Reseller License Agreement - Instant Video Technologies Inc. and I Stream TV
[LOGO OMITTED]
500 Sansome Street, Suite 503 tel 415.391.4455
San Francisco fax 415.391.3392
California 94111 http://www.burst.com
RESELLER LICENSE AGREEMENT
between
INSTANT VIDEO TECHNOLOGIES, INC.
and
I Stream TV
This Agreement, entered into this 4th day of October, 1999 is between
INSTANT VIDEO TECHNOLOGIES, INC. ("IVT"), a Delaware corporation, with its
principal place of business at 500 Sansome Street, Suite 503, San Francisco, CA
94111, and I Stream TV ("Reseller"), a New York corporation, with its principal
place of business at 135 West 20th Street, Suite 401, New York, NY 10011.
1. Whereas, IVT is the developer and owner of certain proprietary
software ("Licensed Software") to enable "Faster-Than-Real-Time"(TM) delivery of
full motion video and CD-quality audio over networks;
2. Whereas, Reseller is in the business of marketing and distributing
computer hardware, software and related services and desires to distribute the
Licensed Software to End-Users; and.
3. Whereas, IVT is willing to grant and Reseller is willing to accept a
non-exclusive license to market and distribute the Licensed Software under the
terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
Section 1
DEFINITIONS
When used in this Agreement:
1.1 "Affiliate" means with respect to each party any legal entity that
directly or indirectly controls, is controlled by, or is under common control
with the party, but only for so long as such control continues. For purposes of
this definition, "control" means the power, whether or not normally exercised,
to direct the management and affairs of an entity. No entity shall be deemed to
control a party unless such entity owns directly or indirectly fifty-one percent
(51%) or more of its voting shares.
1.2 "Agreement" means this Reseller Agreement, including all exhibits
hereto and all Program Orders submitted hereunder.
1.3 "Burstware Conductor(TM)" means the computer program included among
the Licensed Software that is designed to operate on a single computing device
and that manages the distribution of audio and/or video content from one or more
hardware servers on which the Burstware Server software has been installed to
Burstware Players installed on client computers. Each Burstware Conductor
requires a Burstware License Key configured for the host name or IP address of
the computer on which the Burstware Conductor is installed.
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Reseller Agreement IVT -- I Stream TV
1.4 "Burstware License Key" means the unique, encrypted software
program provided by IVT (only upon payment of the applicable license fees) that
is designed to prevent use of the Licensed Software beyond the scope of the
license paid for by Licensee by limiting, as appropriate, and in addition to
other limits, the number of Concurrent Burstware Player Connections, the amount
of Managed Bandwidth, and the number of Burstware Servers that the Burstware
Conductor can manage.
1.5 "Burstware Player(TM)" means the computer program included among
the Licensed Software that operates on a single-user client computer and permits
that computer to receive and play audio and/or video content delivered by the
Burstware Server software.
1.6 "Burstware Server(TM)" means the computer program included among
the Licensed Software that stores audio and/or video content and delivers it to
client computers for viewing with the Burstware Player.
1.7 "I Stream TV" or "Reseller" means I Stream TV and its Affiliates.
1.8 "Concurrent Burstware Player Connections" means the number of
simultaneous connections between Burstware Players installed on client computers
and Burstware Servers installed on hardware servers that the Burstware License
Key enables the Burstware Conductor to manage simultaneously.
1.9 "Documentation" means all materials in written, computer readable
or other form containing information about the Licensed Software that accompany
the Licensed Software or that IVT may deliver to Reseller during the term of
this Agreement for use in the marketing and distribution of the Licensed
Software and for distribution to End-Users.
1.10 "Effective Date" means October 4th, 1999.
1.11 "End-User License Agreement" means the form of End-User License
Agreement attached to this Agreement as Exhibit D.
1.12 "End-Users" means any prospective customers to whom Reseller may
offer Licensed Software for personal use or use in the regular course of the
customer's business, but not for resale.
1.13 "Intellectual Property Rights" means all intellectual property
rights under the laws of the United States, any of its states or territories and
any other nation, including without limitation all patent rights, copyrights,
trade secrets, trademarks, trade names and other proprietary rights.
1.14 "Licensed Software" means IVT's Burstware Conductor, Burstware
Server and Burstware Conductor (collectively "Burstware(R)") computer programs
described in the Product & Price List attached as Exhibit A to this Agreement.
Licensed Software does not include any modifications or additions to the
Licensed Software, including without limitation, any new versions, updates, or
enhancements created or procured by IVT after the Effective Date of this
Agreement, but does include corrections of Program Errors developed by IVT
pursuant to paragraph 8.3.
1.15 "Licensed Territory" means the United States and its territories
and possessions.
1.16 "Managed Bandwidth" means the total bandwidth, measured in
megabits per second, used by the Burstware Server software to deliver audio
and/or video content to Burstware Players.
1.17 "Program Error" means a program defect or "bug" sufficiently
material that it results in a version of the Licensed Software, in the form
delivered by IVT to Reseller, at the time it is delivered by IVT to Reseller,
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Reseller Agreement IVT -- I Stream TV
failing to substantially conform to the Documentation for that version. A
respect in which the Licensed Software fails to substantially conform to the
Documentation shall not be considered a Program Error unless IVT is able to
replicate it on a computer system already in its possession or on a computer
system supplied to IVT by Reseller.
1.18 "Program Order" means the form attached to this Agreement as
Exhibit C that IVT may modify at any time.
1.19 "Product & Price List" means the list attached as Exhibit A to
this Agreement and any substitute list IVT may issue during the term of this
Agreement.
1.20 "Trademarks" means the trademarks listed in Exhibit E, which IVT
may amend at any time upon thirty (30) days prior written notice to Reseller.
Section 2
DISTRIBUTION & TRADEMARK LICENSES AND LIMITATIONS
2.1 Distribution License. On the terms and conditions of this
Agreement, IVT grants to Reseller a non-exclusive, non-transferable license to
distribute Licensed Software solely to End-Users within the Licensed Territory.
2.2 Trademark License. On the terms and conditions of this Agreement,
IVT also grants to Reseller a non-exclusive, non-transferable license without
the right to sublicense to use the Trademarks in connection with the promotion
and distribution of the Licensed Software in accordance with this Agreement.
2.3 No Exclusivity. This Agreement does not constitute an exclusive
grant to Reseller of any specific customer, territory, or geographic area. IVT
may in its sole discretion and without obligation, notice or liability to
Reseller, add and/or terminate other resellers, distributors, value added
resellers, original equipment manufacturers, licensees or agents of the Licensed
Software, and/or license Licensed Software directly to End-Users, including
customers of Reseller.
2.4 Reservation of Rights. IVT reserves all rights in the Licensed
Software and Documentation not expressly granted to Reseller by this Agreement.
2.5 Licensed Software Changes. IVT retains the right, in its sole
discretion, to upgrade or modify the Licensed Software from time to time. Upon
receipt of any such notice of an upgrade or modification, Reseller shall within
thirty (30) days cease to market and distribute earlier versions of the Licensed
Software.
Section 3
ORDERING AND SHIPMENT OF LICENSED SOFTWARE
3.1 Submission of Program Orders. Reseller shall order Licensed
Software by delivering a completed Program Order to IVT. The Program Order shall
be completed by Reseller to identify: (a) the End-User (by company name, address
and telephone number and contact name); (b) the computer system (by type/model,
serial number, host ID and/or IP address) on which the Burstware Conductor
portion of each copy of the Licensed Software being ordered is to be installed,
and used; (c) the number of copies of the Licensed Software being ordered; (d)
the configuration for each copy of the Licensed Software being ordered,
including the amount of Managed Bandwith, the number of Concurrent Burstware
Player Connections and number of Burstware Servers; (e) the price for each copy
of the Licensed Software; and (f) the total amount payable to IVT under that
Program Order.
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3.2 Acceptance of Program Orders. Completed Program Orders delivered to
IVT shall be deemed accepted and shall become binding on IVT only when accepted
in writing by IVT, or when IVT ships the Licensed Software ordered under that
Program Order. If IVT accepts a Program Order by shipment, the order shall bind
IVT only as to the Licensed Software actually shipped. Failure of IVT to accept
a Program Order within ten (10) days shall constitute rejection of the Program
Order.
3.3 Controlling Terms. The terms and conditions of this Agreement shall
apply to each Program Order accepted and/or Licensed Software shipped by IVT
hereunder. Any terms or conditions appearing on the face or reverse side of any
Program Order, purchase order, acknowledgment, or confirmation that are
different from or in addition to those required hereunder shall not be binding
on the parties, even if signed and returned, unless both parties hereto
expressly agree in a separate writing to be bound by such separate or additional
terms and conditions.
3.4 Cancellation. IVT reserves the right to cancel or suspend any
orders placed by Reseller and accepted by IVT, or to refuse or to delay shipment
of any Licensed Software described in those orders, if Reseller fails: (a) to
pay when due any amount required by this Agreement or any invoice; (b) to meet
any credit or financial requirements that IVT, in its reasonable discretion, may
establish; or (c) to comply with the terms and conditions of this Agreement.
Once IVT accepts an order, Reseller may not cancel the order unless IVT fails to
ship the Licensed Software described in the Program Order within thirty (30)
days after accepting the order, and Reseller provides written notice of
cancellation to IVT before IVT ships any of the Licensed Software described in
the order that Reseller desires to cancel.
3.5 Shipment of Licensed Software. IVT shall ship all Licensed Software
ordered under this Agreement F.O.B. from IVT's San Francisco facility, or other
point of shipment within the United States designated by IVT. Risk of loss or
damage to copies of the Licensed Software shall pass to Reseller at the point of
shipment. All shipping and in transit insurance charges shall be paid by
Reseller. Reseller shall specify in its Program Order the mode of shipment
and/or carrier for each order. In the absence of written instructions from
Reseller, IVT shall determine the carrier and/or mode of shipment.
3.6 IVT Product Delivery Schedule and Delays. Although IVT shall use
reasonable efforts to meet Reseller's requested delivery schedules for Licensed
Software, IVT shall not be liable for any loss, damage or expense due to late
delivery.
3.7 Delivery of Burstware License Key. IVT shall deliver Burstware
License Keys only to Reseller, who shall be solely responsible for delivery of
Burstware License Keys to End-Users. Reseller shall deliver a License Key to an
End-User only upon receipt of a duly executed End-User License Agreement by that
End-User.
Section 4
MINIMUM COMMITMENTS, DISCOUNTS AND PAYMENTS
4.1 Product and Price List. A copy of IVT's current Product and Price
List for the Licensed Software is attached as Exhibit A. IVT agrees to provide
to Reseller the pricing reflected in Exhibit A during the initial Term of this
Agreement. Reseller acknowledges and accepts that IVT may thereafter change its
prices to Reseller at any time, on sixty (60) days written notice to Reseller.
No price change shall affect any completed Program Order that Reseller has
submitted and IVT has accepted in accordance with this Agreement before IVT has
notified Reseller of the price change. Further, no price change shall affect any
written bid or proposal for or including the Licensed Software submitted by
Reseller to an End-User before IVT has notified Reseller of the price change.
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4.2 Minimum Commitment. Reseller agrees to order during the initial
term of this Agreement the minimum amount of Licensed Software, net of
cancellations and returns, set forth in the Minimum Commitment and Resellers
Discount Schedule attached as Exhibit B to this Agreement.
4.3 Price to Reseller. Subject to Paragraph 4.4, the price payable by
Reseller for Licensed Software ordered pursuant to this Agreement during the
initial term of this Agreement shall be the applicable price in the then-current
Product and Price List, less the discount specified in the Minimum Commitment
and Discount Schedule and specified here as Partner Reseller, identified in
Exhibit B.
4.4 Periodic Review of Progress Toward Minimum Commitment. During each
annual term of the Agreement, IVT will review quarterly the volume of orders by
Reseller, net of cancellations and returns, against the Minimum Commitment for
that period. If the cumulative net dollar volume ordered, as a percentage of the
Minimum Commitment for that period, does not equal or exceed the applicable
value from the following table, IVT shall so notify Reseller. If Reseller does
not within thirty (30) days of such notification order sufficient volumes of
Licensed Software to meet or exceed the applicable value from the table below
for that period, IVT may, in its discretion, reduce Reseller's discount to
levels (including no discount) commensurate with the actual volume of Reseller's
orders.
Percentage of Commitment
Three-Month Period Year 1 for given year
------------------------- --------------
1st 4%
2nd 20%
3rd 56%
4th 100%
Percentage of Commitment
Three-Month Period Year 2 for given year
------------------------- --------------
1st 17%
2nd 40%
3rd 67%
4th 100%
IVT will discuss at any time with Reseller adjustment of the Minimum
Commitment and applicable discounts, based on Reseller's forecasted orders, but
any adjustment requires IVT's prior written consent. For any renewal term of
this Agreement, IVT and Reseller shall agree on the applicable Minimum
Commitment and discounts. Reseller may not assume any discount will be continued
for any renewal term.
4.5 Initial Order. Within fifteen (15) days of the Effective Date of
this Agreement, Reseller shall submit to IVT a blanket purchase which will
remain in effect for the duration of the agreement and will authorize IVT to
supply the reseller copies of the Licensed Software. IVT shall ship and invoice
for Licensed Software only upon receipt of a completed Program Order as provided
in this Agreement.
4.6 Payment. Reseller shall pay for all Licensed Software within
forty-five (45) days after the date of IVT's invoice for such products. In
addition to all other available rights or remedies, IVT reserves the right to
declare all sums immediately due and payable upon written notice to Reseller if
Reseller fails to pay when due any amounts due under this Agreement or any
invoice. Interest shall accrue on any amounts not paid when due at an annual
rate of eighteen (18) percent.
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Reseller Agreement IVT -- I Stream TV
4.7 Taxes. With the sole exception of taxes based on IVT's net income,
Reseller shall pay all sales, use, excise, value added or other taxes that may
arise out of Reseller's distribution or installation of Licensed Software.
4.8 End-User Pricing. Reseller is free to determine its own End-User
prices for the Licensed Software. Although IVT may publish suggested End-User
prices, these are suggestions only and are not binding in any way on Reseller.
Section 5
PROPERTY RIGHTS AND RESTRICTIONS
5.1 Ownership. Reseller acknowledges that the Licensed Software, all
enhancements, corrections and modifications to the Software (regardless whether
made by IVT, Reseller or anyone else), all Intellectual Property Rights
protecting or pertaining to any aspect of the Software (or any enhancements,
corrections or modifications), the Documentation, all Trademarks and all
goodwill associated with the Trademarks are and shall remain the sole and
exclusive property of IVT and, where applicable, IVT's suppliers. This Agreement
does not convey title or ownership to Reseller or any of its customers, but
instead gives Reseller only the limited rights set forth in Section 2. IVT
reserves all rights not expressly granted by this Agreement.
5.2 Use Restrictions. Except as set forth in Section 2, Reseller has no
right to use, make, sublicense, modify, distribute or copy originals or copies
of the Software or the Documentation or to permit anyone else to do so.
5.3 Proprietary Notices. Reseller shall not remove or obscure any
patent, copyright or trademark or other intellectual property notices that may
appear on any part of the Licensed Software or the Documentation.
5.4 Trade Secrets. Reseller acknowledges that the Licensed Software, in
its source code form, contains valuable trade secrets belonging to IVT. Reseller
may not reverse engineer, decompile, disassemble or otherwise translate any
Software. Reseller may not copy any concepts, ideas or techniques demonstrated
by the use of the Software.
5.5 IVT Name and Trademarks. Reseller shall make no representations
concerning IVT or the Licensed Software that are not set forth in the
Documentation. Reseller shall indicate IVT's ownership of all Trademarks in any
advertising, promotional or other written or readable material containing any
Trademarks that Reseller may create during the Term of this Agreement. If
Reseller reproduces IVT's logo, it shall do so only in the format furnished by
IVT. Reseller may use the Trademarks only for purposes of promoting and selling
Reseller products and services that use the Licensed Software and shall make no
other use of the Trademarks, or use any trademark or trade name that may be
confusingly similar to any of the Trademarks, without IVT's prior written
approval. Reseller may not apply for registration of the Trademarks, or any
trademark or trade name that may be confusingly similar to any of the
Trademarks, under the laws of any jurisdiction. Reseller shall obtain IVT's
prior approval, which IVT shall not deny unreasonably, of all advertising,
publicity or promotion that uses any Trademarks or discusses the Licensed
Software in any way.
5.6 Irreparable Harm. Reseller acknowledges that money damages may not
be an adequate remedy for any breach or violation of any requirement set forth
in Section 5 of this Agreement and that any such breach or violation may leave
IVT without an adequate remedy at law. Reseller therefore agrees that, in
addition to any other remedies available at law, in equity or under this
Agreement, IVT shall be entitled to obtain temporary, preliminary and permanent
injunctive relief, without bond, from a court of competent jurisdiction to
restrain any such breach or violation.
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Section 6
RESPONSIBILITIES OF RESELLER
6.1 Level of Effort. Reseller shall at all times during this Agreement
use reasonable efforts to market and promote the Licensed Software effectively
and in a manner reasonably calculated to maximize their licensing to End-Users.
6.2 Trained Reseller Employees. Reseller shall employ, train and
maintain sufficient personnel with technical and sales experience to
demonstrate, sell and support the Licensed Software distributed under this
Agreement.
6.3 Maintenance and Support. Except as expressly stated in paragraphs
7.1 and 7.2, Reseller shall be solely responsible for providing all
installation, training, maintenance, service and support to End-Users relating
to the Licensed Software. Reseller shall not permit or encourage its customers
to contact IVT directly without IVT's prior consent.
6.4 Protection of IVT Intellectual Property. Reseller shall use
reasonable efforts to ensure that IVT's intellectual property rights in the
Licensed Software are protected, and shall fully cooperate with IVT's efforts to
protect IVT's rights. Reseller shall notify IVT within ten (10) days of learning
of any actual or suspected violation of IVT's intellectual property rights in
the Licensed Software. Reseller shall notify IVT of any claim, judicial
proceeding or governmental proceeding involving the Licensed Software no later
than ten (10) days after learning of such claim or proceeding.
6.5 End-User License Agreements. Reseller shall ensure that the
Licensed Software is distributed only to persons or entities that have received,
executed and returned to Reseller an End-User License Agreement in the form of
Exhibit D. Reseller shall forward to IVT a copy of each executed End-User
License Agreement.
6.6 Representations and Warranties to End-Users. Reseller shall not,
under any circumstances, make any representations or warranties to any End-User
or other person or entity that are inconsistent with or in addition to the
warranties and representations contained in the End-User License Agreement.
6.7 Compliance with Applicable Laws. Reseller shall comply with all
laws and regulations of the United States and the states in which Licensed
Software are distributed to the extent that non-compliance could possibly
subject IVT to any liability or impair any right or interest of IVT.
6.8 Conduct. Reseller shall at all times refrain from engaging in any
illegal, unfair or deceptive trade practices or unethical business practices
whatsoever with respect to its marketing, distribution and support of the
Licensed Software.
Section 7
RESPONSIBILITIES OF IVT
7.1 Warranty Service. IVT shall provide Reseller's End-Users with the
warranty services as described in, and subject to the terms and conditions of,
the End-User License Agreement. IVT reserves the right to modify such terms and
conditions from time to time, in IVT's sole discretion.
7.2 Consultation with Reseller. IVT shall provide to Reseller, at no
charge, a reasonable amount of telephone or electronic mail consultation to
Reseller's employees in order for Reseller to meet its obligations under
paragraph 6.3.
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7.3 Training. Upon Reseller's request, and at mutually agreeable times,
IVT will provide sales and technical support training as outlined in Exhibit F
on the Licensed Software to Reseller's employees at IVT's San Francisco offices.
Reseller shall be entitled to up to twenty (20) person days (in no more than 4
sessions) of training during the initial twelve month period of this Agreement,
and up to twenty (20) person days (in no more than 4 sessions) of training
during the second twelve-month period of this Agreement. Reseller shall be
responsible for all travel, lodging, meal and other expenses for the attendance
of its employees at such training. Reseller may request additional training that
IVT may, subject to the availability of IVT resources, provide on terms to be
negotiated.
7.4 Demonstration Copies of the Licensed Software. IVT shall provide to
Reseller at no charge five (5) copies of the Licensed Software and ten (10)
copies of the Documentation for Reseller's use in the marketing, promotion and
demonstration of the Licensed Software. These demonstration copies may not be
sold or otherwise transferred or disposed of by Reseller and must be returned to
IVT upon the expiration or termination of this Agreement.
Section 8
LIMITED WARRANTY
8.1 Ownership. IVT warrants that it owns or has the right and authority
to license the Licensed Software, the Documentation and the Trademarks to
Reseller on the terms and conditions of this Agreement.
8.2 Media and Documentation. IVT warrants that if the Licensed
Software's media or Documentation is in a damaged or physically defective
condition at the time it is delivered to an End-User, and if it is returned to
IVT (postage prepaid) within ninety (90) days of delivery, IVT will provide
End-User with replacements at no charge.
8.3 Performance. IVT also warrants that, in the form delivered to
Reseller by IVT, the Licensed Software shall perform substantially in accordance
with the Documentation and be free of Program Errors for ninety (90) days after
Reseller delivers a copy of the Licensed Software to an End-User. IVT's warranty
is conditioned upon: (a) the use of the Licensed Software in accordance with the
Documentation and other instructions provided by IVT and shall be null and void
if Reseller or any End-User alters or modifies the Licensed Software without
IVT's prior written approval, does not use the Licensed Software in accordance
with the Documentation and IVT's instructions, or if the Licensed Software fail
because of any accident, abuse or misapplication; and (b) Reseller notifying IVT
in writing of the claimed nonconformance within ninety (90) days after Delivery
of Licensed Software to Reseller. As IVT's sole liability and Reseller's sole
remedy respecting the Licensed Software's nonconformance with the limited
warranty set forth in this Paragraph 8.3, IVT may at its sole option: (i) use
reasonable efforts to correct the Licensed Software to make it conform with the
specifications set forth in the Documentation; (ii) replace the Licensed
Software; or (iii) upon return of the Licensed Software and Documentation to IVT
refund the license fees paid by Reseller under this Agreement and terminate the
Agreement. IVT DOES NOT REPRESENT OR WARRANT THAT THE LICENSED SOFTWARE WILL
OPERATE PROPERLY WITH OTHER HARDWARE OR SOFTWARE, THAT THE LICENSED SOFTWARE
WILL MEET LICENSEE'S REQUIREMENTS OR EXPECTATIONS, OR THAT OPERATION OF THE
LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE.
8.4 No Other Warranties. EXCEPT AS SET FORTH IN PARAGRAPHS 8.1, 8.2 AND
8.3, IVT IS PROVIDING THE LICENSED SOFTWARE AND THE DOCUMENTATION "AS IS," AND
IVT SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, CONDITIONS OR
REPRESENTATIONS (WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO
THE LICENSED SOFTWARE OR DOCUMENTATION INCLUDING ANY AND ALL WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT IVT KNOWS,
HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE IN FACT AWARE OF ANY SUCH
PURPOSE) OR CONDITIONS OF TITLE OR NONINFRINGEMENT WHETHER ALLEGED TO ARISE BY
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Reseller Agreement IVT -- I Stream TV
OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, OR BY COURSE OF
DEALING. IVT ALSO EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OR
REPRESENTATION TO ANY PERSON OTHER THAN RESELLER.
Section 9
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IVT'S CUMULATIVE
LIABILITY FOR ALL CLAIMS OF ANY NATURE RELATED TO THE LICENSED SOFTWARE OR
DOCUMENTATION OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING ANY CAUSE OF
ACTION BASED ON WARRANTY, CONTRACT, TORT, STRICT LIABILITY, PATENT OR COPYRIGHT
INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY, SHALL NOT EXCEED THE
TOTAL AMOUNT OF ALL LICENSE FEES THAT RESELLER HAS ACTUALLY PAID UNDER THIS
AGREEMENT. NEITHER IVT NOR ANY OF ITS SUPPLIERS OR LICENSORS SHALL BE LIABLE FOR
ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES,
WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, OR FOR ANY
LOSS OF PROFITS, LOSS OF SAVINGS, LOSS OF DATA OR LOSS OF USER DAMAGES ARISING
OUT OF THIS AGREEMENT OR THE USE (OR INABILITY TO USE) OF THE LICENSED SOFTWARE
EVEN IF IVT OR RESELLER, SUPPLIER OR LICENSOR HAS BEEN AWARE OF THE POSSIBILITY
OF SUCH POTENTIAL LOSS OR DAMAGE. IN NO EVENT WILL IVT BE LIABLE FOR ANY CLAIM
BROUGHT MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE OR SHOULD HAVE
BEEN DISCOVERED. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF
LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT
APPLY.
Section 10
CONFIDENTIALITY
10.1 Reseller Confidentiality Obligations. Reseller shall maintain the
confidentiality of any confidential information regarding the Licensed Software,
IVT, or IVT's past, present or future products, business plans or strategies.
Information shall be deemed confidential only if it is marked "confidential" in
writing or if it is expressly identified as "confidential" orally. Reseller
shall indemnify IVT for any loss or damage IVT may sustain as a result of the
wrongful use or disclosure by Reseller (or any employee, agent, licensee, or
contractor of Reseller) of confidential information regarding the Licensed
Software, IVT, or IVT's past, present or future products.
10.2 IVT Confidentiality Obligations. IVT shall maintain the
confidentiality of any confidential information regarding Reseller, or
Reseller's past, present or future products, business plans or strategies.
Information shall be deemed confidential only if it is marked "confidential" in
writing or if it is expressly identified as "confidential" orally. IVT shall
indemnify Reseller for any loss or damage Reseller may sustain as a result of
the wrongful use or disclosure by IVT (or any employee, agent, licensee, or
contractor of IVT) of confidential information regarding Reseller or Reseller's
past, present or future products.
10.3 Exceptions. The obligations set forth in paragraphs 10.1 and 10.2
shall not apply with respect to any Confidential Information that (a) is or
becomes publicly known under circumstances involving no breach of the terms of
paragraph 10.1 or 10.2; (b) is generally disclosed to third parties by the owner
of such Confidential Information without restrictions on its use or disclosure;
(c) is independently developed by the party to whom it was disclosed; or (d) is
approved for use or disclosure in writing by the owner of such Confidential
Information.
10.4 Agreement is Confidential. This Agreement is strictly
confidential. Neither party shall disclose any of the terms of this Agreement to
any third party without the prior written consent of the other, except as may be
necessary to comply with applicable law. If either party intends to disclose any
of the terms of this Agreement, it
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shall provide the other with ten (10) days prior written notice of the intended
disclosure. Neither party's consent to a proposed disclosure shall be
unreasonably withheld.
Section 11
INDEMNITY
Except for claims arising solely as a result of any breach of the
limited warranties set forth in Section 8 of this Agreement, Reseller shall
indemnify, defend and hold IVT harmless against all claims, actions or
liabilities of any nature that may arise from Reseller's marketing,
distribution, installation, use or execution of the Licensed Software.
Section 12
TERM AND TERMINATION
12.1 Term. The Term of this Agreement shall begin on the Effective Date
and, unless renewed in accordance with this Paragraph 12.2, or terminated in
accordance with Paragraph 12.3, end two calendar years later.
12.2 Renewal. Unless either party gives the other written notice of its
intention not to renew at least sixty (60) days before the end of the initial
term, this Agreement will renew itself automatically for successive one year
renewal terms until either party gives the other written notice of its intention
not to renew this Agreement for another terms at least sixty (60) days before
the end of any renewal term. A party's decision to renew or not renew this
Agreement shall be within that party's sole and exclusive discretion, with or
without cause.
12.3 Default. Either party may, at its option and in addition to all
other available rights or remedies, terminate this Agreement if the other party
fails to comply with its obligations under this Agreement in any material
respect and then fails to cure that noncompliance within thirty (30) days after
receiving a written notice describing the noncompliance in reasonable detail.
12.4 Bankruptcy or Insolvency. Either party may immediately terminate
this Agreement in the event either party becomes bankrupt, insolvent or
generally unable to pay its debts as they become due.
12.5 Effect of Termination. After any termination or expiration of this
Agreement, IVT shall continue to be entitled to all license fees payable under
this Agreement. Both parties' rights and obligations under Paragraphs 5, 8, 9,
10, 11, 12 and 14 of this Agreement shall survive the termination or expiration
of this Agreement.
12.6 No Effect on End-Users. Termination of this Agreement shall not
affect the rights or obligations of properly licensed End-Users.
Section 13
CO-MARKETING AND PROMOTION
13.1 General. IVT and Reseller shall participate in joint marketing and
promotion efforts reasonably acceptable to IVT and Reseller. Such activities may
include (subject to the parties agreements and IVT personnel availability and
adequate notice), IVT's support of and participation in trade shows and customer
visits with Reseller's sales teams and IVT's participation in Reseller's
national sales meeting(s) to present and discuss Burstware and value added
within Reseller's customer network. ITV and Reseller shall meet on a quarterly
basis to discuss and agree on the scope, scheduling, and expenditures regarding
such joint marketing initiatives and programs.
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Reseller Agreement IVT -- I Stream TV
13.2 Market Development Funds. For the purposes described below and
under the conditions described below, IVT shall make available to Reseller
Market Development Funds.
13.2.1 Reseller shall not be eligible to accrue Market
Development Funds until the calendar quarter in which it has met or
exceeded fifty percent (50%) of the Minimum Commitment set forth in
Exhibit B. Thereafter, Reseller shall be eligible to accrue and receive
Market Development Funds only in calendar quarters in which Reseller's
progress toward meeting its Minimum Commitment under this Agreement
meets or exceeds the milestones set forth in the table in Paragraph
4.4.
13.2.2 Market Development Funds shall accrue at a rate equal
to two (2) percent of the Reseller's net payments to IVT in each
qualifying calendar quarter, not to exceed $25,000 for any such
quarter.
13.2.3 Market Development Funds shall be used solely for
marketing, promotional and/ or advertising activities relating to the
Licensed Software and shall be mutually agreed upon in advance by IVT
and Reseller.
13.2.4 Market Development Funds are and shall remain the sole
and exclusive property of IVT unless and until paid to Reseller for
mutually agreed upon activities. Upon termination of this Agreement,
IVT shall retain all Market Development Funds.
13.3 Press Release. IVT and Reseller will issue a joint press release
promptly after the Effective Date to announce the relationship created by this
Agreement.
13.4 Identification of Reseller as Burstware Reseller. Reseller agrees
that IVT may use Reseller's name as an IVT Reseller in any advertising or
promotional materials for Licensed Software.
13.5 Website Links. IVT and Reseller each agrees to maintain at least
one marketing-related link on its website(s) during the term of this Agreement.
Section 14
MISCELLANEOUS
14.1 Export Regulations. The Licensed Software and Documentation,
including technical data, is subject to U.S. export control laws, including the
U.S. Export Administration Act and its associated regulations, and may be
subject to export or import regulations in other countries. Licensee agrees to
comply strictly with all such regulations and acknowledges that it has the
responsibility to obtain licenses to export, re-export, or import the Licensed
Software or Documentation. Neither the Software nor Documentation may be
downloaded, or otherwise exported or re-exported (i) into, or to a national or
resident of any country to which the U.S. has embargoed goods; or (ii) to anyone
on the U.S. Treasury Department's list of Specially Designated Nations or the
U.S. Commerce Department's Table of Denial Orders. By installing or using the
Licensed Software, Licensee is warranting that it is not located in or under the
control of, or a national or resident of any such country or on any such list.
14.2 Absence of Third Party Beneficiaries. Unless otherwise expressly
provided, no provisions of this Agreement are intended or shall be construed to
confer upon or give to any person other than IVT and Reseller any rights,
remedies or other benefits under or by reason of this Agreement.
14.3 Assignment. Reseller may not assign any of its rights or delegate
any of its obligations under this Agreement without the prior written consent of
IVT, which IVT shall not withhold unreasonably. IVT may
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Reseller Agreement IVT -- I Stream TV
assign or delegate its obligations under this Agreement as part of a sale or
transfer of a substantial portion of its business to which this Agreement
relates.
14.4 Complete Understanding. This Agreement constitutes the entire
agreement between the parties with respect to its subject matter and supersedes
and replaces all prior or contemporaneous understandings or agreements, written
or oral, regarding its subject matter. No amendment to or modification of this
Agreement will be binding unless in writing and signed by duly authorized
representatives of both parties. Terms of a purchase order or similar document
issued by Reseller or an End-User shall not modify this Agreement.
14.5 Construction. This Agreement was executed after arms-length
negotiations between the parties, and its terms are not to be construed against
either party.
14.6 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
14.7 Disclaimer of Agency. IVT and Reseller each acknowledge that the
parties to this Agreement are independent. Neither party is authorized or
empowered to act as agent or legal representative for the other for any purpose
and shall not on behalf of the other enter into any contract, warranty or
representation as to any matter. Neither party shall be bound by the acts or
conduct of the other and nothing herein shall be construed as creating a
partnership or joint venture.
14.8 Governing Law and Forum. This Agreement will be governed by and
construed in accordance with the laws of the State of California without
reference to conflicts of laws principles. IVT and Reseller consent to the
jurisdiction and venue of the Superior Court of San Francisco County,
California, or the United States District Court for the Northern District of
California as the exclusive forum for all disputes concerning this Agreement.
14.9 Arbitration. Any controversy or claim arising out of or relating
to this Agreement, or the breach of this Agreement, shall be settled by
arbitration administered by the San Francisco, California Regional Office of the
American Arbitration Association in accordance with its Commercial Arbitration
Rules, and judgment on the award rendered by the arbitrator may be entered in
any court identified in paragraph 14.8. The arbitration shall be conducted by a
single arbitrator. The arbitrator shall follow and be bound by applicable state
and federal law. The parties shall cooperate in the expeditious conduct of the
arbitration, and shall do everything reasonably possible to ensure that the
arbitration proceeding is concluded within sixty (60) days of service of a
notice of request for arbitration. Each party shall be limited to a total of
thirty-two (32) hours to present to the arbitrator all evidence and arguments in
support of its position. All fees and costs related to the arbitration shall be
apportioned between the parties by the arbitrator in accordance with paragraph
14.10.
14.10 Attorneys' Fees. The prevailing party in any action arising from
this Agreement shall be entitled to recover from the losing party its reasonable
attorneys' fees, costs and necessary disbursements in addition to any other
relief to which such party may be entitled from the losing party.
14.11 Notices. All notices and other communications that this Agreement
requires or permits shall be in writing and shall be considered effective when
deposited in the U.S. mail, postage prepaid, and addressed to the appropriate
party at the address noted on the first page of this Agreement, unless by such
notice the receiving party designates a different address in writing.
14.12 No Waiver. The failure of either party to enforce any provision
of this Agreement shall not be deemed a waiver of that provision or any other
available right or remedy.
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Reseller Agreement IVT -- I Stream TV
14.13 Severability. In the event that any provision of this Agreement
is found to be invalid, illegal or unenforceable pursuant to judicial decree or
decision, the remainder of this Agreement shall remain valid and enforceable
according to its terms.
14.14 Warranty of Authority. By signing this Agreement, each person
executing this Agreement on behalf of any party warrants that he or she has the
full authority to do so.
INSTANT VIDEO TECHNOLOGIES, INC. I Stream TV
By /s/ Thomas Koshy By /s/ Chip Ruhnke
-------------------------------- ------------------------------
Name Thomas Koshy Name: Chip Ruhnke
----------------------------------- ------------------------------
Title Chief Operating Officer Title: President
----------------------------------- ------------------------------
Date October 13, 1999 Date: 10/04/99
----------------------------------- ------------------------------
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500 Sansome Street, Suite 503 tel 415.391.4455
San Francisco fax 415.391.3392
California 94111 http://www.burst.com
EXHIBIT A
Burstware(R) Product Suggested Pricing
--------------------------------------------------------------------------------
Burstware(R) Enterprise Configuration
The Enterprise configuration is IVT's primary configuration for advanced
scalability, reliability, and no single-point-of-failure for video applications.
The fail-over server and conductor can only be used for fail-over services
within the same Burstware domain.
-----------------------------------------------------------------------------
Burstware(R) Enterprise Configuration US$55,000
-----------------------------------------------------------------------------
Two Burstware Servers(TM)and two Burstware
Conductors(TM)(TM) $ 45,000
100 Mbps of managed bandwidth
Additional fail-over Burstware Server $ 10,000
-----------------------------------------------------------------------------
Burstware(R) Silver Configuration
The Silver Configuration provides load balancing and server fail-over for
reliable midrange video applications.
-----------------------------------------------------------------------------
Burstware(R) Silver Configuration US$35,000
-----------------------------------------------------------------------------
Two Burstware Servers and two Burstware Conductors(TM)
50 Mbps of managed bandwidth
Burstware(R) Bronze Configuration
IVT's Bronze Configuration provides a single entry-level Burstware Server
architecture for smaller applications. Additional concurrent connections and
fail-over servers may be added to the Bronze configuration.
-----------------------------------------------------------------------------
Burstware(R) Bronze Configuration US$10,000
-----------------------------------------------------------------------------
One Burstware Server and one Burstware Conductor
15 Mbps of managed bandwidth
Burstware(R) Additional Bandwidth Module
Additional 50Mbps modules can be added to the Enterprise and Silver
Configurations to create highly scalable video applications. Each module
increases the number of concurrent connections by fifty and the amount of total
managed bandwidth by 50Mbps.
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500 Sansome Street, Suite 503 tel 415.391.4455
San Francisco fax 415.391.3392
California 94111 http://www.burst.com
-----------------------------------------------------------------------------
Burstware(R) Additional Bandwidth Module US$20,000
-----------------------------------------------------------------------------
One Burstware Server
50 Mbps of managed bandwidth
Additional Concurrent Connections
Additional Concurrent Connections where applicable can be purchased in blocks of
50 connections at $2500 per a 50-block connection for all of the above
configurations.
Burstware(R) Additional Fail-Over Server Module
Multiple Fail-Over Server modules can be added to all configurations to create
extremely reliable Burstware server architectures. Each module increases the
total number of Burstware servers in a Burstware domain by one.
-----------------------------------------------------------------------------
Burstware(R) Additional Fail-Over Server Module US$10,000
-----------------------------------------------------------------------------
One Burstware Server
-----------------------------------------------------------------------------
Product Upgrade
The next revision of Burstware is expected to be released in the Fall of 1999. A
Burstware Product Upgrade Agreement Pack can be purchased for 15% of the total
purchase price. The product upgrade pack includes free upgrades to the next
major release of the Burstware suite of products.
-----------------------------------------------------------------------------
Burstware(R) Product Upgrade Agreement Pack 15% of
Suggested
Total Price
-----------------------------------------------------------------------------
Upgrades to Burstware 2.x at no charge
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500 Sansome Street, Suite 503 tel 415.391.4455
San Francisco fax 415.391.3392
California 94111 http://www.burst.com
EXHIBIT B
DISCOUNT SCHEDULE #4
Discount Lever #4 1.5MM-3MM annually
Description Discount
----------- --------
Burstware(R) Enterprise Configuration 28%
Additional 50Mbps of Bandwidth (for Enterprise Config.) 28%
Burstware(R) Silver Configuration 28%
Burstware(R) Bronze Configuratoin 28%
Additional Fail-Over Server 28%
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[LOGO OMITTED]
500 Sansome Street, Suite 503 tel 415.391.4455
San Francisco fax 415.391.3392
California 94111 http://www.burst.com
EXHIBIT C
PROGRAM ORDER
[To be supplied at a later date]
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500 Sansome Street, Suite 503 tel 415.391.4455
San Francisco fax 415.391.3392
California 94111 http://www.burst.com
EXHIBIT D
END-USER SOFTWARE LICENSE AGREEMENT
between
INSTANT VIDEO TECHNOLOGIES, INC.
500 Sansome Street, Suite 503
San Francisco, California 94111
and
LICENSEE
Company Name: _______________________________________
Principal Address: _______________________________________
_______________________________________
_______________________________________
Contact Person: _______________________________________
Phone Number: _______________________________________
Facsimile Number: _______________________________________
Email address: _______________________________________
By executing this Agreement, Instant Video Technologies, Inc. ("IVT") and
___________________________ ("Licensee") are agreeing to a license of certain
computer programs in accordance with the terms and conditions contained in this
Agreement.
This Agreement consists of (1) this cover page; (2) the attached Terms and
Conditions; and (3) the Program Order attached as Exhibit A, as well as
additional Program Orders accepted from time to time with respect to this
Agreement.
Licensee has read, understands and agrees to the terms and conditions of this
Agreement and has duly authorized the individual signing this Agreement on its
behalf to do so.
INSTANT VIDEO TECHNOLOGIES, INC. ___________________________________
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[LOGO OMITTED]
500 Sansome Street, Suite 503 tel 415.391.4455
San Francisco fax 415.391.3392
California 94111 http://www.burst.com
By: _______________________________ By: _______________________________
Name: _____________________________ Name:______________________________
(Print Name) (Print Name)
Title: ____________________________ Title: ____________________________
Date: _____________________________ Date:______________________________
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End-User Software License Agreement
TERMS AND CONDITIONS
1. DEFINITIONS
1.1 "Burstware Conductor(TM)" means the computer program included among
the Licensed Software that is designed to operate on a hardware server and that
manages the distribution of audio and/or video content from one or more hardware
servers on which the Burstware Server software has been installed to Burstware
Players installed on client computers. Each Burstware Conductor requires a
Burstware(R) License Key configured for the host name or IP address of the
computer on which the Burstware Conductor is installed.
1.2 "Burstware License Key" means the unique, encrypted software
program provided by IVT (only upon payment of the applicable license fees) that
is designed to prevent use of the Licensed Software beyond the scope of the
license paid for by Licensee by limiting, as appropriate, and in addition to
other limits, the number of Concurrent Burstware Player Connections, the amount
of Managed Bandwidth, and the number of Burstware Servers that the Burstware
Conductor can manage and the number of copies of the Burstware Conductor that
can be used.
1.3 "Burstware Player(TM)" means the computer program included among
the Licensed Software that operates on a single-user client computer, permitting
that computer to receive and play audio and/or video content delivered by the
Burstware Server software.
1.4 "Burstware Server(TM)" means the computer program included among
the Licensed Software that stores audio and/or video content and delivers it to
client computers for viewing with the Burstware Player.
1.5 "Concurrent Burstware Player Connections" means the number of
simultaneous connections between Burstware Players installed on client computers
and Burstware Servers installed on hardware servers that the Burstware License
Key enables the Burstware Conductor to manage simultaneously.
1.6 "Documentation" means all materials in written, computer readable
or other form containing information about the Licensed Software that accompany
the Licensed Software or that IVT may provide during the term of this Agreement.
1.7 "Licensed Software" means the IVT Burstware Conductor, Burstware
Server and Burstware Player software for which Licensee is granted a license
under this Agreement.
1.8 "Managed Bandwidth" means the total bandwidth, measured in megabits
per second, used by the Burstware Server software to deliver audio and/or video
content to Burstware Players.
2. GRANT OF LICENSE
On the terms and conditions of this Agreement, and upon payment of all
applicable license fees, IVT grants to Licensee and Licensee accepts the
non-exclusive licenses and the restrictions set forth below.
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End-User Software License Agreement
2.1 Software License. IVT grants to Licensee a non-exclusive license to
install and use the Licensed Software in machine-readable object code form only
in the configuration and to the scope identified in the Program Order attached
as Exhibit A, or such other Program Order(s) as IVT might accept at a later
date.
2.2 Documentation. IVT grants to Licensee a non-exclusive license to
use the Documentation in connection with Licensee's use of the Licensed
Software.
2.3 Limitation on Use. Licensee understands and acknowledges that use
of the Licensed Software is controlled by the Burstware License Key. Licensee
may not use the Licensed Software beyond the scope enabled by the Burstware
License Key provided by IVT to Licensee upon payment of the applicable license
fee. The Licensed Software functions as three separate programs, the Burstware
Conductor, Burstware Server, and Burstware Player, that operate cooperatively.
Licensee may install and use only the number of copies of the Burstware
Conductor and Burstware Server software specifically enabled by the Burstware
License Key provided to Licensee by IVT. Licensee may install an unlimited
number of copies of the Burstware Player software for use by Licensee, provided
Licensee does not receive any direct payment for doing so, but may
simultaneously use only the number of copies of the Burstware Player
specifically enabled by the Burstware License Key provided to Licensee by IVT.
Licensee may not modify or alter the Licensed Software or Burstware License Key
to increase the scope of its use of the Licensed Software. Further, Licensee may
not use any device, process or computer program that increases, directly or
indirectly, the scope of use of the Licensed Software enabled by the Burstware
License Key provided to Licensee by IVT. If Licensee wishes to increase the
scope of its licensed use of the Licensed Software, Licensee must purchase an
additional Burstware License Key from IVT.
2.4 Back-Up Copies. Licensee may make one copy of the Licensed Software
solely for the back-up or archival purposes, provided that such copy must
contain all proprietary notices affixed to or appearing in the original copy.
2.5 Sun Microsystems Java(TM) Runtime Environment Provisions. Licensee
may not modify the Java Platform Interface ("JPI", identified as classes
contained with the "java" package or any subpackages of the "java" package), by
creating additional classes within the JPI or otherwise causing the addition to
or modification of the classes in the JPI. In the event that Licensee creates
any Java-related API and distributes such API to others for application
development, Licensee must promptly publish broadly, an accurate specification
for such API for free use by all developers of Java-based software.
2.6 Hazardous Environments. The Licensed Software is not designed or
intended for use in online control equipment in environments requiring fail-safe
performance, such as the operation of nuclear facilities, aircraft communication
or control systems or life support systems, in which software failure could lead
to personal injury or severe property or environmental damage. Licensee warrants
that it will not use or allow the use of the Licensed Software for such purposes
3. OWNERSHIP AND USE RESTRICTIONS
3.1 Ownership. Licensee acknowledges that the Licensed Software, all
enhancements, corrections and modifications to the Licensed Software (regardless
whether
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End-User Software License Agreement
made by IVT, Licensee or anyone else), all copyrights, patents, trade secrets,
or trademarks or other intellectual property rights protecting or pertaining to
any aspect of the Licensed Software (or any enhancements, corrections or
modifications) and the Documentation, are and shall remain the sole and
exclusive property of IVT and, where applicable, IVT's suppliers. This Agreement
does not convey title or ownership to Licensee, but instead gives Licensee only
the limited rights set forth in Section 2. IVT reserves all rights not expressly
granted by this Agreement.
3.2 Restrictions. Except as expressly set forth in this Agreement,
Licensee has no right to use, make, sublicense, modify, transfer, rent, lease,
sell, display, distribute or copy originals or copies of any Licensed Software
or Documentation, or to permit anyone else to do so.
3.3 Transfer. Licensee may not assign or transfer its rights under this
Agreement or its rights to the Licensed Software without the prior written
consent of IVT. Upon any such transfer or assignment, Licensee must transfer all
copies of the Licensed Software and Documentation and assignee must agree in
writing to all the terms of this Agreement.
3.4 Proprietary Notices. Licensee shall not remove any patent,
copyright or trademark or other intellectual property notices that may appear on
any part of the Licensed Software or the Documentation.
3.5 Trade Secrets. Licensee acknowledges that the Licensed Software, in
its source code form, contains valuable trade secrets belonging to IVT. Licensee
may not reverse engineer, unencrypt, decompile, disassemble or otherwise
translate the Licensed Software or allow anyone else to do so.
3.6 Audit Rights. Licensee authorizes IVT or its designee to audit its
compliance with this Agreement, as IVT deems reasonable.
3.7 Notice to Employees and Agents. Licensee will use commercially
reasonable efforts to inform its employees, agents and others using the Licensed
Software under this Agreement that it may not be used, copied or transferred in
violation of this Agreement.
3.8 Irreparable Harm. Licensee acknowledges that money damages may not
be an adequate remedy for any breach or violation of any requirement set forth
in Section 3 of this Agreement and that any such breach or violation may leave
IVT without an adequate remedy at law. Licensee therefore agrees that, in
addition to any other remedies available at law, in equity or under this
Agreement, IVT shall be entitled to obtain temporary, preliminary and permanent
injunctive relief, without bond, from a court of competent jurisdiction to
restrain any such breach or violation.
4. SHIPMENT AND PAYMENT
4.1 Shipment of Licensed Software. IVT shall ship all Licensed Software
ordered under this Agreement F.O.B. from IVT's San Francisco facility, or other
point of shipment within the United States designated by IVT. Risk of loss or
damage to copies of the Licensed Software shall pass to Licensee at the point of
shipment. All shipping and in transit insurance charges shall be paid by
Licensee. Licensee shall specify in its Program Order the mode of shipment
and/or
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End-User Software License Agreement
carrier for each order. In the absence of written instructions from Licensee,
IVT shall determine the carrier and/or mode of shipment.
4.2 IVT Product Delivery Schedule and Delays. Although IVT shall use
reasonable efforts to meet Licensee's requested delivery schedules for Licensed
Software, IVT shall not be liable for any loss, damage or expense due to late
delivery.
4.3 Payment. Licensee shall pay for all Licensed Software within thirty
(30) days after the date of IVT's invoice for such products. In addition to all
other available rights or remedies, IVT reserves the right to declare all sums
immediately due and payable upon written notice to Licensee if Licensee fails to
pay when due any amounts due under this Agreement or any invoice. Interest shall
accrue on any amounts not paid when due at an annual rate of eighteen (18)
percent.
4.4 Taxes. With the sole exception of taxes based on IVT's net income,
Licensee shall pay all sales, use, excise, value added or other taxes that may
arise out of Licensee's installation or use of the Licensed Software.
5. NO PRODUCT MAINTENANCE AND SUPPORT
Licensee is not entitled to any maintenance or support for the Licensed
Software or any upgrades or enhancements under this Agreement. Licensee may
purchase from IVT maintenance and support pursuant to the terms, conditions and
pricing of IVT's maintenance and support agreement as in effect on the date of
Licensee's purchase. All upgrades and enhancements made available to Licensee
shall become part of the Licensed Software and become subject to this Agreement.
6. LIMITED WARRANTY
6.1 Ownership. IVT warrants that it owns or has the right and authority
to license the Licensed Software and Documentation to Licensee on the terms and
conditions of this Agreement.
6.2 Media and Documentation. IVT warrants that if the Licensed
Software's media or Documentation is in a damaged or physically defective
condition at the time it is delivered to Licensee, and if it is returned to IVT
(postage prepaid) within ninety (90) days of delivery, IVT will provide Licensee
with replacements at no charge.
6.3 Licensed Software. IVT warrants that, in the form delivered to
Licensee by IVT, the Licensed Software shall perform substantially in accordance
with the Documentation for ninety (90) days after delivery to Licensee. IVT's
warranty is conditioned upon: (a) the use of the Licensed Software in accordance
with the Documentation and other instructions provided by IVT and shall be null
and void if Licensee alters or modifies the Licensed Software without IVT's
prior written approval, does not use the Licensed Software in accordance with
the Documentation and IVT's instructions, or if the Licensed Software fails
because of any accident, abuse or misapplication; and (b) Licensee notifying IVT
in writing of the claimed nonconformity within ninety (90) days after delivery
of the Licensed Software to Licensee. As IVT's sole liability and Licensee's
sole remedy respecting the Licensed Software's nonconformance with the limited
warranty set forth in this Section 6.3, IVT may at its option: (i) use
reasonable efforts to correct the Licensed Software to make it conform
substantially with
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End-User Software License Agreement
the specifications set forth in the Documentation; (ii) replace the Licensed
Software; or (iii) upon return of the Licensed Software and Documentation to
IVT, refund the license fees paid by Licensee under this Agreement and terminate
this Agreement. IVT DOES NOT REPRESENT OR WARRANT THAT THE LICENSED SOFTWARE
WILL OPERATE PROPERLY WITH OTHER HARDWARE OR SOFTWARE, THAT THE LICENSED
SOFTWARE WILL MEET LICENSEE'S REQUIREMENTS OR EXPECTATIONS OR THAT OPERATION OF
THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE.
7. NO OTHER WARRANTY
EXCEPT AS SET FORTH IN SECTION 6, IVT IS PROVIDING THE LICENSED
SOFTWARE AND THE DOCUMENTATION "AS IS," AND, TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, IVT SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES,
CONDITIONS OR REPRESENTATIONS (WHETHER EXPRESS, IMPLIED OR STATUTORY, OR ORAL OR
WRITTEN) WITH RESPECT TO THE LICENSED SOFTWARE OR DOCUMENTATION INCLUDING
WITHOUT LIMITATIONANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE (WHETHER OR NOT IVT KNOWS, HAS REASON TO KNOW, HAS BEEN
ADVISED OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE) OR CONDITIONS OF
TITLE OR NONINFRINGEMENT WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON
OF CUSTOM OR USAGE IN THE TRADE OR BY COURSE OF DEALING. IVT ALSO EXPRESSLY
DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION TO ANY PERSON OTHER
THAN LICENSEE. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY
HAVE OTHERS, WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION.
8. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE CUMULATIVE
LIABILITY OF IVT FOR ALL CLAIMS OF ANY NATURE RELATED TO THE LICENSED SOFTWARE
OR DOCUMENTATION OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING ANY CAUSE
OF ACTION BASED ON WARRANTY, CONTRACT, TORT, STRICT LIABILITY PATENT OR
COPYRIGHT INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY, SHALL NOT
EXCEED THE TOTAL AMOUNT OF ALL LICENSE FEES THAT LICENSEE HAS ACTUALLY PAID
UNDER THIS AGREEMENT. NEITHER IVT NOR ANY OF ITS RESELLERS, SUPPLIERS OR
LICENSORS SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL,
EXEMPLARY OR PUNITIVE DAMAGES, WHETHER IN CONTRACT, IN TORT (INCLUDING
NEGLIGENCE) OR OTHERWISE, OR FOR ANY LOSS OF PROFITS, LOSS OF SAVINGS, LOSS OF
DATA OR LOSS OF USER DAMAGES ARISING OUT OF THIS AGREEMENT OR THE USE (OR
INABILLITY TO USE) OF THE LICENSED SOFTWARE EVEN IF IVT OR RESELLER, SUPPLIER OR
LICENSOR HAS BEEN AWARE OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. IN
NO EVENT WILL IVT BE LIABLE FOR ANY CLAIM BROUGHT MORE THAN ONE (1) YEAR AFTER
THE CAUSE OF ACTION AROSE OR SHOULD HAVE BEEN DISCOVERED. BECAUSE SOME STATES DO
NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR
INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY. BECAUSE SOME
STATES/JURISDICTIONS
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End-User Software License Agreement
DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR
INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
9. TERMINATION
Without prejudice to any other rights it may have under this Agreement
or at law or equity, IVT may terminate this Agreement if Licensee fails to
comply with the terms of this Agreement. Upon termination of this Agreement for
any reason, Licensee will immediately discontinue use of the Licensed Software,
destroy or return to IVT all copies of the Licensed Software and Documentation
in whatever form they exist, including all back-up copies, and certify in
writing to IVT that all copies have been destroyed.
10. INDEMNIFICATION
The Licensed Software is intended for use only with properly licensed
media, content, and content creation tools. It is Licensee's responsibility to
ascertain whether any copyright, patent or other licenses are necessary and to
obtain any such licenses to serve and/or create or compress such media and
content. Licensee agrees to transmit and/or compress only those materials for
which it has the necessary patent, copyright or other permissions, licenses
and/or clearances. Licensee agrees to hold harmless, indemnify and defend IVT,
its officers, directors and employees, from and against any losses, damages,
fines and expenses (including attorneys' fees and costs) arising out of or
relating to any claims that Licensee has encoded, compressed, copied or
transmitted any materials (other than materials provided by IVT) in connection
with the Licensed Software in violation of another party's rights or in
violation of any law. If Licensee is importing the Licensed Software from the
United States, it shall indemnify and hold IVT harmless from and against any
import and export duties or other claims arising from such importation.
11. GENERAL TERMS
11.1 Export Regulations. The Licensed Software and Documentation,
including technical data, is subject to U.S. export control laws, including the
U.S. Export Administration Act and its associated regulations, and may be
subject to export or import regulations in other countries. Licensee agrees to
comply strictly with all such regulations and acknowledges that it has the
responsibility to obtain licenses to export, re-export, or import the Licensed
Software or Documentation. Neither the Software nor Documentation may be
downloaded, or otherwise exported or re-exported (i) into, or to a national or
resident of Cuba, Iraq, Iran, North Korea, Libya, Sudan, Syria or any country to
which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury
Department's list of Specially Designated Nations or the U.S. Commerce
Department's Table of Denial Orders. By installing or using the Licensed
Software, Licensee is warranting that it is not located in or under the control
of, or a national or resident of any such country or on any such list.
11.2 U.S. Government Restrictions. The use, duplication or disclosure
by the United States Government of the Licensed Software and Documentation is
subject to the restrictions as set forth in the Rights in Technical Data and
Computer Software Clauses in DFARs 252.227-7013(c)(1)(ii) and FAR 52.227-19(c)
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11.3 Governing Law and Forum. This Agreement shall be governed by and
construed in accordance with the laws of the State of California and the United
States without reference to conflicts of laws principles. Licensee consents to
the exclusive jurisdiction and venue of the federal and state courts in San
Francisco County, California for resolution of any disputes concerning this
Agreement.
11.4 Attorneys' Fees. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to recover from the losing party its reasonable attorney's fees, costs
and necessary disbursements in addition to any other relief to which such party
may be entitled.
11.5 Complete Understanding. This Agreement constitutes the entire
agreement between the parties with respect to its subject matter and supersedes
and replaces all prior or contemporaneous understandings or agreements, written
or oral, regarding its subject matter. No amendment to or modification of this
Agreement will be binding unless in writing and signed by duly authorized
representatives of both IVT and Licensee.
11.6 Survival. The following provisions of this Agreement shall survive
termination of this Agreement, along with any other terms which by their nature
require survival: Section 3, Section 5, Section 6, Section 7, Section 9 and
Section 10.
11.7 Absence of Third Party Beneficiaries. Unless otherwise expressly
provided, no provisions of this Agreement are intended or shall be construed to
confer upon or give to any person other than IVT and Licensee any rights,
remedies or other benefits under or by reason of this Agreement.
11.8 Disclaimer of Agency. IVT and Licensee each acknowledge that the
parties to this Agreement are independent. Neither party is authorized or
empowered to act as agent or legal representative for the other for any purpose
and shall not on behalf of the other enter into any contract, warranty or
representation as to any matter. Neither party shall be bound by the acts or
conduct of the other and nothing herein shall be construed as creating a
partnership or joint venture.
11.9 No Waiver. The failure of either party to enforce any provision of
this Agreement shall not be deemed a waiver of that provision or any other
available right or remedy.
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11.10 Headings. The section headings used in this Agreement are
intended for convenience only and shall not be deemed to modify, limit or
supersede any provision.
11.11 Severability. In the event that any provision of this Agreement
is found to be invalid, illegal or unenforceable pursuant to judicial decree or
decision, the remainder of this Agreement shall remain valid and enforceable
according to its terms.
Burstware, Instant Video, Burstware Server, Burstware Conductor, Burstware
Player, "Faster Than Real Time," and "Why Stream When You Can Burst?" are
registered trademarks or trademarks of Instant Video Technologies, Inc., in the
United States and other countries. Use of this software may also be protected by
one or more of the following U.S. patents: 4,963,995; 5,057,932; 5,164,839;
5,262,875; 5,440,334; and 5,710,970. Additional U.S. patents pending.
International patents and patents pending may also be applicable in their
respective countries. Sun Microsystems, Java, and all Java-based trademarks and
logos are trademarks or registered trademarks of Sun Microsystems, Inc. in the
United States and other countries.
All contents Copyright (C) 1998-1999 by Instant Video Technologies, Inc. All
rights reserved.
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EXHIBIT E
IVT TRADEMARKS
Instant Video(R)
Burstware(R)
Burstware Conductor(TM)
Burstware Server(TM)
Burstware Player(TM)
"Faster Than Real Time"(TM)
"Why Stream When You Can Burst?"(TM)
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EXHIBIT F
TRAINING
Training Programs:
Module 1: General Operations Overview
This module would be intended to provide the student with high-level
general knowledge on Burstware. The student would have a general
understanding of Burstware's components, network hardware requirements, and
applications. Additionally, the student would be familiar with how to
operate the overall system, demonstrate capabilities, install the software
for the server, conductor, and player, including how to add additional
servers, conductors, players, etc. to an existing network.
Module 2: Technical Support, Maintenance, & Troubleshooting
This module would be intended to provide advanced technical training to be
used to support their customers. This may be viewed as some type of
technical support certification. The student would have to be trained on
all detailed technical aspects of how to install, troubleshoot, how to
identify and isolate Burstware from network problems, etc. Prerequisite
would be Module 1.
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EXHIBIT G
IVT YEAR 2000 STATEMENT
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-KSB
[X] Annual report under Section 13 or 15(d) of the Securities
Exchange Act of 1934 For the Fiscal Year ended: December 31,
1998
OR
[ ] Transition report under Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the transition period from __________to ___________.
Commission File No. 33-35580-D
INSTANT VIDEO TECHNOLOGIES, INC.
--------------------------------------------------------------------------------
(Name of Small Business Issuer as Specified in its Charter)
Delaware 84-1141967
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
500 Sansome Street, Suite 503
San Francisco, California 94111
(Address of Principal Executive Offices, (Zip Code)
(415) 391-4455
(Issuer's Telephone Number, Including Area Code)
Securities Registered Under Section 12(b) of the Exchange Act: None. Securities
Registered Under Section 12(g) of the Exchange Act: None
Check whether the issuer: (1) filed all reports required to be filed by Section
13 or 15(d) of the Exchange Act during the past 12 months (or for such shorter
period that the Registrant was required to file such reports), and (2) has been
subject to such filing requirements for past 90 days. [N/A]
Check if there is no disclosure of delinquent filers in response to Item 405 of
Regulation S-B not contained in this form, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-KSB or any amendment to
this Form 10-KSB. [N/A]
State Issuer's revenues for its most recent fiscal year: $15,000.
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The aggregate market value of the Registrant's Common Stock held by
non-affiliates on March 31, 1999 (based upon the last reported price of the
Common Stock on the NASDAQ OTC Bulletin Board Exchange on such date) was
approximately $63,100,000.
As of April 9, 1999, there were approximately 9,018,228 shares of the
Registrant's Common Stock outstanding.
Documents incorporated by reference Part III of this Report incorporates
information by reference from the definitive Proxy statement for the
Registrant's annual meeting of stockholders, to be filed within 120 days after
the end of the fiscal year ended December 31, 1998.
This Form 10-KSB consists of 41 pages.
Year 2000 Issues
The Year 2000 issue is the result of computer programs being written using two
digits rather than four to define the application year. Programs or products
that have time-sensitive software may recognize a date using "00" as the year
1900 rather than the year 2000. In addition, the year 2000 is a leap year, which
may also lead to incorrect calculations, functions or systems failure. As a
result, this year, computer systems and software used by many companies may need
to be upgraded to comply with such Year 2000 requirements. In 1998, the Company
began a project to determine if any actions were required regarding date-related
effects to: (i) the Company's software products; (ii) the Company's internal
operating and desktop computer systems and non-information technology systems;
and (iii) the readiness of the Company's third-party vendors and business
partners.
The Company has formed a team consisting of operations, development, marketing,
and finance members to determine the impact of Year 2000 and to take corrective
action. As of February 1999, the Company had completed testing of its suite of
Burstware(R) software products and has found no known Year 2000 issues. The
Company has also tested its internal operating and desktop hardware and software
and has found that all its software is Year 2000 compliant and appears to have
no known Year 2000 issues. The Company has also confirmed with its third-party
vendors and business partners to ensure that their software and hardware will
not impact IVT operations. At this time, the Company knows of no known Year 2000
issues or problems with its vendors, or business partners.
The majority of the costs associated with this project is not incremental to the
Company, but represents a reallocation of existing resources. The Company
believes that modifications deemed necessary will be made on a timely basis and
does not believe that the cost of such modifications will have a material effect
on the Company's operating results. To date, the Company's costs related to the
year 2000 issues have not been material, and the Company does not expect the
aggregate amount spent on the year 2000 issue to be material. In addition, the
Company is in the process of evaluating the need for contingency plans with
respect to year 2000 requirements. The necessity of any contingency plan must be
evaluated on a case-by-case basis and may vary considerably in nature depending
on the year 2000 issue it may address.
The Company's expectations as to the extent and timeliness of modifications
required in order to achieve year 2000 compliance is a forward-looking statement
subject to risks and uncertainties. Actual results may vary materially as a
result of a number of factors, including, among others, those described above in
this section. There can be no assurance that unexpected delays or problems,
including the failure to ensure year 2000 compliance by systems or products
supplied to the Company by third parties, will not have an adverse effect on the
Company, its financial performance and results of operations. In addition, the
Company cannot predict the effect of the year 2000 issues on its customers or
other third party business partners or the resulting effect on the Company. As a
result, if such third parties do not take preventative and/or corrective actions
in a timely manner,
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the year 2000 issue could have an adverse effect on their operations and
accordingly have a material adverse effect on the Company's business, financial
condition and results of operations. Furthermore, the Company's current
understanding of expected costs is subject to change as the project progresses
and does not include the cost of internal software and hardware replaced in the
normal course of business whose installation otherwise may be accelerated to
provide solutions to year 2000 compliance issues.