Preview of our top selling Software Development Agreement
Cisco / Akamai - Strategic Alliance & Joint Development Agreement
br/> Confidential Materials omitted and filed separately
with the Securities and Exchange Commission. Asterisk
denote omission.
STRATEGIC ALLIANCE AND JOINT DEVELOPMENT AGREEMENT
This STRATEGIC ALLIANCE AND JOINT DEVELOPMENT AGREEMENT (the "Agreement") is made and entered into as of this 6th day of August, 1999, (the "Effective Date") by and between CISCO SYSTEMS, INC., a California corporation, with offices at 170 W. Tasman Drive, San Jose, California 95134 ("Cisco"), and AKAMAI TECHNOLOGIES, INC., a Delaware corporation, with offices at 201 Broadway, Cambridge, MA 02139 ("Akamai").
RECITALS:
A. Cisco is in the business of developing, manufacturing and selling routers, switches and other hardware and software products for use in computer and communications networks ("Cisco Products"), including but not limited to certain products for the caching and secure transmission of data and certain protocols for the exchange of information.
B. Akamai has developed proprietary technology to efficiently deliver content over the Internet and is in the business of providing content distribution services ("Akamai Services"). To support its Akamai Services, Akamai has, among other things, deployed a worldwide network dedicated to web content delivery.
C. The parties wish to enter into a strategic development, integration and joint marketing arrangement, and wherever practicable, Akamai is [**] and to undertake such other obligations as are set forth herein, on the terms and conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties agree as follows:
1. DEFINITIONS.
Capitalized terms used in this Agreement are defined throughout the Agreement. Terms not defined therein shall be given their plain English meaning; provided, however, that those terms, acronyms and phrases known in the computer software industry which are not defined shall be interpreted in accordance with their generally accepted industry meaning.
2. INTENT AND PURPOSE OF ALLIANCE; PROJECT PLANS.
2.1 INTENT AND PURPOSE. This Agreement contemplates certain joint development activities between Cisco and Akamai that are intended to facilitate and promote faster and more efficient Internet content delivery by, among other things, developing protocol specifications and algorithms enabling Cisco's router and switch hardware and equipment technologies and capabilities to interoperate with Akamai's Internet content delivery technologies, services and capabilities. Pursuant to the foregoing, it is the current intent of the parties to undertake the development and integration projects specified in Section 3 below (the "Projects").
2.2 PROJECT PLANS. Notwithstanding the provisions of Section 2.1 above, the parties understand that the technical and commercial feasibility of the Projects has not been established. Accordingly, while it is the present intent of the parties to undertake the Projects, either party may at its sole discretion decline to agree to undertake any or all of the Projects without obligation or penalty. It is further understood and agreed that each Project undertaken pursuant to this Agreement will be subject to the execution and delivery by the Parties of a separate Project plan for each Project undertaken (each, a "Project Plan"). When executed, each Project Plan will be attached to and incorporated by reference into this Agreement, and the terms and conditions of the Project Plan shall control to the extent inconsistent with the terms contained herein. The Parties agree that each Project Plan will set forth, among other things as the parties shall deem appropriate, the following:
- a detailed description of the Project;
- any design documents or specifications (unless the Project
contemplates creation or development of the same);
- Project deliverables, if any, that either or both Parties will
be responsible for creating and developing;
- tasks, responsibilities, covenants and agreements of each
Party relating to the Project;
- deadlines, interim milestones, and other matters relating to
timing and delivery or performance under the Project;
- Intellectual Property rights or licenses to the extent
different from the terms of this Agreement;
- exclusivity rights or other restrictions on use with or
marketing of competing technologies, if any;
- termination rights of the Parties relating to the Project;
- obligations of the Parties to manufacture, market or sell
implementations of the Project; and
- any other terms or conditions that vary from the terms and
conditions set forth in this Agreement.
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisk denote omission.
3. THE PROJECTS.
3.1 [**] PROJECT. Akamai and Cisco will jointly develop a [**] protocol ("[**] ") which will enable content delivery software (which shall include but may not be limited to Akamai's proprietary FreeFlow software (the "FreeFlow Software")) [**] products (the "[**]", which shall include but may not be limited to Cisco's [**] products), and for the [**] to participate in [**] Akamai's content delivery service, as follows:
(a) Akamai has delivered to Cisco an initial draft of a [**]
document ("[**] Document"). Engineering teams from both parties agree
to work jointly and negotiate in good faith to agree upon a final [**]
Document and a [**] Project Plan ("[**] Project Plan").
(b) The parties will establish by mutual agreement target
dates for the development of the [**] Document and the [**] Project
(c) Akamai shall designate [**] as its Project Manager (as
defined below) for the [**] project, and Cisco shall designate [**] as
its Project Manager. Either Party may change its Project Manager and
appoint a substitute Project Manager for this Project.
(d) Subject to the ownership rights set forth in Section 8,
the Parties agree that all aspects of [**] jointly developed by the
Parties (the "Jointly Developed [**] Property") shall be [**]. Subject
to the provisions of Section 3.1(e) below, with respect to any Cisco
Property expressly incorporated into [**] as finally approved by both
Parties under this Agreement, [**] solely as incorporated into [**] and
any implementations thereof. Subject to the provisions of Section
3.1(e) below, with respect to any Akamai Property and any Jointly
Developed [**] Property expressly incorporated into [**] as finally
approved by both Parties under this Agreement, [**] solely as
incorporated into [**] and any implementations thereof. The parties
further agree that Confidential Information excludes [**] as finally
approved by both Parties.
(e) The parties agree that nothing contemplated in this
Section 3.1 shall prohibit: (i) [**] or other product or service of
Cisco [**] , provided that Cisco does not disclose to such third party
or use any Akamai Property or Akamai Confidential Information in
interfacing with such third party products); and (ii) [**] or other
product or service of Akamai [**], provided that Akamai does not
disclose to such third party or use any Cisco Property or Cisco
Confidential Information in interfacing with such third party
products).
(f) In addition to the foregoing, [**], during the term of
this Agreement and for a period of [**] following its termination,
[**], provided however that, subject to the other restrictions and
limitations provided herein, nothing in this Section 3.1(f) shall [**],
and provided further that the [**] in this Section 3.1(f) shall
terminate immediately upon any termination of this Agreement by Akamai.
[**], during the term of this Agreement
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisk denote omission.
and for a period of [**] following its termination, [**], provided
however that, subject to the other restrictions and limitations
provided herein, nothing in this Section 3.1(f) shall [**], and
provided further that the [**] in this Section 3.1(f) shall terminate
[**] any termination of this Agreement by Cisco.
3.2 [**]. In consultation with [**] will develop a [**] that will enable [**] to be used by the each of the Parties to enhance the interoperation of their products or services. By way of example (but without limitation), it is anticipated that the following data may be included in such protocols, subject to such data being available and capable of being readily exposed:
- [**];
- [**];
- [**];
- [**];
- [**];
- [**];
- [**].
(a) The parties will (i) establish by mutual agreement target
dates for the development of [**], and (ii) negotiate in good faith to
agree upon, execute and deliver an 2 Project Plan.
(b) Akamai shall designate [**] as its Project Manager for the
[**] project, and Cisco shall designate [**] as its Project Manager.
Either Party may change its Project Manager and appoint a substitute
Project Manager for this Project.
(c) Unless expressly agreed to in the [**] Project Plan or
otherwise in writing between the Parties with respect to a specific
portion: (i) the [**], including any derivatives, improvements or
modifications created under this Agreement, shall be considered [**]
Property under this Agreement,[**] as delivered to [**] solely to
implement certain of [**], in providing [**], to interoperate with and
fully utilize [**].
(d) [**] may establish and promote the [**] as an [**].
Accordingly, subject to the requirements of confidentiality with
respect to [**] confidential information, [**] may at any time and at
[**] discretion [**]. [**] will notify [**] if it intends to so [**].
3.3 [**] PROJECT. Akamai and Cisco will jointly develop, name and implement one or more [**] that can be used in connection with, among other things, [**], and to [**] which will provide the data resulting from [**], as follows:
(a) The parties will (i) establish by mutual agreement target
dates for the development of the [**], and (ii) negotiate in good faith
to agree upon, execute and deliver a Project Plan relating to the
development of the [**].
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisk denote omission.
(b) Akamai shall designate [**] as its Project Manager for the
[**] project, and Cisco shall designate [**] as its Project Manager.
Either Party may change its Project Manager and appoint a substitute
Project Manager for this Project.
(c) Subject to the ownership rights set forth in Section 8,
the parties agree that all aspects of the [**] by the parties (the
"[**]") shall be [**]. With respect to the [**], if any, expressly
incorporated by the parties into the [**] as finally approved by the
Parties under this Agreement, [**] solely as incorporated in the [**]
and any implementations thereof. With respect to the [**], if any,
expressly incorporated by the Parties into the [**] as finally approved
by the Parties under this Agreement, [**] solely as incorporated in the
[**] and any implementations thereof. Subject to foregoing, the
foregoing licenses do not grant either Party rights to any [**] created
by the other party subsequent to the version finally approved by the
Parties under this Agreement. The parties further agree that
Confidential Information excludes the [**] as finally approved by both
(d) Notwithstanding the provisions of Section 8, the
ownership, license and confidentiality rights of each party with regard
to the [**] shall be set forth as in the Project Plan.
(e) Except as may be otherwise expressly provided in the
Project Plan, [**]. Accordingly, subject to the requirements of
confidentiality with respect to [**] Confidential Information, [**] at
any time and [**] to the [**]. [**] if it intends to [**].
3.4 DEVELOPMENT OF ALGORITHMS AND PROTOCOLS TO CONTROL CISCO SWITCHES IN COMBINATION WITH AKAMAI'S CONTENT DELIVERY SYSTEM. Akamai and Cisco shall form a working group to jointly develop, name and implement a next generation switch with the ability to dynamically adapt to changing network conditions and distribute content according to more sophisticated algorithms than is possible with existing routing algorithms ("Switch Algorithms") and to develop protocols which will provide the data resulting from such algorithms to Cisco Products and to Akamai's software ("Switch Protocols"), as follows:
(a) The parties will (i) establish by mutual agreement target
dates for the development of the Switch Algorithms and Switch
Protocols, and (ii) negotiate in good faith to agree upon, execute and
deliver a Switch Algorithms and Switch Protocols Project Plan ("Switch
Project Plan").
(b) [**] shall designate [**] as its Project Manager for the
Switch Protocols project, and [**] shall designate as its Project
Manager. Either Party may change its Project Manager and appoint a
substitute Project Manager for this Project.
(c) Subject to the ownership rights set forth in Section 8,
the parties agree that all aspects of the Switch Protocols [**] (the
"[**] Switch Protocol Property") [**]. With
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisk denote omission.
respect to the [**], if any, expressly incorporated by the parties into
the Switch Protocols as finally approved by the Parties under this
Agreement, [**] solely as incorporated in the Switch Protocols and any
implementations thereof. With respect to the [**] and the Jointly
Developed Switch Protocol Property, [**] solely as incorporated in the
Switch Protocols and any implementations thereof. Subject to foregoing,
the foregoing licenses do not grant either Party rights to any Switch
Protocols created by the other party subsequent to the version finally
approved by the Parties under this Agreement. The parties further agree
that Confidential Information excludes the Switch Protocol as finally
approved by both Parties.
(d) Notwithstanding the provisions of Section 8, the
ownership, license and confidentiality rights of each party with
respect to any Switch Algorithms shall be set forth as in the Project
(e) Except as may be otherwise expressly provided in the
Project Plan, [**]. Accordingly, subject to the requirements of
confidentiality with respect to [**] Confidential Information, [**] may
at any time and [**] the Switch Protocols to the [**].
[**] will notify [**] if it intends to [**].
3.5 [**]. Each party agrees to use commercially reasonable efforts and explore, assess and investigate the possibility of [**]. Akamai shall designate [**] to evaluate the project contemplated in this Section 3.5, and Cisco shall assign [**]. Either Party may change its Project Manager and appoint a substitute Project Manager for this Project.
3.6 [**]. Each party agrees to use commercially reasonable efforts and explore, assess and investigate the possibility of developing modifications to the Cisco Products and Akamai Services to support and enable more efficient distribution of [**]. Akamai shall designate [**] to evaluate the Project contemplated in this Section 3.6, and Cisco shall assign [**]. Either Party may change its Project Manager and appoint a substitute Project Manager for this Project.
3.7 ADDITIONAL DEVELOPMENT AND INTEGRATION OPPORTUNITIES. During the term of this Agreement, the parties may explore and assess other possible joint development or integration opportunities consistent with the intent and purpose of this Agreement.
4. ADDITIONAL AGREEMENTS OF THE PARTIES.
4.1 STRATEGIC INVESTMENT IN AKAMAI BY CISCO. Concurrent with the execution and delivery of this Agreement, Cisco and Akamai have executed and delivered that certain Preferred Stock Purchase Agreement and all documents ancillary thereto, pursuant to which Cisco has acquired 1,867,480 shares of Akamai's Series E Preferred Stock, at an aggregate purchase price of $49,000,807.72.
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisk denote omission.
4.2 LOGO USAGE; [**]. Cisco hereby grants Akamai the right to use Cisco's logo, subject to logo usage guidelines to be provided by Cisco to Akamai. Akamai hereby grants Cisco the right to use Akamai's logo, subject to logo usage guidelines to be provided by Akamai to Cisco. During the term of this Agreement, each party also agrees that it will whenever commercially feasible [**]. Akamai will also notify Cisco from time to time [**]. Each party further agrees that it shall not, during the term of this Agreement, [**]; provided, however, that the foregoing restrictions shall not preclude a Party from (i) providing support comments or quotes to third party press releases, announcements or other marketing communications (provided the Party does not initiate the issuance of such press release, announcement or communications); and (ii) endorsing and promoting a Party's product or service solutions that rely on or work in conjunction with competing third party products or services (provided such endorsement is limited to the Party's product or service, and only mentions or refers to the competing third party's products or services as reasonably necessary to promote the Party's product or service).
4.3 PUBLICITY; PRESS RELEASES. The parties may by mutual consent agree to issue a joint press release describing the collaboration of the parties. In addition, each of Cisco and Akamai may, at such party's discretion: (a) identify the other as a strategic partner; (b) hyperlink from an appropriate area within its web site to the other's home page; and (c) display the other party's logo on the its web site (in accordance with such party's guidelines for the use of such mark). The parties shall also consult regularly during the term of the Agreement and issue, as and when appropriate, such further press releases and/or other publicity materials as may be appropriate. The contents of the any press releases issued by the parties shall be subject to the approval of each party, which approval shall not be unreasonably withheld or delayed.
4.4 USE OF NAME IN PROMOTIONAL MATERIALS. Each party shall, with prior approval of the other party (which will not be unreasonably withheld or delayed), be permitted to identify the other party as a strategic partner, to use the other party's name in connection with proposals to prospective customers, and to refer to the other party in print or electronic form for marketing or reference purposes, provided however that such proposals and marketing and reference materials [**].
4.5 MARKETING, DISTRIBUTION AND SUPPORT EFFORTS; PROMOTIONAL ACTIVITIES. To the extent agreed upon by the Parties pursuant to the applicable Project Plan or otherwise, each of Cisco and Akamai agree to undertake [**] from the efforts undertaken pursuant to this Agreement. Each party agrees to serve as a reference in the other party's proposals for a reasonable number of contacts by prospective customers of the other party and for industry analysts. Each party will undertake [**] from the efforts of the parties under this Agreement.
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisk denote omission.
Under the direction of the Project Managers or the Project Leaders identified in Section 7.1 below, the parties may by mutual agreement or plan undertake joint-marketing or co-marketing programs or activities as appropriate to further the intent of this Agreement and the alliance created hereby.
4.6 FREEDOM OF ACTION. Except as specifically provided herein or in any Project Plan, either Party may market and offer its own or third party products or services (through any means) which are the same as or similar to and which are competitive with the other party's products and services. Neither Party makes any assurances or representations to the other in connection with any financial gain or other benefit that may result from the activities contemplated in this Agreement.
5. PROJECT MANAGEMENT.
5.1 PROJECT MANAGERS; PROJECT LEADERS. Each of the parties agrees to appoint and keep in place during the term of this Agreement one or more project managers (individually, a "Project Manager") who will allocate such portion of his or her working time as may be reasonably necessary to facilitate the performance, on a timely basis and in accordance with any particular project plan, of such party's obligations under this Agreement or any particular project plan, design or development specification or other document contemplated hereby. In addition, each party will name a Project Leader who will: (i) be the central point of contact for all matters arising under this Agreement; (ii) oversee project management and the resource allocations hereunder; and (iii) have overall responsibility for the facilitation of the performance of the obligations of the parties contemplated hereby. The Project Leaders for each respective party shall be the following individuals or their respective designated successors; provided, however, that it is the intent of the parties that the Project Leaders named below shall remain assigned to the alliance for the entire term of this Agreement:
AKAMAI: [**]
CISCO: [**]
5.2 MEETINGS. The Project Leaders agree to meet at least quarterly to review the overall progress of the projects contemplated hereunder and to provide overall supervision and oversight. [**] the meetings will be held at [**] some alternative location, as the parties shall determine.
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
6. DEVELOPMENT EFFORTS; RESOURCE COMMITMENT; EXPENSES.
6.1 COST SHARING AND REIMBURSEMENT. Except as may be provided in any specific Project Plan or as may be otherwise agreed by the parties, each of Akamai and Cisco agrees that it shall be responsible for its own expenses incurred in conjunction with this Agreement and any attachments hereto, and with any undertakings and obligations contemplated hereby. Notwithstanding the foregoing, in the event development efforts are undertaken at either Cisco or Akamai, then the host party agrees to provide the necessary office space at no cost to the other party.
6.2 INDEPENDENT CONTRACTORS. Either party shall have the option to utilize contractors in order to satisfy its obligation to supply personnel resources to the projects contemplated hereunder, but only to the extent and insofar as reasonably required in connection with the performance of the obligations of the party retaining the Contractor under this Agreement, and subject to the further requirements and limitations set forth herein.
7. DISPUTE RESOLUTION PROCESS.
7.1 INITIAL CONSULTATION AND NEGOTIATION. In the event a dispute between Akamai and Cisco arises under the Agreement or a party's performance thereunder, the matter shall first be escalated to Akamai's Project Leader and Cisco's Project Leader in an attempt to settle such dispute through consultation and negotiation in good faith and a spirit of mutual cooperation.
7.2 ESCALATION. If the Project Leaders are unable to resolve the dispute, it shall be referred to a conflict resolution committee comprised of one representative designated by each party. The initial members of the conflict resolution committee shall be:
For Akamai: [**]
For Cisco: [**]
7.3 CONTINUED PERFORMANCE. Except where prevented from doing so by the matter in dispute, the parties agree to continue performing their obligations under this Agreement while any good faith dispute is being resolved unless and until such obligations are terminated by the termination or expiration of any project or this Agreement.
8. OWNERSHIP; LICENSES.
8.1 OWNERSHIP BY AKAMAI. As between Cisco and Akamai, Akamai shall own all right, title, and interest in any Intellectual Property [**] under this Agreement [**] during the term of this Agreement [**] under this Agreement, and Cisco shall have no ownership interest therein. Cisco hereby irrevocably transfers, conveys and assigns to Akamai all of its right, title, and interest therein and in any property owned or to be owned by Akamai under this Agreement. Cisco shall execute such documents, render such assistance, and take such other action as Akamai may reasonably request, at Akamai's expense, to apply for, register, perfect, confirm, and protect
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisk denote omission.
Akamai's ownership rights set forth in this Section 8.1 and in Section 3, and Akamai shall have the exclusive right to apply for or register any patents, mask work rights, copyrights, and such other proprietary protections with respect thereto.
8.2 OWNERSHIP BY CISCO. As between Cisco and Akamai, Cisco shall own all right, title, and interest in any Intellectual Property [**] under this Agreement [**] during the term of this Agreement [**] under this Agreement, and Akamai shall have no ownership interest therein. Akamai hereby irrevocably transfers, conveys and assigns to Cisco all of its right, title, and interest therein and in any property owned or to be owned by Cisco under this Agreement. Akamai shall execute such documents, render such assistance, and take such other action as Cisco may reasonably request, at Cisco's expense, to apply for, register, perfect, confirm, and protect Cisco's ownership rights set forth in this Section 8.2 and in Section 3, and Cisco shall have the exclusive right to apply for or register any patents, mask work rights, copyrights, and such other proprietary protections with respect thereto.
8.3 WAIVER OF MORAL RIGHTS. Akamai hereby waives any and all moral rights, including without limitation any right to identification of authorship or limitation on subsequent modification that Akamai (or its employees, agents or consultants) has or may have in the Cisco Property or any part thereof. Cisco hereby waives any and all moral rights, including without limitation any right to identification of authorship or limitation on subsequent modification that Cisco (or its employees, agents or consultants) has or may have in the Akamai Property or any part thereof.
8.4 PARTY AS ATTORNEY IN FACT. Akamai agrees that if Cisco is unable because of Akamai's dissolution or incapacity, or for any other reason, to secure Akamai's signature to apply for or to pursue any application for any United States or foreign patents or mask work or copyright registrations covering the inventions assigned to Cisco above, then Akamai hereby irrevocably designates and appoints Cisco and its duly authorized officers and agents as Akamai's agent and attorney in fact, to act for and in Akamai's behalf and stead to execute and file any such applications and to do all other lawfully permitted acts to further the prosecution and issuance of patents, copyright and mask work registrations thereon with the same legal force and ...
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