Master Reseller Agreement - Burst.com Inc. and Interzest.com
[Burst.Com-Interzest CONFIDENTIAL]
(89040v.4)
MASTER RESELLER AGREEMENT BETWEEN
BURST.COM, INC.
and
INTERZEST
This Agreement, entered into this 25th day of May 2000, is between
Burst.Com, Inc. ("Burst.Com"), a Delaware corporation with its principal place
of business at 500 Sansome Street, San Francisco, CA 94111, and Interzest.com
("Master Reseller"), a corporation with its principal place of business at
Master Tower, Suite 2106, 17-11, DOHWA-dong, Seoul 121040, South Korea.
1. Whereas, Burst.Com is the developer and owner of the Licensed Software
(hereafter defined) to enable "Faster-Than-Real-Time"(TM)delivery of full motion
video and CD-quality audio over networks;
2. Whereas, Master Reseller is in the business of marketing and
distributing computer hardware, software and/or related services and desires to
distribute the Licensed Software in the Licensed Territory (hereafter defined);
3. Whereas, Burst.Com is willing to grant and Master Reseller is willing to
accept a non-exclusive license to market and distribute the Licensed Software in
the Licensed Territory under the terms and conditions set forth in this
Agreement;
4. Whereas, Master Reseller will have the right to grant distribution
rights with respect to the Licensed Software in accordance with the terms and
conditions of this Agreement to other resellers and value added resellers in the
Licensed Territory; and
5. Whereas, Master Reseller will be the primary contact point for all sales
inquiries on Burst.com products in the Licensed Territory. In any event there
are sales inquiries directly made to Burst.com from potential customers from the
Licensed Territory, Burst.com will promptly notify Master Reseller.
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 "Agreement" means this Master Reseller Agreement, including all
exhibits hereto.
1.2 "Burstware License Key" means the unique, encrypted software program
provided by Burst.Com that is designed to prevent use of the Licensed Software
beyond the scope of the license paid for by a licensee.
1.3 "Documentation" means all materials in written, computer readable or
other form containing information about the Licensed Software that accompany the
Licensed Software, or that Burst.Com may deliver
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to Master Reseller during the term of this Agreement for use in the marketing
and distribution of the Licensed Software.
1.4 "Effective Date" means the 25th day of May 2000.
1.5 "End User License Agreement" means the form of End User License
Agreement attached to this Agreement as Exhibit A.
1.6 "End Users" means any prospective customers to whom Master Reseller or
a Subdistributor (hereafter defined) may offer Licensed Software for personal
use or use in the regular course of the customer's business, but not for resale.
1.7 "Intellectual Property Rights" means all intellectual property rights
under the laws of the United States, any of its states or territories, the
Licensed Territory and any other nation including, without limitation, all
patent rights, copyrights, trade secrets, trademarks, trade names and other
proprietary rights.
1.8 "License Fee" "License Fees" means the amount(s) payable to Burst.Com
for rights to distribute the Licensed Software as set forth in Exhibit C to this
Agreement, which amounts may be modified by Burst.Com from time to time, but no
more frequently than once per year of this Agreement.
1.9 "Licensed Software" means Burst.Com's Burstware Conductor, Burstware
Server and Burstware Player (collectively "Burstware") computer programs
described in Exhibit B 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
Burst.Com after the Effective Date of this Agreement, but does include
corrections of Program Errors developed by Burst.Com pursuant to Section 8.3.
1.10 "Licensed Territory" means the entire country of South Korea.
1.11 "Maintenance Fee(s)" means the amount(s) set forth in Exhibit C to
this Agreement, payable for the services described in Section 7.
1.12 "Program Error" means a program defect or "bug" sufficiently material
that it results in a version of the Licensed Software, in the form and at the
time delivered by Burst.Com to Master Reseller, failing substantially to conform
to the Documentation for that version. A respect in which the Licensed Software
fails substantially to conform to the Documentation shall not be considered a
Program Error unless Burst.Com is able to replicate it on a computer system
already in its possession or on a computer system supplied to Burst.Com by
Master Reseller.
1.13 "Trademarks" means the trademarks listed in Exhibit D, which Burst.Com
may amend at any time upon thirty (30) days prior written notice to Master
Reseller.
1.14 "Subdistributor Agreement" means the Subdistributor Agreement between
Master Reseller and its Subdistributors that must contain, among other things,
the terms and conditions set forth in Exhibit E to this Agreement.
1.15 "Subdistributors" means individuals and entities that are engaged in
the business of marketing and distributing software and related services in the
Licensed Territory and that execute a Subdistributor Agreement.
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Section 2
DISTRIBUTION & TRADEMARK LICENSES AND LIMITATIONS
2.1 Distribution License. During the term of this Agreement, upon payment
of the Advance License Fee set forth in Section 4.1, and subject to satisfaction
of continuing distribution and other obligations, Burst.Com grants to Master
Reseller a non-exclusive, non-transferable license to copy and distribute
Licensed Software to Subdistributors and End Users within the Licensed
Territory. Any rights granted Master Reseller apply only to the distribution of
Licensed Software in the Licensed Territory. Master Reseller agrees that it
shall not, directly or indirectly, distribute Licensed Software outside of the
Licensed Territory, except that distribution of Licensed Software to a
Subdistributor or End User whose principal office is located within the Licensed
Territory, but for installation outside the Licensed Territory, and distribution
of Licensed Software by Master Reseller to a Subdistributor or End User whose
principal office is located outside the Licensed Territory, but for installation
within the Licensed Territory, are permissible. All copies of the Licensed
Software and Documentation shall be clearly marked and identified as the
property of Burst.Com. Master Reseller shall submit samples of the Licensed
Software, Documentation and boxing to Burst.Com for prior approval.
2.2 Trademark License. During the term of this Agreement, Burst.Com also
grants to Master Reseller a non-exclusive, non-transferable license, with the
limited right to sublicense only to Subdistributors, to use the Trademarks
solely 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 Master Reseller of any specific customer, territory, or geographic area.
Burst.Com may, in its sole discretion, and without obligation, notice or
liability to Master Reseller, add and/or terminate other Master Resellers,
distributors, value added Master Resellers, licensees or agents of the Licensed
Software, and/or license Licensed Software directly to End Users, including
customers of Master Reseller.
2.4 Reservation of Rights. Burst.Com reserves all rights in the Licensed
Software and Documentation not expressly granted to Master Reseller by this
Agreement.
2.5 Licensed Software Changes. Burst.Com retains the right, in its sole
discretion, to upgrade or modify the Licensed Software from time to time. Within
thirty (30) days of receipt of any such notice of an upgrade or modification,
Master Reseller shall, and shall cause its Subdistributors to, cease to market
and distribute earlier versions of the Licensed Software.
Section 3
LICENSED SOFTWARE
3.1 Delivery. Within ten (10) days after execution of this Agreement and
payment by Master Reseller of the Advance License Fee as set forth in Section
4.1, Burst.Com shall deliver to Master Reseller a master copy of the Licensed
Software, a master copy of the Documentation, all in the English language, and
the code for the Burstware License Keys for the thirteen (13) 100 Mbps licenses
covered by the Advance License Fee. Upon request by Master Reseller, Burst.Com
may change the code for the Burstware License Keys for thirteen (13) 100 Mbps
licenses to different Mbps bandwidth licenses covered by the Advance License
Fee. Burst.Com shall deliver to Master Reseller, within ten (10) days of their
release to the public, any subsequent versions or technical errata fixes of the
Licensed Software that Burst.Com may develop in the future. Master Reseller is
responsible for translating the Documentation and for copying, boxing and
delivering the executable code version of the Licensed Software, the
Documentation and the subsequent versions and fixes, to its Subdistributors and
End Users.
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3.2 Records and Audit. Master Reseller shall maintain accurate records
relating to the copying, distribution, sublicensing and maintenance of the
Licensed Software so as to establish the License Fee and Maintenance Fee
payments due to Burst.Com hereunder, to identify all Subdistributors and End
Users, and to otherwise verify Master Reseller's compliance with the terms of
this Agreement. Such books and records shall be available at their place of
keeping for inspection by Burst.Com, or an independent auditor chosen and paid
by Burst.Com, for the purposes of determining whether the correct payments have
been paid to Burst.Com and whether Master Reseller has otherwise complied with
the terms of this Agreement. If an audit reveals an underpayment to Burst.Com,
then Master Reseller shall immediately pay all amounts revealed by the audit as
owing. If the audit reveals an underpayment to Burst.Com of at least five
percent (5%) then, in addition to paying the deficiency to Burst.Com, Master
Reseller shall reimburse Burst.Com for the costs of the audit.
3.3 Delivery of Burstware License Keys. For all licenses other than the
initial thirteen (13) 100 Mbps licenses covered by the Advance License Fee,
Burst.Com shall deliver either the Burstware License Keys or the code for the
Burstware License Keys, to Master Reseller, who shall deliver Burstware License
Keys to Subdistributors and End Users, but only after delivery to Burst.Com by
Master Reseller of notice of: (i) the identity, address and telephone number of
the applicable End User; (ii) the number of copies of the Licensed Software
being licensed to the End User; and (iii) the type/model, serial number, host ID
and/or IP address of the computer system on which the Licensed Software is to be
used. In addition, Master Reseller shall deliver a Burstware License Key to a
Subdistributor or an End User only upon receipt of a duly executed End User
License Agreement, a copy of which shall promptly be delivered by Master
Reseller to Burst.Com.
3.4 Reservation of Rights. Notwithstanding anything contained in this
Agreement to the contrary, Burst.Com reserves the absolute right to discontinue
developing, producing, licensing or distributing the Licensed Software and to
modify, delete, replace or add to the Licensed Software, in its sole discretion,
at any time and from time to time, upon three (3) months' notice to Master
Reseller, without obligation or liability to Master Reseller.
Section 4
LICENSE FEES AND PAYMENTS
4.1 Advance License Fee Payment. Immediately upon execution of this
Agreement, Master Reseller shall pay Burst.Com the sum of $320,000 U.S. as a
non-refundable advance payment of License Fees for Licensed Software by Master
Reseller.
4.2 Reports. Master Reseller shall provide Burst.Com with a report on the
30th day of each month (28th or 29th day of February, as applicable) setting
forth the name, address and number of copies of the Licensed Software, and the
price therefor, delivered by Master Reseller to a Subdistributor or End User
during the prior month (the "Distribution Report"). The Distribution Report
shall also include the name and address of all End Users that have entered into
or renewed maintenance agreements during such month, the amounts paid for
maintenance and applicable periods of coverage. Upon request from Burst.Com at
any time, Master Reseller shall make available to Burst.Com full and complete
copies of all maintenance contracts. A Distribution Report shall be provided
each month, whether or not any Licensed Software was distributed or maintenance
agreements were renewed during the prior month.
4.3 Payment. Master Reseller shall make License Fee and Maintenance Fee
payments, in U.S. Dollars, within thirty (30) days following the end of the
month in which the distribution of the Licensed Software giving rise to the
License Fee and Maintenance Fee obligation (whether initial maintenance or
renewals) occurred, by wire transfer to the following bank account: Wells Fargo
Bank, 464 California Street, San Francisco, California 94104; account name:
burst.com; account number: 0311-292726; bank routing number: 121-000248. In
addition to all other available rights or remedies, Burst.Com reserves the right
to declare all sums
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immediately due and payable upon written notice to Master Reseller if Master
Reseller fails to pay when due any amounts due under this Agreement. Interest
shall accrue on any amounts not paid when due at an annual rate of eighteen
percent (18%), or the maximum permissible rate, if less. Maintenance Fees are
subject to change by Burst.Com on thirty (30) days' notice to Master Reseller,
but increases in Maintenance Fees shall not apply to End Users under existing
maintenance agreements until the end of the applicable maintenance agreement
terms for such End Users.
4.4 Taxes. With the sole exception of taxes based on Burst.Com's net
income, Master Reseller shall pay all sales, use, excise, value added or other
taxes that may arise out of Master Reseller's distribution or installation of
Licensed Software.
4.5 Duties, Tariffs, etc. All duties, tariffs, landing charges, taxes and
other fees and charges incurred in connection with the importation of the
Licensed Software and Documentation into the Licensed Territory shall be borne
and paid by Master Reseller, and all import and export licenses or permits from
governmental agencies, necessary in connection with the exportation of the
Licensed Software and Documentation from the United States or importation of the
Licensed Software and Documentation into the Licensed Territory shall be
obtained by Master Reseller, at its own expense. Burst.Com shall extend
reasonable cooperation and assistance to Master Reseller in obtaining all
necessary licenses and permits and shall join with Master Reseller, where
necessary, in executing such licenses or permits (including amendments thereto).
4.6 Pricing. Master Reseller is free to determine its own Subdistributor
and End User prices for the Licensed Software in the Licensed Territory.
Although Burst.Com may publish suggested prices, these are suggestions only and
are not binding in any way on Master Reseller.
4.7 Financial Information. Master Reseller shall maintain such working
capital and net worth as may be required in the reasonable opinion of Burst.Com
to enable Master Reseller to carry out and perform all of Master Reseller's
obligations and responsibilities under this Agreement. From time to time, on
reasonable notice by Burst.Com, Master Reseller shall furnish financial reports
as necessary to determine Master Reseller's financial condition. Burst.Com shall
have the right to change these financial requirements at any time.
Section 5
PROPRIETARY RIGHTS AND RESTRICTIONS
5.1 Ownership. Master Reseller acknowledges that the Licensed Software, all
enhancements, corrections and modifications to the Licensed Software (regardless
whether made by Burst.Com, Master Reseller or anyone else), all Intellectual
Property Rights protecting or pertaining to any aspect of the Licensed 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 Burst.Com and, where applicable, Burst.Com's
suppliers. This Agreement does not convey title or ownership to Master Reseller
or any of its Subdistributors or End Users, but instead gives Master Reseller
only the limited rights set forth in Section 2. Burst.Com reserves all rights
not expressly granted by this Agreement. Master Reseller shall cooperate with
and assist Burst.Com in any proceedings necessary for the protection of
Intellectual Property Rights in the Licensed Software, Documentation and
Trademarks and give prompt notice to Burst.Com of any circumstances that might
indicate an infringement of such rights.
5.2 Use Restrictions. Except as set forth in Section 2, Master Reseller has
no right to use, make, sublicense, modify, prepare derivative work of,
distribute or copy originals or copies of the Licensed Software or the
Documentation or to permit anyone else to do so.
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5.3 Proprietary Notices. Master Reseller shall not remove or obscure any
patent, copyright, trademark or other intellectual property notices that may
appear on any part of the Licensed Software or the Documentation.
5.4 Trade Secrets. Master Reseller acknowledges that the Licensed Software,
in its source code form, contains valuable trade secrets belonging to Burst.Com.
Master Reseller may not reverse engineer, decompile, disassemble or otherwise
translate any Licensed Software. Master Reseller may not copy any concepts,
ideas or techniques demonstrated by the use of the Licensed Software.
5.5 Burst.Com Name and Trademarks. Master Reseller shall make no
representations concerning Burst.Com or the Licensed Software that are not set
forth in the Documentation. Master Reseller shall indicate Burst.Com's ownership
of all Trademarks in any advertising, promotional or other written or readable
material containing any Trademarks that Master Reseller may create during the
Term of this Agreement. If Master Reseller reproduces Burst.Com's logo, it shall
do so only in the format furnished by Burst.Com. Master Reseller may use the
Trademarks only for purposes of promoting and distributing 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
Burst.Com's prior written approval. Master 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. Master Reseller shall obtain Burst.Com's prior approval, which
Burst.Com shall not deny unreasonably, of all advertising, publicity or
promotion that uses any Trademarks or discusses the Licensed Software in any
way.
Section 6
RESPONSIBILITIES OF MASTER RESELLER
6.1 Level of Effort. Master Reseller shall at all times during this
Agreement use best efforts to market and promote the Licensed Software
effectively and in a manner reasonably calculated to maximize its licensing to
End Users.
6.2 Trained Master Reseller Employees. Master Reseller shall, and shall
require Subdistributors to, employ, train and maintain sufficient personnel with
technical and sales experience to demonstrate, market and support the Licensed
Software.
6.3 Maintenance and Support.
6.3.1 Master Reseller shall and shall cause its Subdistributors to
make available to each End User after-sales support throughout the term of
such End User's End User Agreement. At a minimum, Master Reseller shall and
shall cause its Subdistributors to use best efforts to assist each End User
in using the Licensed Software and to resolve any problems such End User
reports in connection with using the Licensed Software. Master Reseller
shall and shall cause its Subdistributors to make available such support
both at such End User's site and via telephone, depending on the nature of
such End User's requirements. Master Reseller shall direct its
Subdistributors not to contact Burst.Com and not to direct or encourage any
End User to contact Burst.Com, and Master Reseller shall and shall cause
its Subdistributors to use their best efforts to cause End User to refer
all problems with the Licensed Software directly to Master Reseller or the
Subdistributor, as applicable. Burst.Com shall refer to Master Reseller any
End User that contacts Burst.Com for resolution of a problem with the
Licensed Software.
6.3.2 In the event that an End User reports a problem with the
Licensed Software to Master Reseller or a Subdistributor, and Master
Reseller or the Subdistributor, upon using best efforts, is unable to
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resolve the problem, Master Reseller (but not a Subdistributor) may notify
Burst.Com of the problem. Upon such notification, Burst.Com shall use
reasonable efforts to assist Master Reseller in resolving the problem, in
the manner set forth in Section 7.1.
6.3.3 Burst.Com reserves the right to change Master Reseller's support
obligations as necessary to improve support to End Users and to comply with
applicable laws, regulations and tariffs.
6.4 Protection of Burst.Com Intellectual Property. Master Reseller shall
ensure that Burst.Com's Intellectual Property Rights in the Licensed Software,
Documentation and the Trademarks are protected, and shall fully cooperate with
Burst.Com's efforts to protect Burst.Com's rights. Master Reseller shall notify
Burst.Com within ten (10) days of learning of any actual or suspected violation
of Burst.Com's Intellectual Property Rights in the Licensed Software, the
Documentation or the Trademarks. Master Reseller shall notify Burst.Com 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 Subdistributor Agreements and End User License Agreements. Master
Reseller shall ensure that the Licensed Software is distributed only to persons
or entities that have received, executed and returned to Master Reseller a
Subdistributor Agreement or an End User License Agreement, as applicable. Master
Reseller shall promptly forward to Burst.Com a copy of each executed
Subdistributor Agreement and End User License Agreement.
6.6 Representations and Warranties to End Users. Master Reseller shall not,
under any circumstances, make any representations or warranties to any
Subdistributor or End User or other person or entity that are inconsistent with
or in addition to the warranties and representations contained in the
Subdistributor Agreement and End User License Agreement.
6.7 Compliance with Applicable Laws. Master Reseller shall comply with all
laws and regulations of the United States and the Licensed Territory to the
extent that non-compliance could possibly subject Burst.Com to any liability or
impair any right or interest of Burst.Com. The obligations of Burst.Com to
supply the Licensed Software and Documentation shall be, at all times, subject
to any and all applicable export and re-export control laws and regulations of
the United States and any and all import control laws and regulations in the
Licensed Territory. Master Reseller shall use best efforts to comply with all
such laws and regulations and shall not knowingly take any action contrary
thereto. Master Reseller agrees that, except for returns to Burst.Com, it shall
not re-export, directly or indirectly, any of the Licensed Software or
Documentation outside of the Licensed Territory without the consent of Burst.Com
and without obtaining the appropriate clearance under any applicable laws or
regulations. Master Reseller shall comply with all export and re-export
requirements including, without limitation, record-keeping and inspection
requirements.
6.8 Conduct. Master 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.
6.9 Market Reports. Master Reseller shall submit to Burst.Com quarterly, a
complete analysis of the market for products similar to the Licensed Software in
the Licensed Territory and a complete marketing plan for distribution of the
Licensed Software by Master Reseller for the following twelve (12) month period.
Each analysis shall include, but not be limited to, relevant information such as
customer base, product line forecasts, competition analysis and market analysis
for every market served that would be required in order adequately to measure
market and market potential in the Licensed Territory.
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6.10 Trade Shows; Promotion. Master Reseller shall, at its sole expense,
attend and display the Licensed Software prominently at all important trade
shows and exhibitions in the Licensed Territory and shall advertise the Licensed
Software in appropriate industry trade publications.
6.11 Translation. Master Reseller shall translate into, test, proofread and
otherwise verify the accuracy and functionality of the Documentation, and any
modifications thereto, upgrades and updates in the Korean language.
6.12 Market Information. Master Reseller shall advise Burst.Com promptly
concerning any market information with respect to Burst.Com, the Licensed
Software, Burst.Com's market position, or the continued competitiveness of the
Licensed Software in the marketplace, including charges, complaints, or claims
by Subdistributors, End Users or other persons about Burst.Com or the Licensed
Software.
Section 7
RESPONSIBILITIES OF BURST.COM
7.1 Support. Upon payment of the Maintenance Fee as stated in Exhibit C,
Burst.Com shall: (i) provide technical support via fax, telephone and FTP site
to Master Reseller, at no charge to Master Reseller; (ii) keep Master Reseller
informed of Licensed Software improvements, enhancements and fixes on a regular
basis; and (iii) provide to Master Reseller, at no charge, a reasonable amount
of telephone or electronic mail consultation to Master Reseller's employees in
order for Master Reseller to meet its obligations under Section 6.3.
7.2 Product Plans. Burst.Com shall provide Master Reseller with information
concerning planned feature changes. Within ten (10) days of their release,
Burst.Com shall provide Master Reseller with upgrades and updates of the
Licensed Software, and any updated Documentation and other associated materials.
Burst.Com shall supply Master Reseller updates of the Licensed Software at the
discounts that apply to the Licensed Software.
7.3 Training. Upon Master Reseller's request, and at a mutually agreeable
time, Burst.Com shall provide sales and technical support training, as outlined
in Exhibit F, on the Licensed Software to up to three (3) of Master Reseller's
employees at Burst.Com's San Francisco, California office. Master Reseller shall
be entitled to one such training session during the initial twelve (12) month
period of this Agreement, and one additional training session for no more than
three (3) of Master Reseller's employees during the second twelve (12) month
period of this Agreement. Burst.Com shall reimburse Master Reseller for the
reasonable travel (coach-class air travel), lodging and meal expenses for the
attendance of Master Reseller's employees at the initial training session.
Master Reseller shall be responsible for all travel, lodging, meal and other
expenses for the attendance of its employees at the training during the second
twelve (12) month period. Master Reseller may request additional training, which
Burst.Com may, subject to the availability of Burst.Com resources, provide on
terms to be negotiated.
Section 8
LIMITED WARRANTY
8.1 Ownership. Burst.Com warrants to Master Reseller that it owns or has
the right and authority to license the Licensed Software, the Documentation and
the Trademarks to Master Reseller on the terms and conditions of this Agreement.
8.2 Media and Documentation. Burst.Com warrants to Master Reseller that if
the Licensed Software's media or Documentation is in a damaged or physically
defective condition at the time it is delivered
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to Master Reseller under Section 3.1, and if it is returned to Burst.Com
(postage prepaid) within ninety (90) days of delivery, Burst.Com shall provide
Master Reseller with replacements at no charge.
8.3 Performance. Burst.Com also warrants to Master Reseller that, in the
form delivered to Master Reseller by Burst.Com, the Licensed Software shall
perform substantially in accordance with the Documentation and be free of
Program Errors for ninety (90) days after delivery to Master Reseller under
Section 3.1. Burst.Com's warranty is conditioned upon: (a) the use of the
Licensed Software in accordance with the Documentation and other instructions
provided by Burst.Com and shall be null and void if Master Reseller alters or
modifies the Licensed Software without Burst.Com's prior written approval, does
not use the Licensed Software in accordance with the Documentation and
Burst.Com's instructions, or if the Licensed Software fails because of any
accident, abuse or misapplication; and (b) Master Reseller notifying Burst.Com
in writing of the claimed nonconformance within ninety (90) days after delivery
of Licensed Software to Master Reseller. As Burst.Com's sole liability and
Master Reseller's sole remedy respecting the Licensed Software's nonconformance
with the limited warranty set forth in this Section 8.3, Burst.Com 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, or (ii)
replace the Licensed Software. BURST.COM DOES NOT REPRESENT OR WARRANT THAT THE
LICENSED SOFTWARE SHALL OPERATE PROPERLY WITH OTHER HARDWARE OR SOFTWARE, THAT
THE LICENSED SOFTWARE SHALL MEET MASTER RESELLER'S REQUIREMENTS OR EXPECTATIONS
OR THAT OPERATION OF THE LICENSED SOFTWARE SHALL BE UNINTERRUPTED OR ERROR-FREE.
8.4 No Other Warranties. EXCEPT AS SET FORTH IN SECTIONS 8.1, 8.2 and 8.3,
BURST.COM IS PROVIDING THE LICENSED SOFTWARE AND THE DOCUMENTATION "AS IS," AND
BURST.COM SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, CONDITIONS OR
REPRESENTATIONS (WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO
THE LICENSED SOFTWARE AND DOCUMENTATION INCLUDING ANY AND ALL WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT BURST.COM
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. BURST.COM ALSO EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OR
REPRESENTATION TO ANY PERSON OTHER THAN MASTER RESELLER.
Section 9
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BURST.COM'S CUMULATIVE
LIABILITY FOR ALL CLAIMS OF ANY NATURE RELATED TO THE LICENSED SOFTWARE AND
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 LICENSE FEES THAT MASTER RESELLER HAS ACTUALLY PAID UNDER THIS
AGREEMENT. NEITHER BURST.COM 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
USE ARISING OUT OF THIS AGREEMENT OR THE USE OF (OR INABILITY TO USE) THE
LICENSED SOFTWARE EVEN IF BURST.COM, SUPPLIER OR LICENSOR HAS BEEN MADE AWARE OF
THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. IN NO
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EVENT SHALL BURST.COM BE LIABLE FOR ANY CLAIM BROUGHT MORE THAN ONE (1) YEAR
AFTER THE CAUSE OF ACTION AROSE OR SHOULD HAVE BEEN DISCOVERED. BECAUSE SOME
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR
CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY.
MASTER RESELLER HAS ACCEPTED THE LIMITATION OF LIABILITY AND DISCLAIMER OF
WARRANTIES AS PART OF A BARGAIN TO LOWER THE LICENSE FEES FOR THE LICENSED
SOFTWARE. THE LICENSE FEE WOULD BE HIGHER IF BURST.COM WERE REQUIRED TO BEAR THE
RISK OF ANY SUCH LIABILITY OR DAMAGES.
Section 10
CONFIDENTIALITY
10.1 Master Reseller Confidentiality Obligations. Master Reseller shall
maintain the confidentiality of any confidential information regarding the
Licensed Software, Burst.Com, or Burst.Com'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. Master Reseller shall indemnify Burst.Com for any loss or
damage Burst.Com may sustain as a result of the wrongful use or disclosure by
Master Reseller (or any Subdistributor, employee, agent, licensee, or contractor
of Master Reseller) of confidential information regarding the Licensed Software,
Burst.Com, or Burst.Com's past, present or future products.
10.2 Burst.Com Confidentiality Obligations. Burst.Com shall maintain the
confidentiality of any confidential information regarding Master Reseller, or
Master 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. Burst.Com shall indemnify Master Reseller for any loss or damage Master
Reseller may sustain as a result of the wrongful use or disclosure by Burst.Com
(or any employee, agent, licensee, or contractor of Burst.Com) of confidential
information regarding Master Reseller or Master Reseller's past, present or
future products.
10.3 Exceptions. The obligations set forth in Sections 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 Sections
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 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, Master Reseller shall
indemnify, defend and hold Burst.Com harmless from and against all claims,
actions or liabilities of any nature that may arise from Master Reseller's or
its Subdistributors' marketing, distribution, installation, use or execution of
the Licensed Software.
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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 Section 12.2, or terminated in accordance
with Section 12.3 or 12.4, end three (3) 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 shall 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 Term 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 the other 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, Burst.Com shall continue to be entitled to all License Fees payable
under this Agreement. Sections 5, 6.3, 6.4, 6.6, 8, 9, 10, 11, 12.2, 12.5, 12.6,
12.7 and 14.1, 14.2, 14.4, 14.7, 14.8, 14.9, 14.10, 14.11, 14.14 and 14.15 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.
12.7 Post Termination Rights.
12.7.1 On the date this Agreement terminates, Master Reseller shall
provide Burst.Com with a complete written inventory of all Licensed
Software, Documentation and promotional materials in its possession or
control. Master Reseller may continue to market the inventory of Licensed
Software in the Licensed Territory on a non-exclusive basis for three (3)
months. Master Reseller shall comply with this entire Agreement, and shall
pay License Fees and, as before, furnish all statements required by
Sections 4.3 and 6.9.
12.7.2 At the end of the three (3) month period described in Section
12.7.1, upon thirty (30) days' prior written notice to Master Reseller,
Burst.Com shall have the option to repurchase any Licensed Software and
Documentation remaining in Master Reseller's inventory at a purchase price
equal to Master Reseller's price therefor less applicable License Fees.
Burst.Com shall also have the right to purchase any promotional materials
remaining in Master Reseller's inventory on the date of termination at
Master Reseller's cost therefor. Any Licensed Software, Documentation or
promotional material not purchased by Burst.Com shall promptly be
destroyed.
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Section 13
CO-MARKETING AND PROMOTION
13.1 Press Release. Burst.Com and Master Reseller shall issue a joint press
release promptly after the Effective Date to announce the relationship created
by this Agreement.
13.2 Identification of Master Reseller as Burstware Master Reseller. Master
Reseller agrees that Burst.Com may use Master Reseller's name as a Burst.Com
Master Reseller in any advertising or promotional materials for Licensed
Software.
13.3 Website Links. Burst.Com and Master Reseller each agrees to maintain
at least one marketing-related link on its website(s) during the term of this
Agreement.
13.4 Collaterals. Burst.Com will provide necessary marketing materials in
English, in electronic format, to enable Master Reseller to conduct effective
advertising and promotional activities. Notwithstanding the foregoing, Burst.Com
shall have no responsibility to create any marketing materials.
13.5 General. Burst.Com and Master Reseller shall participate in joint
marketing and promotion efforts reasonably acceptable to Burst.Com and Master
Reseller. Such activities may include (subject to the parties agreements and
Burst.Com personnel availability and adequate notice), Burst.Com's support of
and participation in trade shows and customer visits with Master Reseller's
sales teams. Burst.Com and Master Reseller shall confer at least semi-annually
to discuss and agree on the scope, scheduling, and expenditures regarding such
joint marketing initiatives and programs.
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 the Licensed Territory and 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 Licensed 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, Master Reseller 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 Burst.Com and Master Reseller any
rights, remedies or other benefits under or by reason of this Agreement.
14.3 Assignment. Master Reseller may not assign any of its rights or
delegate any of its obligations under this Agreement without the prior written
consent of Burst.Com, which Burst.Com shall not withhold unreasonably. Burst.Com
may 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.
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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 shall be binding unless in writing and signed by duly authorized
representatives of both parties. Terms of a purchase order or similar document
issued by Master Reseller, a Subdistributor 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. Burst.Com and Master Reseller each acknowledges
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 shall be governed by and
construed in accordance with the laws of the State of California without
reference to conflicts of laws principles. Subject to Section 14.9, Burst.Com
and Master Reseller consent to the jurisdiction and venue of the United States
District Court for the Northern District of California, United States, as the
exclusive forum for all disputes concerning this Agreement.
14.9 Arbitration.
14.9.1 Subject to Section 14.9.2, 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 the court identified in Section 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
Section 14.10.
14.9.2 Disputes (i) in which either party claims damages (exclusive of
costs and fees) of $500,000 or more, (ii) which involve indemnity or other
issues concerning liability to third parties, or (iii) which seek
injunctive or other equitable relief, shall not be resolved by arbitration
but may be resolved by litigation in accordance with Section 14.8.
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
delivered to an expedited delivery service, delivered personally, sent via
facsimile followed by delivery of a hard copy, or deposited in the U.S. mail,
postage prepaid, and
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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.
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.
14.15 Irreparable Harm. Master Reseller acknowledges that money damages may
not be an adequate remedy for any breach or violation of any requirement set
forth in Section 2, 5 or 10 of this Agreement and that any such breach or
violation may leave Burst.Com without an adequate remedy at law. Master Reseller
therefore agrees that, in addition to any other remedies available at law, in
equity or under this Agreement, Burst.Com 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
BURST.COM, INC. INTERZEST
By /s/ By /s/
-------------------------------- -----------------------------
Name Robert D. Egan Name Kisun Nam
-------------------------------- -----------------------------
Title VP Sales Title CEO
-------------------------------- -----------------------------
Date May 31,2000 Date 25/05/2000
-------------------------------- -----------------------------
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"EXHIBIT A"
END-USER SOFTWARE LICENSE AGREEMENT
BETWEEN
________________
_____________________ -
and
LICENSEE
Company Name: _________________________________
Principal Address: _________________________________
_________________________________
Contact Person: _________________________________
Phone Number: _________________________________
Facsimile Number: _________________________________
By executing this Agreement, __________ ("Licensor") 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.
[LICENSOR] [LICENSEE]
By:_____________________________ By:_____________________________
________________________________ ________________________________
(Print Name) (Print Name)
Title:__________________________ Title:__________________________
Date:___________________, 20____ Date:___________________, 20____
<PAGE>
TERMS AND CONDITIONS
1. DEFINITIONS
1.1 "Burstware Conductor" 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 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 Burst.Com (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" 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" 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 Burst.Com may provide during the term of this
Agreement.
1.7 "Licensed Software" means the Burst.Com 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, Licensor grants to Licensee and Licensee accepts the
non-exclusive licenses and the restrictions set forth below.
2.1 Software License. Licensor 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 Licensor might accept
at a later date.
2.2 Documentation. Licensor grants to Licensee a non-exclusive license to
use the Documentation in connection with Licensee's use of the Licensed
Software.
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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 Licensor 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 Licensor. 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
Licensor. 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 Licensor. If Licensee wishes to
increase the scope of its licensed use of the Licensed Software, Licensee must
purchase an additional Burstware License Key from Licensor.
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 shall 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 made by Burst.Com, Inc. ("Burst.Com"), Licensor, 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 Burst.Com
and, where applicable, Burst.Com'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. Burst.Com 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 Licensor. 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.
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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 Burst.Com.
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 Licensor, Burst.Com or their
designees to audit its compliance with this Agreement, as they deem reasonable.
3.7 Notice to Employees and Agents. Licensee shall 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
Licensor 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, Burst.Com and Licensor 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.
3.9 Burst.Com. Licensee agrees that Burst.Com has no obligation or liability to
Licensee and that Licensee may look only to Licensor for any matters relating to
the Licensed Software or in any way relating to this Agreement.
4. SHIPMENT AND PAYMENT
4.1 Shipment of Licensed Software. Licensor shall ship all Licensed
Software ordered under this Agreement F.O.B. Licensor's ________ facility, or
other point of shipment within South Korea designated by Licensor. 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 carrier for each order. In the absence of written instructions from
Licensee, Licensor shall determine the carrier and/or mode of shipment.
4.2 Product Delivery Schedule and Delays. Although Licensor shall use
reasonable efforts to meet Licensee's requested delivery schedules for Licensed
Software, Licensor 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 Licensor's invoice therefor. In addition to all
other available rights or remedies, Licensor 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 percent (18%) or the maximum permissible rate, if less.
4.4 Taxes. With the sole exception of taxes based on Licensor'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 Licensor maintenance and support pursuant to
<PAGE>
the terms, conditions and pricing of Licensor's maintenance and support
agreement as in effect on the date of Licensee's license. 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. Licensor warrants that it 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. Licensor 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
Licensor (postage prepaid) within ninety (90) days of delivery, Licensor shall
provide Licensee with replacements at no charge.
6.3 Licensed Software. Licensor warrants that, in the form delivered to
Licensee by Licensor, the Licensed Software shall perform substantially in
accordance with the Documentation for ninety (90) days after delivery to
Licensee. Licensor's warranty is conditioned upon: (a) the use of the Licensed
Software in accordance with the Documentation and other instructions provided by
Licensor and shall be null and void if Licensee alters or modifies the Licensed
Software without Licensor's prior written approval, does not use the Licensed
Software in accordance with the Documentation and Licensor's instructions, or if
the Licensed Software fails because of any accident, abuse or misapplication;
and (b) Licensee notifying Licensor in writing of the claimed nonconformity
within ninety (90) days after delivery of the Licensed Software to Licensee. As
Licensor'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, Licensor may at its option: (i) use reasonable efforts to correct the
Licensed Software to make it conform substantially with the specifications set
forth in the Documentation; (ii) replace the Licensed Software; or (iii) upon
return of the Licensed Software and Documentation to Licensor, refund the
license fees paid by Licensee under this Agreement and terminate this Agreement.
LICENSOR DOES NOT REPRESENT OR WARRANT THAT THE LICENSED SOFTWARE SHALL OPERATE
PROPERLY WITH OTHER HARDWARE OR SOFTWARE, THAT THE LICENSED SOFTWARE SHALL MEET
LICENSEE'S REQUIREMENTS OR EXPECTATIONS OR THAT OPERATION OF THE LICENSED
SOFTWARE SHALL BE UNINTERRUPTED OR ERROR-FREE. LICENSEE ACKNOWLEDGES THAT
BURST.COM MAKES NO REPRESENTATION OR WARRANTY TO LICENSEE AND THAT LICENSEE MAY
LOOK ONLY TO LICENSOR FOR ANY REMEDY FOR BREACH OF WARRANTY.
7. NO OTHER WARRANTY
EXCEPT AS SET FORTH IN SECTION 6, LICENSOR IS PROVIDING THE LICENSED
SOFTWARE AND THE DOCUMENTATION "AS IS" AND, TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, LICENSOR 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 LIMITATION ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE (WHETHER OR NOT LICENSOR 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. LICENSOR ALSO EXPRESSLY
DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION TO ANY PERSON OTHER
THAN LICENSEE. THIS LIMITED WARRANTY GIVES LICENSEE SPECIFIC LEGAL RIGHTS.
LICENSEE MAY HAVE OTHERS, WHICH VARY FROM JURISDICTION TO JURISDICTION.
<PAGE>
8. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE CUMULATIVE LIABILITY
OF LICENSOR 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 LICENSOR NOR ANY OF ITS LICENSORS OR SUPPLIERS 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
USE ARISING OUT OF THIS AGREEMENT OR THE USE (OR INABILITY TO USE) OF THE
LICENSED SOFTWARE EVEN IF LICENSOR OR SUPPLIER HAS BEEN MADE AWARE OF THE
POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. IN NO EVENT SHALL LICENSOR BE
LIABLE FOR ANY CLAIM BROUGHT MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION
AROSE OR SHOULD HAVE BEEN DISCOVERED. BECAUSE SOME JURISDICTIONS DO NOT ALLOW
THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL
DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY.
9. TERMINATION
Without prejudice to any other rights it may have under this Agreement or
at law or equity, Licensor may terminate this Agreement if Licensee fails to
comply with the terms of this Agreement. Upon termination of this Agreement for
any reason, Licensee shall immediately discontinue use of the Licensed Software,
destroy or return to Licensor all copies of the Licensed Software and
Documentation in whatever form they exist, including all back-up copies, and
certify in writing to Licensor 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
Licensor, Burst.Com and their respective 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 Licensor) in connection with the Licensed Software in violation of another
party's rights or in violation of any law.
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 South Korea and 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 Licensed 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.
<PAGE>
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)
11.3 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.
11.4 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 shall be binding unless in writing and signed by duly authorized
representatives of both Licensor and Licensee.
11.5 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.
11.6 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 Licensor, Burst.Com and Licensee any rights,
remedies or other benefits under or by reason of this Agreement.
11.7 Disclaimer of Agency. Licensor and Licensee each acknowledges 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.
11.8 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.
11.9 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.
11.10 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 Burst.Com, Inc. All rights reserved.
<PAGE>
"EXHIBIT B"
LICENSED SOFTWARE
Burstware is a software solution that can be deployed in any network that uses
the TCP/IP protocol. Burstware allows you to manage and deploy network bandwidth
efficiently, thereby ensuring the highest quality viewing experience for your
end users. In a " burst-enabled" environment, the Burstware components manage
the delivery of multimedia content. Burstware accepts requests from clients,
monitors the status of the components that send and receive multimedia files,
and " bursts" requested content into client-side buffers. With Burstware, you
can allocate bandwidth to your multimedia applications and control their impact
on your network. You can minimize the effects of unpredictable network
performance on the end user's viewing experience. Burstware is compatible with
the other tools, applications, and solutions that constitute your content
management and deployment environment.
In a Burstware deployment, the client is a media player, running standalone, or
embedded in an application. A Burstware Conductor monitors the availability of
bandwidth for multimedia file transmission, and the load on Burstware Servers--
the components that actually serve content to clients. A Burstware Conductor
intelligently allocates requests for content to Burstware Servers, which, in
turn, intelligently serve a set of client machines. A Burstware Server keeps
each client-side buffer provisioned with sufficient " inventory" of the
requested content to provide a high-quality viewing experience for the person
watching the video.
The end result is maximized throughput and bandwidth utilization, and a
satisfying viewing experience for the end user. The following table summarizes
the key interactions among the components in a Burstware environment:
Burstware Conductor
o Receives requests for service from clients
o Monitors the availability and load of Burstware Servers
o Provides a list of available Burstware Servers to a requesting client
Burstware Server
o Sends requested media to clients
o Monitors their clients' local Burstware caches to determine when, and
how much data to deliver to each client
Burstware Clients
o Notifies Burstware Conductor when a user requests a multimedia file
o Connects to the Burstware Server(s) recommended by the conductor to
get the file
Burstware Release 2.0 includes the following new features.
o Burst-Enabling of the QuickTime Player for Windows
o Customizable access control capabilities
o Enhanced support for firewalls
o Scriptable command-line installer for Linux and Solaris
o Support for installing Burstware Conductor and Burstware Server as
daemons on Linux and Solaris
<PAGE>
o Warn On Low Bandwidth capability in Burstware Bridges
o Separately installed Burstware Bridge Monitor application (previously
called "Network Statistics")
o Separate Bridge Settings application (previously configured through
the Windows Media Player's View/Options/Advanced dialog)
o Native thread support for Solaris
o The Stop Button will now cause data bursting to stop (when a Release 2
Burstware Bridge is connected to a Release 2 Burstware Server)
o New Burstware Bridge configuration parameters "SecondsOfDataToBuffer",
"WarnOnLowBandwidth", and "AccessControlString"
o Uniform command-line syntax for Burstware Conductor and Burstware
Server across all platforms
o Default Bridge buffer type is now memory (previously a disk buffer was
used by default if there was sufficient disk space).
o Enhanced scalability and reliability of Burstware Server
o Password protection for Burstware Server and Burstware Conductor
o Many various bug fixes
<PAGE>
"EXHIBIT C"
LICENSE AND MAINTENANCE FEES
Master Reseller will be entitled to a 50% discount on the following rates
published 02/01/2000:
Managed Bandwidth Price/Mb
----------------- --------
4 to 5Mbps $650.00Mbps
6 to 10Mbps $640.00Mbps
11 to 20Mbps $625.00Mbps
21 to 50Mbps $600.00Mbps
51 to 100Mbps $575.00Mbps
101 to 200Mbps $500.00Mbps
201+ To be determined
Master Reseller shall pay Burst.Com an annual fee for Maintenance and Service.
The annual fee for the initial term of this Agreement will be equal to ten
percent (10%) of the above referenced rates.
<PAGE>
"EXHIBIT D"
BURST.COM 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)
Burst Enabled(TM)
Burst Hosting(TM)
burst.com(TM)
burst.com & Design(TM)
Burstware & Design(TM)
Burstware Bridge(TM)
Empowered by Burstware(TM)
<PAGE>
"EXHIBIT E"
SUBDISTRIBUTOR AGREEMENT REQUIRED TERMS AND CONDITIONS
DISTRIBUTION & TRADEMARK LICENSES AND LIMITATIONS
Distribution License. On the terms and conditions of this Agreement, Interzest
grants to Subdistributor a non-exclusive, non-transferable license to distribute
Licensed Software solely to End Users within the Licensed Territory.
Trademark License. On the terms and conditions of this Agreement, Interzest also
grants Subdistributor a nonexclusive, nontransferable license without the right
to sublicense to use the Trademarks solely in connection with the promotion and
distribution of the Licensed Software in accordance with this Agreement.
Reservation of Rights. Burst.Com reserves all rights in the Licensed Software
and Documentation not expressly granted to Master Reseller by this Agreement.
Licensed Software Changes. Burst.Com 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, Subdistributor shall within
thirty (30) days cease to market and distribute earlier versions of the Licensed
Software.
PROPERTY RIGHTS AND RESTRICTIONS
Ownership. Subdistributor acknowledges that the Licensed Software, all
enhancements, corrections and modifications to the Licensed Software (regardless
whether made by Burst.Com, Interzest or anyone else), all Intellectual Property
Rights protecting or pertaining to any aspect of the Licensed 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 Burst.Com and, where applicable, Burst.Com's
suppliers. This Agreement does not convey title or ownership to Subdistributor
or any of its customers, but instead gives Subdistributor only the limited
rights set forth in this Agreement. Burst.Com and Interzest reserve all rights
not expressly granted by this Agreement.
Use Restrictions. Except as set forth in this Subdistributor Agreement,
Subdistributor has no right to use, make, sublicense, modify, distribute or copy
originals or copies of the Licensed Software or the Documentation or to permit
anyone else to do so.
Proprietary Notices. Subdistributor 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.
Trade Secrets. Subdistributor acknowledges that the Licensed Software, in its
source code form, contains valuable trade secrets belonging to Burst.Com.
Subdistributor may not reverse engineer, decompile, disassemble or otherwise
translate any Licensed Software. Subdistributor may not copy any concepts, ideas
or techniques demonstrated by the use of the Licensed Software.
Name and Trademarks. Subdistributor shall make no representations concerning
Burst.Com or the Licensed Software that are not set forth in the Documentation.
Subdistributor shall indicate Burst.Com's ownership of all Trademarks in any
advertising, promotional or other written or readable material containing any
Trademarks that Subdistributor may create during the Term of this Agreement. If
Subdistributor reproduces Burst.Com's logo, it shall do so only in the format
furnished by Interzest. Subdistributor may use the Trademarks only for purposes
of promoting and marketing the Licensed Software and shall make no other use of
the Trademarks, or use any
<PAGE>
trademark or trade name that may be confusingly similar to any of the
Trademarks, without Burst.Com's prior written approval. Subdistributor 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. Subdistributor shall obtain Interzest's prior approval of all
advertising, publicity or promotion that uses any Trademarks or discusses the
Licensed Software in any way.
RESPONSIBILITIES OF SUBDISTRIBUTOR
Level of Effort. Subdistributor 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 its licensing to End Users.
Trained Subdistributor Employees. Subdistributor shall employ, train and
maintain sufficient personnel with technical and sales experience to
demonstrate, license and support the Licensed Software distributed under this
Agreement.
Maintenance and Support. Except as otherwise expressly stated in this Agreement,
Subdistributor shall be solely responsible for providing all installation,
training, maintenance, service and support to End Users relating to the Licensed
Software. Subdistributor shall contact Interzest concerning this Agreement and
services to be provided hereunder and shall not contact Burst.Com directly and
shall not permit or encourage its customers to contact Burst.Com directly.
Protection of Burst.Com Intellectual Property. Subdistributor shall use best
efforts to ensure that Burst.Com's intellectual property rights in the Licensed
Software, the Documentation and the Trademarks are protected, and shall fully
cooperate with Burst.Com's efforts to protect Burst.Com's rights. Subdistributor
shall notify Interzest within ten (10) days of learning of any actual or
suspected violation of Burst.Com's intellectual property rights in the Licensed
Software, the Documentation or the Trademarks. Subdistributor shall notify
Interzest 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.
End User License Agreements. Subdistributor shall ensure that the Licensed
Software are distributed only to persons or entities that have received,
executed and returned to Subdistributor an End User License Agreement in the
form of Exhibit A.
Representations and Warranties to End Users. Subdistributor 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.
Compliance with Applicable Laws. Subdistributor shall comply with all laws and
regulations of the United States and South Korea to the extent that
non-compliance could possibly subject Interzest or Burst.Com to any liability or
impair any right or interest of Interzest or Burst.Com.
Conduct. Subdistributor 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.
<PAGE>
RESPONSIBILITIES OF INTERZEST
Warranty Service. Interzest shall provide Subdistributor's End Users with the
warranty services as described in, and subject to the terms and conditions of,
the End User License Agreement. Interzest reserves the right to modify such
terms and conditions from time to time, in Interzest's sole discretion.
Consultation with Subdistributor. Interzest shall provide to Subdistributor, at
no charge, a reasonable amount of telephone or electronic mail consultation to
Subdistributor's employees in order for Subdistributor to meet its warranty and
support obligations.
Training. Upon Subdistributor's request, and at mutually agreeable times,
Interzest shall provide sales and technical support training on the Licensed
Software to Subdistributor's employees at Interzest's offices.
DISCLAIMER
SUBDISTRIBUTOR ACKNOWLEDGES AND AGREES THAT BURST.COM HAS NO OBLIGATION OR
RESPONSIBILITY TO SUBDISTRIBUTOR AND SUBDISTRIBUTOR MAY LOOK ONLY TO INTERZEST
FOR ANY MATTERS RELATING TO THE LICENSED SOFTWARE OR THIS SUBDISTRIBUTOR
AGREEMENT. BURST.COM DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS OR
REPRESENTATIONS (WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO
THE LICENSED SOFTWARE AND DOCUMENTATION INCLUDING ANY AND ALL WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT BURST.COM
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.
INDEMNITY
Subdistributor shall indemnify, defend and hold Burst.Com and Interzest harmless
from and against all claims, actions or liabilities of any nature that may arise
from Subdistributor's marketing, distribution, installation, use or execution of
the Licensed Software.
MISCELLANEOUS
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 South Korea and other countries. Subdistributor 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 Licensed 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, Subdistributor 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.
Third Party Beneficiaries. No provisions of this Agreement are intended or shall
be construed to confer upon or give to any person other than Burst.Com,
Interzest and Subdistributor any rights, remedies or other benefits under or by
reason of this Agreement.
<PAGE>
"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, specifically.
o Burstware Product Overview Training: About Multimedia Delivery,
Network Simulations, Burstware System Overview, Burstware
Architecture, Burstware Components (1 day)
o Burstware Sales Overview Training: Pricing strategies,
Competitors, Usage Cases, Feature Sets, Architecture Fundamentals
(1 day)
o Burstware Sales Media Training: Burstware vertical markets,
channels, and applications, Sales and Marketing Strategy, Saving
Customers Money with Burstware technical trade show information
(1 day)
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.
o Burstware Technical Support, Maintenance & Troubleshooting:
Installing, Configuring, Running and Troubleshooting, industry
updates, new features training (2 days)
o Train-the-Trainer for VAR's, System Integrators & Strategic
Partners: Documentation and presentations to include all aspects
of Burstware training for VAR and SP internal customer training
departments (2 days)
o System Administrator Training: To include network topologies
Burstware system requirements and configurations (1 day)
o Burstware Sales Engineer Training: SE installation training,
Burstware demos, Operating the Windows Media Player, Burstware
Web programming course (1 day)