Preview of our top selling Strategic Alliance Agreement
Apple / Akamai - Strategic Alliance and Master Services Agreement
br/> Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
STRATEGIC ALLIANCE AND MASTER SERVICES AGREEMENT
BY AND BETWEEN
AKAMAI TECHNOLOGIES, INC.
201 BROADWAY
CAMBRIDGE, MASSACHUSETTS, U.S.A. 02139
PHONE: 617-250-3000
FAX: 617-250-3001
("AKAMAI")
APPLE COMPUTER, INC.
1 INFINITE LOOP
CUPERTINO, CALIFORNIA, U.S.A. 95014
PHONE: (408) 996-1010
FAX: (408) 974-8530
("APPLE")
APPLE CONTACT AKAMAI CONTACT
Name: [**] Name: Paul Sagan
Title: [**] Title: President and
Chief Operating Officer
Phone: [**] Phone: (617) 250-3006
Fax: Fax: (617) 250-3001
Email: [**] Email: paul@akamai.com
APPLE CONTACT FOR NOTICES AKAMAI CONTACT FOR NOTICES
Name: Nancy Heinen, Esq. Name: Controller,
Title: General Counsel Akamai Technologies, Inc.
Address: 1 Infinite Loop, Cupertino, Address: 201 Broadway, Cambridge,
California, U.S.A. 95014 Massachusetts, U.S.A. 02139
Phone: (408) 974-5013 Phone: (617) 250-3000
Fax: (408) 974-8530 Fax: (617) 250-3001
Akamai/Apple Proprietary and Confidential STRATEGIC ALLIANCE AND MASTER SERVICES AGREEMENT
This STRATEGIC ALLIANCE AND MASTER SERVICES AGREEMENT, consisting of the terms and conditions set forth below and the attached schedules, each of which is incorporated into and made a part hereof by this reference (the "Agreement"), is entered into by and between AKAMAI TECHNOLOGIES, INC., a Delaware corporation ("Akamai"), having its principal place of business as set forth on the cover page of this Agreement, and APPLE COMPUTER, INC., a California corporation ("Apple"), having its principal place of business as set forth on the cover page of this Agreement, effective as of April 1, 1999 (the "Effective Date").
Akamai has developed proprietary technology to efficiently deliver content over the Internet, and is in the business of providing services including the distribution of such content. To support such services, Akamai has deployed a worldwide network dedicated to web content distribution.
Apple owns and distributes QuickTime technology, which includes software and a format that facilitates the distribution of audio, video, sound, music, 3D, virtual reality and other multimedia content, including streaming media, over the Internet and other computer networks (today known as QuickTime 4 and with any later versions or releases, "QuickTime"). Part of Apple's QuickTime technology consists of software for playback of content in the QuickTime format (currently and with any later versions or releases, "QuickTime Player"). Apple is in the process of developing and deploying a service currently offered under the name "QuickTime TV" intended principally for transmitting over the Internet through computer networks owned or operated by or for Apple live streams of multimedia content in QuickTime format (today and as may be later renamed "QT-TV").
Akamai and Apple desire to enter into this Agreement whereby Apple and Akamai will work together to optimize the Akamai Network (as defined below) to make publicly available streaming media content in the QuickTime format over QT-TV and otherwise as provided in this Agreement to ensure that the optimal server will be chosen to deliver the best performance to customers/users of QT-TV and Apple Content. Akamai will provide to Apple certain web content distribution and network communications services to facilitate the deployment of QT-TV and the serving of streaming media content in the QuickTime format, all on the terms and subject to the conditions set forth below.
Akamai/Apple Proprietary and Confidential
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Akamai and Apple agree as follows:
1. AKAMAI SERVICES AND OBLIGATIONS.
1.1 FREEFLOW SERVICES. Pursuant to the terms and subject to the conditions of this Agreement, Akamai shall provide to Apple during the Term (as defined in Section 10.1), the services ordered by Apple as set forth on the attached SCHEDULE A: FREEFLOW(sm) ORDER FORM, in accordance with the description thereof in the attached SCHEDULE B, FREEFLOW SERVICE SCHEDULE (the "FreeFlow Services") for use in connection with deployment of QT-TV and in support of the distribution of other Apple Content (as defined in Section 2.1) over the Internet.
1.2 EXCLUSIVITY.
1.2.1 TERM. During the period commencing on the later of (a)[**]; or (b)[**];
and ending on [**], unless earlier terminated in accordance with this
Agreement (the "Exclusivity Period"), [**] shall not [**] to the [**]
for use by [**] as QT-TV ("QT-TV Content"), where [**] provided by [**]
but such restriction shall not apply to the [**] (whether [**] or not)
for the [**] where [**] is by a [**].
1.2.2 CONDITIONS. The Exclusivity Period will continue [**]
(i) Akamai is in default of any of its obligations under the Agreement, and
such default has not been cured within the cure period set forth in
Section 10.2 hereof.
(ii) Any event allowing termination by Apple under Section 10 occurs.
(iii) A notice of intent to cease offering the FreeFlow Services has been
given by Akamai under Section 10.4.
(iv) Akamai undergoes a Change of Control. For purposes of this Agreement, a
"Change of Control" means any transaction (or series of related
transactions) that would occasion: (a) Akamai's sale or lease of all or
substantially all of its assets to another unaffiliated entity; or (b)
any merger or consolidation resulting in the exchange of the
outstanding shares of Akamai for securities or consideration issued, or
caused to be issued, by the acquiring corporation or its subsidiary,
unless the stockholders of Akamai as of the date prior to the closing
date of such transaction (or series of related transactions) hold at
least 50% of the voting power
Akamai/Apple Proprietary and Confidential
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of the surviving corporation in such a transaction.
(v) Akamai does not meet service levels (as described in Section 1.3 and
SCHEDULE C) whereby Outages are [**] in duration for [**]
If an event described in Section 1.2.2 occurs, the provisions
of this Section 1.2 will immediately cease in effect and Apple
may [**]
1.2.3 TERMINATION OF EXCLUSIVITY. Upon a Change of Control to [**], or any
successor in interest to the assets or business of [**] as applicable,
[**] with the termination of exclusivity. Upon a Change of Control [**]
exclusivity under Section 1.2 shall terminate [**] if assignment of
this Agreement to such entity is approved by Apple under Section 14.3.
1.2.4 SCALABILITY: If at any time [**] the FreeFlow Services used or
requested by Apple in accordance with Section 1.3, 1.4, 1.5 or 1.6
hereof [**] Apple may [**] of this Section 1.2 for the [**] under
Section 7.3. Once Akamai is able to [**] the required FreeFlow
Services, then the [**] period set forth in Section 1.2.1. These rights
are available to Apple in addition to and independent of the right to
terminate exclusivity as set forth in Section 1.2.2. In the event of
[**] the necessary FreeFlow Services [**] Apple shall have the [**] of
the event [**]. The [**] to accommodate the [**] under Section 7.3. If
at any time Akamai [**] any portion of the FreeFlow Services requested
by Apple in accordance with the performance criteria described in
Section 1.6, Apple may [**] that Akamai does [**] without any penalty
or breach of this Section 1.2.
1.3 NETWORK AVAILABILITY AND OPERATIONS. Akamai shall provide, maintain and operate, at its own cost, on a twenty-four hours per day, seven days per week, 365 days per year basis, a geographically distributed network of proprietary web servers (the "Akamai Network"), all network software and peripherals, and all Internet connectivity in support of QT-TV and Apple Content (as defined below), as required to provide the FreeFlow Services in accordance with this Agreement. Outages, service interruptions, uptime and other performance metrics will be governed by the service level commitments and credits terms in Schedule C: Service Level Commitments and Credits. Akamai shall staff its Network Operating Center ("NOC") twenty-four hours per day, seven days per week, 365 days per year with at least that number of appropriately trained employees sufficient to adequately perform its services under this Agreement.
Akamai/Apple Proprietary and Confidential
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
1.4 ACCESS TO AKAMAI NETWORK; UPDATES; INSTALLATION AND TRAINING. On or before the Effective Date, Akamai shall deliver to Apple one copy of the Akamai Software (as defined in Section 4.1), and the related Documentation (as defined in Section 4.1) together with all user IDs and passwords as necessary for Apple to access the Akamai Network and utilize the FreeFlow Services. In addition, Akamai shall provide to Apple during the Term [**], maintenance for the Akamai Software and deliver to Apply one copy of any update, new version, upgrade or other revision of the Akamai Software (along with related Documentation) that Akamai makes available to customers during the Term. Akamai shall, [**], (a) install the Akamai Software on a machine designated by Apple, and (b) provide qualified Apple personnel a reasonable amount of training in the use of the Akamai Software and the FreeFlow Services.
1.5 NETWORK SECURITY. Akamai shall keep in place and in operation at all times network security as specified in SCHEDULE D: NETWORK SECURITY PROTOCOLS to monitor and protect against unauthorized access to Apple Content (as defined in Section 2.1) while on, within or passing through the Akamai Network. Apple acknowledges, however, that the portion of the Akamai Network through which Apple Content will pass and the web servers on which Apple Content will be stored will not be segregated or in a separate physical location from web servers on which Akamai's other customers' content is or will be transmitted or stored. Akamai will notify Apple immediately in the event of any breach of network security that affects or may affect Apple Content and describe the steps Akamai is taking to correct and prevent a similar situation from occurring again.
1.6 NETWORK CAPACITY. Akamai shall maintain at all times during the Term adequate capacity on the Akamai Network as necessary to meet Apple's minimum estimated network usage as described in Section 7.3, as well as the anticipated network usage by other Akamai customers. Akamai shall use reasonable efforts to deploy Akamai servers on network backbones [**] (such as, and by way of illustration only,[**]), subject to Apple making reasonable efforts to assist Akamai to obtain access to such backbones on commercially reasonable terms and conditions. Subject to Apple's performance of its obligations under Section 2 below, Akamai shall, at the time of the [**] by Apple (on or about [**]), cause the Akamai Network to have the capacity to serve [**] users at an average rate of [**]second on a continuous basis, and within [**] date (anticipated to be on or about [**]), cause the Akamai Network to have the capacity to support [**] users at an average rate of [**] second on [**] basis. The Akamai Network will remain geographically distributed, and Akamai shall provide to Apple [**] of the Akamai Network [**] shall be [**] Akamai shall also promptly notify Apple in the event of [**] Without limiting the above, to support Apple's worldwide customers, on or before [**] Akamai will locate Akamai Network [**].
Akamai/Apple Proprietary and Confidential
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
1.7 ADDITIONAL SERVICES. Akamai shall provide Apple with such installation, support, training or other additional services relating to distributing media content over the Internet as may be requested by Apple from time to time during the Term and set forth in a separate schedule or addendum agreed to and executed by both parties.
2. APPLE RESPONSIBILITIES AND OBLIGATIONS.
2.1 APPLE CONTENT. As between the parties, Apple will be solely responsible for the creation, renewal, updating, deletion, editorial content, control and all other aspects of any files, software, scripts, multimedia images, graphics, audio, video, text, or other [**] any web site owned or operated by Apple and routed to, passed through and/or stored on or within the Akamai Network or otherwise transmitted or routed using the Free Flow Services ("Apple Content") provided that Apple shall not be responsible for or have any obligation [**] for [**] Apple Content that result from [**] such content [**].
2.2 TAGGING OF APPLE CONTENT. Apple will be responsible for utilizing the RENAME(sm) module of the Akamai Software to tag/rename the uniform resource locator ("URL") of the Apple Content to route such Apple Content to the Akamai Network. In the event Apple has actual knowledge that any Apple Content infringes the intellectual property or other rights of a third party or violates any applicable laws or regulations (including, without limitation, laws and regulations relating to indecency or obscenity), Apple shall use commercially reasonable efforts to remove such Apple Content from Apple's origin server and/or remove the RENAME(sm) URL/tag from such Apple Content so that it will not be routed to and not pass through the Akamai Network.
2.3 MAINTAIN QT-TV AND APPLE CONTENT. As between the parties, Apple will be solely responsible for maintaining the availability of QT-TV, any web site(s) that serve Apple Content, the connectivity of QT-TV and such web site(s) to the Internet, the hosting of all Apple Content on Apple's computer servers, as well as all IP addresses, domain names and other elements that Apple deems necessary to operate and maintain QT-TV and to serve Apple Content.
3. ADDITIONAL AGREEMENTS OF THE PARTIES.
3.1 [**] QT-TV. [**] Akamai agrees to provide a reasonable amount of [**] assistance to Apple to assist in Apple's [**] performance of QT-TV and to enable Apple to develop [**] source suppliers and providers to QT-TV.
Akamai/Apple Proprietary and Confidential
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
3.2 ENHANCEMENTS TO AKAMAI NETWORK'S ABILITY TO SERVE QUICKTIME. The parties agree to cooperate to monitor and enhance the performance of QuickTime on the Akamai Network as follows:
3.2.1 Akamai shall provide to Apple, subject to the restrictions and
limitations set forth herein and in Section 4 below, [**], certain [**]
which will provide [**] information helpful to [**] the Akamai
Network's ability to [**]. Apple agrees to evaluate the [**] after
delivery of [**] and related documentation for possible inclusion of
the [**], in order to determine whether [**] (i) provides meaningful
[**] information relative to the ability of the Akamai Network to [**],
and (ii) does not [**]. In the event Apple [**] it will notify Akamai
of its reasons [**] and provide Akamai an opportunity to [**] by Apple
in the [**]. In the event Apple elects [**] Akamai hereby grants to
Apple the perpetual, irrevocable royalty-free, non-exclusive license to
[**] to prepare [**] and to distribute, [**] created by Apple under
this Section 3.2.1, [**]. Apple will notify Akamai of, and provide
Akamai an opportunity to [**]. All Akamai [**] disclosed to Apple shall
be considered "Confidential Information" as defined in Section 9 below.
3.2.2 Apple hereby grants to Akamai, [**] subject to the terms and conditions
of this Agreement, [**], in accordance with the terms of [**], unless
otherwise specified in this Agreement; and (b) such [**] deems
necessary [**] each solely for the purpose of enhancing and optimizing
the Akamai Network's ability to serve QT-TV and Apple Content. All [**]
disclosed to Akamai by Apple shall be considered "Confidential
Information" of Apple as defined in Section 9 below, and without
limiting Section 9, Akamai shall not, for itself or any affiliate of
Akamai or any third party, (i) disclose the [**] to any third party,
(ii) alter or duplicate any aspect of the [**], except as expressly
permitted under this Agreement or remove any proprietary markings or
notices thereon or therein, (iii) assign, transfer, distribute, or
otherwise provide access to the [**] to any third party, or (iv) copy,
sell, license, assign or transfer the [**]. In the event Akamai
undergoes a Change of Control (as defined in Section 1.2.2(v)), Akamai
shall immediately [**] or at Apple's option [**].
3.3 [**]. Each party shall use commercially reasonable efforts and provide sufficient resources, at its own expense, to [**] specified by Akamai within the Akamai Network (the results thereof, the "[**]"). Each party agrees to require that all employees and independent contractors participating in this endeavor sign or otherwise have in effect such confidentiality and ownership/invention assignment agreements as may be reasonably required by either party. Such [**] will be deemed complete only when the parties have had an opportunity to [**] and have reasonably determined that the [**].
Akamai/Apple Proprietary and Confidential
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
3.4 [**]; OTHER APPLICATIONS. It is understood and acknowledged that QT-TV - currently [**]. The parties shall, as may be mutually agreed from time to time, explore the possibility of [**] development at a later date. Any such development will be pursuant to a separate written agreement.
3.5 USAGE FORECASTS. The parties agree to discuss on a periodic basis (no less often than quarterly) the forecast of the advisable Akamai Network capacity and anticipated overall usage of Akamai resources by Apple.
3.6 [**] QT-TV. The following provisions will apply [**] as contemplated under Section 3.3 above.
3.6.1 In the event that, during the Term: (x) Apple [**] that has outstanding
capital stock or its equivalent ("Capital Stock") (including any
securities convertible into or exchangeable for capital stock or its
equivalent) held by any person or entity (a "Third Party")[**] (ii) a
person or entity that [**] prior to such transaction or (iii) an [**]
or, prior to [**] such Entity,[**] for consideration to any Third Party
any shares of Capital Stock of such Entity (each, a "[**]"); or (y) any
Entity to which [**] subsequently issues for consideration Capital
Stock (including any securities convertible into or exchangeable for
capital stock or its equivalent, "New Securities") (a [**]), provided
there is no outstanding [**] hereunder at the time [**] to engage in a
Qualifying Transfer or Qualifying Issuance, [**] shall have, in
connection with the first such Qualifying Transfer or Qualifying
Issuance, the [**] [**] (the [**] the outstanding Capital Stock, on a
fully diluted basis assuming full exercise of all outstanding
securities which are convertible into or exchangeable for Capital Stock
(including any New Securities issued in connection with such Qualifying
Issuance), of such Entity,[**] Capital Stock equal to the [**] Capital
Stock [**] in such Qualifying Transfer or Qualifying Issuance;
provided, that the Prior Right shall not apply to (1) any [**] Capital
Stock of the Entity by the Entity, [**] or any other person controlling
the Entity or (2) any transaction in which [**] in the Entity or any
other person controlling the Entity. The Prior Right shall not apply
to, and this Section 3.6 grants [**] to participate [**] that do not
constitute a [**] computer networks owned or operated by or for [**].
3.6.2 [**] shall (or shall cause the Entity to) [**] the terms or the
proposed terms of the Qualifying Transfer or Qualifying Issuance, which
notice shall set forth, in reasonable detail, the terms or proposed
terms of such Qualifying Transfer or Qualifying Issuance, the [**] for
which the [**] such Prior Right as to all the shares of Capital Stock
available [**] such Prior Right pursuant to the [**] (or the Entity,
Akamai/Apple Proprietary and Confidential
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
if the [**] was issued by the Entity) [**] after receipt of the [**]
Prior Right. If [**] Prior Right or fails to provide notice within such
[**] and the Entity shall have up to [**] from the date of the [**] to
complete the Qualifying Transfer or Qualifying Issuance upon the same
terms specified in the [**] whereupon [**]. If [**] the Entity [**] of
the Qualifying Transfer or Qualifying Issuance in any material respect,
[**] the Entity shall [**] of the revised terms of such proposed
transaction by delivery of [**] pursuant to the procedure set forth
above. In the event that [**] or the Entity and are [**] will provide a
[**] therefor and provide [**] for the [**] of the [**] other than
[**].
3.6.3 The obligations of this Section 3.6 [**] in the event (i) the [**] or
(ii)[**]. [**] under this Section 3.6 [**] any termination of this
3.7 FREEDOM OF ACTION. Except for the right to audit described in Section 7.5 below and any rights Apple (directly or through its subsidiary Apple Computer Inc. Ltd.) may have under the Stock Purchase Agreement and related agreements executed concurrent herewith or as a consequence of its acquisition of any securities of Akamai, Apple shall have no right to have access to any of Akamai's proprietary business information except as otherwise contemplated by this Agreement, or to share in any revenues from any of Akamai's agreements, arrangements or relationships, and Akamai shall be free to support and provide services to any and all competitors to Apple, QuickTime and QT-TV, and to support third parties in the distribution of streaming media in QuickTime and all other formats, and to retain any and all revenues and relationships resulting therefrom.
4. AKAMAI SOFTWARE; RESTRICTIONS.
4.1 LICENSE OF AKAMAI SOFTWARE. Akamai grants [**] to Apple a limited, worldwide, nontransferable and nonexclusive license to use, during, the Term,[**], the GeoFlow(sm) software and the RENAME(sm) software as more fully described in SCHEDULE E: AKAMAI SOFTWARE (collectively, and together with any updates, new versions, upgrades or other revisions thereof made available by Akamai during the Term and all related documentation, the "Akamai Software"), in object code form only (except as provided in Section 3.2.1 as to the [**], subject to the restrictions set forth below.
4.2 LICENSE RESTRICTIONS. Apple's use of the Akamai Software is limited as
follows:
4.2.1 Apple shall use the RENAME(sm) software solely for the purpose of
renaming the URL of Apple Content;
Akamai/Apple Proprietary and Confidential
Confidential Materials omitted and filed separately with the
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4.2.2 Apple shall use the GeoFlow(sm) software for Apple's internal purposes
only, solely in conjunction with and for the purpose of (i) analyzing
the flow of Apple Content that is delivered using the FreeFlow
Services, and (ii)[**] as described in Section 3.1.
4.2.3 Apple acknowledges that Akamai has advised it that the GeoFlow(sm)
software contains certain third party software elements, including
without limitation software relating to the GeoFlow(sm) mapping
functions, and Apple agrees with respect to such elements that are
specifically identified in SCHEDULE F, Apple shall be prohibited from
replicating or distributing such mapping images or otherwise using the
same other than for Apple's internal business purposes.
4.2.4 Apple shall not, for itself, any affiliate of Apple or any third party:
sell, license, assign, or transfer the Akamai Software or any
Documentation; decompile, disassemble, or reverse engineer the Akamai
Software; copy the Akamai Software or any Documentation (except that
Apple may make a reasonable number of copies of the Akamai Software for
backup purposes only); or remove from the Akamai Software or any
Documentation any notice of the confidential nature thereof or the
proprietary rights of Akamai or its suppliers in such items.
4.3 ADDITIONAL APPLE RESTRICTIONS. Apple shall not: (a) provide access to the Akamai Software to any third party; or (b) export, re-export or permit any third party to export or re-export the Akamai Software or Documentation outside of the territorial limits of the country in which it was originally delivered without appropriate licenses and clearances.
4.4 ESCROW. Within [**] after the Effective Date, the parties shall enter into a [**] reasonably acceptable to both parties, pursuant to which [**] that are [**]. Akamai shall [**] to the [**] that it is required to [**] under this Agreement, [**]. In the event of a [**], Akamai agrees to grant, and does hereby grant to Apple, the [**] the [**] for the [**] thereof and to [**] and to [**] only, for the limited purpose of [**] in a manner consistent with the manner in which [**] under this Agreement and any [**]; provided that [**] such rights only in the event of [**] pursuant to such [**] agreement. [**] agreement will provide that the [**] upon the occurrence of any one or more of the following events:
a. [**] business in the ordinary course, makes an [**] appointed
[**] or makes a [**] similar law; and
b. [**] its right to [**] under Section 7.4.2.
Akamai/Apple Proprietary and Confidential
Confidential Materials omitted and filed separately with the
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5. INTELLECTUAL PROPERTY RIGHTS.
5.1 QUICKTIME TECHNOLOGY AND APPLE CONTENT; LIMITED LICENSE TO USE. As between Apple and Akamai, Apple (or its suppliers or licensors) shall retain all right, title and interest in and to QT-TV, QuickTime, [**], and any and all enhancements, improvements, bug fixes, updates and upgrades thereto developed by or as a result of this Agreement (hereinafter collectively referred to as the "QuickTime Technology") and any Apple Content. Apple hereby grants to Akamai a limited non-exclusive, non-transferable license during the Term to use the QuickTime Technology and Apple Content solely as necessary to perform Akamai's obligations hereunder. Akamai may not assign, transfer, sell, license, sublicense or grant any of its rights to the QuickTime Technology or any Apple Content to any other person or entity. Akamai acknowledges that the QuickTime Technology and Apple Content constitutes proprietary information and/or trade secrets of Apple or its providers that is or may be protected by U.S. copyright, trade secret and similar laws and certain international treaty provisions. This Agreement does not transfer or convey to Akamai or any third party any right, title or interest in or to the QuickTime Technology or any Apple Content or any associated intellectual property rights, except as specifically set forth in the terms of this Agreement.
5.2 AKAMAI SOFTWARE, DOCUMENTATION AND FREEFLOW SERVICES. As between Apple and Akamai, Akamai (or its suppliers or licensors) shall own all right, title and interest in and to the Akamai Software and Documentation (and any and all enhancements, improvements, bug fixes, updates and upgrades thereto), the FreeFlow Services, and the Akamai Network. Apple acknowledges that the Akamai Software, Documentation, FreeFlow Services, and Akamai Network constitute proprietary information and trade secrets of Akamai or its suppliers or licensors and that the Akamai Software and any and all enhancements, improvements, bug fixes, updates and upgrades thereto developed by or as a result of this Agreement, and Documentation therefor are protected by U.S. copyright, trade secret and similar laws and certain international treaty provisions. This Agreement does not transfer or convey to Apple or any third party any right, title or interest in or to the Akamai Software, Documentation, FreeFlow Services, or Akamai Network or any associated intellectual property rights, except as specifically set forth in the terms of this Agreement.
5.3 DEVELOPMENT OF INTELLECTUAL PROPERTY.
5.3.1 ASSIGNMENT. Akamai acknowledges that except as the parties may
otherwise agree by separate written agreement, all copyrightable
material, notes, records, drawings, designs, inventions, improvements,
developments, discoveries and trade secrets conceived, made or
discovered by Akamai, solely or in collaboration
Akamai/Apple Proprietary and Confidential
with others, in the course of the development activities contemplated
under Sections 3.1, 3.2.2, 3.3 or 3.4 of this Agreement that are
original works or that modify, enhance, or create derivative works of
any QuickTime Technology or Apple Content ("AKAMAI WORK PRODUCT"), are
the sole property of Apple. Akamai further shall assign (or cause to be
assigned) and does hereby assign fully to Apple all Akamai Work Product
and any copyrights, patents, mask work rights or other intellectual
property rights relating thereto. Apple acknowledges that except as the
parties may otherwise agree by separate written agreement, all
copyrightable material, notes, records, drawings, designs, inventions,
improvements, developments, discoveries and trade secrets conceived,
made or discovered by Apple, solely or in collaboration with others, in
the course of the development activities contemplated under Sections
3.1, 3.2.1 or 3.4 of this Agreement that modify, enhance, or create
derivative works of any of the Akamai Software, Documentation, FreeFlow
Services, or Akamai Network ("APPLE WORK PRODUCT"), are the sole
property of Akamai. Apple further shall assign (or cause to be
assigned) and does hereby assign fully to Akamai all Apple Work Product
and any copyrights, patents, mask work rights or other intellectual
property rights relating thereto. Akamai Work Product and Apple Work
Product is sometimes referred to hereinafter collectively as "Work
Product".
5.3.2 FURTHER ASSURANCES. Each of Akamai and Apple shall assist the other
party, or its designee, at such other party's expense, in every proper
way to secure Apple's or Akamai's rights, as the case may be in the
Akamai Work Product or the Apple Work Product, respectively, and any
copyrights, patents, mask work rights or other intellectual property
rights relating thereto in any and all countries, including the
disclosure to Apple or Akamai, as the case may be, of all pertinent
information and data with respect thereto, the execution of all
applications, specifications, oaths, assignments and all other
instruments that Apple or Akamai, as the case may be, deems necessary
in order to apply for and obtain such rights and in order to record or
perfect Apple's or Akamai's interest therein.
5.3.3 PRE-EXISTING MATERIALS. Each party agrees that if in the course of
performing, any development activities hereunder, it incorporates into
any Work Product any invention, improvement, development, concept,
discovery or other proprietary information owned by any third party,
(i) it shall inform the other party, in writing, before incorporating
such invention, improvement, development, concept, discovery or other
proprietary information into any Work Product; and (ii) it hereby
grants the other party a nonexclusive, royalty-free, perpetual,
irrevocable, worldwide license to use, reproduce, distribute, perform,
display, prepare derivative works of, make, have made, sell and export
such item as part of or in connection with such Work Product.
Akamai/Apple Proprietary and Confidential
6. PUBLICITY; TRADEMARKS.
6.1 PUBLICITY. During the Term, Akamai may: (a) identify Apple as a customer; (b) hyperlink from Akamai's web site to Apple's home page; and (c) display the QuickTime logo on the Akamai web site in accordance with Apple's guidelines for the use of such mark. On or about the Effective Date, the parties shall issue one or more mutually acceptable joint press releases announcing this Agreement. The content of the press release shall be subject to the approval of each party in its sole discretion, provided that neither party will unreasonably delay its review. The parties may from time to time during the Term identify mutually agreeable marketing opportunities within QT-TV. During the Term, Apple shall place the Akamai logo and a hyperlink to the Akamai home page on the QuickTime and QT-TV home pages.
6.2 MARKS; USAGE RESTRICTIONS.
6.2.1 In addition to the rights granted in Section 6.1, each party may
display or refer to the other party's proprietary indicia, trademarks,
service marks, trade names, logos, symbols and/or brand names
(collectively "Marks") upon the advance written approval of that party.
Neither party may remove, destroy or alter the other party's Marks. All
use of a party's Marks shall be subject to such party's logo and
trademark usage guide, as provided to the other party or made available
on a party's website, and as the same may be updated from time to time.
6.2.2 Each party agrees that it shall not challenge or assist others to
challenge the rights of the other party or its suppliers or licensors
in the Marks or the registration of the Marks, or attempt to register
any trademarks, trade names or other proprietary indicia confusingly
similar to the Marks.
6.2.3 All Marks (other than Akamai Marks) appearing on or incorporated in the
QuickTime Technology or Apple Content are and shall remain, as between
Akamai and Apple, the exclusive property of Apple or its providers. All
Marks (other than Apple Marks) appearing on or incorporated in the
Akamai Software, Documentation or FreeFlow Services are and shall
remain, as between Akamai and Apple, the exclusive property of Akamai
or its suppliers. Neither party grants any rights in the Marks or in
any other trademark, trade name, service mark, business name or
goodwill of the other except as expressly permitted hereunder or by
separate written agreement of the parties and all use of a party's
Marks shall inure to the benefit of the owner of such Mark.
Akamai/Apple Proprietary and Confidential
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
...
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