Strategic Alliance and Joint Development Agreement - Cisco Systems Inc. and Akamai Technologies Inc.
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISK DENOTE OMISSION.
AKAMAI TECHNOLOGIES, INC.
HAS REQUESTED THAT THE MARKED PORTIONS OF THIS AGREEMENT BE GRANTED
CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933
STRATEGIC ALLIANCE AND JOINT DEVELOPMENT AGREEMENT
This STRATEGIC ALLIANCE AND JOINT DEVELOPMENT AGREEMENT (the
"Agreement") is made and entered into as of this ___ day of August, 1999, (the
"Effective Date") by and between CISCO SYSTEMS, INC., a California corporation,
with offices at 170 W. Tasman Drive, San Jose, California 95134 ("Cisco"), and
AKAMAI TECHNOLOGIES, INC., a Delaware corporation, with offices at 201 Broadway,
Cambridge, MA 02139 ("Akamai").
RECITALS:
A. Cisco is in the business of developing, manufacturing and selling
routers, switches and other hardware and software products for use in computer
and communications networks ("Cisco Products"), including but not limited to
certain products for the caching and secure transmission of data and certain
protocols for the exchange of information.
B. Akamai has developed proprietary technology to efficiently deliver
content over the Internet and is in the business of providing content
distribution services ("Akamai Services"). To support its Akamai Services,
Akamai has, among other things, deployed a worldwide network dedicated to web
content delivery.
C. The parties wish to enter into a strategic development, integration
and joint marketing arrangement, and wherever practicable, Akamai is willing
standardize Akamai's hardware infrastructure on Cisco Products and to undertake
such other obligations as are set forth herein, on the terms and conditions
contained in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises contained
herein, the parties agree as follows:
1. DEFINITIONS.
Capitalized terms used in this Agreement are defined throughout the Agreement.
Terms not defined therein shall be given their plain English meaning; provided,
however, that those terms, acronyms and phrases known in the computer software
industry which are not defined shall be interpreted in accordance with their
generally accepted industry meaning.
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2. INTENT AND PURPOSE OF ALLIANCE; PROJECT PLANS.
2.1 INTENT AND PURPOSE. This Agreement contemplates certain joint
development activities between Cisco and Akamai that are intended to facilitate
and promote faster and more efficient Internet content delivery by, among other
things, developing protocol specifications and algorithms enabling Cisco's
router and switch hardware and equipment technologies and capabilities to
interoperate with Akamai's Internet content delivery technologies, services and
capabilities. Pursuant to the foregoing, it is the current intent of the parties
to undertake the development and integration projects specified in Section 3
below (the "Projects").
2.2 PROJECT PLANS. Notwithstanding the provisions of Section 2.1 above,
the parties understand that the technical and commercial feasibility of the
Projects has not been established. Accordingly, while it is the present intent
of the parties to undertake the Projects, either party may at its sole
discretion decline to agree to undertake any or all of the Projects without
obligation or penalty. It is further understood and agreed that each Project
undertaken pursuant to this Agreement will be subject to the execution and
delivery by the Parties of a separate Project plan for each Project undertaken
(each, a "Project Plan"). When executed, each Project Plan will be attached to
and incorporated by reference into this Agreement, and the terms and conditions
of the Project Plan shall control to the extent inconsistent with the terms
contained herein. The Parties agree that each Project Plan will set forth, among
other things as the parties shall deem appropriate, the following:
- a detailed description of the Project;
- any design documents or specifications (unless the Project
contemplates creation or development of the same);
- Project deliverables, if any, that either or both Parties will
be responsible for creating and developing;
- tasks, responsibilities, covenants and agreements of each
Party relating to the Project;
- deadlines, interim milestones, and other matters relating to
timing and delivery or performance under the Project;
- Intellectual Property rights or licenses to the extent
different from the terms of this Agreement;
- exclusivity rights or other restrictions on use with or
marketing of competing technologies, if any;
- termination rights of the Parties relating to the Project;
- obligations of the Parties to manufacture, market or sell
implementations of the Project; and
- any other terms or conditions that vary from the terms and
conditions set forth in this Agreement.
3. THE PROJECTS.
3.1 CACHE INTERFACE PROJECT. Akamai and Cisco will jointly develop a
cache interface protocol ("CIP") which will enable content delivery software
(which shall include but may not be limited to Akamai's proprietary FreeFlow
software (the "FreeFlow Software")) to interface with cache engine
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products (the "Cache Engine", which shall include but may not be limited to
Cisco's cache engine products), and for the Cache Engine to participate in and
integrate with Akamai's content delivery service, as follows:
(a) Akamai has delivered to Cisco an initial draft of a Cache
Engine interface design document ("Cache Engine Interface Design
Document"). Engineering teams from both parties agree to work jointly
and negotiate in good faith to agree upon a final Cache Engine
Interface Design Document and a Cache Engine interface Project Plan
("Cache Engine Interface Project Plan").
(b) The parties will establish by mutual agreement target
dates for the development of the Cache Engine Interface Design Document
and the Cache Engine Interface Project Plan.
(c) Akamai shall designate Sef Kloninger (sef@akamai.com) as
its Project Manager (as defined below) for the Cache Engine interface
project, and Cisco shall designate Krish Ramakrishnan (krish@cisco.com)
as its Project Manager. Either Party may change its Project Manager and
appoint a substitute Project Manager for this Project.
(d) Subject to the ownership rights set forth in Section 8,
the Parties agree that all aspects of CIP jointly developed by the
Parties (the "Jointly Developed CIP Property") shall be owned by
Akamai. Subject to the provisions of Section 3.1(e) below, with respect
to any Cisco Property expressly incorporated into CIP as finally
approved by both Parties under this Agreement, Cisco hereby grants
Akamai a nonexclusive, worldwide, perpetual, irrevocable, fully
paid-up, royalty free license, with the right to sublicense and
authorize the granting of sublicenses, to make, have made, use, import,
copy, modify, offer to sell, sell, lease and otherwise distribute such
Cisco Property solely as incorporated into CIP and any implementations
thereof. Subject to the provisions of Section 3.1(e) below, with
respect to any Akamai Property and any Jointly Developed CIP Property
expressly incorporated into CIP as finally approved by both Parties
under this Agreement, Akamai hereby grants Cisco a non-exclusive,
worldwide, perpetual, irrevocable, full paid-up, royalty free license,
with the right to sublicense and authorize the granting of sublicenses,
to make, have made, use, import, copy, modify, offer to sell, sell,
lease and otherwise distribute such Akamai Property and Jointly
Developed CIP Property solely as incorporated into CIP and any
implementations thereof. The parties further agree that Confidential
Information excludes CIP as finally approved by both Parties.
(e) The parties agree that nothing contemplated in this
Section 3.1 shall prohibit: (i) Cisco from enabling its Cache Engine to
interface with any content delivery services or other product or
service of Cisco or any third party (including enabling such interface
through creation of a new version of CIP, provided that Cisco does not
disclose to such third party or use any Akamai Property or Akamai
Confidential Information in interfacing with such third party
products); and (ii) Akamai from interfacing or offering its content
delivery services with cache products or other product or service of
Akamai or any third party (including enabling such interface through
creation of a new version of CIP, provided that Akamai does not
disclose to such third party or
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CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISK DENOTE OMISSION.
use any Cisco Property or Cisco Confidential Information in interfacing
with such third party products).
(f) In addition to the foregoing, Cisco agrees that it will
not, during the term of this Agreement and for a period of [**]
following its termination, [**] or [**] services that [**] with Akamai
Services that utilize any of the [**] , provided however that, subject
to the other restrictions and limitations provided herein, nothing in
this Section 3.1(f) shall [**] Cisco from [**] products which [**] to
provide such services, and provided further that the restrictions on
Cisco contemplated in this Section 3.1(f) shall terminate immediately
upon any termination of this Agreement by Akamai. Akamai agrees that it
will not, during the term of this Agreement and for a period of [**]
following its termination, [**] or [**] any products that [**] with any
Cisco Product that utilizes any of the [**], provided however that,
subject to the other restrictions and limitations provided herein,
nothing in this Section 3.1(f) shall [**] Akamai from [**] its software
or services to [**] or [**] products, and provided further that the
restrictions on Akamai contemplated in this Section 3.1(f) shall
terminate immediately upon any termination of this Agreement by Cisco.
3.2 ROUTING, FLOW AND CAPACITY INFORMATION PROTOCOL DEVELOPMENT
PROJECT. In consultation with Akamai and third parties, Cisco will develop a
protocol specification (possibly to be named the Flow Information Protocol, or
"FIP") that will enable the exchange and secure transmission of routing, flow
and capacity data and other information between Cisco's routers and switches and
the products and services of Akamai and other third parties ("FIP") to be used
by the each of the Parties to enhance the interoperation of their products or
services. By way of example (but without limitation), it is anticipated that the
following data may be included in such protocols, subject to such data being
available and capable of being readily exposed:
- [**] that would [**] a router is [**];
- [**] of each [**];
- [**] on each [**];
- [**] on each [**];
- [**] on each [**];
- [**] ([**] etc.); and
- [**] information ([**], etc.).
(a) The parties will (i) establish by mutual agreement target
dates for the development of the FIP, and (ii) negotiate in good faith
to agree upon, execute and deliver an FIP Project Plan.
(b) Akamai shall designate Bruce Maggs (bmm@akamai.com) as its
Project Manager for the Routing Protocols project, and Cisco shall
designate David Rossetti (rossetti@cisco.com) as its Project Manager.
Either Party may change its Project Manager and appoint a substitute
Project Manager for this Project.
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(c) Unless expressly agreed to in the FIP Project Plan or
otherwise in writing between the Parties with respect to a specific
portion: (i) the FIP, including any derivatives, improvements or
modifications created under this Agreement, shall be considered Cisco
Property under this Agreement, Cisco hereby grants Akamai a
nonexclusive, worldwide, perpetual, irrevocable, fully paid-up, royalty
free license to use FIP as delivered to Akamai by Cisco solely to
implement certain of Akamai's software to enable Akamai, in providing
Akamai Services, to interoperate with and fully utilize Cisco Products.
(d) Akamai acknowledges that Cisco may establish and promote
the FIP as an "industry standard". Accordingly, subject to the
requirements of confidentiality with respect to Akamai's confidential
information, Cisco may at any time and at Cisco's discretion submit the
FIP to the IETF and other standards bodies. Cisco will notify Akamai if
it intends to so submit the FIP to the IETF or other standards bodies.
3.3 EMBEDDING METRIC COMPUTATION INTO ROUTERS PROJECT. Akamai and Cisco
will jointly develop, name and implement one or more algorithms to enable Cisco
routers and switches to compute measurable cost metrics that can be used in
connection with, among other things, making content routing decisions and
tracking accurate and relevant cost metric data ("Metrics Algorithms"), and to
develop protocols which will provide the data resulting from such algorithms to
Cisco Products and to Akamai's software ("Metrics Protocols"), as follows:
(a) The parties will (i) establish by mutual agreement target
dates for the development of the Metrics Algorithms and Metrics
Protocols, and (ii) negotiate in good faith to agree upon, execute and
deliver a Project Plan relating to the development of the Metrics
Algorithms and Metrics Protocols ("Metrics Project Plan").
(b) Akamai shall designate Bruce Maggs (bmm@akamai.com) as its
Project Manager for the Metrics Protocols project, and Cisco shall
designate David Rossetti (rossetti@cisco.com) as its Project Manager.
Either Party may change its Project Manager and appoint a substitute
Project Manager for this Project.
(c) Subject to the ownership rights set forth in Section 8,
the parties agree that all aspects of the Metrics Protocols jointly
developed by the parties (the "Jointly Developed Metrics Protocol
Property") shall be owned by Cisco. With respect to the Akamai
Property, if any, expressly incorporated by the parties into the
Metrics Protocols as finally approved by the Parties under this
Agreement, Akamai hereby grants Cisco a nonexclusive, worldwide,
perpetual, irrevocable, fully paid-up, royalty free license, with the
right to sublicense and authorize the granting of sublicenses, to make,
have made, use, import, copy, modify, offer to sell, sell, lease and
otherwise distribute such Akamai Property solely as incorporated in the
Metrics Protocols and any implementations thereof. With respect to the
Jointly Developed Metrics Protocol Property and the Cisco Property, if
any, expressly incorporated by the Parties into the Metrics Protocols
as finally approved by the Parties under this Agreement, Cisco hereby
grants Akamai a non-exclusive, worldwide, perpetual, irrevocable, full
paid-up, royalty free license, with the right to sublicense and
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authorize the granting of sublicenses, to make, have made, use, import,
copy, modify, offer to sell, sell, lease and otherwise distribute the
Cisco Property and the Jointly Developed Metrics Protocol Property
solely as incorporated in the Metrics Protocols and any implementations
thereof. Subject to foregoing, the foregoing licenses do not grant
either Party rights to any Metrics Protocols created by the other party
subsequent to the version finally approved by the Parties under this
Agreement. The parties further agree that Confidential Information
excludes the Metrics Protocol as finally approved by both Parties.
(d) Notwithstanding the provisions of Section 8, the
ownership, license and confidentiality rights of each party with regard
to the Metrics Algorithms shall be set forth as in the Project Plan.
(e) Except as may be otherwise expressly provided in the
Project Plan, Akamai acknowledges that Cisco may establish and promote
the Metrics Protocol as an industry standard. Accordingly, subject to
the requirements of confidentiality with respect to Akamai's
Confidential Information, Cisco may at any time and at Cisco's
discretion submit the Metrics Protocols to the IETF and other standards
bodies. Cisco will notify Akamai if it intends to so submit the FIP to
the IETF or other standards bodies.
3.4 DEVELOPMENT OF ALGORITHMS AND PROTOCOLS TO CONTROL CISCO SWITCHES
IN COMBINATION WITH AKAMAI'S CONTENT DELIVERY SYSTEM. Akamai and Cisco shall
form a working group to jointly develop, name and implement a next generation
switch with the ability to dynamically adapt to changing network conditions and
distribute content according to more sophisticated algorithms than is possible
with existing routing algorithms ("Switch Algorithms") and to develop protocols
which will provide the data resulting from such algorithms to Cisco Products and
to Akamai's software ("Switch Protocols"), as follows:
(a) The parties will (i) establish by mutual agreement target
dates for the development of the Switch Algorithms and Switch
Protocols, and (ii) negotiate in good faith to agree upon, execute and
deliver a Switch Algorithms and Switch Protocols Project Plan ("Switch
Project Plan").
(b) Akamai shall designate Bruce Maggs (bmm@akamai.com) as its
Project Manager for the Switch Protocols project, and Cisco shall
designate John Wakerly (wakerly@cisco.com) as its Project Manager.
Either Party may change its Project Manager and appoint a substitute
Project Manager for this Project.
(c) Subject to the ownership rights set forth in Section 8,
the parties agree that all aspects of the Switch Protocols jointly
developed by the parties (the "Jointly Developed Switch Protocol
Property") shall be owned by Cisco. With respect to the Akamai
Property, if any, expressly incorporated by the parties into the Switch
Protocols as finally approved by the Parties under this Agreement,
Akamai hereby grants Cisco a nonexclusive, worldwide, perpetual,
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irrevocable, fully paid-up, royalty free license sublicense and
authorize the granting of sublicenses, to make, have made, use, import,
copy, modify, offer to sell, sell, lease and otherwise distribute such
Akamai Property solely as incorporated in the Switch Protocols and any
implementations thereof. With respect to the Cisco Property and the
Jointly Developed Switch Protocol Property, Cisco hereby grants Akamai
a non-exclusive, worldwide, perpetual, irrevocable, full paid-up,
royalty free license, with the right to sublicense and authorize the
granting of sublicenses, to make, have made, use, import, copy, modify,
offer to sell, sell, lease and otherwise distribute the Cisco Property
and the Jointly Developed Switch Protocol Property solely as
incorporated in the Switch Protocols and any implementations thereof.
Subject to foregoing, the foregoing licenses do not grant either Party
rights to any Switch Protocols created by the other party subsequent to
the version finally approved by the Parties under this Agreement. The
parties further agree that Confidential Information excludes the Switch
Protocol as finally approved by both Parties.
(d) Notwithstanding the provisions of Section 8, the
ownership, license and confidentiality rights of each party with
respect to any Switch Algorithms shall be set forth as in the Project
Plan.
(e) Except as may be otherwise expressly provided in the
Project Plan, Akamai acknowledges that Cisco may establish and promote
the Switch Protocol as an industry standard. Accordingly, subject to
the requirements of confidentiality with respect to Akamai's
Confidential Information, Cisco may at any time and at Cisco's
discretion submit the Switch Protocols to the IETF and other standards
bodies. Cisco will notify Akamai if it intends to so submit the FIP to
the IETF or other standards bodies.
3.5 POSSIBLE DEVELOPMENT OF FREEFLOW SERVER ENABLED LINUX SERVICE CARD.
Each party agrees to use commercially reasonable efforts and explore, assess and
investigate the possibility of enabling the FreeFlow Software to operate on a
Linux router card. Akamai shall designate Danny Lewin (danny@akamai.com) to
evaluate the project contemplated in this Section 3.5, and Cisco shall assign
Andy Bechtolsheim (avb@cisco.com). Either Party may change its Project Manager
and appoint a substitute Project Manager for this Project.
3.6 DEVELOPMENT OF HARDWARE SUPPORT FOR EFFICIENT STREAMING. Each party
agrees to use commercially reasonable efforts and explore, assess and
investigate the possibility of developing modifications to the Cisco Products
and Akamai Services to support and enable more efficient distribution of
streaming audio, video and other content. Akamai shall designate Danny Lewin
(danny@akamai.com) to evaluate the Project contemplated in this Section 3.6, and
Cisco shall assign Andy Bechtolsheim (avb@cisco.com). Either Party may change
its Project Manager and appoint a substitute Project Manager for this Project.
3.7 ADDITIONAL DEVELOPMENT AND INTEGRATION OPPORTUNITIES. During the
term of this Agreement, the parties may explore and assess other possible joint
development or integration opportunities consistent with the intent and purpose
of this Agreement.
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4. ADDITIONAL AGREEMENTS OF THE PARTIES.
4.1 STRATEGIC INVESTMENT IN AKAMAI BY CISCO. Concurrent with the
execution and delivery of this Agreement, Cisco and Akamai have executed and
delivered that certain Preferred Stock Purchase Agreement and all documents
ancillary thereto, pursuant to which Cisco has acquired 1,867,480 shares of
Akamai's Series E Preferred Stock, at an aggregate purchase price of
$49,000,807.72.
4.2 LOGO USAGE; AKAMAI EQUIPMENT PURCHASES. Cisco hereby grants Akamai
the right to use Cisco's logo, subject to logo usage guidelines to be provided
by Cisco to Akamai. Akamai hereby grants Cisco the right to use Akamai's logo,
subject to logo usage guidelines to be provided by Akamai to Cisco. During the
term of this Agreement, each party also agrees that it will whenever
commercially feasible promote to its customers the use of the other party's
products and services. In addition, Akamai agrees that a majority of its
purchases of network equipment will be Cisco Products, provided Cisco offers a
product of the type required by Akamai and such product is priced competitively.
Akamai will also notify Cisco from time to time of upcoming product needs so
that Cisco will have the opportunity to develop a product to meet Akamai's
requirements. Each party further agrees that it shall not, during the term of
this Agreement, actively promote any third party products or services that
compete with the other Party's products or services; provided, however, that the
foregoing restrictions shall not preclude a Party from (i) providing support
comments or quotes to third party press releases, announcements or other
marketing communications (provided the Party does not initiate the issuance of
such press release, announcement or communications); and (ii) endorsing and
promoting a Party's product or service solutions that rely on or work in
conjunction with competing third party products or services (provided such
endorsement is limited to the Party's product or service, and only mentions or
refers to the competing third party's products or services as reasonably
necessary to promote the Party's product or service).
4.3 PUBLICITY; PRESS RELEASES. The parties may by mutual consent agree
to issue a joint press release describing the collaboration of the parties. In
addition, each of Cisco and Akamai may, at such party's discretion: (a) identify
the other as a strategic partner; (b) hyperlink from an appropriate area within
its web site to the other's home page; and (c) display the other party's logo on
the its web site (in accordance with such party's guidelines for the use of such
mark). The parties shall also consult regularly during the term of the Agreement
and issue, as and when appropriate, such further press releases and/or other
publicity materials as may be appropriate. The contents of the any press
releases issued by the parties shall be subject to the approval of each party,
which approval shall not be unreasonably withheld or delayed.
4.4 USE OF NAME IN PROMOTIONAL MATERIALS. Each party shall, with prior
approval of the other party (which will not be unreasonably withheld or
delayed), be permitted to identify the other party as a strategic partner, to
use the other party's name in connection with proposals to prospective
customers, and to refer to the other party in print or electronic form for
marketing or reference purposes, provided however that such proposals and
marketing and reference materials shall not promote any third party or the
products of any third party.
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4.5 MARKETING, DISTRIBUTION AND SUPPORT EFFORTS; PROMOTIONAL
ACTIVITIES. To the extent agreed upon by the Parties pursuant to the applicable
Project Plan or otherwise, each of Cisco and Akamai agree to undertake
commercial reasonable steps to actively and aggressively promote, any products
and services (including Cisco Products and Akamai Services) that result from the
efforts undertaken pursuant to this Agreement. Each party agrees to serve as a
reference in the other party's proposals for a reasonable number of contacts by
prospective customers of the other party and for industry analysts. Each party
will undertake all reasonable and diligent efforts to cause its customers,
resellers and/or licensees to install and/or deploy enhancements or upgrades to
existing products if such enhancements or upgrades result from the efforts of
the parties under this Agreement. Under the direction of the Project Managers or
the Project Leaders identified in Section 7.1 below, the parties may by mutual
agreement or plan undertake joint-marketing or co-marketing programs or
activities as appropriate to further the intent of this Agreement and the
alliance created hereby.
4.6 FREEDOM OF ACTION. Except as specifically provided herein or in any
Project Plan, either Party may market and offer its own or third party products
or services (through any means) which are the same as or similar to and which
are competitive with the other party's products and services. Neither Party
makes any assurances or representations to the other in connection with any
financial gain or other benefit that may result from the activities contemplated
in this Agreement.
5. PROJECT MANAGEMENT.
5.1 PROJECT MANAGERS; PROJECT LEADERS. Each of the parties agrees to
appoint and keep in place during the term of this Agreement one or more project
managers (individually, a "Project Manager") who will allocate such portion of
his or her working time as may be reasonably necessary to facilitate the
performance, on a timely basis and in accordance with any particular project
plan, of such party's obligations under this Agreement or any particular project
plan, design or development specification or other document contemplated hereby.
In addition, each party will name a Project Leader who will: (i) be the central
point of contact for all matters arising under this Agreement; (ii) oversee
project management and the resource allocations hereunder; and (iii) have
overall responsibility for the facilitation of the performance of the
obligations of the parties contemplated hereby. The Project Leaders for each
respective party shall be the following individuals or their respective
designated successors; provided, however, that it is the intent of the parties
that the Project Leaders named below shall remain assigned to the alliance for
the entire term of this Agreement:
AKAMAI: Daniel Lewin, Chief Technology Officer
CISCO: Krish Ramakrishnan, Director
5.2 MEETINGS. The Project Leaders agree to meet at least quarterly to
review the overall progress of the projects contemplated hereunder and to
provide overall supervision and oversight. At least one-third of the meetings
will be held at Cisco, one-third at Akamai, and one-third at Cisco, Akamai, or
some alternative location, as the parties shall determine.
6. DEVELOPMENT EFFORTS; RESOURCE COMMITMENT; EXPENSES.
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6.1 COST SHARING AND REIMBURSEMENT. Except as may be provided in any
specific Project Plan or as may be otherwise agreed by the parties, each of
Akamai and Cisco agrees that it shall be responsible for its own expenses
incurred in conjunction with this Agreement and any attachments hereto, and with
any undertakings and obligations contemplated hereby. Notwithstanding the
foregoing, in the event development efforts are undertaken at either Cisco or
Akamai, then the host party agrees to provide the necessary office space at no
cost to the other party.
6.2 INDEPENDENT CONTRACTORS. Either party shall have the option to
utilize contractors in order to satisfy its obligation to supply personnel
resources to the projects contemplated hereunder, but only to the extent and
insofar as reasonably required in connection with the performance of the
obligations of the party retaining the Contractor under this Agreement, and
subject to the further requirements and limitations set forth herein.
7. DISPUTE RESOLUTION PROCESS.
7.1 INITIAL CONSULTATION AND NEGOTIATION. In the event a dispute
between Akamai and Cisco arises under the Agreement or a party's performance
thereunder, the matter shall first be escalated to Akamai's Project Leader and
Cisco's Project Leader in an attempt to settle such dispute through consultation
and negotiation in good faith and a spirit of mutual cooperation.
7.2 ESCALATION. If the Project Leaders are unable to resolve the
dispute, it shall be referred to a conflict resolution committee comprised of
one representative designated by each party. The initial members of the conflict
resolution committee shall be:
For Akamai: Paul Sagan, President and COO
For Cisco: JayShree Ullal, General Manager, VPGM
7.3 CONTINUED PERFORMANCE. 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.
8. OWNERSHIP; LICENSES.
8.1 OWNERSHIP BY AKAMAI. As between Cisco and Akamai, Akamai shall own
all right, title, and interest in any Intellectual Property provided by Akamai
to Cisco under this Agreement and owned by Akamai as of the Effective Date or
independently developed by Akamai during the term of this Agreement (the "Akamai
Property"), including any derivatives, improvements or modifications of the
Akamai Property created by either party under this Agreement, and Cisco shall
have no ownership interest therein. Cisco hereby irrevocably transfers, conveys
and assigns to Akamai all of its right, title, and interest therein and in any
property owned or to be owned by Akamai under this Agreement. Cisco shall
execute
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such documents, render such assistance, and take such other action as Akamai may
reasonably request, at Akamai's expense, to apply for, register, perfect,
confirm, and protect Akamai's ownership rights set forth in this Section 8.1 and
in Section 3, and Akamai shall have the exclusive right to apply for or register
any patents, mask work rights, copyrights, and such other proprietary
protections with respect thereto.
8.2 OWNERSHIP BY CISCO. As between Cisco and Akamai, Cisco shall own
all right, title, and interest in any Intellectual Property provided by Cisco to
Akamai under this Agreement and owned by Cisco as of the Effective Date or
independently developed by Cisco during the term of this Agreement (the "Cisco
Property"), including any derivatives, improvements or modifications of the
Cisco Property created by either party under this Agreement, and Akamai shall
have no ownership interest therein. Akamai hereby irrevocably transfers, conveys
and assigns to Cisco all of its right, title, and interest therein and in any
property owned or to be owned by Cisco under this Agreement. Akamai shall
execute such documents, render such assistance, and take such other action as
Cisco may reasonably request, at Cisco's expense, to apply for, register,
perfect, confirm, and protect Cisco's ownership rights set forth in this Section
8.2 and in Section 3, and Cisco shall have the exclusive right to apply for or
register any patents, mask work rights, copyrights, and such other proprietary
protections with respect thereto.
8.3 WAIVER OF MORAL RIGHTS. Akamai hereby waives any and all moral
rights, including without limitation any right to identification of authorship
or limitation on subsequent modification that Akamai (or its employees, agents
or consultants) has or may have in the Cisco Property or any part thereof. Cisco
hereby waives any and all moral rights, including without limitation any right
to identification of authorship or limitation on subsequent modification that
Cisco (or its employees, agents or consultants) has or may have in the Akamai
Property or any part thereof.
8.4 PARTY AS ATTORNEY IN FACT. Akamai agrees that if Cisco is unable
because of Akamai's dissolution or incapacity, or for any other reason, to
secure Akamai's signature to apply for or to pursue any application for any
United States or foreign patents or mask work or copyright registrations
covering the inventions assigned to Cisco above, then Akamai hereby irrevocably
designates and appoints Cisco and its duly authorized officers and agents as
Akamai's agent and attorney in fact, to act for and in Akamai's behalf and stead
to execute and file any such applications and to do all other lawfully permitted
acts to further the prosecution and issuance of patents, copyright and mask work
registrations thereon with the same legal force and effect as if executed by
Akamai. Cisco agrees that if Akamai is unable because of Cisco's dissolution or
incapacity, or for any other reason, to secure Cisco's signature to apply for or
to pursue any application for any United States or foreign patents or mask work
or copyright registrations covering the inventions assigned to Akamai above,
then Cisco hereby irrevocably designates and appoints Akamai and its duly
authorized officers and agents as Cisco 's agent and attorney in fact, to act
for and in Cisco 's behalf and stead to execute and file any such applications
and to do all other lawfully permitted acts to further the prosecution and
issuance of patents, copyright and mask work registrations thereon with the same
legal force and effect as if executed by Cisco.
8.5 LICENSES. In addition to any licenses granted elsewhere in this
Agreement, Akamai hereby grants to Cisco during the term of this Agreement a
paid up, royalty-free, nontransferable and nonexclusive license to use such of
the Akamai Property (in both source code and object code form, as necessary) and
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all Intellectual Property rights with respect thereto solely in connection with
Cisco's performance hereunder and as may be reasonably necessary for Cisco to
perform its obligations under this Agreement. Cisco hereby grants to Akamai
during the term of this Agreement a paid up, royalty-free, nontransferable and
nonexclusive license to use such of the Cisco Property (in both source code and
object code form, as necessary) and all Intellectual Property Rights with
respect thereto solely in connection with Akamai's performance hereunder and as
may be reasonably necessary for Akamai to perform its obligations under this
Agreement. For purposes of this Agreement, "Intellectual Property" shall mean
all works protectible by copyright, trademark, patent and trade secret laws or
by any other statutory protection obtained or obtainable, and any Confidential
Information (as defined below) of a party that meets on of the foregoing
criteria, including without limitation, any literary works, pictorial, graphic
and sculptural works, architectural works, works of visual art, and any other
work that may be the subject matter of copyright protection; advertising and
marketing concepts; information; data; formulae; designs; models; drawings;
computer programs, including all documentation, related listings, design
specifications, and flowcharts, trade secrets, and any inventions including all
methods, processes, business or otherwise; machines, manufactures and
compositions of matter and any other invention that may be the subject matter of
patent protection; and all statutory protection obtained or obtainable thereon.
8.6 NO REVERSE ENGINEERING. Each of Cisco and Akamai agrees that it
shall not (i) copy, modify, create any derivative work of, or include in any
other products any Akamai Property (in the case of Cisco) or Cisco Property (in
the case of Akamai) or any portion thereof, or (ii) reverse assemble, decompile,
reverse engineer or otherwise attempt to derive source code (or the underlying
ideas, algorithms, structure or organization) from any such property, except as
specifically authorized in writing by the party owning the same or as
specifically provided under this Agreement.
8.7 COPYRIGHT NOTICES. Each party shall ensure that all copies of any
software or other property in its possession or control incorporates all
copyright and other proprietary notices in the same manner that the party owning
the same incorporates such notices, or in any other manner reasonably requested
by the owner. Each party shall promptly notify the other party in writing upon
its discovery of any unauthorized use of a party's property or the infringement
of such party's proprietary rights therein. Neither party shall license to any
third party the property of the other party if such other party has notified the
party that such third party may be involved in potential unauthorized use of the
property or other infringement of such party's proprietary rights thereunder.
9. TRADEMARKS, TRADE NAMES AND BRANDING.
9.1 USAGE GUIDELINES. Akamai shall comply with Cisco's logo, trademark
and branding usage guidelines, which Cisco shall provide to Akamai, and as the
same may be updated by Cisco from time to time. Cisco shall comply with Akamai's
logo, trademark and branding usage guidelines, which Akamai shall provide to
Cisco, and as the same may be updated by Akamai from time to time. Neither party
shall alter the other party's Marks.
9.2 OWNERSHIP. All Cisco Marks are and shall remain, as between Akamai
and Cisco, the exclusive property of Cisco or its providers. All Akamai Marks
are and shall remain, as between Akamai
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and Cisco, the exclusive property of Akamai or its suppliers. Neither party
grants any rights in the Marks or in any other trademark, trade name, service
mark, business name or goodwill of the other except as expressly permitted
hereunder or by separate written agreement of the parties and all use of a
party's Marks shall inure to the benefit of the owner of such Mark. 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.
10. CONFIDENTIALITY.
10.1 AGREEMENT AS CONFIDENTIAL INFORMATION. The parties shall treat the
terms and conditions and the existence of this Agreement as Confidential
Information. Each party shall obtain the other's consent prior to any
publication, presentation, public announcement or press release concerning the
existence or terms and conditions of this Agreement.
10.2 DEFINITION OF CONFIDENTIAL INFORMATION. "Confidential Information"
means the terms and conditions of this Agreement, the existence of the
discussions between the parties, any information disclosed in connection with
the development and integration projects being undertaken as described in
Section 2 above, and any proprietary information a party considers to be
proprietary, including but not limited to, information regarding each party's
product plans, product designs, product costs, product prices, finances,
marketing plans, business opportunities, personnel, research and development
activities, know-how and pre-release products; provided that information
disclosed by the disclosing party ("Disclosing Party") in written or other
tangible form will be considered Confidential Information by the receiving party
("Receiving Party") only if such information is conspicuously designated as
"Confidential," "Proprietary" or a similar legend. Information disclosed orally
shall only be considered Confidential Information if: (i) identified as
confidential, proprietary or the like at the time of disclosure, and (ii)
confirmed in writing within thirty (30) days of disclosure. Confidential
Information disclosed to the Receiving Party by any affiliate or agent of the
Disclosing Party is subject to this Agreement.
10.3 NONDISCLOSURE. The Receiving Party shall not disclose or use,
except as permitted under this Agreement, the Confidential Information to any
third party other than employees and contractors of the Receiving Party who have
a need to have access to and knowledge of the Confidential Information solely
for the Purpose authorized above. The Receiving Party shall have entered into
non-disclosure agreements with such employees and contractors having obligations
of confidentiality as strict as those herein prior to disclosure to such
employees and contractors to assure against unauthorized use or disclosure.
10.4 EXCEPTIONS TO CONFIDENTIAL INFORMATION. The Receiving Party shall
have no obligation with respect to information which (i) was rightfully in
possession of or known to the Receiving Party without any obligation of
confidentiality prior to receiving it from the Disclosing Party; (ii) is, or
subsequently becomes, legally and publicly available without breach of this
Agreement; (iii) is rightfully obtained by the Receiving Party from a source
other than the Disclosing Party without any obligation of confidentiality; (iv)
is developed by or for the Receiving Party without use of the Confidential
Information and such independent
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development can be shown by documentary evidence; and (v) becomes available to
the Receiving Party by wholly lawful inspection or analysis of products offered
for sale. Further, the Receiving Party may disclose Confidential Information
pursuant to a valid order issued by a court or government agency, provided that
the Receiving Party provides the Disclosing Party: (a) prior written notice of
such obligation; and (b) the opportunity to oppose such disclosure or obtain a
protective order.
10.5 RETURN OR DESTRUCTION OF CONFIDENTIAL INFORMATION. Upon written
demand by the Disclosing Party, and in any event upon termination of this
Agreement, the Receiving Party shall: (i) cease using the Confidential
Information, (ii) return the Confidential Information and all copies, notes or
extracts thereof to the Disclosing Party within seven (7) days of receipt of
demand; and (iii) upon request of the Disclosing Party, certify in writing that
the Receiving Party has complied with the obligations set forth in this
paragraph.
10.6 INDEPENDENT DEVELOPMENT AND RESIDUALS. The terms of
confidentiality under this Agreement shall not be construed to limit either
party's right to develop independently or acquire products without use of the
other party's Confidential Information. The Disclosing Party acknowledges that
the Receiving Party may currently or in the future be developing information
internally, or receiving information from other parties, that is similar to the
Confidential Information. Accordingly, except as provided in this Agreement,
neither party shall be prohibited from developing or having developed for it
products, concepts, systems or techniques that are similar to or compete with
the products, concepts, systems or techniques contemplated by or embodied in the
Confidential Information provided that the Receiving Party does not violate any
of its obligations under this Agreement in connection with such development.
Further, subject to the other restrictions and limitations contained in this
Agreement, the residuals resulting from access to or work with such Confidential
Information shall not be subject to the confidentiality obligations contained in
this Agreement. The term "residuals" means non-specific information in
non-tangible form, which may be retained by persons who have had access to the
Confidential Information, including general 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.
11. REPRESENTATIONS AND WARRANTIES.
11.1 AKAMAI'S REPRESENTATIONS AND WARRANTIES. Akamai represents and
warrants to Cisco as follows:
(a) Akamai and its licensors own or possess the necessary rights, title
and licenses necessary to perform its obligations hereunder. Akamai has the
right to enter into this Agreement and to perform its obligations hereunder.
Akamai will perform all of its development obligations in a workmanlike manner.
(b) Akamai warrants that any deliverables that are software will be
Year 2000 Ready. "Year 2000 Ready" means the ability to: (i) accept input and
provide output of data involving dates correctly and without ambiguity as to the
twentieth or twenty-first centuries; (ii) manage, store, sort, perform
calculations, and otherwise process data involving dates before, during, and
after January 1, 2000 without malfunction, abends or aborts; and (iii) correctly
process leap years including the year 2000. The foregoing warranty is subject to
the condition that all other products (e.g., hardware, software, and firmware)
which interface
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with or are used with the deliverables (including any Cisco Products) properly
exchange date data with the software. In the event Akamai becomes aware that any
such software is not Year 2000 Ready, Akamai shall immediately notify Cisco and
promptly correct such software to eliminate such problem. If Akamai fails to
correct any such software that does not meet the foregoing warranty within a
reasonable period of time, Cisco shall have the right to immediately terminate
this Agreement.
EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 11.1, AKAMAI 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.
11.2 CISCO'S REPRESENTATIONS AND WARRANTIES. Cisco represents and
warrants to Akamai as follows:
(a) Cisco and its licensors own or possess the necessary rights, title
and licenses necessary to perform its obligations hereunder. Cisco has the right
to enter into this Agreement and to perform its obligations hereunder. Cisco
will perform all of its development obligations in a workmanlike manner.
(b) Cisco warrants that any deliverables that are software will be Year
2000 Ready. "Year 2000 Ready" means the ability to: (i) accept input and provide
output of data involving dates correctly and without ambiguity as to the
twentieth or twenty-first centuries; (ii) manage, store, sort, perform
calculations, and otherwise process data involving dates before, during, and
after January 1, 2000 without malfunction, abends or aborts; and (iii) correctly
process leap years including the year 2000. The foregoing warranty is subject to
the condition that all other products (e.g., hardware, software, and firmware)
which interface with or are used with the deliverables (including any Akamai
Property) properly exchange date data with the software. In the event Cisco
becomes aware that any such software is not Year 2000 Ready, Cisco shall
immediately notify Akamai and promptly correct such software to eliminate such
problem. If Cisco fails to correct any such software that does not meet the
foregoing warranty within a reasonable period of time, Akamai shall have the
right to immediately terminate this Agreement.
EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 11.2, CISCO 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. INDEMNITY.
12.1 INDEMNIFICATION BY CISCO. Cisco shall defend, indemnify and hold
harmless Akamai and its officers, directors, employees, shareholders, agents,
successors and assigns from and against any and all loss, damage, settlement,
costs or expense (including legal expenses), as incurred, resulting from, or
arising out of (i) any claim against Akamai which alleges that any Cisco
Property or Cisco deliverable infringes upon, misappropriates or violates any
patents, copyrights, trademarks or trade secret rights or other proprietary
rights of persons, firms or entities who are not parties to this Agreement; (ii)
any claim relating to negligence, misrepresentation, error or omission by Cisco,
its representatives, distributors,
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OEMs, VARs or other resellers; and (iii) any warranties made by Cisco
inconsistent with or beyond the scope of any warranties made by Akamai under
this Agreement.
12.2 CISCO EXCLUSIONS. Cisco shall have no obligation under Section
12.1 above to the extent any claim of infringement or misappropriation results
from: (i) use by Akamai of the Cisco Property in combination with any other
product, end item, or subassembly if the infringement would not have occurred
but for such combination; (ii) use or incorporation in the Cisco Property of any
design, technique or specification furnished by Akamai, if the infringement
would not have occurred but for such incorporation or use; or (iii) any claim
based on Akamai's use of the Cisco Property as shipped after Cisco has informed
Akamai of modifications or changes in the Product required to avoid such claims
and offered to implement those modifications or changes, if such claim would
have been avoided by implementation of Cisco's suggestions; (iv) use of the
deliverables other than as permitted under this Agreement, if the infringement
would not have occurred but for such use; or (v) compliance by Cisco with
specifications or instructions supplied by Akamai.
12.3 INDEMNIFICATION BY AKAMAI. Akamai shall defend, indemnify and hold
harmless Cisco and its officers, directors, employees, shareholders, agents,
successors and assigns from and against any and all loss, damage, settlement,
costs or expense (including legal expenses), as incurred, resulting from, or
arising out of (i) any claim against Cisco which alleges that any Akamai
Property or Akamai deliverable infringes upon, misappropriates or violates any
patents, copyrights, trademarks or trade secret rights or other proprietary
rights of persons, firms or entities who are not parties to this Agreement; (ii)
any claim relating to negligence, misrepresentation, error or omission by
Akamai, its representatives, distributors, OEMs, VARs or other resellers; and
(iii) any warranties made by Akamai inconsistent with or beyond the scope of any
warranties made by Akamai under this Agreement.
12.4 AKAMAI EXCLUSIONS. Akamai shall have no obligation under Section
12.3 above to the extent any claim of infringement or misappropriation results
from: (i) use by Cisco of the Akamai Property in combination with any other
product, end item, or subassembly if the infringement would not have occurred
but for such combination; (ii) use or incorporation in the Akamai Property of
any design, technique or specification furnished by Cisco, if the infringement
would not have occurred but for such incorporation or use; or (iii) any claim
based on Cisco's use of the Akamai Property as shipped after Akamai has informed
Cisco of modifications or changes in the Product required to avoid such claims
and offered to implement those modifications or changes, if such claim would
have been avoided by implementation of Akamai's suggestions; (iv) use of the
deliverable other than as permitted under this Agreement, if the infringement
would not have occurred but for such use; or (v) compliance by Akamai with
specifications or instructions supplied by Cisco.
12.5 CONTROL OF DEFENSE. As a condition to such defense and
indemnification, the party seeking indemnification will provide the other party
with prompt written notice of the claim and permit such other party to control
the defense, settlement, adjustment or compromise of any such claim. The party
seeking indemnification may employ counsel at its own expense to assist it with
respect to any such claim.
12.6 DISCLAIMER. THE FOREGOING PROVISIONS OF THIS SECTION 12 STATE THE
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ENTIRE LIABILITY AND OBLIGATIONS OF THE PARTIES AND THE EXCLUSIVE REMEDY WITH
RESPECT TO ANY VIOLATION OR INFRINGEMENT OF PROPRIETARY RIGHTS, INCLUDING BUT
NOT LIMITED TO ANY PATENT, COPYRIGHT, TRADEMARK, BY THE PRODUCTS OR SERVICES OF
CISCO AND AKAMAI, RESPECTIVELY, OR ANY PART THEREOF. EACH PARTY'S OBLIGATIONS
UNDER THIS SECTION 12 ARE SUBJECT TO THE LIMITATIONS SET FORTH IN SECTION 13.
13. LIMITATION OF LIABILITY.
13.1 LIMITATION OF DAMAGES. EXCEPT FOR BREACH OF THE OBLIGATIONS OF
CONFIDENTIALITY UNDER SECTION 10, NEITHER PARTY SHALL BE LIABLE WITH RESPECT TO
ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, STRICT LIABILITY,
NEGLIGENCE OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES OR LOST PROFITS, OR COST OF PROCUREMENT OF SUBSTITUTE
GOODS, TECHNOLOGY OR SERVICES.
13.2 LIMITATION OF LIABILITY. EXCEPT FOR BREACH OF THE OBLIGATIONS OF
CONFIDENTIALITY UNDER SECTION 10 AND THE INDEMNIFICATION OBLIGATIONS UNDER
SECTION 12, THE TOTAL DOLLAR LIABILITY OF EITHER PARTY UNDER THIS AGREEMENT OR
OTHERWISE SHALL BE LIMITED TO THREE MILLION DOLLARS ($3,000,000.00).
14. TERM AND TERMINATION.
14.1 TERM OF AGREEMENT. This Agreement shall be effective upon the
Effective Date and shall remain in force for a period of three (3) years, unless
otherwise terminated as provided herein. However, this Agreement shall continue
to remain in effect with respect to any project already agreed to hereunder at
the time of such termination, until such projects are themselves terminated or
performance thereunder is completed.
14.2 TERMINATION FOR CAUSE. This Agreement may be terminated by a party
for cause immediately upon the occurrence of and in accordance with the
following:
(a) Insolvency Event. Either may terminate this Agreement by
delivering written notice to the other party upon the occurrence of any
of the following events: (i) a receiver is appointed for either party
or its property; (ii) either makes a general assignment for the benefit
of its creditors; (iii) either party commences, or has commenced
against it, proceedings under any bankruptcy, insolvency or debtor's
relief law, which proceedings are not dismissed within sixty (60) days;
or (iv) either party is liquidated or dissolved.
(b) Change of Control. In the event any competitor of Cisco in
the network industry acquires thirty-three percent (33%) or more of the
equity ownership of Akamai, Cisco may at its option terminate this
Agreement upon written notice.
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(c) Default. Either party may terminate this Agreement
effective upon written notice to the other if the other party violates
any covenant, agreement, representation or warranty contained herein in
any material respect or defaults or fails to perform any of its
obligations or agreements hereunder in any material respect, which
violation, default or failure is not cured within thirty (30) days
after notice thereof from the non-defaulting party stating its
intention to terminate this Agreement by reason thereof.
14.3 TERMINATION FOR CONVENIENCE. This Agreement, or any Project except
as may be provided in such Project's Project Plan, may be terminated by either
party without penalty, for any or no reason, by providing thirty (30) days prior
written notice of such termination.
14.4 SURVIVAL OF RIGHTS AND OBLIGATIONS UPON TERMINATION. Sections
3.1(d), 3.1(e), 3.1(f), 3.2(c), 3.2(d), 3.3(c), 3.3(d), 3.3(e), 3.4(c), 3.4(d),
3.4(e), 4.6, 6, 8, 10, 11, 12, 13, 15 and this Section 14.4 shall survive any
expiration or termination of this Agreement or any project hereunder.
Furthermore, in the event of any termination or expiration of this Agreement or
such project: (i) all licenses expressly granted herein shall survive; and (ii)
except as otherwise expressly provided herein, any ownership provisions
(including but not limited to Section 8) shall survive.
15. MISCELLANEOUS.
15.1 FORCE MAJEURE. Neither party shall be liable to the other for
delays or failures in performance resulting from causes beyond the reasonable
control of that party, including, but not limited to, acts of God, labor
disputes or disturbances, material shortages or rationing, riots, acts of war,
governmental regulations, communication or utility failures, or casualties.
15.2 EXPORT. Each party hereby acknowledges that one or more
deliverables supplied under the Agreement are or may be subject to export or
import controls under the laws and regulations of the United States (U.S.). Each
shall comply with such laws and regulations, and, agrees not to knowingly
export, re-export, import or re-import, or transfer products without first
obtaining all required U.S. Government authorizations or licenses. Cisco and
Akamai each agree to provide the other such information and assistance as may
reasonably be required by the other in connection with securing such
authorizations or licenses, and to take timely action to obtain all required
support documents. Each party agrees to maintain a record of exports,
re-exports, and transfers of any such deliverables for five (5) years and to
forward within that time period any required records to the party needing the
same or, at such party's request, the U.S. Government. Each party agrees to
permit audits as required under the regulations to ensure compliance with this
Agreement.
15.3 RELATIONSHIP OF PARTIES. The parties are independent contractors
under this Agreement and no other relationship is intended, including a
partnership, franchise, joint venture, agency, employer/employee, fiduciary,
master/servant relationship, or other special relationship. Neither party shall
act in a manner which expresses or implies a relationship other than that of
independent contractor, nor bind the other party.
15.4 NO THIRD PARTY BENEFICIARIES. Unless otherwise expressly provided,
no provisions of
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this Agreement are intended or shall be construed to confer upon or give to any
person or entity other than Cisco and Akamai any rights, remedies or other
benefits under or by reason of this Agreement.
15.5 EQUITABLE RELIEF. Each party acknowledges that a breach by the
other party of any confidentiality or proprietary rights provision of this
Agreement may cause the non-breaching party irreparable damage, for which the
award of damages would not be adequate compensation. Consequently, the
non-breaching party may institute an action to enjoin the breaching party from
any and all acts in violation of those provisions, which remedy shall be
cumulative and not exclusive, and a party may seek the entry of an injunction
enjoining any breach or threatened breach of those provisions, in addition to
any other relief to which the non-breaching party may be entitled at law or in
equity.
15.6 ATTORNEYS' FEES. In addition to any other relief awarded, the
prevailing party in any action arising out of this Agreement shall be entitled
to its reasonable attorneys' fees and costs.
15.7 NOTICES. Any notice required or permitted to be given by either
party under this Agreement shall be in writing and shall be personally delivered
or sent by a reputable overnight mail service (e.g., Federal Express), or by
first class mail (certified or registered), or by facsimile confirmed by first
class mail (registered or certified), to the Project Manager of other party.
Notices will be deemed effective (i) three (3) working days after deposit,
postage prepaid, if mailed, (ii) the next day if sent by overnight mail, or
(iii) the same day if sent by facsimile and confirmed as set forth above. A copy
of any notice shall be sent to the following:
Cisco Systems, Inc. Akamai Technologies, Inc.
170 West Tasman Drive 201 Broadway
San Jose, CA 95134 Cambridge, MA 02139
Attn: VP Legal and Government Affairs Attn: VP and General Counsel
Fax: (408) 526-7019 Fax: (617) 250-3001
15.8 ASSIGNMENT. Neither party may assign its rights or delegate its
obligations hereunder, either in whole or in part, whether by operation of law
or otherwise, without the prior written consent of the other party. Any
attempted assignment or delegation without consent will be void. The rights and
liabilities of the parties under this Agreement will bind and inure to the
benefit of the parties' respective successors and permitted assigns. For
purposes of this Section, a thirty-three percent (33%) change in control to any
competitor of Cisco in the network industry shall constitute an assignment.
15.9 WAIVER AND MODIFICATION. 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. Any waiver, amendment or other modification of any
provision of this Agreement will be effective only if in writing and signed by
the parties.
15.10 SEVERABILITY. If for any reason a court of competent jurisdiction
finds any provision of this
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Agreement 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.
15.11 CONTROLLING LAW. This Agreement and any action related thereto
shall be governed, controlled, interpreted and defined by and under the laws of
the State of California and the United States, without regard to the conflicts
of laws provisions thereof. The parties specifically disclaim the UN Convention
on Contracts for the International Sale of Goods.
15.12 HEADINGS. Headings used in this Agreement are for ease of
reference only and shall not be used to interpret any aspect of this Agreement.
15.13 ENTIRE AGREEMENT. This Agreement, including all exhibits which
are incorporated herein by reference, constitutes the entire agreement between
the parties with respect to the subject matter hereof, and supersedes and
replaces all prior and contemporaneous understandings or agreements, written or
oral, regarding such subject matter.
15.14 COUNTERPARTS. This Agreement may be executed in two counterparts,
each of which shall be an original and together which shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
persons duly authorized as of the date and year first above written.
CISCO SYSTEMS, INC. AKAMAI TECHNOLOGIES, INC.
Name: Name:
Title: Title:
Date: Date:
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