Memorandum Of Agreement - Quokka Sports Inc. and Intel Corp.
CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT UNDER RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934,
AS AMENDED. A COMPLETE COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES
AND EXCHANGE COMMISSION.
MEMORANDUM OF AGREEMENT
THIS MEMORANDUM OF AGREEMENT (the "MOA") is made as of September 15,
1999 (the "Effective Date") by and between QUOKKA SPORTS, INC., a corporation
organized under the laws of Delaware, with principal offices at 525 Brannan
Street, San Francisco, CA. 94107 ("Quokka") and INTEL CORPORATION, a corporation
organized under the laws of the state of Delaware, with principal offices at
2200 Mission College Blvd., Santa Clara, California 95052 ("Intel").
RECITALS
Quokka provides digital interactive media coverage of various sporting events
through, among other channels, a site on the World Wide Web located currently at
the URL "http://www.quokka.com" (the "Site"). Intel is a manufacturer of
microprocessors, software and systems, and internet services and solutions.
Intel desires to be a digital entertainment sponsor in connection with
quokka.com and the event coverage therein, and to receive the rights and
benefits as more fully described herein.
Quokka desires to secure certain promotional consideration and exposure in
connection with Intel promotional activities.
Quokka wishes to purchase and Intel wishes to provide certain Internet data
services as more fully set forth herein.
In accordance with that certain Software License and Development Agreement dated
March 20, 1998 (as amended on August 10, 1998) between Intel and Quokka (the
"Original Development Agreement"), the parties (among other things)
cooperatively participated in the development of an application and related
software for the purposes of production and delivery of multiple high bandwidth
media streams to allow end users to customize their viewing experience of a live
sporting event (the "Application"). Quokka wishes to acquire from Intel, and
Intel wishes to provide to Quokka, certain development services to further
develop the Application, as well as other projects.
NOW THEREFORE, in consideration of the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
1. TERM: The term of this MOA shall commence on September 15, 1999 and
conclude December 31, 2002, unless terminated sooner in accordance with
the terms of this MOA (the "Term").
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2. OBLIGATIONS OF THE PARTIES
2.1. Development.
2.1.1. Development Resources. Intel will, upon Quokka's
request, provide to Quokka the services of
appropriate engineering resources ("Engineers"), who
will complete the Projects (as defined in Section
2.1.2 below). [*] Engineers will be charged against
Quokka's payments set forth in Section 2.1.4 at [*]
2.1.2. Identification of Projects and Development Process.
2.1.2.1. The parties agree that the first two
development projects to be undertaken
pursuant to this MOA ("Projects") will be
[*]
2.1.2.2. For additional development projects, Quokka
may request certain development projects
which will be undertaken by the parties, and
Intel will reasonably consider such
requests. The specific projects undertaken
will be by mutual agreement of the parties.
Prior to selection of a Project, Intel and
Quokka will consult regarding various
projects already under development at Intel
and/or Quokka, and the parties' selection of
Projects will take into account such
projects under development in order to
maximize the utility of the development
efforts in connection with the Projects.
2.1.2.3. The Projects may include integration of
existing third party products and
technologies, as agreed by the parties.
2.1.2.4. As part of the mutual selection of the
Projects, the parties develop an agreed
Project Requirements Document ("PRD"),
including technical specifications, staffing
requirements, development milestones,
budgets, licensing, and intellectual
property ownership and related issues within
a reasonable time after project selection.
The Engineers' time in connection with
preparing the PRD will be chargeable to
Quokka. If Intel and Quokka are unable to
agree on a PRD the parties will escalate the
disagreement to their respective senior
managements, who will attempt to
[*] Confidential treatment requested.
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resolve the disagreement in good faith. If,
within a reasonable time of senior
management discussion, the parties are
unable to agree on a PRD, the parties are
not obligated to go forward with that
Project. Upon reaching agreement on the PRD,
the parties will undertake to develop the
Project in accordance with the PRD. All
projects will be subject to a mutually
agreed change control process.
2.1.3. Licenses and Intellectual Property Ownership.
2.1.3.1. For the [*]
2.1.3.2. For the [*] The parties anticipate that the
[*] functionality shall be provided in
conjunction with hosting or distribution
services offered by Intel, and that if such
functionality is not offered by Intel in
conjunction with such services, Intel will
license use of the [*] separately on
reasonable terms.
2.1.3.3. For additional Projects, the parties will
agree on the intellectual property licensing
terms and conditions at the time the PRD is
agreed to, as part of the agreement to
undertake the Project.
2.1.4. Development Services Payment. In consideration of the
development services to be provided by Intel, Quokka
will make the following payments in the amount of [*]
to Intel on the following schedule:
[*] Confidential treatment requested.
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<PAGE> 4
<TABLE>
<CAPTION>
Due Date Amount
-------- ------
<S> <C>
October 1, 1999 [*]
January 1, 2000 [*]
April 1, 2000 [*]
July 1, 2000 [*]
October 1, 2000 [*]
January 1, 2001 [*]
April 1, 2001 [*]
July 1, 2001 [*]
October 1, 2001 [*]
January 1, 2002 [*]
April 1, 2002 [*]
July 1, 2002 [*]
October 1, 2002 [*]
</TABLE>
Intel will invoice Quokka thirty (30) days prior to
the Due Date set forth above ("Invoice Date").
Payments received by Intel more than sixty (60) days
after the Invoice Date will bear interest at the rate
of 1.5% per month from the original Due Date to the
date the payment is received.
2.2. QPT Sponsorship. Quokka hereby designates Intel as the
exclusive "Quokka Performance Team Official Partner" ("QPT
OP") in the "Internet Services" category (the "Exclusive
Category"). The "Internet Services" category will be defined
more fully in the definitive agreement. As a QPT OP, Quokka
will provide to Intel the rights and benefits set forth on
Exhibit A. In addition, during the Term, subject to any
restrictions that may be imposed by any rightsholder, Quokka
shall utilize Intel as [*] Furthermore, Intel acknowledges
that Quokka shall not immediately utilize Intel's web hosting
services on an exclusive basis, but that there shall be a
reasonable transition period based on Quokka's existing
obligations to current service providers and any technical
issues impacting such transition.
[*] Confidential treatment requested.
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<PAGE> 5
2.2.1. Payment. In consideration of the QPT OP benefits set
forth on Exhibit A, Intel shall make payments to
Quokka in the total amount of [*] in accordance with
the following schedule:
<TABLE>
<CAPTION>
Due Date 1999 2000 2001 2002
-------- ---- ---- ---- ----
<S> <C> <C> <C> <C>
January 15 [*] [*] [*]
April 15 [*] [*] [*]
July 15 [*] [*] [*] [*]
October 15 [*] [*] [*] [*]
</TABLE>
Promotional value will not be specified on a
quarterly basis. Quokka will invoice Intel thirty
(30) days prior to the due date ("Invoice Date").
Payments received by Quokka more than sixty (60) days
after the Invoice Date will bear interest at the rate
of 1.5% per month from the original Due Date to the
date the payment is received.
2.2.2. Program Review. To facilitate the attainment of the
Parties' goals within the context of the relationship
created by this QPT sponsorship, authorized
representatives from the Parties' product and
marketing teams will meet at least semi-annually in
order to discuss the sponsorship and promotional
plans relevant to the Parties' goals under this
sponsorship and to attempt to resolve in good faith
any issues arising from the implementation of the
sponsorship (the "Working Team Review Meetings"). The
responsible Intel and Quokka Program Managers will
confer and agree before each meeting on the
anticipated time, place, duration and number of
attendees for each meeting.
2.2.3. Executive Review. In addition to the Working Team
Review Meetings, responsible executives representing
the Parties will meet at least semi-annually to
review the success of this sponsorship in achieving
their respective goals, to review the sponsorship and
marketing performance of the sponsorship, and to
attempt in good faith to resolve any issues arising
from the implementation of the sponsorship which
could not be resolved in the Working Team Review
Meetings.
2.2.3.1. Mediation. If disputes remain after
Executive Review, the parties shall select a
neutral third party to mediate any remaining
disputes on valuation of promotional efforts
and activities. If the parties cannot agree
on a neutral third party, each party shall
nominate a mediator, and the two selected
mediators shall jointly select a third, and
the three mediators shall resolve such
disputes by a majority vote amongst
themselves.
[*] Confidential treatment requested.
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2.2.3.2. Corrective Action Plan; Termination. At [*]
of the Term, if Intel is unsatisfied with
the performance of the sponsorship, it may
invoke a "Corrective Action Plan" ("CAP") in
order to "make good" the value received by
Intel from the sponsorship. The CAP shall
identify deficiencies and remedies as agreed
by the parties, and set forth the criteria
which the parties agree will remedy such
deficiencies. Should the criteria agreed by
the parties not be met at the end of the CAP
period of [*], then Intel may terminate the
sponsorship. In the event of termination of
the sponsorship pursuant to this Section
2.2.3.2, neither party shall have any
further obligations to the other in
connection with the sponsorship (e.g.,
Intel's payment obligations in connection
with the sponsorship shall cease, but Intel
shall not be entitled to any refund of prior
payments in connection with the
sponsorship).
2.3. Promotion by Intel.
2.3.1. Intel will provide [*] in promotional value to Quokka
during the Term. Such value will not be specified on
a quarterly basis and is dependent on the Quokka
Programming Schedule available in any given year, the
resulting traffic and number of registrants for [*].
2.3.1.1. Intel understands that Quokka desires that
Intel's promotional efforts maximize the
amount of television advertising and retail
promotions, but Quokka acknowledges that the
[*]
2.3.2. Program Review. To facilitate the attainment of the
Parties' goals within the context of the relationship
created by this promotional commitment, authorized
representatives from the Parties' product and
marketing teams will meet at least semi-annually in
order to discuss the sponsorship and promotional
plans relevant to the Parties' goals under this
commitment and to attempt to resolve in good faith
any issues arising from the implementation of the
commitment (the "Working Team Review Meetings"). The
responsible Intel and Quokka Program Managers will
confer and agree before each meeting on the
anticipated time, place, duration and number of
attendees for each meeting.
2.3.3. Executive Review. In addition to the Working Team
Review Meetings, responsible executives representing
the Parties will meet at least semi-annually to
review the success of this commitment in
[*] Confidential treatment requested.
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<PAGE> 7
achieving their respective goals, to review the
commitment and marketing performance of the
sponsorship, and to attempt in good faith to resolve
any issues arising from the implementation of the
commitment which could not be resolved in the Working
Team Review Meetings.
2.3.3.1. Mediation. If disputes remain after
Executive Review, the parties shall select a
neutral third party to mediate any remaining
disputes on valuation of promotional efforts
and activities. If the parties cannot agree
on a neutral third party, each party shall
nominate a mediator, and the two selected
mediators shall jointly select a third, and
the three mediators shall resolve such
disputes by a majority vote amongst
themselves.
2.3.4. Corrective Action Plan; Termination. At [*], if
Quokka is unsatisfied with the performance of the
promotional efforts, it may invoke a "Corrective
Action Plan" ("CAP") in order to "make good" the
value received by Intel from the promotion
commitment. The CAP shall identify deficiencies and
remedies as agreed by the parties, and set forth the
criteria which the parties agree will remedy such
deficiencies. Should the criteria agreed by the
parties not be met at the end of the CAP period of
[*], then Intel may terminate the promotion
commitment. In the event of termination of the
promotion commitment pursuant to this Section 2.3.4.,
neither party shall have any further obligations to
the other in connection with the promotion (e.g.,
Quokka's payment obligations in connection with the
promotion shall cease, but Quokka shall not be
entitled to any refund of prior payments in
connection with the promotion).
2.4. Internet Services.
2.4.1. SERVICE: Quokka agrees to purchase at least [*] of
services from Intel for Internet Services, from Intel
Online Services ("IOS"), Intel Content Services
("ICS"), and Intel Edge Services ("IES")
(collectively, the "Services") as set forth herein.
2.4.2. IOS
2.4.2.1. MASTER CUSTOMER AGREEMENT FOR HOSTING AND
DATA CENTER SERVICES; SERVICE LEVEL
AGREEMENTS: Quokka agrees to execute
simultaneously with this MOA, the "Intel
Online Services Master Customer Agreement"
attached hereto as Exhibit B (the "MCA").
The parties agree to negotiate in good faith
a "Service Level Agreement" ("SLA") setting
forth the service standards and other terms
[*] Confidential treatment requested.
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<PAGE> 8
applicable to the provision by Intel of the
services contemplated by the MCA. The SLA
will provide for service levels by Intel [*]
2.4.2.2. INITIATION OF HOSTING AND DATA CENTER
SERVICES: Subject to execution of a mutually
acceptable SLA, Quokka will initiate use of
Intel's hosting services in October 1999.
Quokka agrees, at a minimum, to purchase [*]
of hosting and data center services from
Intel during 1999 and 2000. The initial
configuration of servers will be hosted at
Intel's Santa Clara facility. The
anticipated number of servers, bandwidth
requirements and the associated charges are
set forth in the following table:
<TABLE>
<CAPTION>
SERVERS/B/W OCT 99 TOTAL SERVERS/B/W JAN TOTAL'00
----------- --- -------- ----------- --- --------
<S> <C> <C> <C> <C> <C> <C>
Web [*] [*] [*] [*] [*] [*]
App [*] [*] [*] [*] [*] [*]
Dbase [*] [*] [*] [*] [*] [*]
b/w [*] [*] [*] [*] [*] [*]
total monthly [*] [*] [*] [*]
Setup [*] [*] [*] [*]
Total Cost [*] [*] [*] [*]
Prepayment [*] [*]
Total Cost w/Prepayment [*] [*]
Total servers [*] [*]
</TABLE>
2.4.2.3. Additional services above and beyond this
initial setup and configuration will be
jointly forecasted between Quokka and Intel
on a monthly basis.
2.4.2.4. PRICING. Quokka has reviewed and accepts
Intel's standard pricing as set forth on
Exhibit C. Quokka understands that such
standard prices may change upon notice from
Intel, unless the parties agree otherwise in
an SLA.
[*] Confidential treatment requested.
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<PAGE> 9
2.4.2.5. LAUNCH PARTICIPATION. Upon reasonable
request, Quokka agrees to participate in
Intel's launch activities for Intel's IDS-1
data center. Quokka's reasonable
participation may include a joint
announcement mutually approved by the
parties and inclusion of Quokka on an
initial list of Intel's customer
commitments.
2.4.3. ICS AND IES: In addition to hosting and data center
services, Quokka may purchase certain services from
ICS and IES. ICS will provide [*] IES will provide
[*] Service requirements, delivery timeframes and
charge will be agreed upon as specified in a mutually
acceptable project requirements documents.
2.4.4. PAYMENT: In consideration of the services to be
provided by Intel, Quokka will make the following
payments in the amount of [*] to Intel on the
following schedule:
[*] Confidential treatment requested.
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<PAGE> 10
<TABLE>
<CAPTION>
Due Date Amount
-------- ------
<S> <C>
October 1, 1999 [*]
January 1, 2000 [*]
April 1, 2000 [*]
July 1, 2000 [*]
October 1, 2000 [*]
January 1, 2001 [*]
April 1, 2001 [*]
July 1, 2001 [*]
October 1, 2001 [*]
January 1, 2002 [*]
April 1, 2002 [*]
July 1, 2002 [*]
October 1, 2002 [*]
</TABLE>
2.4.4.1. Intel will invoice Quokka thirty (30) days
prior to the Due Date set forth above
("Invoice Date"). Payments received by Intel
more than sixty (60) days after the Invoice
Date will bear interest at the rate of 1.5%
per month from the original Due Date to the
date the payment is received.
2.4.4.2. Services will be charged against Quokka's
payments. If charges for Services utilized
by Quokka exceed in aggregate the amount
Quokka has paid to Intel hereunder in
aggregate, Intel may invoice Quokka for such
excess amount. Such excess amount will be
credited against Quokka's next payment
amount. In the event that Quokka utilizes
Services that exceed in aggregate the amount
of Quokka's payment obligations in any
calendar year Intel will charge Quokka for
such Services [*]
2.5. Quokka Proprietary Configured Systems.
2.5.1. Quokka may satisfy up to [*] of its cash payment
obligations set forth in Section 2.4.4 by [*] to
Intel.
2.5.2. The pricing, quantities, specifications and purchase
schedule are to be determined by the mutual agreement
of the parties; provided that such purchase must be
completed by [*]
[*] Confidential treatment requested.
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<PAGE> 11
3. CONFIDENTIALITY: This MOA and the terms hereof are confidential and
shall not be disclosed to any third party without the prior written
consent of the non-disclosing party. Except as expressly provided
herein, this MOA and all disclosures relating thereto shall be governed
by CDNA # 101693 executed by the parties on November 18, 1997.
4. INDEPENDENT CONTRACTORS: Notwithstanding the use of the term
"partnership" in this MOA, the relationship of the parties shall be as
independent contractors and nothing contained herein shall constitute
the creation of any partnership, agency or joint venture relationship
between the parties hereto. Neither party shall have the right to
obligate or bind the other in any manner whatsoever.
5. CONSEQUENTIAL DAMAGES: In no event shall either party be liable to the
other party or to third parties for lost profits or other
consequential, incidental, indirect, special, damages of any nature
whatsoever, including, without limitation, loss of profits, loss of
business, or anticipatory profits, even if such party has been apprised
of the likelihood of such damages.
6. ASSIGNMENT: Neither party may assign any of its rights, obligations, or
privileges (by operation of law or otherwise) hereunder without the
prior written consent of the other, except that Intel may assign its
rights and obligations under this MOA to one or more of its
majority-owned subsidiaries, and Quokka may assign its rights and
obligations to any entity that acquires all or substantially all of its
assets or a controlling interest of Quokka's outstanding equity
(subject to Intel's prior written consent, which will not be
unreasonably withheld).
7. ENTIRE AGREEMENT: The entire understanding between the parties is
incorporated herein and supersedes all prior discussions and agreements
between the parties relating to the subject matter hereto. This MOA can
be modified only by a written amendment executed by both parties.
8. SEVERABILITY: If any provision or provisions of this MOA shall be held
to be invalid or unenforceable, such provision shall be enforced to the
fullest extent permitted by applicable law and the validity, legality
and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
9. TERMINATION: Either party may terminate its performance of related
obligations under this MOA if the other party fails to cure a material
breach under a portion of this MOA within thirty (30) days of receipt
by the breaching party of written notice of such breach from the
non-breaching party. The parties agree that the failure or termination
of any portion or relevant provision of this MOA will not be
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<PAGE> 12
a basis for terminating other severable obligations or provisions of
this MOA, unless the failure or breach is such that the entire MOA
loses substantially all of its value to the non-breaching party.
10. NOTICE: Notices required or permitted hereunder shall be in writing and
deemed given and received when properly posted by registered or
certified mail, postage prepaid, first class, in an envelope properly
addressed
(i) if to Intel, to: Intel Corporation
2200 Mission College Blvd.
Santa Clara, California 95052
ATTN: General Counsel
(ii) if to Quokka: Quokka Sports, Inc.
525 Brannan Street, Ground Floor
San Francisco, CA 94107
ATTN: General Counsel
14. WAIVER: Any waiver of any kind by either party of a breach of this MOA
shall not operate or be construed as a waiver of any subsequent breach
by the other party. Any delay or omission in exercising any right,
power or remedy pursuant to a breach or default by one party shall not
impair any right, power or remedy which the other party may have.
15. GOVERNING LAW: This MOA shall be governed exclusively by and construed
in accordance with the substantive laws of the State of Delaware,
without regard to principles of conflicts of law. The parties agree
that any legal proceedings shall be conducted in Santa Clara,
California.
16. NATURE OF AGREEMENT: This MOA constitutes a binding obligation of the
parties. Upon execution, the parties will enter into good faith
negotiations to enter into a definitive agreement that more fully sets
forth the respective rights and obligations of the parties (the
"Definitive Agreement"); provided, however, that until the parties
execute the Definitive Agreement, this MOA shall constitute a valid and
binding agreement of the parties hereto. The Definitive Agreement will
contain such additional terms and conditions as are customary in
agreements of this nature, including without limitation,
indemnification provisions, warranties and disclaimers thereof and
limitations of liability.
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ACCEPTED AND AGREED:
INTEL CORPORATION
By: /s/ Ronald J. Whittier
----------------------------------------
Name: Ronald J. Whittier
--------------------------------------
Its: Senior Vice President
---------------------------------------
QUOKKA SPORTS, INC.
By: /s/ Alan Ramadan
----------------------------------------
Name: Alan Ramadan
--------------------------------------
Its: President and CEO
---------------------------------------
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<PAGE> 14
EXHIBIT A
RIGHTS AND BENEFITS
I. RIGHTS
1. EXCLUSIVE CATEGORY RIGHTS
Quokka will not grant any of the rights and benefits as set forth
herein to any other party in the Exclusive Category unless any event
rightsholder requires Quokka to offer another party any such rights and
benefits in connection with coverage of such rightsholder's event. [*]
2. WORLDWIDE USAGE BY INTEL OF MARKS AND OFFICIAL DESIGNATIONS
A. Worldwide use of the following marks, subject to mutually
agreeable trademark licenses and usage terms:
- Quokka Performance Team mark
- Quokka Sports mark
B. Worldwide use of the following official designations, subject
to mutually agreeable trademark licenses and usage terms:
- Official Worldwide Partner of the Quokka
Performance Team
- Official Worldwide On Line Services Partner
of the Quokka Performance Team
3. [*]
II. BENEFITS
A. MEDIA BENEFITS
[*] Confidential treatment requested.
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<PAGE> 15
1. Branded Media Impressions: Quokka Performance Team branding and
placement for Intel on or within [*] of the cumulative Projected
Branded Impressions set forth below. At least [*] of such
cumulative Projected Branded Impressions shall represent solo
branding and placement for Intel.
<TABLE>
<CAPTION>
Projected
Year Branded Impressions
---- -------------------
<S> <C>
1999 [*]
2000 [*]
2001 [*]
2002 [*]
TOTAL [*]
</TABLE>
2. Premium multimedia advertising design, strategic consulting,
creative services, and production furnished by Quokka (e.g.,
pop-ups, interstitials, distributed applications and broadband
media advertisements) to deliver Intel messaging as part of the
Quokka Brand Immersion process.
3. Monthly Network viewer/audience reports, including Branded
Impressions.
B. SPONSORSHIP/CONTENT BENEFITS
1. Intent Optimized Content: Production of [*] mutually agreed content
features for inclusion in Intel Promotional Programs during each
full year on the Term [*]
2. Hospitality programs, as mutually agreed, in connection with events
covered by Quokka, to the extent that Quokka may provide such
rights.
C. SALES BENEFITS
1. Real-time Intel and Quokka Performance Team Product Showcase within
the Site.
2. Intel Sales Tools [*]: Quokka will create a custom CD and custom
URL within quokka.com for exclusive use by Intel to showcase Intel
equipment and technology.
3. Access to Quokka content for Intel advertising and marketing
efforts, to the extent that Quokka may license such right.
[*] Confidential treatment requested.
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4. Access to the Quokka Digital Studio for real time product
showcasing and corporate customer and employee events. In addition,
appropriate Intel branding will be present in the studio.
5. Direct Marketing: Commercial efforts to promote QPT and Intel's
role therein in online newsletters direct mail relationship
marketing efforts.
D. QPT PUBLIC RELATIONS/COMMUNICATIONS BENEFITS
1. When available, Quokka will recognize and endorse the Quokka
Performance Team partnership alliance and Intel's official
designation in off-line media relations, public announcements,
advertising and keynote addresses done by Quokka Sports.
2. Quokka will supply executive speakers (such as John Bertrand and
Alan Ramadan) to speak to Intel meetings, events and trade shows
regarding Intel's Digital Marketing initiatives. All speaker fees
shall be waived for Intel. Engagements will be subject to speaker
availability.
3. Quokka will participate in Intel promotional events, both online
and otherwise.
E. CATEGORY LEADERSHIP BENEFITS
1. Quokka will appoint a designated Intel Relationship manager to
manage and maximize to the extent possible the benefits described
in this agreement.
2. Intel Digital Entertainment Partnership Plan prepared jointly by
Quokka Sports and INTEL focused on executing against Intel's
business strategies.
3. Annual ROI-based Assessment Report.
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EXHIBIT B
STANDARD PRICING SCHEDULE
<TABLE>
<CAPTION>
OFFERING STANDARD PRICE / SERVER
-------- -----------------------
<S> <C>
IA Web/App Server [*]
IA DB Server [*]
10/50 bandwidth* [*]
</TABLE>
BANDWIDTH IS CHARGED AT [*] for the target usage base [*] For each incremental
mbs above the base, [*] is charged in the following fashion: IOS will
monitor the bandwidth usage [*] IOS will deduct the [*] usage base from the
total. The highest remaining data point [*] will be the basis of the charge. [*]
[*] Confidential treatment requested.
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EXHIBIT C
INTEL(R) ONLINE SERVICES
MASTER CUSTOMER AGREEMENT
This Master Customer Agreement ("Agreement") is between Intel Online
Services, Inc., a wholly owned subsidiary of Intel Corporation, ("Intel") and
the Customer identified below ("Customer"). This Agreement includes certain
Service Level Agreements, Attachments and Schedules to be mutually agreed in
writing and attached in the future (together the "Schedules").
1. Services. Intel will provide to Customer the internet data center services
("Services") specified in a Service Level Agreement ("SLA") Order Form attached
hereto or added by the parties in the future. All SLA's shall be effective upon
the date set forth in them or a related fee schedule. In the event of any
conflict of any SLA and this Agreement, the terms of the applicable SLA shall
control.
2. Prices and Taxes. Prices are stated in the relevant SLA or attached fee
schedule and may be changed at any time by Intel unless they are stated to be
firm for a certain period. If any of the Services are on a month-to-month basis,
Intel will give Customer at least thirty (30) days notice of a price change.
Customer is responsible for tariffs, telecommunications surcharges or other
governmental charges due in connection with providing the Services to Customer.
If Intel is required to pay or collect any local, value-added, goods and
services, or any other similar taxes or duties based on the Services provided
hereunder, then Intel shall add such taxes to the prices for Services and
Customer agrees to pay such amounts.
3. Payment. Unless otherwise stated in an SLA, Intel will invoice Customer
monthly. Customer agrees to pay Intel within thirty (30) days from receipt of
invoice. For overdue invoices, Customer will pay Intel interest on the overdue
amount at a rate of one and one-half percent (1.5%) for each month or part of a
month (or the maximum rate allowed by law, whichever is less) that the payment
is overdue. All fees payable to Intel shall be paid by check tendered or wire
transfer at the following addresses or to such other payment addresses as Intel
shall designate in writing in a notice given in accordance with Section 14.1
below:
Remittance Address: Wire Transfer Account:
Intel Corporation CITIBANK
2111 N.E. 25th Ave. New York, New York
Hillsboro, OR 97124 ABA #021000089
Attn: Post Contract Management General Account # 38385954
M/S: JF3-149
Upon the request of either party, the parties agree to negotiate in good faith
an electronic invoice and payment procedure suitable for making the payments
contemplated under this Section.
4. Term. This Agreement shall commence as of the last date of execution
("Effective Date") and shall terminate upon the later of: (i) the last to expire
of any SLA entered into hereunder, or (ii) December 31, 2002. Thereafter, the
Agreement shall automatically renew for successive one (1) year periods unless
either party gives the other written notice of intent to terminate and not renew
at least sixty (60) days' prior to the end of the initial term or any renewal
term.
5. Termination.
5.1 General Termination Rights. Either party may terminate this
Agreement for material breach by the other party upon written notice of not less
than thirty (30) days and failure to cure the breach within the notice period.
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5.2 Intel's Additional Rights to Restrict Services. Intel reserves the
right with or without notice to modify or terminate any or all Services or
restrict Customer's use in whole or in part if, in Intel's sole judgment, use of
the Services by Customer or its end users (i) presents a material security risk
or will interfere materially with the proper continued operation of a data
center or related services; (ii) violates applicable laws or governmental
regulations, including without limitation consumer protection, securities
regulation, child pornography, obscenity, data privacy, data transfer and
telecommunications laws; (iii) violates or infringes any intellectual property
right of Intel or a third party; (iv) violates export control regulations of the
United States or other applicable countries; (y) otherwise violates Intel's
Acceptable Use Policy; or (v) is subject to an order from a court or
governmental entity stating that such use generally or for certain activities
must stop. Prior to modifying or terminating any Services for the reasons set
forth in subparagraphs (iii), Intel will provide at least forty-eight (48) hours
notice to Customer prior to taking any such action. In all other circumstances
set forth in this Section 5.2, Intel will endeavor to provide as much prior
notice as reasonably practicable before taking any such action; provided that
Customer acknowledges that Intel may not be able to give any notice in such
circumstances.
5.3 Effect of Termination. Upon termination, all rights granted to
Customer under this Agreement terminate immediately. Intel will return to
Customer all data files or other Customer property in Intel's possession so long
as Intel, in its reasonable discretion, determines that such a return would not
be a violation of any applicable law or governmental regulation. Customer
remains liable to pay Intel for the Services received through the date of
termination of this Agreement and for any periods during which Customer is still
receiving all or some portion of the Services. The following sections will
survive any expiration or termination of this Agreement: Section 6.1 (Customer's
Responsibility for Use of the Services), Section 6.5 (Customer's Indemnity of
Intel), Section 7 (Intel's Indemnity of Customer), Section 9 (Ownership of
Intellectual Property), Section 10 (Confidentiality; Data Use), Section 11
(Disclaimer of Warranties), Section 12 (Limitation of Liability; Remedies),
Section 13 (Dispute Resolution; Governing Law), and Section 14 (Miscellaneous).
6. Customer Responsibilities.
6.1 Customer's Responsibility for Use of the Services. Customer agrees
it is solely responsible for and assumes all liability relating to the
following:
A. All aspects of Customer's business;
B. All content and data provided to Intel by or through Customer
for use with the Services;
C. Decisions about Customer's computer and communications systems
needed to access the Services;
D. All results obtained from using the Services;
E. Compliance with all applicable laws and governmental
regulations regarding Customer's business or use of the
Services;
F. Use of the Services by Customer's end users;
G. Compliance with Intel's Acceptable Use Policy, established and
applicable from time to time, by Customer and its end users.
Should Intel change its Acceptable Use Policy, Customer shall
have 30 days within which to comply with the revised Policy,
except that no such compliance period shall be applicable for
categories (i), (ii), (iv), or (vi) of Section 5.2.
H. Cooperation. Customer agrees to provide Intel with all
cooperation and information necessary or desirable to
implement the Services for Customer.
6.2 End User Agreements. To protect both Customer and Intel, Customer
shall include in agreements, if any, with its end users, (i) requirements for
end users to comply with usage policies sufficient to ensure compliance with
Intel's Acceptable Use Policy; (ii) limitation of liability provisions no less
protective than those contained in Section 12.1 below; (iii) dispute resolution
and attorneys' fees
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provisions substantially similar to those contained in Sections 13.1, 13.2, and
13.4 below. Such provisions shall protect Customer and its service provider
(i.e., Intel) to the same extent.
6.3 Resale. Unless expressly permitted by a Schedule or separate
reseller agreement, Customer shall limit the use of the Services to Customer's
purposes and those of its end users and shall not engage in the business of
reselling Intel's hosting or other data center services to third parties (other
than Quokka affiliates and joint ventures of which Quokka owns 50% or more).
6.4 Customer's Indemnity of Intel. Customer will indemnify Intel
against any claim, suit, or proceeding by any end user or third party arising
from (i) matters for which Customer has responsibility under this Section 6;
(ii) violation by Customer of any obligations under this Section 6; (iii) claims
that any content of Customer or its end users, including but not limited to
data, text, multimedia images (e.g. graphics, audio and video files) or other
materials (collectively "Content"), or the manner in which Customer or its end
users make use of the Services, constitutes an infringement of any patent,
copyright, trademark, trade secret, publicity, privacy, or other right of any
third party, or (iv) any civil or criminal violations of law or governmental
regulations occurring as a result of actions or omissions of Customer or its end
users. Customer will defend or settle any such suit or proceeding brought
against Intel and will pay all damages and costs finally awarded against Intel
relating to the foregoing matters (including any indirect or consequential
damages awarded as a result of such proceeding); provided that Intel (x)
promptly notifies Customer in writing of any such suit or proceeding, (y)
provides Customer with sole control over the defense or settlement of any such
action; and (z) provides reasonable information and assistance in the defense or
settlement of any such action. Intel may participate in any such suit or
proceeding through counsel of its choice at Intel's own expense; provided, that
the costs associated with Intel's counsel shall not be deemed damages or costs
for purposes of Customer's indemnity hereunder. Notwithstanding the foregoing
remedies, Intel reserves the right (but shall have no obligation) to delete any
Content installed on an Intel server and to modify or terminate any or all
Services or restrict Customer's use in whole or in part in the event of any suit
or proceeding, or threatened suit or proceeding, which may be subject to an
indemnity obligation under this Section; provided that Intel shall give Customer
prior notice as set forth in Section 5.2.
7 [*]
8. Announcements and Promotion. Upon execution of this Agreement, the parties
may issue a mutually approved joint press release announcing the relationship
formed by this Agreement. Thereafter, neither party will issue any press
releases or use the logo of the other party in an advertisement or other public
announcement relating to this Agreement or the relationship between the parties
without the prior written approval of the other, including any approval given in
a Schedule hereto. Notwithstanding the restrictions of the prior sentence, the
parties will cooperate in good faith to advertise the relationship created in
this Agreement on their web sites, including cross-links to their respective web
sites and to others, under appropriate, mutually-agreed linking arrangements.
Customer agrees that Intel may include Customer's name in listings of Intel's
customers.
[*] Confidential treatment requested.
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9. Ownership of Intellectual Property and Equipment.
9.1 Except as expressly set forth in this Agreement or any applicable
SLA, the parties do not, directly or by implication, by estoppel or otherwise,
grant to each other any rights or licenses, and neither party shall have any
ownership rights in any intellectual or tangible property of the other.
9.2 Intel shall not obtain any right, title, and/or interest in the
Content provided by Customer or its end users and installed on Intel's hardware;
however, Intel shall retain title to and all rights in all intellectual property
provided by Intel, including, but not limited to, any know-how related to
Intel-provided products or services such as hardware, software or any other
server technology.
9.3 Except as expressly set forth in this Agreement or any applicable
SLA, all equipment provided by Intel in connection with this Agreement or any
SLA shall remain the property of Intel.
9.4 Notwithstanding anything in this Agreement to the contrary, the
rights granted herein do not include any right, license, release or immunity,
directly or indirectly, express, implied or by estoppel, in or to Intel's
component-level, flash memory chips, video chips, or microprocessor or related
chipset technology, or any of Intel's process technology under any patent,
copyrights, trade secret, mask work or other intellectual property right,
including but not limited to Intel architecture processors.
10. Confidentiality; Data Use.
10.1 General Non-Disclosure. Subject to the terms of this Agreement,
each party shall maintain the confidentiality of the information it receives
from the other pursuant to the terms of the Corporate Nondisclosure Agreement
("CNDA") between Intel and Customer, which is incorporated herein by this
reference. If the parties hereafter exchange other confidential information
relating to this Agreement during the term hereof, they may exchange that
information under a CITR (Confidential Information Transmittal Record) to the
CNDA. Except as otherwise expressly provided under this Agreement, neither party
may disclose to the public or to any third party the existence of this Agreement
or the terms and conditions hereof other than with the express prior written
consent of the other party.
10.2 Data Use. Unless requested to do so by Customer, Intel will not
collect or retain for its own purposes any personally identifiable information
regarding end users who access the Services through Customer. Intel will monitor
use of the Services and gather statistical and demographic information about the
use of the Services by Intel's Customers and their end users. Such information
will be used for internal statistical and marketing reports and may be shared by
Intel with third parties in aggregate or statistical form only. Both parties
agree to comply with all applicable privacy and data transfer statutes, rules,
or regulations governing the respective activities of the parties.
11. Disclaimer of Warranties.
11.1 General Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN AN APPLICABLE
SLA, THE SERVICES ARE PROVIDED "AS IS" AND INTEL MAKES NO WARRANTIES OR
REPRESENTATIONS CONCERNING THE SERVICES OR ANY RESULTS TO BE ACHIEVED THROUGH
USE OF THE SERVICES; INTEL DISCLAIMS ALL OTHER WARRANTIES, INCLUDING THE
WARRANTIES OF MERCHANTIBILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE,
NONINFRINGEMENT AND TITLE, AND ALL WARRANTIES ARISING FROM A COURSE OF DEALING,
USAGE, OR TRADE PRACTICE.
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11.1 No Security Warranty. EXCEPT AS EXPRESSLY STATED IN AN APPLICABLE
SLA, INTEL DOES NOT GUARANTEE THAT ITS PROCEDURES AND SERVICES WILL PREVENT
LOSS, ALTERATIONS OR UNAUTHORIZED ACCESS TO CUSTOMER DATA HOSTED THROUGH AN
INTEL FACILITY.
11.2 Disclaimer of Actions Caused by or Under the Control of Third
Parties. INTEL DOES NOT AND CANNOT CONTROL THE PERFORMANCE OF ANY DATA,
PRODUCTS, OR SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTION
OR INACTION BY THIRD PARTIES CAN IMPAIR OR DISRUPT INTEL'S SERVICES. INTEL MAKES
NO REPRESENTATIONS AND EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING THE DATA,
PRODUCTS, OR SERVICES OF ANY THIRD PARTY, INCLUDING THE PROVIDERS OF ELECTRICAL
OR TELECOMMUNICATIONS PRODUCTS OR SERVICES. SUCH DATA, PRODUCTS, AND SERVICES
ARE NOT PROMISED TO BE FREE OF ERROR OR INTERRUPTION, AND INTEL EXPRESSLY
DISCLAIMS ALL LIABILITIES ARISING FROM ANY SUCH ERROR, INTERRUPTION, OR OTHER
FAILURE.
12. Limitation of Liability; Remedies.
12.1 DAMAGES LIMITATION. LIABILITY ARISING UNDER THIS AGREEMENT SHALL
BE LIMITED TO DIRECT, OBJECTIVELY MEASURABLE DAMAGES. NEITHER PARTY OR THEIR
SUPPLIERS, INCLUDING SUPPLIERS OF TELECOMUNICATIONS SERVICES, SHALL HAVE ANY
LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY, FOR ANY INCIDENTAL,
PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST
PROFITS, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR COSTS OF PROCUREMENT OF
SUBSTITUTE GOODS OR SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE) STRICT
LIABILITY OR OTHERWISE. Notwithstanding anything to the contrary, the aggregate
liability of Intel and its suppliers under this Agreement shall not exceed the
lesser of (a) the total amounts paid by Customer to Intel hereunder [*] which
gave rise to the claims or (b) [*] Customer hereby agrees and acknowledges that
its remedies for interruption of Services due to outages or failures may be
further limited in an applicable SLA to receipt of an outage credit toward
payment of fees due under the SLA.
12.2 SOLE REMEDIES; MATERIALITY. INTEL AND ITS SUPPLIERS DISCLAIM ANY
AND ALL LIABILITIES OR DAMAGES OTHER THOSE EXPRESSLY PROVIDED IN THIS AGREEMENT
OR AN ATTACHED SLA. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE LIABILITY OF INTEL
AND ITS SUPPLIERS ARISING UNDER THIS AGREEMENT OR IN CONNECTION WITH THE
SERVICES SHALL BE EXPRESSLY LIMITED TO THE LIABILITY AND DAMAGES PROVIDED
HEREIN. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS REFERENCED IN THIS SECTION
12 ARE MATERIAL TERMS TO THIS AGREEMENT.
12.3 Force Majeure. In the event that either party is unable to perform
any of its obligations under this Agreement or to enjoy any of its benefits
because of any event beyond the control of the affected party, including, but
not limited to, natural disaster, acts of God, actions or decrees of
governmental bodies or failure of communication or electrical lines (a "Force
Majeure Event"), the party who has been so affected shall promptly give written
notice to the other party and shall use its best efforts to resume performance.
Upon receipt of such notice, all obligations under this Agreement shall be
immediately suspended for the duration of such Force Majeure Event.
13. Dispute Resolution; Governing Law.
13.1 With the exception of disputes involving breach of
confidentiality, infringement of a party's intellectual property, and other
types of irreparable harm for which injunctive relief through the
[*] Confidential treatment requested.
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courts is sought by either party, all disputes arising directly under the
express terms of this Agreement or the grounds for termination thereof shall be
resolved as follows: The senior management of both parties shall meet to attempt
to resolve such disputes. If the disputes cannot be resolved by the senior
management, either party may make a written demand for formal dispute resolution
and specify therein the scope of the dispute.
13.2 If the disagreements cannot be resolved by the senior management
after thirty (30) days from the date any party made a written demand for
resolution, a binding arbitration shall be held. Subject to the provisions of
this Section, the rules of the arbitration shall be agreed upon by the parties
prior to the arbitration and based upon the nature of the disagreement. To the
extent that the Parties cannot agree on the rules of the arbitration, then the
Commercial Arbitration Rules of the American Arbitration Association ("AAA") in
effect on the Effective Date of this Agreement, or, when either of the parties
is not a U.S. entity, then the Commercial Arbitration Rules of the International
Chamber of Commerce ("ICC") in effect on the Effective Date of this Agreement,
and except as the applicable rules are modified by this Agreement, shall apply.
The proceedings shall be held in the County of Santa Clara, California, U.S.A.
under the auspices of the AAA or the International Chamber of Commerce,
whichever is applicable. As a minimum set of rules in the arbitration, the
Parties agree as follows:
A. The arbitration shall be held by single arbitrator mutually
acceptable to both parties. If the parties cannot agree on a single
arbitrator within thirty (30) days from the date written demand is
made, each Party shall identify one independent individual who shall
meet to appoint a single arbitrator. If an arbitrator still cannot be
agreed upon within an additional thirty (30) days, one shall be
appointed by the AAA or ICC as applicable. The arbitrator shall be
knowledgeable regarding the internet hosting or data services
industries.
B. Prior to a final award, the parties shall equally bear the costs and
fees of the arbitration and each party shall bear its own legal
expenses. The Parties agree that a court reporter will record the
arbitration proceedings and that the reporter's record will be the
agreed transcript of the proceedings. Prior to a final award, the
parties will share the expenses of this reporter.
C. The arbitrator shall specify the basis for his/her decision, the
basis for the damages award and a breakdown of the damages awarded, and
the basis of any other remedy authorized under Section 12. The decision
of the arbitrator shall be considered as a final and binding resolution
of the disagreement, shall not be subject to appeal and may be entered
as a judgment in any court of competent jurisdiction in the United
States in the State of California. Each Party agrees to submit to the
jurisdiction of any such court for purposes of the enforcement of any
such decision, award, order or judgment.
D. Any arbitration proceeding hereunder shall be conducted on a
confidential basis.
E. The arbitrator shall apply the substantive laws of the State of
Delaware in interpreting and resolving disputes.
F. The parties shall agree upon what, if any, discovery shall be
permitted. If the parties cannot agree on the form of discovery within
fifteen (15) days after the appointment of the Arbitrator, then there
shall be neither discovery nor the issuance of subpoenas. In no event,
however, shall any such discovery take more than three months.
G. The duty of the parties to arbitrate any dispute within the scope of
this Section shall survive the expiration or termination of this
Agreement for any reason. The parties specifically agree that any
action must be brought, if at all, within two (2) years from the
accrual of the cause of action.
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H. The discretion of the arbitrator to fashion remedies shall be
limited as stated in this Section 13 and Section 12 hereunder, and
shall exclude any right to award a remedy based on implied rights under
the Agreement.
13.3 Other Claims. Any controversy or claim which is beyond the scope
of this Section shall be submitted by any affected party to a court of competent
jurisdiction located in Santa Clara County, California, U.S.A. and the parties
agree to be bound by any judgment of such court. Otherwise, neither Party shall
sue the other where the basis of the suit is within the scope of this Section
except for enforcement of the arbitrator's decision in the event that the other
party is not performing in accordance with the arbitrator's decision.
13.4 Governing Law. Any claim arising under or relating to this
Agreement shall be governed by the internal substantive laws of the State of
Delaware and the federal courts located in Delaware, without regard to
principles of conflict of laws. Each party hereby agrees to jurisdiction and
venue in the courts of the State of California for all disputes and litigation
arising under or relating to this Agreement. Furthermore, the parties agree that
the terms of The U.N. Convention on Contracts for the International Sale of
Goods do not apply to this Agreement.
13.5 Attorneys' Fees. In the event of any dispute or arbitration
hereunder, the prevailing party shall be entitle to recover its costs and
disbursements incurred, together with reasonable attorneys' fees to be fixed by
the arbitrator or court at trial or on appeal.
14. Miscellaneous.
14.1 Notice. Unless otherwise stated herein, written notices shall be
delivered by hand, post, fax, or email (with contemporaneous delivery by one of
the foregoing means) to the persons and at the addresses as set forth below and
shall be deemed given upon transmission in the case of fax or email or otherwise
upon delivery. Either party may change its address for receipt of notice to the
other party by delivering written notice of such change pursuant to this
Section.
If to Intel: If to Customer:
Intel Online Services, Inc. Quokka Sports, Inc.
2200 Mission College Blvd. 525 Brannan Street, Ground Floor
Santa Clara, California 95052 San Francisco, CA 94107
14.2 Invalidity. The invalidity or unenforceablity for any reason of
any provision of this Agreement shall not prejudice or affect the validity or
enforceability of its other provisions.
14.3 Assignment. Neither party may assign any of its rights,
obligations, or privileges (by operation of law or otherwise) hereunder without
the prior written consent of the other, except that Intel may assign its rights
and obligations under this Agreement to one or more of its majority-owned
subsidiaries, and Customer may assign its rights and obligations to any entity
that acquires all or substantially all of its assets or a controlling interest
of Customer's outstanding equity (subject to Intel's prior written consent,
which will not be unreasonably withheld).
14.4 Headings. The headings to the Agreement provisions are for
reference only and shall not affect their interpretation.
14.5 Independent Contractor. The parties hereto are independent
contractors. Nothing in this Agreement will be construed to make the parties
partners or joint venturers or to make either party liable for the obligations,
acts or activities of the other.
14.6 No Third-Party Beneficiaries. The provisions of this Agreement are
intended solely for
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the benefit of Customer and Intel and its suppliers and shall create no rights
or obligations enforceable by any other party unless such beneficiaries are
expressly set forth in a Schedule hereto.
14.7 Entire Agreement; Amendment. This Agreement, including each
Schedule, constitutes the entire agreement between the parties with respect to
matters contained herein, and all prior or contemporaneous agreements and
negotiations with respect to those matters are superseded by this Agreement. No
waiver of any breach or default shall constitute a waiver of any subsequent
breach or default. Any changes to this Agreement, or any additional or different
terms in Customer's purchase orders, acknowledgments or other documents, will
not be effective unless expressly agreed to in writing by the party against whom
enforcement is sought.
Please sign and date below to indicate your understanding and acceptance of the
terms of this Agreement.
CUSTOMER: INTEL CORPORATION:
By: By:
Print Name: Print Name:
Title: Title:
Date: Date:
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