractor of >EN and shall not be deemed an
employee, agent, joint venturer or partner of >EN.
19) If any of the provisions or any portion of the provisions of this Agreement
shall be invalid or unenforceable, such invalidity or unenforceability will
not invalidate or render unenforceable the other provisions of this
Agreement and this Agreement shall be enforced so as to give effect to the
intent of Parties to the greatest extent possible.
20) This Agreement contains the entire agreement between the Parties relating
to the subject matter hereof and shall supersede any and all other
agreements relating to the subject matter hereof whether written or oral.
21) This Agreement may be executed in one or more counterparts.
The Parties have entered into this Agreement as of the date first set forth
above:
>EN
/s/ ▇▇▇ ▇▇▇▇▇
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▇▇▇ ▇▇▇▇▇
Chief Executive Officer
ITVU
/s/ ▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇
Director of Sales, Southwest United States
INTERVU CONFIDENTIAL 4
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September 1, 1999
INTERVU Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇ ▇▇▇▇▇▇
Re: Extension of DEN/INTERVU Agreement
Dear ▇▇▇▇:
When counter-executed by an authorized officer of INTERVU, Inc. ("INTERVU"),
that certain Internet Multimedia-Streaming Video Contract Management and
Delivery Services Agreement dated as of May 9, 1999 between INTERVU and Digital
Entertainment Network, Inc. ("DEN") shall be deemed amended and extended,
without interruption, as follows:
The term of agreement shall be extended until thirty (30) days
after either party gives the other party written notice of
termination (which may be for any reason); provided, however, that
the term shall end no later than December 31, 1999, regardless of
whether any such notice is given.
If INTERVU is agreeable to the above, please have all multiple copies of this
letter executed and returned to me.
Sincerely,
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
ALF/ac
ACCEPTED AND AGREED:
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
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Title: Director of Sales
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An authorized signatory of
INTERVU, Inc.