<PAGE>
As filed with the Securities and Exchange Commission on March 9, 2000
Registration No. 333-30708
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------
Amendment No. 2 to FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------
Evoke Incorporated
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Delaware 7375 84-1407805
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
-----------
1157 Century Drive
Louisville, CO 80027
(800) 878-7326
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
-----------
Paul A. Berberian
Chairman of the Board, Chief Executive Officer and President
Evoke Incorporated
1157 Century Drive
Louisville, CO 80027
(800) 878-7326
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies To:
<TABLE>
<S> <C>
Michael L. Platt, Esq. Julie T. Spellman, Esq.
Stephanie A. Anagnostou, Esq. Cravath, Swaine & Moore
Cooley Godward LLP Worldwide Plaza
2595 Canyon Boulevard, Suite 250 825 Eighth Avenue
Boulder, CO 80302-6737 New York, NY 10019
(303) 546-4000 (212) 474-1000
</TABLE>
-----------
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of this registration statement.
-----------
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [_]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
The Registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
Explanatory Note
The sole purpose of this filing is to include additional exhibits.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
The following table sets forth the costs and expenses, other than the
underwriting discount and commissions, payable by the registrant in connection
with the sale of the common stock being registered hereby. All amounts shown
are estimates, except the Securities and Exchange Commission registration fee,
the NASD filing fee and the Nasdaq National Market listing fee.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee............ $ 30,360
NASD filing fee................................................ 12,000
Nasdaq National Market listing application fee................. 70,000
Blue Sky fees and expenses..................................... 5,000
Printing and engraving expenses................................ 180,000
Legal fees and expenses........................................ 300,000
Accounting fees and expenses................................... 200,000
Transfer agent and registrar fees.............................. 5,000
Miscellaneous expenses......................................... 197,640
---------
Total........................................................ 1,000,000
=========
</TABLE>
Item 14. Indemnification of Directors and Officers.
Our bylaws provide that we will indemnify our directors and executive
officers and may indemify our other officers, employees and agents to the
fullest extent permitted by Delaware law. In addition, our certificate of
incorporation provides that, to the fullest extent permitted by Delaware law,
our directors and executive officers will not be liable for monetary damages
for breach of the directors' fiduciary duty to us and our stockholders. This
provision of the certificate of incorporation does not eliminate the duty of
care. In appropriate circumstances equitable remedies such as an injunction or
other forms of non-monetary relief are available under Delaware law. This
provision also does not affect a director's responsibilities under any other
laws, such as the federal securities laws.
Each director will continue to be subject to liability for:
. breach of the director's duty of loyalty to Evoke and its stockholders;
. acts or omissions not in good faith or involving intentional misconduct;
. knowing violations of law;
. any transaction from which the director derived an improper personal
benefit;
. improper transactions between the director and Evoke; and
. improper distributions to stockholders and improper loans to directors
and officers.
We intend to enter into indemnity agreements with each of its directors and
executive officers under which each director and executive officer will be
indemnified against expenses and losses incurred for claims brought against
them by reason of their being a director or executive officer of Evoke. Our
board of directors has authorized our officers to investigate and obtain
directors' and officers' liability insurance.
There is no pending litigation or proceeding involving any of our directors
or officers as to which indemnification is being sought. We are not aware of
any pending or threatened litigation that may result in claims for
indemnification by any director or officer.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended, may be permitted to our directors, officers and control
persons pursuant to the foregoing provisions, or otherwise, we have been
advised that in the opinion of the SEC, such indemnification is against public
policy as expressed in the Securities Act of 1933, and is, therefore,
unenforceable.
II-1
<PAGE>
Item 15. Recent Sales of Unregistered Securities.
Described below is information regarding all securities that have been
issued by Evoke since its inception.
(a) From November 17, 1999 to December 15, 1999, we issued an aggregate
of 33,333,333 shares of our Series D Preferred Stock to certain accredited
investors at a purchase price of $3.00 per share for cash proceeds in the
amount of $100.0 million.
(b) From May 28, 1998 to June 30, 1998, we issued an aggregate of
9,953,935 shares of our Series C Preferred Stock to certain accredited
investors at a purchase price of $1.04 per share for cash proceeds in the
amount of $9,845,243 and in exchange for an aggregate of $506,849 in
outstanding convertible promissory notes.
(c) On September 2, 1997, we issued an aggregate of 10,135 shares of our
Series B Preferred Stock to certain accredited investors at a purchase
price of $100.00 per share for cash proceeds in the amount of $1,013,500.
(d) On September 2, 1997, we issued an aggregate of 5,025,000 shares of
our Series A Preferred Stock to Messrs. Berberian, LeJeal and Vernon at
$0.10 per share in exchange for an aggregate of $525,000 in outstanding
convertible promissory notes. Mr. Berberian is our chief executive officer,
Mr. LeJeal is our chief operating officer, and Mr. Vernon is our chief
technology officer.
(e) On August 29, 1997, we issued an aggregate of 250,000 shares of our
common stock to our landlord, BMC Properties, LLC at $0.10 per share in
exchange for an aggregate of $25,000 in rental payments. Mr. Chrisman, one
of our former directors, is a managing member of BMC Properties, LLC.
(f) On April 18, 1997, we issued an aggregate of 50,000 shares of our
common stock to Messrs. Berberian and LeJeal at $0.10 per share for cash
proceeds in the amount of $5,000.
(g) As of January 31, 2000, an aggregate of 958,457 shares of common
stock had been issued upon exercise of options and stock issuance rights
under our 1997 Stock Option/Stock Issuance Plan.
The issuances of the securities described in (a), (b), (c), (d) and (e)
above were deemed to be exempt from registration under the Securities Act of
1933, as amended, in reliance on Section 4(2) of the Securities Act as
transactions by an issuer not involving any public offering. The issuances of
the securities described in (e) above were deemed to be exempt from
registration under the Securities Act in reliance on Rule 701 under the
Securities Act as transactions by an issuer in compensatory circumstances. The
recipients of the above-described securities represented their intention to
acquire the securities for investment only and not with a view for
distribution thereof. Appropriate legends were affixed to the stock
certificates issued in such transactions. All recipients had adequate access,
through employment or other relationships, to information about Evoke.
Item 16. Exhibits and Financial Statement Schedules.
(a) Exhibits.
<TABLE>
<CAPTION>
Exhibit
No. Description
------- -----------
<C> <S>
1.1* Form of Underwriting Agreement.
3.1** Restated Certificate of Incorporation.
3.2** Form of Restated Certificate of Incorporation to become effective upon
the closing of this offering.
3.3** Bylaws.
3.4** Amended and Restated Bylaws to become effective upon the closing of
this offering.
4.1** Reference is made to Exhibits 3.1 through 3.4.
4.2* Specimen stock certificate representing shares of common stock.
5.1* Opinion of Cooley Godward LLP regarding the legality of the securities
being registered.
</TABLE>
- --------
* To be filed by amendment.
** Previously filed.
II-2
<PAGE>
<TABLE>
<CAPTION>
Exhibit
No. Description
------- -----------
<C> <S>
10.1* 2000 Equity Incentive Plan.
10.2* 2000 Employee Stock Purchase Plan.
10.3** Amended and Restated Stockholders' Agreement, among the Registrant,
certain of its stockholders and certain of its management, dated
November 17, 1999.
10.4** First Amendment to Amended and Restated Stockholders' Agreement,
dated November 17, 1999, among the Registrant, certain of its
stockholders and certain of its management, dated December 15,
1999.
10.5** Amended and Restated Investors' Agreement, among the Registrant and
certain of its stockholders, dated November 17, 1999.
10.6** First Amendment to Amended and Restated Investors' Agreement, dated
as of November 17, 1999, among the Registrant and certain of its
stockholders, dated December 15, 1999.
10.7** Form of Indemnity Agreement to be entered into between Registrant
and each of its directors and executive officers.
10.8** Series B Preferred Stock Purchase Agreement, among Registrant and
the parties named therein, as amended, dated September 2, 1997.
10.9** Series C Preferred Stock Purchase Agreement, among Evoke and the
parties named therein, as amended, dated May 27, 1998.
10.10** Series D Preferred Stock Purchase Agreement, among Evoke and the
parties named therein, as amended, dated November 17, 1999.
10.11** First Amendment to Series D Preferred Stock Purchase Agreement,
dated as of November 17, 1999 between Registrant and the parties
named therein, dated December 15, 1999.
10.12** Note and Warrant Purchase Agreement, dated March 31, 1998, among
Registrant and the partners named therein.
10.13** Lease, dated March 3, 1997, between BMC Properties, LLC and
Registrant.
10.14** Lease, dated June 6, 1999, between BLC Properties, LLC and
Registrant.
10.15+ Source Code and Object Code License Agreement, dated December 29,
1999, between Registrant and AudioTalk Networks, Inc.
10.16** Personal Services Agreement, dated November 17, 1999, between
Registrant and Jim LeJeal.
10.17** Personal Services Agreement, dated November 17, 1999, between
Registrant and Paul Berberian.
10.18+ Services Agreement, date November 17, 1999, between the Registrant
and At Home Corporation d.b.a Excite@Home.
23.1** Consent of Cooley Godward LLP (included in Exhibit 5.1).
23.2** Consent of KPMG LLP.
24.1** Powers of attorney (included on Page II-5).
27** Financial Data Schedule.
</TABLE>
- --------
* To be filed by amendment.
+ Confidential treatment to be requested with respect to portions of these
exhibits.
** Previously filed.
(b) Financial Statement Schedules.
Not applicable.
II-3
<PAGE>
Item 17. Undertakings.
The undersigned registrant hereby undertakes to provide to the underwriters
at the closing specified in the underwriting agreement certificates in such
denominations and registered in such names as required by the underwriters to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to provisions described in Item 14 or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
The undersigned registrant hereby undertakes:
(1) That, for purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as
part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of
Louisville, County of Boulder, State of Colorado, on March 9, 2000.
/s/ Paul A. Berberian
By:
----------------------------------
Paul A. Berberian
Chairman of the Board,
Chief Executive Officer
and President
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Paul A. Berberian Chairman of the Board, March 9, 2000
___________________________________________ Chief Executive Officer
Paul A. Berberian and President (Principal
Executive Officer)
/s/ * Chief Operation Officer, March 9, 2000
___________________________________________ Chief Financial Officer,
James M. LeJeal Secretary, Treasurer and
Director (Principal
Financial and Accounting
Officer)
/s/ * Director March 9, 2000
___________________________________________
Don Hutchison
/s/ * Director March 9, 2000
___________________________________________
Bradley A. Feld
/s/ * Director March 9, 2000
___________________________________________
Donald H. Parsons, Jr.
/s/ * Director March 9, 2000
___________________________________________
</TABLE> Carol deB. Whitaker
/S/ Paul A. Berberian
*By--_____________________
Paul A. Berberian
Attorney-in-fact
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
No. Description
------- -----------
<C> <S>
1.1* Form of Underwriting Agreement.
3.1** Restated Certificate of Incorporation.
3.2** Form of Restated Certificate of Incorporation to become effective upon
the closing of this offering.
3.3** Bylaws.
3.4** Amended and Restated Bylaws to become effective upon the closing of
this offering.
4.1** Reference is made to Exhibits 3.1 through 3.4.
4.2* Specimen stock certificate representing shares of common stock.
5.1* Opinion of Cooley Godward LLP regarding the legality of the securities
being registered.
10.1* 2000 Equity Incentive Plan.
10.2* 2000 Employee Stock Purchase Plan.
10.3** Amended and Restated Stockholders' Agreement, among the Registrant,
certain of its stockholders and certain of its management, dated
November 17, 1999.
10.4** First Amendment to Amended and Restated Stockholders' Agreement, dated
November 17, 1999, among the Registrant, certain of its stockholders
and certain of its management, dated December 15, 1999.
10.5** Amended and Restated Investors' Agreement, among the Registrant and
certain of its stockholders, dated November 17, 1999.
10.6** First Amendment to Amended and Restated Investors' Agreement, dated as
of November 17, 1999, among the Registrant and certain of its
stockholders, dated December 15, 1999.
10.7** Form of Indemnity Agreement to be entered into between Registrant and
each of its directors and executive officers.
10.8** Series B Preferred Stock Purchase Agreement, among Registrant and the
parties named therein, as amended, dated September 2, 1997.
10.9** Series C Preferred Stock Purchase Agreement, among Evoke and the
parties named therein, as amended, dated May 27, 1998.
10.10** Series D Preferred Stock Purchase Agreement, among Evoke and the
parties named therein, as amended, dated November 17, 1999.
10.11** First Amendment to Series D Preferred Stock Purchase Agreement, dated
as of November 17, 1999 between Registrant and the parties named
therein, dated December 15, 1999.
10.12** Note and Warrant Purchase Agreement, dated March 31, 1998, among
Registrant and the partners named therein.
10.13** Lease, dated March 3, 1997, between BMC Properties, LLC and
Registrant.
10.14** Lease, dated June 6, 1999, between BLC Properties, LLC and Registrant.
10.15+ Source Code and Object Code License Agreement, dated December 29,
1999, between Registrant and AudioTalk Networks, Inc.
10.16** Personal Services Agreement, dated November 17, 1999, between
Registrant and Jim LeJeal.
10.17** Personal Services Agreement, dated November 17, 1999, between
Registrant and Paul Berberian.
10.18+ Services Agreement, dated November 17, 1999, between Registrant and At
Home Corporation d.b.a. Excite@Home.
23.1** Consent of Cooley Godward LLP (included in Exhibit 5.1).
23.2** Consent of KPMG LLP.
</TABLE>
- --------
* To be filed by amendment.
+ Confidential treatment to be requested with respect to portions of these
exhibits.
** Previously filed.
I-1
<PAGE>
<TABLE>
<CAPTION>
Exhibit
No. Description
------- -----------
<C> <S>
24.1** Powers of attorney (included on Page II-5).
27** Financial Data Schedule.
</TABLE>
- --------
* To be filed by amendment.
** Previously filed.
+ Confidential treatment to be requested with respect to portions of these
exhibits.
I-2
<PAGE>
Exhibit 10.15
*** Text Omitted and Filed Separately Confidential Treatment Requested under
17C.F.R Sections 200.80(b)(4), 200.83 and 240.24b-2
SOURCE CODE AND OBJECT CODE LICENSE AGREEMENT
This Source Code and Object Code License Agreement (the "Agreement") is
made effective as of this 29th day of December 1999 (the "Effective Date") by
and between VStream Incorporated ("Vstream"), a Delaware corporation with its
principal place of business at 1157 Century Drive, Louisville, CO 80027, and
AudioTalk Networks, Inc., a California corporation with its principal place of
business at 1901 Landings Drive, Mountain View, CA 94043 ("AudioTalk").
Whereas, AudioTalk has developed and owns certain software source code,
which in object code form enables real-time voice conferencing over the
Internet.
Whereas, Vstream desires to license such source code from AudioTalk in
order to modify such source code and incorporate it in object code form into
software products and services proprietary to Vstream, and AudioTalk would like
to license the source code to Vstream for such purpose.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. Definitions.
1.1 "Defect" means any failure of the Licensed Software to meet the
applicable Testing Criteria, as described in Section 2.4, as a result of a
material failure, including an error or "bug", of the Licensed Software that is
replicable upon testing by AudioTalk.
1.2 "Integrated Software" means any software developed by Vstream pursuant
to this Agreement that consists of Vstream Software as integrated, marketed or
delivered in combination with either the Licensed Software and/or any Vstream
Revisions.
1.3 "Licensed Software" means the machine-readable object code and Source
Code form of AudioTalk's voice conferencing server software and OCX/plug-in
client, the product features of which are set forth in Exhibit A hereto,
including the NT Source Code and Linux Source Code as described in Section 2
below.
1.4 "Source Code" means the human-readable source code version of the
Licensed Software and all associated technical documentation for the Licensed
Software, including flow charts, source code, program procedures and
descriptions, (including descriptions of the source code and build procedures
for the object code), procedures for maintenance and modification, testing data
and similar written material relating to the design, structure and
implementation of the Licensed Software. Such technical documentation shall be
sufficient to enable a reasonably-skilled and experienced programmer to
understand the design, structure and implementation of the Licensed Software
and to enable Vstream to create internal documentation and help files.
1.5 "Vstream Revisions" means any modifications of, revisions or
improvements to or derivative works of the Licensed Software made, conceived or
reduced to practice by Vstream. The Vstream Revisions also include all
inventions, trade secrets, know how, designs, formulae, processes, manufacturing
techniques, ideas, works of authorship or other copyrightable of patentable
works made, conceived, reduced to practice or learned by Vstream based on or
using the intellectual property rights embodied in the Licensed Software.
1.6 "Vstream Services" means current and future communications or other
services provided directly or indirectly by Vstream.
1.7 "Vstream Software" means any and all software products now or hereafter
developed (or licensed from third parties) by Vstream which Vstream uses to
provide Vstream Services, or which Vstream authorizes third parties to use to
provide services.
1
<PAGE>
1.7 "Successful Installation" and "Successfully Installed" shall mean
installed and accepted as described in Section 2.4.
2. Delivery.
2.1 Initial Delivery. AudioTalk will deliver the NT voice conference
server and client object code within fifteen (15) days after the Effective Date.
2.2 Delivery of NT Source Code. AudioTalk will deliver the NT voice
conference server Source Code and Win95/98/NT OCX/Plug-in client Source Code
(collectively "NT Source Code") within fifteen (15) days after receiving the
$[...***...] payment as set forth in Section 5.1.
2.3 License and Delivery of Linux Source Code. Vstream agrees to license
the Linux version of the audio conferencing server Source Code ("Linux Source
Code") from AudioTalk when it becomes available, pursuant to the terms and
conditions of this Agreement. AudioTalk will deliver and install the Linux
Source Code within four (4) months after the Effective Date.
2.4 Acceptance. Upon each delivery of Licensed Software, AudioTalk shall
deliver to Vstream a notice that Vstream may begin acceptance testing ("Notice
of Installation"). Promptly upon receipt of a Notice of installation, but in any
event within ten(10) days thereafter, Vstream will complete testing of such
Licensed Software to ensure that it conforms to the applicable testing criteria
set forth on Exhibit B (the "Testing Criteria") and deliver a status notice to
AudioTalk. The status notice will indicate either (i) that such Licensed
software conforms to such Testing Criteria, constituting acceptance ("Notice of
Acceptance"), or (ii) that there is a Defect in the Licensed Software, in which
case the notice shall identify each Defect and explain the basis for such
rejection ("Notice of Rejection"). Within thirty (30) days after receipt of
Vstream's Notice of Rejection, unless delayed by Vstream's act or omission,
AudioTalk will correct each Defect identified in the Notice of Rejection in
order to render it conforming, and Vstream shall have the right to reperform
testing on the Licensed Software as set forth above. If the Licensed Software
still fails to conform to the Testing Criteria, Vstream may, at its option,
permit AudioTalk another opportunity to render the Licensed Software conforming,
or terminate this Agreement without liability to AudioTalk and AudioTalk will
reimburse Vstream the payments made for the applicable Source Code in accordance
with Section 5.4. Failure of Vstream to give Notice of Rejection as described
herein with respect to any part of the Licensed Software shall be deemed to
constitute acceptance of such Licensed Software.
2.5 Customization. AudioTalk will provide a one-time customization of the
Win95/98/NT client Source Code to support Vstream's custom skin which will be
delivered within thirty (30) days after Vstream provides AudioTalk with a
graphical markup, provided that such graphical markup is delivered to AudioTalk
by not later than thirty (30) days from Vstream's receipt of such Source Code.
2.6 Initial Support. AudioTalk will promptly provide Vstream with up to
one hundred (100) hours of engineering support (including travel time) at
reasonable times upon reasonable advance notice. Such support shall be at no
additional charge to Vstream, except that Vstream shall reimburse AudioTalk its
reasonable and actual travel expenses in connection with such support.
3. License Rights.
3.1 License to Vstream. Subject to the terms and conditions of this
Agreement, AudioTalk hereby grants to Vstream a perpetual, irrevocable (subject
to Section 12 below), worldwide, non-exclusive, non-transferable (except as
specially set forth in this Agreement) right and license to:
9.1.1 Use the Licensed Software to develop and otherwise create
Vstream Revisions;
* Confidential Treatment Requested
2
<PAGE>
3.1.2 integrate or combine the Licensed Software and/or Vstream
Revisions into Integrated Software or incorporate the Licensed Software and/or
Vstream Revisions into Vstream Software;
3.1.3 use the Licensed Software and/or the Vstream Revisions as
incorporated into any Vstream Software or Integrated Software for the purpose of
providing Vstream Services; and
3.1.4 permit Vstream's customers to access and use the functionality
of the Licensed Software and the Vstream Revisions as incorporated into any
Vstream Software or Integrated Software in connection with Vstream's provision
of Vstream Services directly or through Vstream's channels of distribution.
3.1.5 distribute AudioTalk client, in binary form, to Vstream
customers, subject to Vstream acquiring the ITU G.723.1 codec distribution
license from the patent holders if Vstream chooses not to distribute such
software under the AudioTalk brand.
3.2 License Restrictions; Third Party Access. This license does not permit
sublicensing of the Licensed Software to any third parties by Vstream, except as
set forth in Section 3.1.5. In the event that Vstream needs to provide Source
Code access to a third party for the purpose of development, enhancement, or
modification for Vstream, Vstream will ask for written permission from AudioTalk
prior to providing such source code access, and permission will not be
unreasonably withheld or delayed by AudioTalk. A strict non-disclosure agreement
will be executed between AudioTalk and any third party prior to access of such
Source Code by such third party. Such third party may not retain any copy of the
Source Code and, upon completion of the project for which such third party was
permitted access to the Source Code or termination of this Agreement pursuant to
Section 5.4.1, shall return or destroy all copies of Source Code furnished to
such third party. Upon request, a writing executed by an officer of such third
party shall be provided to AudioTalk certifying that such third party has
returned or destroyed all copies of the Source Code in its possession or
control. In addition, Vstream will not provide Source Code access to a third
party prior to licensing the Linux Source Code; provided, that Linux Source Code
is delivered to Vstream and installed by AudioTalk as described in Section 2.3.
Vstream understands and agrees that, except as expressly provided in this
Agreement, it may not under any circumstances distribute any of the Licensed
Software to third parties. All rights not specifically granted to Vstream herein
are retained by AudioTalk.
3.3 AudioTalk agrees to license, in both Source Code [in accordance with
the terms of Section 5.3] and object code, new product features and derivative
works of the Licensed Software under terms and conditions to be negotiated by
the parties, but similar in scope and nature to the terms and conditions of this
Agreement.
4. Ownership And Proprietary Rights.
4.1 Ownership.
4.1.1 AudioTalk shall retain all right, title and interest, including
all intellectual property rights, in and to the Licensed Software as initially
delivered to Vstream and all revisions to the Licensed Software that are made,
conceived or reduced to practice by AudioTalk.
4.1.2 Vstream shall retain all right, title and interest, including
all intellectual property rights in and to all Vstream Software and Vstream
Revisions and, subject only to AudioTalk's underlying rights in the Licensed
Software, the Integrated Software.
4.1.3 The parties expressly intend that the Licensed Software (and
all revisions to the Licensed Software made, conceived or reduced to practice by
AudioTalk), Vstream Revisions and Integrated Software are not to be deemed joint
works of authorship.
3
<PAGE>
4.2 Protection. In the event either party becomes aware of any actual or
apparent infringement of the intellectual property rights of the other party,
the party discovering such infringement shall notify the other party. The
parties shall reasonably cooperate with each other to pursue any action against
any infringing third party, to the extent that such cooperation can be
accomplished without any material, adverse impact on the cooperating party.
5. Pricing and Payment.
5.1 Payment Obligations. Subject to all the terms and conditions of this
Agreement and in consideration of the license rights granted to Vstream
hereunder, Vstream agrees pay to AudioTalk the following amounts according to
the following payment schedule:
- -------------------------------------------------------------------------------
Amount Payment Due Date
- -------------------------------------------------------------------------------
$[...***...] ("Initial Payment") Upon Effective Date
- -------------------------------------------------------------------------------
$[...***...] Upon Successful Installation of NT
voice conference server and client
- -------------------------------------------------------------------------------
$[...***...] Upon Successful Installation of the
Linux Source Code at Vstream
- -------------------------------------------------------------------------------
$[...***...] 6/29/2000
($[...***...] for 1st royalty payment)
($[...***...] for 6 months of software
maintenance)
- -------------------------------------------------------------------------------
$[...***...] 12/29/2000
($[...***...] for 2nd royalty payment)
($[...***...] for 6 months of software
maintenance)
- -------------------------------------------------------------------------------
$[...***...] 6/29/2001
($[...***...] for 3rd royalty payment)
($[...***...] for 6 months of software
maintenance)
- -------------------------------------------------------------------------------
$[...***...] 12/29/2001
($[...***...] for 4th royalty payment)
($[...***...] for 6 months of software
maintenance)
- -------------------------------------------------------------------------------
5.2 No Additional Payment. Except as expressly provided in this Agreement,
AudioTalk will not be entitled to any other payment, by way of royalties or
otherwise, arising out of Vstream's use of the Licensed Software as permitted
under the terms of this Agreement.
5.3 Most Favored Pricing. AudioTalk guarantees that Vstream will have its
most favorable Source Code licensing price with respect to the software to be
licensed under this Agreement, subsequent versions, improvements, new products,
new features, and any other software or other technology licensed hereunder or
under future agreements between the parties for a period of one (1) year from
the Effective Date.
5.4 Reimbursement.
5.4.1 If the Linux Source Code is not delivered and Successfully
Installed within four (4) months of the Effective Date, AudioTalk will, upon
request of Vstream, (i) within thirty (30) days
* Confidential Treatment Requested
4
<PAGE>
reimburse Vstream the amount of all funds actually paid by Vstream to AudioTalk,
less $[...***...] and actual travel expenses as set forth in Section 2.6, in
cash, or (ii) in the event that AudioTalk is unable to reimburse Vstream such
amount in cash, such amount will convert into preferred stock of AudioTalk at a
price per share of $1.00, and, in either case, this Agreement shall terminate.
5.5 Taxes. All payments hereunder are exclusive of taxes, and Vstream
agrees to pay any sales, use, property, license, value added, withholding,
excise or similar tax, whether federal, state or local, that may be imposed upon
or with respect to the transactions hereunder, exclusive of taxes on AudioTalk's
net income.
6. Warrant. Upon execution of this Agreement, AudioTalk will grant to Vstream
a warrant to purchase 1,000,000 shares of AudioTalk preferred stock under the
terms and conditions set forth in Exhibit C.
7. Maintenance and Support. AudioTalk agrees to provide Vstream with the
following maintenance and support for two (2) years from the Effective Date at
no additional charge:
7.1 Support and correction of all Defects that prevent the Licensed
Software, or any part thereof, from operating substantially in accordance with
the specifications therefor and Exhibit B hereof, provided, however, that
AudioTalk shall have no obligation to correct problems which are due to
modifications to the Licensed Software performed by Vstream.
7.2 All updates (an update is a new version other than a new upgrade),
performance improvements and corrections of Defects to the Licensed Software
within fifteen (15) days after the general availability to AudioTalk customers
and licensees. This obligation does not include new product features and
derivative works of the Licensed Software which will be provided to Vstream
pursuant to Section 3.3 above.
8. Warranties; Disclaimer.
8.1 General. AudioTalk represents and warrants that it is the owner of or
has a valid license for all intellectual property rights in and to the Licensed
Software, and that it has full power and right to license the Licensed Software.
AudioTalk has acquired the license to distribute the ITU G.723.1 codec under its
brand name, but this license is not transferable to the Vstream brand name.
AudioTalk represents and warrants to Vstream that AudioTalk has no product in
development that could render the Licensed Software obsolete within the twelve
(12) months following the Effective Date.
8.2 Performance Warranty. AudioTalk warrants that the Licensed Software
will perform substantially in accordance with the product features set forth in
Exhibit A and the specifications set forth in the documentation provided with
the Licensed Software. In the event that the Licensed Software does not conform
to the foregoing performance warranty. Vstream will promptly notify AudioTalk of
such nonconformities in writing and AudioTalk will promptly correct such
nonconformities. AudioTalk's warranty and error correction obligations with
respect to any portion of the Licensed Software shall extend for a period of two
(2) years after the Effective Date of this Agreement.
8.3 Year 2000 Warranty. AudioTalk represents and warrants to Vstream that
the Licensed Software will (i) bundle date information before, during, and after
January 1, 2000, including but not limited to accepting date input, providing
date output, and performing calculations on dates or portions of dates, (ii)
function accurately and without interruption before, during, and after January
1, 2000, without any change in operations associated with the advent of a new
century, (iii) respond to two-digit year-date input in a way that resolves the
ambiguity as to century in a disclosed, defined, and predetermined manner, (iv)
store and provide output of date information in ways that are unambiguous as to
century, and (v) when used in combination with other year 2000 compliant
products, shall accurately process date/time.
* Confidential Treatment Requested
5
<PAGE>
8.4 Disclaimer of Other Warranties. THE REPRESENTATIONS AND WARRANTIES
EXPRESSLY SET FORTH IN THIS SECTION 8 ARE IN LIEU OF ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR
OTHERWISE. AUDIOTALK EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE IN CONNECTION WITH THE LICENSED SOFTWARE.
9. Limitations of Liability and Causes of Action. Neither party shall be
liable to the other party, the other party's end users, or any other entity
claiming through or under the other party for any loss of profits or income or
savings, loss of data or other consequential, incidental, special, punitive or
indirect damages incurred by such party (whether in an action in contract or
tort or based on a warranty), even if such party has been advised of the
possibility of such damages, arising out of or in connection with this
agreement. These limitations shall apply notwithstanding any failure of
essential purpose of any limited remedy. Except as provided in Section 10.2.,
AND FOR BREACH OF SECTIONS 3.2 OR 11, Vstream's liability related to this
agreement shall not exceed the amounts actually paid to AudioTalk by Vstream
under this Agreement. Except as provided in section 10.1, Audiotalk's liability
related to this Agreement shall not exceed the amounts actually paid to
Audiotalk by Vstream under this agreement.
10. Indemnity.
10.1 AudioTalk Indemnity. AudioTalk shall, at its own expense, indemnify,
defend and hold Vstream harmless from and against any and all claims, costs,
fees (including reasonable attorneys' fees), damages, liabilities and expenses
arising from any third party claim, action, suit or proceeding alleging that the
Licensed Software, as delivered to Vstream, infringes any U.S. copyright or U.S.
patent, or misappropriates any trade secret. Notwithstanding the foregoing,
AudioTalk will not be liable to the extent that any infringement claim is based
upon: (i) the use or combination of the Licensed Software with software,
hardware, or other materials not provided by AudioTalk; or (ii) any modification
to the Licensed Software made by Vstream.
10.2 Vstream Indemnity. Vstream shall, at its own expense, indemnify,
defend and hold AudioTalk harmless from and against any and all claims, costs,
fees (including reasonable attorneys' fees), damages, liabilities and expenses
arising from any third party claim, action, suit or proceeding alleging that any
Integrated Software infringes any copyright or patent or misappropriates any
trade secret, except to the extent that such infringement is caused by the
Licensed Software as delivered to Vstream.
10.3 Actions to Avoid Infringement. If any of the Licensed Software is
likely to become or is the subject of any claim, action, suit or proceeding for
infringement, then AudioTalk may, at its option and expense: (i) procure for
Vstream the right to continue using such Licensed Software; and/or (ii) replace
or modify such Licensed Software so as not to infringe. The foregoing remedial
actions do not relieve AudioTalk of its indemnity obligations.
10.4 Procedures. The obligation of either party to indemnify the other
party hereunder are predicated upon the indemnified party's: (i) providing the
indemnifying party prompt written notice of any such claim; (ii) allowing the
indemnifying party to control the defense and any settlement of any such claim,
provided that the indemnified party may, at its expense, participate in such
defense and settlement negotiations with counsel of its own choosing; and (iii)
the indemnified party cooperating with the indemnifying party, at the
indemnifying party's expense, in the defense and/or settlement of such claim.
10.5 Limitations on Indemnity Actions. This section 10 states each party's
sole and exclusive obligation and liability, and sole and exclusive rights and
remedies, with respect to any claims of patent, copyright or other proprietary
right infringement.
6
<PAGE>
11. Confidentiality. Vstream acknowledges and agrees that the Licensed Software
contains AudioTalk's trade secret and confidential information ("Confidential
Information"). Confidential Information shall also mean and include any
information disclosed by one party to the other pursuant to this Agreement
which is marked as confidential or, if disclosed orally, is designated as
confidential at the time of disclosure and is subsequently reduced to a writing
which is marked as confidential and is provided to the receiving party within
thirty days after such oral disclosure. Vstream agrees to hold the Licensed
Software in confidence and, except as expressly provided herein, not to make the
Licensed Software available in any form to any third party. Vstream will use the
same efforts that it uses to safeguard its own source code, but in no event less
than reasonable efforts, to protect the Licensed Software against disclosure.
Each party shall otherwise treat as confidential all Confidential Information
of the other party, shall not use such Confidential Information except as set
forth herein and shall use reasonably efforts not to disclose such Confidential
Information. Each party shall promptly notify the other party of any actual or
suspected misuse or unauthorized disclosure of such other party's Confidential
Information. Except with the prior approval of the other party, neither party
will make any public disclosure of the terms of this Agreement.
12. Term; Termination.
12.1 This Agreement shall be effective as of the Effective Date and shall
continue thereafter in perpetuity, except that AudioTalk my terminate the
Agreement upon thirty (30) days written notice if Vstream materially breaches
Sections 3.2, 5.1 or 11 and does not cure such breach within such thirty (30)
day period. Vstream may terminate the Agreement in accordance with Section
5.4.1.
12.2 Within ten (10) business days after any termination of this Agreement,
Vstream shall cease and desist all use of the Licensed Software and shall return
to AudioTalk all copies of all Licensed Software in Vstream's possession or
under its control. Only Sections 10 (Indemnity) and 11 (Confidentiality) shall
survive termination of this Agreement.
13. Assignment.
13.1 This Agreement may be assigned or transferred by either party to any
successor by merger, purchase of all or substantially all of its business, or
other form of corporate reorganization. Except as set forth above, neither party
may assign any rights or delegate any duties under this Agreement in whole or in
part without the other party's prior written consent, which may be withheld in
such party's sole discretion, and any such attempted assignment shall be void
and of no effect. This Agreement shall be binding upon and insure to the benefit
of each of the party's, their successors and permitted assigns.
13.2 AudioTalk will provide Vstream with prompt and adequate written notice
immediately upon receipt from a third party of a letter of intent, term sheet or
other preliminary written communication proposing a potential merger,
consolidation, change of ownership or acquisition of AudioTalk by such third
party, but in any event no later than ten (10) days from receipt of such
communication and prior to acceptance by AudioTalk of the terms set forth
therein ("Right of First Notice"). This Right of First Notice will be effective
for one (1) year after the Effective Date. In addition, AudioTalk shall not,
during the term of the Right of First Notice, without prior written consent of
Vstream, (i) provide any other party with a similar Right of First Notice, or
(ii) provide any other party with any right of first negotiation or right of
first refusal with respect to a potential merger, consolidation, change of
ownership or acquisition of AudioTalk.
14. General.
14.1 Equitable Relief. In the event of an actual or threatened breach of
this Agreement, the parties acknowledge and agree that the non-breaching party
could not be adequately compensated for such a breach. Therefore, the
non-breaching party will be entitled, without waiving any other rights and
7
<PAGE>
remedies to such injunctive or equitable relief as may be deemed proper by a
court of competent jurisdiction.
14.2 Notices. All notices, requests and other communications under this
Agreement must be in writing and delivered to the addresses set forth above or
as otherwise provided by hand, certified mail (return receipt requested), or
fax (provided that a hard copy of the facsimile transmission is mailed within
three (3) days after transmission). Notices shall be deemed effective one (1)
business day after being sent by a recognized overnight courier, three (3) days
after dispatch if by certified mail, and one (1) business day after confirmation
of receipt of fax.
14.3 Severability. If any provision of this Agreement is held to be invalid
or unenforceable for any reason, the remaining provisions will continue in full
force without being impaired or invalidated in any way, and the parties agree to
replace any invalid provision with a valid provision which most closely
approximates the intent and economic effect of the invalid provision.
14.4 Headings. Headings used in this Agreement are for reference purposes
only and in no way define, limit, construe or describe the scope or extent of
such paragraph, or in any way affect this Agreement.
14.5 No Waiver. No term or provisions hereof shall be deemed waived, and no
breach excused, unless such waiver or consent is in writing and signed by the
party claimed to have waived or consented. The waiver by either party of a
breach of any provision of this Agreement will not operate or be interpreted
as a waiver of any other or subsequent breach.
14.6 Force Majeure. If the performance of this Agreement or any obligation
hereunder (other than the payment of money) is prevented, restricted or
interfered with by any act or condition whatsoever beyond the reasonable control
of the affected party, the party so affected will be excused from such
performance to the extent of such prevention, restriction or interference.
14.7 Independent Contractor. Nothing in this Agreement should be
construed to create a partnership, agency, joint venture, or employer-employee
relationship. Neither party has the authority to assume or create any
obligation, express or implied, on behalf of the other.
14.8 Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of California as applied to agreements
made, entered into and performed entirely in California and solely by California
residents. Any suit hereunder shall be brought in the federal or state courts in
Santa Clara County, California and each of the parties submits to the personal
jurisdiction thereof.
14.9 Expedited Arbitration of Disputes.
14.9.1 Any controversy or claim arising out of or relating to this
Agreement, or the breach thereof shall be settled by Expedited Arbitration in
Palo Alto, California, administered by the American Arbitration Association
pursuant to its Commercial Arbitration Rules for Expedited Procedures, as
amended and effective on January 1, 1999, as modified as follows:
14.9.2 Notwithstanding the notice procedures of Section 14.2, any
notices, consents, approvals, demands, or requests given by either AudioTalk
or Vstream under this Section 14.9 shall be given by facsimile with machine
confirmation and with a copy sent may messenger or by overnight courier service.
14.9.3 Within three (3) business days after a demand for arbitration,
the parties shall in good faith seek to find a single mutually acceptable
arbitrator who shall have substantial experience in the interpretation of
computer software licenses.
8
<PAGE>
14.9.4 If agreement as to a mutually acceptable arbitrator is not
reached within such three (3) business day period, then either party may, within
three (3) business days thereafter, submit such dispute for arbitration before
one (1) arbitrator.
14.9.5 With respect to such arbitration (i) the list of arbitrators
referred to in Rule E-5 shall be returned within three (3) business days from
receipt; (ii) the parties shall notify the AAA of any objections to the
arbitrator appointed by telephone within two (2) business days after notice of
the arbitrator designated by the AAA; (iii) the hearing shall be held within
five (5) business days after the appointment of the arbitrator; and (iv) the
decision and award of the arbitrator shall be made within two (2) business days
of completion of the arbitration and shall be final and conclusive on the
parties.
14.10 Entire Agreement; Amendment. This Agreement, including all Exhibits,
which are hereby incorporated into and made a part of this Agreement,
constitutes the final, complete and exclusive statement of the agreement between
the parties with respect to the subject matter hereof and supersedes any
previous proposals, negotiations, agreements, letters of intent, arrangements or
warranties, whether verbal or written, made between the parties with respect to
such subject matter. This Agreement may be modified only by mutual agreement in
writing of the authorized representatives of the parties.
9
<PAGE>
In Witness Whereof, the undersigned have caused this Agreement to be
executed by their respective authorized representatives.
VStream Incorporated AudioTalk, Inc.
By: /s/ Paul A. Berberian By: /s/ Frank Chu
----------------------------- -------------------------
Name: Paul A. Berberian Name: Frank Chu
--------------------------- -----------------------
Title: CEO Title: President
-------------------------- ----------------------
10
<PAGE>
EXHIBIT A
Licensed Software Features
The following is a list of features included in the Source Code and Object Code
License Agreement. Additional features and future derivative works can be
licensed under a separate agreement.
. PC to PC voice conference
. PC to Phone, Phone to Phone, voice conference
. Join public or private conference rooms from PC or phone with optional
authentication for private rooms
. Supports both full and half duplex sounds cards
. View participants in a conference room and see who is speaking
. Enter a conference room from behind a firewall
. Customize user interface with scripting (OCX and Plug-in)
. Switch up to 3 active speakers per conference room with over a thousand
participants
. Create and destroy conference rooms dynamically from a web server with
authentication for various account holders
. Load balance across multiple conference servers
. Create conference rooms that require a password to enter (private rooms)
. View a list of conference rooms and participants for an account holder from
a web browser
. Reserve conference rooms that are scheduled for specific times in the
future
. Limit the number of participants in a conference room as well as limit the
number of conference rooms
. Receive an e-mail notification of a conference room server failure
. Create records of conference room creation/destruction as well as the join
and leave times of participants (audit trail)
. Compatible with H.323 VoIP gateways and SIP clients
Component Features
AudioTalk Client
The following features pertain to the AudioTalk Client (OCX, Plug-in or EXE):
. PC to PC voice conference
. PC to Phone voice conference
. Join public or private conference rooms with optional authentication for
private rooms
. Supports both full and half duplex sound cards
. View participants in a conference room and see who is speaking
. Enter a conference room from behind a firewall
. Customize user interface with scripting (OCX and Plug-in)
. Text messaging for individual participants and the broadcasting of
messaging to all participants
11
<PAGE>
AudioTalk MCU
The following features pertain to the AudioTalk MCU:
. Access conference rooms from PC or phone
. Switch up to 3 active speakers per conference room with over a thousand
participants
. Supports optional authentication for private rooms
. Interface to TalkServer through AudioTalk protocol
TalkServer EXE, Perl Module, and ASP code
TalkServer module is really three pieces: the NT service, the AudioTalk Perl
Module, and the TalkServer ASP code. The following features pertain to the
TalkServer.
. Create and manage multiple accounts
. Create and destroy conference rooms within an account yet across multiple
AudioTalk MCUs
. View a list of conference rooms and participants for an account holder from a
web browser
. Reserve conference rooms that are scheduled for specific times in the future
. Load balance across multiple conference servers
. Limit the number of participants in a conference room as well as limit the
number of conference rooms
. Receive an e-mail notification of a conference room server failure
. Create records of conference room creation/destruction as well as the join and
leave times of participants (audit trail)
Client System Requirements
. Pentium 166 with 16MB memory
. Windows 95 or later
. Sound card with headset or speaker & microphone
. Internet access with Microsoft TE 4.0 or later or Netscape Navigator 4.08 or
later
MCU Server System Requirements
. Dual Pentium 600 MHz, 256 MB RAM with 100 Mbps Ethernet
. Windows NT Server 4.0 SP3 or greater
. AudioTalk MCU software
12
<PAGE>
TalkServer System Requirements
. Dual Pentium 600 MHz, 256 MB RAM with 100 Mbps Ethernet
. Windows NT Server 4.0 SP3 or greater
. Microsoft US 4.0
. ActiveState Perl
. Microsoft SQL Server 7.0
. AudioTalk TalkServer software
Server System Performance
. 1,000 PC concurrent users per server
13
<PAGE>
EXHIBIT B
Testing Criteria
The following Testing Criteria applies to both the NT and the Linux server
software versions.
1.0 Installation
. AudioTalk will provide Vstream with release notes and known bug
reports as part of delivery of software object code or source code
. For source code delivery, Vstream will recompile the source code using
AudioTalk specified programming environment and verify that the
resulting object code matches the object code delivered by AudioTalk
to Vstream.
. Vstream will install server software on machines that meets the
minimal server system requirement set forth in Exhibit A
. Vstream will install client software on machines that meets the
minimal client system requirement set forth in Exhibit A
AudioTalk's software must satisfy the following test scenarios:
2.0 Functional Testing
2.1 Test Scenario #1: LAN PC Conference
- Create a conference room and join the room with 10 PC participants on
a LAN
- Talk among the 10 participants and validate that the audio quality is
consistent with that of a G.723.1 codec
- View participants in a conference room and see who are speaking
2.2 Test Scenario #2: Internet PC Conference
- Same as Scenario #1, except the PC participants will join the
conference room by using Internet connections (each at 28.8 Kbps or
higher speed) instead of LAN connections
- Talk among the 10 participants and validate that the audio quality is
consistent with that of a G.723.1 codec; pending factors such as
packet loss and network latency introduced by the Internet
2.3 Test Scenario #3: Internet Private PC Conference
- Same as Test Scenario #2, except the conference room will be created
with the requirement for a password
- Participants will join the conference room and validate that the
proper password is required
2.4 Test Scenario #4: Internet Firewall PC Conference
- Same as Scenario #2, except 1 or more of the participants will join
the conference from behind a port-based packet-filtering firewall,
such as NetScreen, Cisco PIX, or CheckPoint.
2.5 Test Scenario #5: PC and Phone mixed Internet Conference
- Install a Cisco 5300 VoIP gateway and configure it per AudioTalk's
recommended configuration
- Create a conference room and join the room with a mixture of Internet
PC participants (each at 28.8 Kbps or higher speed) and phone
participants (via a Cisco 5300 VoIP gateway)
- Talk among the 10 participants and validate that the audio quality is
consistent with that of a G.723.1 codec, pending factors such as
packet loss and network latency introduced by the Internet
<PAGE>
- PC users will be able to view participants and see who are speaking
2.6 Test Scenario #6: Conference Room Creation/Teardown
- Create 100 conference rooms on the server
- Repeat Test Scenario #2
- Tear down 100 conference rooms
2.7 Test Scenario #7: Server Load Balancing Test
- Install one TalkServer and three MCU servers
- Create 90 conferences and verify that the conferences are load
balanced across the servers
- Repeat Test Scenario #2
2.8 Test Scenario #8: Client Installation
- On a fresh Win95/Win98/WinNT client system with IE 4.0 or greater
version, connect to a Web server and download/install the client OCX.
Perform Test Scenario #2.
- On a fresh Win95/Win98/WinNT client system with Netscape 4.08 or
greater version, connect to a Web server and install the client plug-
in. Perform Test Scenario #2.
3.0 Stress Testing
3.1 Test Scenario A: MCU Server Stress Testing
- Create 10 conference rooms on the server with 100 participants in each
room.
- Run the AudioTalk's StressSIP client load stress program on 10 client
PC systems and connect to the server. Each of the StressSIP client
application will simulate the network traffic and server load for 100
participants connected at the same time (for a total of 1,000 PC
concurrent users)
- Use the StressSIP statistics program to view the server load under the
stress test condition and validate that the server is performing
properly.
3.2 Test Scenario B: MCU Server Stress Testing with Live PC Conference
- Repeat Test Scenario A
- At the same time, perform Test Scenario #2
3.3 Test Scenario C: TalkServer Stress Testing
- Run AudioTalk's stress test scripts and validate that the TalkServer is
able to support multiple access, creation, query, and termination of
the conference rooms
15
<PAGE>
Exhibit 10.18
*** Text Omitted and Filed Separately
Confidential Treatment Requested
under 17 C.F.R Sections 200.80(b)(4),
200.83 and 240.24b-2.
VSTREAM SERVICES AGREEMENT
This Services Agreement ("Agreement") is made effective as of November 17, 1999
(the "Effective Date") by VStream, Inc. a Delaware corporation having a place of
business at 5777 Central Avenue, Suite 120, Boulder, Colorado 80301 ("VStream"),
and At Home Corporation, a Delaware corporation having a place of business at
440 Broadway, Redwood City, California 94063 d.b.a Excite@Home ("Excite@Home").
VStream and Excite@Home may be collectively referred to herein as the "Parties"
and individually as a "Party."
RECITALS
A. Excite@Home desires to provide new voice-related technologies to users of
Excite@Home's Mail, Clubs, Personals and other products.
B. Excite@Home desires to provide Excite@Home users access to VStream's
telecommunications and streaming media functionality currently known as
"Beep", which allows a user to call a telephone number and imbed an audio
message in the form of an Microsoft "ASF" or "RealPlayer 5.0/G2" file type
into a web page or append it to an email message.
C. VStream is looking for distribution of their telecommunications products and
services.
D. VStream is looking for additional revenue opportunities to be achieved by
driving traffic from Beep to other "for pay" premium services either at
Excite@Home's "Work.com" business side (in development) or to a co-branded
premium service site with the Excite@Home Content group and increasing
traffic to the www.vstream.com site.
E. VStream is seeking branding opportunities through advertising and
promotional placements across the Excite@Home network.
NOW, THEREFORE, in consideration of the mutual promises set forth below,
the Parties agree as follows:
1. Definitions
1.1 "Beep" shall mean the service provided by VStream to Excite@Home pursuant
to the terms of this Agreement which service has the functionality set out
in Exhibit A.
1.2 "Best of Breed" shall mean that the Beep and Premium Services, collectively
or separately as the context requires, when compared to any other
substantially similar telecommunications and streaming media services
available on the Internet among the top two of the market leaders in terms
of the following criteria, taken as a whole: (i) integrated functionality;
(ii) timeliness; and (iii) reputation and ranking based upon a cross-section
of a minimum of three third
1
<PAGE>
party reviewers in terms of features, functionality, quality and other
qualitative factors that the Parties mutually deem material in nature.
1.3 "Co-Branded Page" shall mean any page on the Excite@Home Network which
includes both the VStream and Excite@Home brands.
1.4 "Cost of Integration" shall mean the costs incurred by Excite@Home in
integrating the Beep and Premium Services on the Excite@Home Network as
set out in Exhibit E.
1.5 "End Users" shall mean those users of the Excite@Home Network.
1.6 "Excite@Home Network" shall mean any Excite-branded or @Home-branded
sites, including without limitation Excite.com, webcrawler.com, Work.com
and any other Excite or @Home owned, co-owned, operated or jointly
operated sites branded with the "Excite" or "@Home" trade marks whether in
the United States or internationally.
1.7 "Intellectual Property" shall mean, on a world-wide basis, any and all now
known or hereafter known tangible and intangible (i) rights associated
with works of authorship including, without limitation, copyrights, moral
rights and mask-works, (ii) trademark and trade name rights and similar
rights, (iii) trade secret rights, (iv) patents, designs, algorithms and
other industrial property rights, (v) all other intellectual and
industrial property rights of every kind and nature and however
designated, whether arising by operation of law, contract, license or
otherwise, and (vi) all registrations, initial applications, renewals,
extensions, continuations, divisions or reissues thereof now or hereafter
made, existing, or in force (including any rights in any of the
foregoing).
1.8 "Net Advertising Revenues" shall mean gross advertising revenues minus
cost of agency fees and commissions.
1.9 "Premium Services" shall mean the existing audio-conferencing and content
co-browsing tools, and collaboration tools which have been created or will
be created by VStream and which shall be provided to Excite@Home pursuant
to the terms of this Agreement. Premium Services shall include the
Work.com Premium Services that are further described in Exhibit I.
1.10 "Term" shall mean the period set out in Article 10.1 of this Agreement.
1.11 "User Data" shall mean any data received by either Party as a result of
the provision of services pursuant to this Agreement.
2
<PAGE>
2. VStream Products and Services Provided to Excite@Home
2.1 Beep
(a) VStream will provide the Beep service for use on the Excite@Home
Network as set out in Exhibit A.
(b) VStream will encode all Beep audio messages in the format(s)
determined by Excite@Home from those formats supported by VStream.
Initially this format shall be Microsoft's "ASF" format; provided, however
the Parties recognize and acknowledge that VStream's ability to encode in
Microsoft's "ASF" format is dependent upon Microsoft providing VStream with
a source code for player on or before November 17, 1999. In the event that
Microsoft does not deliver the source code to VStream on or before November
17, 1999, then VStream's obligations with respect to Beep integration as
set forth in this Agreement, will be extended one day for each day that
Microsoft delays in providing the source code to VStream. Excite@Home may
choose any other additional format that is supported by VStream upon thirty
(30) days written notice to VStream.
(c) VStream reserves the right to allow End Users to author Beep audio
messages by means of a toll-free telephone line or a local telephone line.
The Parties agree to discuss additional terms regarding the authoring of
audio messages using a microphone through a personal computer. Toll-free
access shall be the default access method for Excite@Home users.
Notwithstanding the foregoing, VStream or Excite@Home may select to have
the Beep Service provided to End Users via long distance telephone service
upon 15 days written notice.
(d) VStream reserves the right to suggest, develop and implement an
alternative access method for each application of VStream's services at
Excite@Home subject to mutual agreement by the Parties.
(f) VStream agrees to assist in the integration of Beep into the
Excite@Home Network as set out in Exhibits B and I.
2.2 Premium Services
(a) VStream shall provide the Premium Services to Excite@Home for use
on the Excite@Home Network as set out in Exhibit I.
(b) Excite@Home shall integrate components of the Premium Services on
portions of the Excite@Home Network as set out in Exhibit I. VStream shall
assist in such integration as set out in Exhibit B.
3
<PAGE>
(c) VStream agrees that the Beep and the Premium Services shall
support either the Microsoft "ASF" and/or RealNetworks "G2" file formats or
their successor formats during the term of the Agreement.
(d) VStream or Excite@Home may periodically suggest additional new
uses of VStream's services that may be implemented from time to time on the
Excite@Home Network, subject to mutual agreement by the Parties.
3. Excite@Home Products and Services Provided to VStream
3.1 During the Term, Excite@Home will integrate Beep into the Excite@Home
products listed in Exhibit C.
3.2 To the extent that Beep is integrated into the Excite@Home Network,
Excite@Home may create a VStream and Excite@Home Co-Branded page from which
End Users shall have access to Beep (the "Co-Branded Pages").
3.3 At Excite@Home's sole discretion, Excite@Home may choose at any time to
create a new (separate from a Work.com site) site for integration of the
Premium Services and may choose to drive traffic to this site instead of or
in addition to the Work.com Site. If Excite@Home creates a new site the
financial terms to apply to such new site will be subject to negotiation
between the Parties but in any event will be the same or less than the
financial terms outlined in Exhibit E.
4. Intellectual Property & Exclusivity
4.1 Excite@Home shall retain all right, title and interest in all Excite@Home
Intellectual Property which was in existence prior to the execution of this
Agreement and which may be developed by Excite@Home or its agents
independently of access to any of VStream's Intellectual Property or
technology.
4.2 VStream shall retain all right, title and interest in all VStream
Intellectual Property that was in existence prior to the execution of this
Agreement and which may be developed by VStream or its agents independently
of access to any Excite@Home Intellectual Property or technology.
4.3 The Parties agree that any developments or improvements made or discovered
by any Party pursuant to this Agreement, whether patentable or not, which
are not solely related to or based on either VStream's Intellectual
Property or Excite@Home's Intellectual Property, or relate to or are based
on the combination of VStream's Intellectual Property and Excite@Home's
Intellectual Property and discovered or made solely as a result of the work
carried out hereunder (hereinafter the "Joint Technology") shall be jointly
owned by the Parties. Excite@Home and VStream each agree to grant to the
other an irrevocable, royalty free, exclusive license to make, use and sell
products under any and all of the other Party's right, title and interest
in and to the Joint Technology.
4
<PAGE>
4.4 Excite@Home will grant to VStream the non-exclusive, non-transferable right
to reprint the "Excite" and the "Excite@Home" logos and other trademarked
materials to fulfill the terms of this Agreement subject to Excite@Home's
reasonable usage guidelines as these are published from time to time over
the term of this Agreement.
4.5 VStream will grant to Excite@Home the non-exclusive, non- transferable
right to reprint the "VStream" logo and other trademarked materials to
fulfill the terms of this Agreement subject to VStream's reasonable usage
guidelines as these are published from time to time over the term of this
Agreement
4.6 Each Party hereby grants to the other a limited, non-exclusive license to
use the trademarks currently used by such Party (the "Trademarks") to carry
out the purposes of this Agreement. Each Party acknowledges that the
Trademarks belong to the granting Party and that the non-granting Party
shall have no rights in such Trademarks except for the purposes set forth
in this Agreement. Neither Party shall use the Trademarks in any manner
that is disparaging or that otherwise portrays a Party in a negative light.
Neither Party may alter, modify or change the Trademarks except as
otherwise set forth in this Agreement. At no time during or after the term
of the Agreement will a Party challenge or assist others to challenge the
Trademarks or the registration thereof or attempt to register any
trademarks, marks or trade names confusingly similar to the Trademarks. At
a Party's reasonable request, all depictions of Trademarks that a Party
intends to use will be submitted to the other Party for approval of design,
color, or other details or will be exact copies of those used by a Party.
In the event a Party does not approve of such depiction, the other Party
shall cease using such depiction upon reasonable notice.
4.7 The rights and licenses granted in this Agreement are made on non-exclusive
terms to both Parties.
5. VStream Maintenance, Support and Performance Obligations
5.1 VStream will be responsible for providing maintenance and technical support
for all Beep and Premium Service End Users as set forth in Exhibit D.
5.2 VStream will provide Excite@Home the performance and uptime guarantees for
the Beep and the Premium Service as set forth in Exhibit D.
6. Financial Terms
6.1 VStream will purchase advertising and promotional placements as described
in Exhibit F from Excite@Home pursuant to the financial terms set out in
Exhibit E.
6.2 VStream will pay Excite@Home sponsorship and advertising fees as set out in
Exhibits E and F during the term of this Agreement.
5
<PAGE>
6.3 VStream will pay Excite@Home the Cost of Integration fees set out in
Exhibit E.
6.4 VStream agrees to pay Excite@Home all amounts set out in Exhibit E as
provided in Exhibit E on the first day of each quarter in advance of the
Excite@Home performance set out in Exhibit E.
6.5 To the extent Excite@Home chooses to direct traffic to Premium Services
that are not Work.com Premium Services, Excite@Home and VStream agree that
the terms thereof shall be as set out in Exhibits E and I.
6.6 Excite@Home may elect to allow VStream to sell some or all of the audio
advertisements subject to Excite@Home's sales policies. VStream will share
[...**...]% of the Net Advertising Revenue from such sales with the
Excite@Home
6.7 Subject to 6.6, in the event audio advertising is sold within the Premium
Service offering, Excite@Home will, at its option, be solely responsible
for selling such advertising and will share [...**...]% of the Net
Advertising Revenue generated from such sales with VStream.
6.8 VStream shall allow Excite@Home to sell advertisements and promotional ad
placements within the Premium Services and Beep as set out in Exhibit H.
Net Advertising Revenue generated from such sales will be[...**...].
7. Sales, Marketing and Public Relations
7.1 Excite@Home will display the advertising and promotional placements on the
portions of the Excite@Home Network as set out in Exhibit E and according
to the schedule set out in Exhibit E.
7.2 All End User traffic driven to the Work.com Site will be subject to the
terms set forth in Exhibit I.
8. Branding
8.1 All Co-Branded Pages will reside on the Excite Web site and Excite will
control the "look and feel" of the Co-Branded Pages; provided, however,
that any such Co-Branded Pages will be in a manner and form consistent with
Excite@Home's page; (ii) treat VStream's name and logo in a manner
consistent with the treatment of Excite@Home's name and logo; and (iii)
VStream's name and logo will not be subject to any modification or change.
Further, all rights and associated goodwill arising from or relating to the
Co-Branded Pages shall remain the respective property of each Party.
8.2 At Excite@Home's sole discretion, all Beep integration into the Excite@Home
Network communities' products such as Mail, Clubs, People Finder as
described
*Confidential Treatment Requested
6
<PAGE>
in Exhibit C, will be provided with "powered by VStream branding" or with
other branding to be mutually agreed by the Parties.
8.3 At Excite@Home's sole discretion, all Beep integration into the Excite@Home
Network Commerce products ("Personals") as described in Exhibit C, will be
provided with VStream branding as described in Exhibit F or with other
branding to be mutually agreed by the Parties.
8.4 All new Beep integrations or other product integrations not described in
this Agreement upon execution will receive "powered by VStream" branding or
other branding and hyperlinks to be mutually agreed by the Parties.
9. User Data and Usage Reports
9.1 Excite@Home will retain ownership of all legacy User Data except as set
forth in this Agreement and any amendments thereto.
9.2 To the extent that VStream collects any User Data as part of this
Agreement, Excite@Home shall have co-equal rights with VStream to all such
User Data.
9.3 Terms of use and ownership for User Data are set forth in Exhibit H.
9.4 Any individually identifiable User Data collected as part of this Agreement
by the Parties will be treated as confidential and will be subject to
TRUSTe or other Excite@Home and VStream privacy policies as they may be
published by either Party from time to time.
9.5 VStream agrees to deliver monthly dumps of User Data in a form to be
mutually agreed by the Parties.
9.6 The Parties will provide each other usage reports as set forth in Exhibit
G.
10. Term and Termination
10.1 Term. The Term of the Agreement shall be two (2) years from the Effective
Date. The Agreement shall automatically renew for additional one (1) year
periods unless terminated by either Party upon sixty (60) days prior
written notice to the other Party.
10.2 Termination. Each Party may terminate this Agreement upon written notice to
the other Party if the other Party (i) materially breaches any term or
provision of this Agreement and fails to cure such breach within sixty (60)
days after receipt of written notice of intention to terminate from the
other Party; (ii) suspends or terminates the conduct of its business; or
(iii) initiates or has initiated against it, any act, process or proceeding
under any insolvency law, the Federal Bankruptcy Act, or any other statute
or law providing for the modification or adjustment of the rights of
creditors.
7
<PAGE>
10.3 Termination for Change of Control. Each Party will have the right to
terminate this Agreement on thirty (30) days written notice to the other
Party if all or substantially all of that Party's assets are acquired by a
third party who is a direct or indirect competitor of the other Party. The
Party changing control will provide the other Party with at least twenty-
four (24) hours notice before the public announcement of any such
transaction and will cooperate with the Party changing control to
communicate with common End Users regarding the transaction, subject to
applicable securities laws.
10.4 Termination for Best of Breed. In the event that VStream fails to ensure
that the services offered to Excite@Home by VStream are "Best of Breed"
for one continuous thirty (30) day period, Excite@Home may terminate this
agreement on 30 days written notice if VStream is unable to bring the
services up to a comparable standard within thirty (30) days of receiving
written notice from Excite@Home.
10.5 Effects of Termination. Upon termination of this Agreement for any reason,
(i) each Party will promptly return all Confidential Information of the
other Party, (ii) each Party will pay all outstanding amounts owed to the
other Party under this Agreement within forty-five (45) days after the
effective date of such termination, (iii) VStream will provide the User
Data to Excite@Home in a well-defined format to be agreed on by the
Parties, and (iv) all Beeps or other audio or User Data stored by VStream
will be delivered to Excite@Home in a series of three or more data dumps
in a form and format that allows for the easy reintegration of all such
data into the Excite@Home site.
10.6 Migration. Unless this Agreement is terminated by VStream pursuant to
Section 10.2 or 10.3 due to a material, uncured breach by Excite@Home, or
change of control, upon termination of this Agreement, for a period of up
to sixty (60) days, VStream will provide consulting services to
Excite@Home, as Excite@Home may reasonably request and for reasonable fees
to be paid to VStream, such fees to be agreed upon in writing by the
Parties, to assist Excite@Home in providing a seamless transition to End
Users. VStream will have no obligation to provide such services to
Excite@Home to the extent that VStream's personnel and resources are
unavailable in the amounts requested by Excite@Home or if the Parties are
unable to agree on the reasonable fees to be paid to VStream for such
services. VStream will not be required, in the course of providing such
consulting services to Excite@Home, to disclose or transfer to Excite@Home
any proprietary information, software, or Intellectual Property of VStream
or any of its suppliers.
11. Confidentiality
11.1 Definition of Confidential Information. For purposes of this Agreement,
"Confidential Information" of a Party means the information and documents
identified in this Agreement as confidential information of such Party, as
well as any and all other information that (i) such Party considers to be
confidential or
8
<PAGE>
proprietary to its business (including trade secrets, technical
information relating to ongoing research and development, business
strategies, marketing plans, customer lists, and financial data) and (ii)
either (A) is clearly labeled or identified as confidential or proprietary
when disclosed to the other Party or (B) the other Party knew, or under
the circumstances should have known, was considered confidential or
proprietary by the other Party.
11.2 General Confidentiality Obligations. Each Party agrees that it will (i)
not disclose the other Party's Confidential Information to any third party
(other than independent contractors as provided below); (ii) use the other
Party's Confidential Information only to the extent necessary to perform
its obligations or exercise its rights under this Agreement; (iii)
disclose the other Party's Confidential Information only to those of its
employees and independent contractors who need to know such information
for purposes of this Agreement and who are bound by confidentiality
agreements containing terms no less restrictive than those in this Section
11.2; and (iv) protect all Confidential Information of the other Party
from unauthorized use, access, or disclosure in the same manner as it
protects its own confidential information of a similar nature, and in no
event with less than reasonable care.
11.3 Exceptions. Each Party's obligations with respect to any portion of the
other Party's Confidential Information will terminate when the receiving
Party can document that (i) such Confidential Information was in the
public domain at the time it was communicated to the receiving Party by
the disclosing Party; (ii) such Confidential Information entered the
public domain after it was communicated to the receiving Party by the
disclosing Party through no fault of the receiving Party; (iii) such
Confidential Information was in the receiving Party's possession free of
any obligation of confidence at the time it was communicated to the
receiving Party by the disclosing Party; or (iv) such Confidential
Information was developed by employees or agents of the receiving Party
independently of and without reference to any information communicated to
the receiving Party by the disclosing Party. In addition, Section 11.2
will not be construed to prohibit any disclosure that is (A) necessary to
establish the rights of either Party under this Agreement or (B) required
by a valid court order or subpoena, provided in the latter case that the
Party required to make such disclosure notifies the other Party (whose
Confidential Information is to be disclosed) thereof promptly and in
writing and cooperates with the other Party if the other Party seeks to
contest or limit the scope of such disclosure.
11.4 Terms of Agreement. Neither Party will disclose the existence or any terms
of this Agreement to anyone other than its attorneys, accountants, and
other professional advisors, except (i) pursuant to a mutually acceptable
press release or otherwise approved by the other Party in writing; (ii) in
connection with a contemplated change of control of such Party or sale of
such Party's business (provided that any third party to whom the terms of
this Agreement are to be
9
<PAGE>
disclosed signs a confidentiality agreement reasonably satisfactory to the
other Party hereto before such disclosure is made); or (iii) as may be
required by law.
11.5 Press Release: Excite@Home and VStream both agree to issue mutually
acceptable press releases announcing this Agreement. Both Parties may
issue additional press releases regarding the specific product launches as
mutually agreed. An initial announcement of the investment will be
released within 30 days of the closing of this Agreement. Executive
officers, i.e., the chief executive officer ("CEO") of the Parties will be
quoted in the initial announcement, as set out in Exhibit K.
12. Warranty and Indemnification
12.1 Power and Authority. Each Party hereby represents and warrants that such
Party is duly organized and validly existing under the laws of the state
of its organization, and has full power and authority to enter into this
Agreement and to carry out the provisions hereof.
12.2 Due Authorization. Each Party hereby represents and warrants that such
Party is duly authorized to execute and deliver this Agreement and to
perform its obligations hereunder.
12.3 Binding Obligation. Each Party hereby represents and warrants that this
Agreement is a legal and valid obligation binding upon it and is
enforceable in accordance with its terms. The execution, delivery and
performance of this Agreement by such Party does not conflict with any
agreement, instrument or understanding, oral or written, to which it is a
Party or by which it may be bound, nor violate any law or regulation of
any court, governmental body or administrative or other agency having
authority over it.
12.4 Proprietary Rights. Each Party represents and warrants to the other that
their respective Intellectual Property shall not in any way constitute an
infringement or other violation of any patent, copyright, trade secret,
trademark or other proprietary rights of any other party.
12.5 Performance. Each Party represents and warrants to the other that their
respective Intellectual Property when used in conjunction with the
designated hardware will perform in all material respects according to any
and all specifications, representations and functional specifications
identified in the descriptions and technical specifications contained in
the documentation related to each Party's Intellectual Property (as such
documentation and specifications shall be amended from time to time).
However, the Parties do not warrant that their respective Intellectual
Property will be otherwise free of all errors or "bugs" as that term is
commonly used in the trade. Each Party shall provide reasonable
programming services to correct errors or "bugs" identified by the other
Party, or shall, at its option, replace their respective Intellectual
Property.
10
<PAGE>
12.6 Year 2000. Each Party represents and warrants to the other that the
occurrence in or use by their respective Intellectual Property of dates on
or after January 1, 2000 ("Millennial Dates") will not adversely affect
their performance with respect to date-dependent data, computations,
output, or other functions (including, without limitation, calculating,
comparing and sequencing) and that their respective Intellectual Property
will create, store, process and output information related to or including
Millennial Dates without errors or omissions and at no additional cost to
the other Party. If requested by a Party, the other Party will provide
sufficient evidence to demonstrate the adequate testing of their
respective Intellectual Property to meet the foregoing requirements.
12.7 Ownership of Trademarks. As of the Effective Date, each Party represents
and warrants to the other that (a) it is the sole owner of all right,
title and interest in and to the Trademarks and (b) it has the absolute
right to the use of the Trademarks and to grant the license granted in
Section 4.6.
12.8 Limitation of Liability. EXCEPT WITH RESPECT TO EACH PARTY'S RESPECTIVE
INDEMNIFICATION OBLIGATIONS UNDER ARTICLE 13, IN NO EVENT SHALL EITHER
PARTY, ITS AFFILIATES, OR ANY OF ITS OR THEIR DIRECTORS, OFFICERS,
EMPLOYEES OR AGENTS, BE RESPONSIBLE OR LIABLE FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES
(INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES OR LOSS OF PROFITS), EVEN
IF THAT PARTY, ITS AFFILIATES, OR ANY OF ITS OR THEIR DIRECTORS, OFFICERS,
EMPLOYEES OR AGENTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, ARISING
OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT OR ITS IMPLEMENTATION.
13. INDEMNIFICATION
13.1 Indemnification Obligation. Each Party (the "Indemnifying Party") shall
defend, indemnify and hold harmless the other Party and each of its
officers, directors, employees, agents and stockholders (the "Indemnified
Parties"), from and against any and all claims, losses, liabilities,
costs, settlements, damages or expenses of any kind (including reasonable
attorneys' fees and disbursements) (collectively, "Indemnified Amounts")
incurred by the Indemnified Parties which arise out of, relate to or are
based upon (i) any claim that a Party's Intellectual Property infringes
upon the intellectual property or other proprietary rights of a third
party or (ii) any Party's negligence or breach of a representation or
warranty or breach of a covenant obligation or agreement made by a Party
under this Agreement, except to the extent such Indemnified Amounts are
due to the gross negligence or willful misconduct of any Indemnified
Party.
11
<PAGE>
13.2 Indemnity Procedures. Each Indemnified Party agrees to give the
Indemnifying Party prompt written notice of any matter upon which such
Indemnified Party intends to base a claim for indemnification (an
"Indemnity Claim") under this Article __. The Indemnifying Party shall
have the right to participate jointly with the Indemnified Party in the
Indemnified Party's defense, settlement or other disposition of any
Indemnity Claim. With respect to any Indemnity Claim relating solely to
the payment of money damages that could not result in the Indemnified
Party's becoming subject to injunctive or other equitable relief or
otherwise adversely affect the business of the Indemnified Party in any
manner, the Indemnifying Party shall have the sole right to defend, settle
or otherwise dispose of such Indemnity Claim, on such terms as the
Indemnifying Party, in its sole discretion, shall deem appropriate,
provided that the Indemnifying Party shall provide reasonable evidence of
its ability to pay any damages claimed and with respect to any such
settlement shall have obtained the written release of the Indemnified
Party from the Indemnity Claim. The Indemnifying Party shall obtain the
written consent of the Indemnified Party, which shall not be unreasonably
withheld, prior to ceasing to defend, settling or otherwise disposing of
any Indemnity Claim if as a result thereof the Indemnified Party would
become subject to injunctive or other equitable relief or the business of
the Indemnified Party would be adversely affected in any manner. The
Indemnified Party may, at its sole cost and expense, participate in any
such suit or action with counsel of its own choice.
14 DISPUTE RESOLUTION
14.1 The Parties agree that any breach of either of the Parties' obligations
regarding trademarks, service marks or trade names and/or confidentiality
would result in irreparable injury for which there is no adequate remedy
at law. Therefore, in the event of any breach or threatened breach of a
Party's obligations regarding trademarks, service marks or trade names
and/or confidentiality, the aggrieved Party shall be entitled to seek
equitable relief in addition to its other available legal remedies in a
court of competent jurisdiction. For the purposes of this section only,
the Parties consent to venue in either the state courts of the county in
which Excite@Home has its principal place of business or the United States
District Court for the Northern District of California.
14.2 In the event of disputes between the Parties arising from or concerning in
any manner the subject matter of this Agreement, other than disputes
arising from or concerning trademarks, service marks or trade names and/or
confidentiality, the Parties shall first attempt to resolve the dispute(s)
through good faith negotiation. In the event that the dispute(s) cannot be
resolved through good faith negotiation, the Parties shall refer the
dispute(s) to a mutually acceptable mediator for hearing in Redwood City,
California if VStream initiates the dispute or Boulder, Colorado if
Excite@Home initiates the dispute.
14.3 In the event that disputes between the Parties arising from or concerning
in any manner the subject matter of this Agreement, other than disputes
arising from or
12
<PAGE>
concerning trademarks, service marks or trade names and/or
confidentiality, cannot be resolved through good faith negotiation and
mediation, the Parties shall refer the dispute(s) to the American
Arbitration Association for resolution through binding arbitration by a
single arbitrator pursuant to the American Arbitration Association's rules
applicable to commercial disputes. The arbitration shall be held Redwood
City, California if VStream initiates the arbitration or Boulder, Colorado
if Excite@Home initiates the arbitration, and the decision reached by such
arbitrator shall be entered as a judgment in any court of competent
jurisdiction.
15 EXCITE@HOME TO INVEST IN VSTREAM.
15.1 Excite@Home will invest in common stock of VStream as set out in Exhibit
J.
16 GENERAL
16.1 Relationship of Parties. Nothing in this Agreement will be construed as
creating any agency, partnership, or other form of joint enterprise
between the Parties. Neither Party will have the authority to act or
create any binding obligation on behalf of the other Party, and neither
Party will represent to any third party that it has the authority to act
or create any binding obligation on behalf of the other Party.
16.2 Notices. All notices, consents, waivers, and other communications intended
to have legal effect under this Agreement must be in writing, must be
delivered to the other Party at the address set forth at the top of this
Agreement by personal delivery, certified mail (postage pre-paid), or a
nationally recognized overnight courier, and will be effective upon
receipt (or when delivery is refused). Any such notices sent to VStream
must be addressed to the attention of its General Counsel. Each Party may
change its address for receipt of notices by giving notice of the new
address to the other Party.
16.3 Governing Law. This Agreement will be governed by and interpreted in
accordance with the laws of the State of California as such laws apply to
contracts made between California residents to be performed entirely
within California. The United Nations Convention for the Sale of
International Goods will not apply to this Agreement.
16.4 Waiver. The failure of either Party to require performance by the other
Party of any provision of this Agreement will not affect the full right to
require such performance at any time thereafter; nor will the waiver by
either Party of a breach of any provision of this Agreement be taken or
held to be a waiver of the provision itself.
16.5 Severability. If any provision of this Agreement is unenforceable or
invalid under any applicable law or is so held by applicable court
decision, such unenforceability or invalidity will not render this
Agreement unenforceable or
13
<PAGE>
invalid as a whole, and such provision will be changed and interpreted so
as to best accomplish the objectives of such unenforceable or invalid
provision within the limits of applicable law or applicable court
decisions.
16.6 Assignment. Neither this Agreement nor any rights or obligations of either
Party under this Agreement may be assigned in whole or in part without the
prior written consent of the other Party except in connection with a
merger or sale of all or substantially all of the business or assets of
the assigning party. Any attempted assignment in violation of the
preceding sentence will be void. This Agreement will bind and inure to the
benefit of the respective successors and permitted assigns of the Parties.
NOTWITHSTANDING THE FOREGOING, in the event that the work.com organization
within Excite@Home becomes a separate entity from Excite@Home, the Parties
agree that the terms of this Agreement as they relate to the provision and
use of the Premium Services shall apply to both work.com and to
Excite@Home. Further, in the event of such a split between Excite@Home and
work.com, the fees set out in Exhibit E which are identified for work.com
service and or placements, shall be paid to work.com and fees incurred by
either Excite@Home or Work.com in relation to the Premium Service shall be
paid to VStream by the entity incurring the fee; provided, however, that
VStream and work.com must enter into an agreement mutually satisfactory to
the parties setting forth the performance terms and financial arrangements
between VStream and work.com and that this Agreement be amended in a
manner reasonably satisfactory to the Parties.
16.7 Force Majeure. Neither Party shall be liable for failure to perform or
delay in performing any obligation under this Agreement if such failure or
delay is due to any event directly impacting such Party's delay or failure
to perform and beyond such Party's reasonable control, including fire,
flood, earthquake, strike, war (declared or undeclared), embargo,
blockade, legal prohibition, governmental action, riot, insurrection,
damage, destruction, failures or delays in transportation or
communication, failure or substitutions of equipment, labor disputes,
accidents, shortages of labor, fuel, raw materials or equipment or
technical failures or any other similar cause; provided that the Party
claiming such force majeure event makes reasonable efforts to exercise
such control. The Party affected by such event of force majeure shall not
later than seven (7) days after the commencement of such event give notice
to the other Party of such event and shall use its best efforts to resume
full performance of its obligations under this Agreement as soon as
commercially possible.
16.8 Construction. The section headings appearing in this Agreement are
inserted only as a matter of convenience and in no way define, limit,
construe, or describe the scope or extent of such section or in any way
affect this Agreement. Unless otherwise expressly stated, when used in
this Agreement the word "including" means "including but not limited to."
14
<PAGE>
16.9 Entire Agreement and Amendment. This Agreement together with its Exhibits
completely and exclusively states the agreement of the Parties regarding
its subject matter. It supersedes, and its terms govern, all prior
understandings, agreements, or other communications between the Parties,
oral or written, regarding such subject matter. This Agreement may be
executed in counterparts and may be amended only in a document signed by
both Parties.
16.10 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS HEREOF, the Parties have caused this Agreement to be executed by
their duly authorized representatives as of the date first written above.
VStream, Incorporated
By: ____________________________________________________
Paul Berberian, Chief Executive Officer and Chairman
Date: ____________________________________________________
At Home Corporation.
By: _____________________________________________________
Mark Stevens, Executive Vice President,
Corporate Business Development
Date: _____________________________________________________
15
<PAGE>
EXHIBIT A
---------
DESCRIPTION OF BEEP SERVICES
VStream provides an Internet Communications service called, Beep which provides
the services described in the Beep Technical Manual published by VStream 1999
and all updates and additions to that Manual during the Term
Beep is a service allowing end-users to author voice messages over their
telephone for streamed playback over the Internet and distributed through a link
in an e-mail or embedded in an application such as a message board posting or
added to a web page.
The Beep service, is available from VStream's website at http://www.vstream.com.
Messages may be up to two (2) minutes in length and will be stored for thirty
(30) days, unless otherwise mutually agreed upon.
1
<PAGE>
EXHIBIT B
---------
ENGINEERING SERVICES PROVIDED TO EXCITE@HOME
1. Description of Work to Be Done by VStream
a) VStream and Excite@Home will work together to integrate the Beep
service into the Excite@Home products listed in Exhibit C.
b) Beeps are categorized on input by the portal from which they originate.
In these cases, Excite@Home will be the originating site. Because of
the volume of Beeps that will be performed through the period of the
contract, VStream will construct a separate database infrastructure to
support this traffic.
2. When is complete work to be delivered/Milestones
Beep will be integrated on the Excite Network as per the following
timetable:
VStream service delivery plans:
On or before December 15, 1999: VStream will deliver the ability to
perform two hundred and fifty thousand (250,000) beeps per day.
On or before March 15, 2000: VStream will deliver the ability to
perform one million (1,000,000) beeps per day.
If the number of Beeps exceed the performance numbers listed above
the system will fail over to a temporary "service busy" type of
message (exact text to be determined) until such time that the peak
load falls under the numbers listed above.
Excite@Home product integration suggested timeline:
Excite Personals: User Interface Design:
Engineering work for Beep integration into Excite Personals will
last 1-2 months, beginning November 1999.
QA/Testing of Beep service for one week beginning at the beginning
of November. Live push of Beep service integrated into Excite
Personals in January 1999.
Excite Personals: User Interface Design,
Engineering work for Beep integration into Excite Personals will
last 1-2 months, beginning November 1999.
2
<PAGE>
Integration of Beep will occur in two phases.
Phase 1: Add Beep to Personals Ads.
Phase 2: Add Beep to email replies.
QA/Testing of Beep service for two weeks beginning at the beginning
of December.
Live push of Phase I Beep service integrated into Excite Personals
in Q1 2000.
Live push of Phase 2 Beep service integrated into Excite Personals
in February 2000.
Excite Clubs Invite Service: User Interface Design,
Engineering work for Beep integration into Excite Clubs Invite
Service will last 1-2 months, beginning January 2000.
QA/Testing of Beep service for one week beginning in February 2000.
Live push of Beep service integrated into Excite Invite Service at
the end of February 2000.
Excite Clubs: User Interface Design,
Engineering work for Beep integration into Excite Personals will
last 2-3 months, beginning January 2000. QA/Testing of Beep service
for one week beginning at the beginning of March 2000. Proposed live
push of Beep service integrated into Excite Clubs in March 2000.
Excite Member Directory: All integration timelines are to be
determined but are anticipated to be sometime during the period of
Q4 1999 until Q2 2000.
Excite Mail/Voicemail: User Interface Design & Engineering
Engineering work (including UI design) for Beep integration into
Excite Mail/Voicemail will begin in November 1999 and last for 1-2
months. QA/Testing of Beep service is expected to begin in January
2000 and will take 1-2 weeks. The proposed live push of the Beep
service in Excite Mail/Voicemail will be in February 2000.
3
<PAGE>
All of the above integration timetables assume that Microsoft delivered to
VStream the source code for Window's Media Player on or before November 17,
1999. In the event that Microsoft does not deliver to VStream the source code
for Window's Media Player on or before November 17, 1999, then VStream's
integration obligations with respect to Beep, as set forth in the Agreement,
will be extended one day for each day that Microsoft delays in delivering the
source code for Window's Media Player to VStream.
3. Technical Specifications The following is a summary of how Beep integration
will work. The specific integration process may vary depending upon the
needs of the specific products involved.
The Co-Branded Pages or product integration external site, at some point in
it's flow, needs to send a URL to VStream to indicate that a voice message
is to be created (this will be called the Beep Request below). This message
can take the following parameters:
A unique ID to be associated with this voice mail request. If the external site
is sending out its own message or web page to the end user, then they should
pass us this unique ID so that they can include it in their page/email to later
request the voice message (e.g. they might embed an image in their page that
when clicked will make a URL request from VStream to play the voice message.
This request would require passing the unique ID.). However, if the external
site is going to rely on VStream to send an email containing the voice message
link, then this parameter can be left off, and we will create a unique ID on our
own.
The URL of a page that will display the phone # and message ID to use to record
the Beep (called the Dial Instructions page below). The Beep Request will
reserve a line and message ID and then redirect to Dial Instructions page,
passing the phone # and message ID as parameters. The Dial Instructions page
should display these values along with instructions on how to make the call. It
can reside at VStream or on the external site.
i) (optional) The email address of the sender, and a comma
separated list of recipient email addresses. This information is
required if VStream will be sending the emails with the voice
message links, but not if the external site is sending these.
ii) (optional) A parameter indicating whether the sender should get
notified when their Beeps are played.
a) The sender then needs to make the phone call and leave their message.
b) If VStream is sending emails, when the call is complete, VStream will
send an email with a link to play the voice message to the sender and
the recipients.
4
<PAGE>
c) There are many options for how the recipients access the voice message. If
VStream sends an email, then the email simply has a link to play the stream.
Clicking this link will bring up a page that is on VStream's site. This page
checks if the Beep is still active, and if so calls up the appropriate media
player and plays the message.
d) If the external site is sending an email, then their email will typically
contain a link to some page they are presenting to the user. This page
should contain some mechanism for checking with VStream to see if the voice
message was recorded, and if so to play the stream. This can be done in
several ways such as:
i) The external page could contain an image that says something to
the effect of "Click here to listen to your voice message". This
image would be located on VStream's site. When this image is
requested from the external site's page, VStream checks its
database and determines if the sender ever successfully completed
the phone call. If so, then VStream passes back the real image,
otherwise we pass back a one pixel transparent gif, so the user's
page effectively does not have the "play the message" image.
ii) Or the external page could be a page that calls a VStream URL and
the VStream URL checks the status of the voice message and then
redirects to a page on the external site passing the status as a
parameter. This secondary external site page would then take the
status as input and put up a different page depending on whether
the Beep had been recorded or not.
iii) Or the external page could have an embedded call to VStream that
requests the status (e.g. doesn't exist, available expired) of the
specific recording clip and then uses this status to render a
specific user experience for the End User.
5
<PAGE>
EXHIBIT C
---------
EXCITE@HOME INTEGRATION PLANS
Excite@Home shall integrate VStream's Beep services into the following products:
1. Excite Mail
a) The Beep product will be integrated into the Excite Mail and Excite
Voicemail in the "Compose" page of Excite Mail. Subject to UI design, it
is envisioned that the user will be able to send a Beep message by
checking on that option within the Compose Message screen. User will see
another page, where VStream will provide the Excite user with a unique
ID (and telephone number) associated with the request so that the
voicemail message can be recorded. This page will be a Co-Branded Page.
b) The notification option ("your email & voicemail (Beep) message was
read") to the Excite user can also be integrated into the product.
Subject to UI design, the additional option can be added on the page
where the unique ID & telephone number information is presented. This is
currently accomplished via an email notification mechanism. This can be
turned off at Excite@Home's discretion.
2. Excite Clubs
a) There are many areas within the Excite Club's product in which we can
integrate Beep. Beep could be integrated into the invitation service,
into individual Excite Club's applications as an additional way for end
users to leave announcements, discussions, messages or comments. Beep
could also be integrated with the textual description on the welcome
page and uploaded files.
b) We intend to integrate Beep into Excite Clubs in stages. The first stage
will be attaching a Beep to an email in the invitation service. The
second stage will be adding Beeps to the threaded discussion comment
boxes. From the user reaction, we will see if adding Beeps into
descriptions or other places is warranted.
c) Specific integration points include:
i) Invitations to join a club.
. The invite service sends email messages to prospective club
members. A beep could be attached to these emails. The compose page
for the email will contain the telephone number and unique ID
number to add a voice message. The instructions on how to add the
message will also be on this page.
6
<PAGE>
. The recipient will receive an email that will contain a link to a
community page. This page should have a way to check with VStream
to see if the voice message was recorded, and if so to play the
message.
. This work will take six weeks of development and QA time. It is
scheduled to start in mid-January, 2000.
ii) Leaving a voice comment
Announcements, Discussions, Calendar, Links, Contact list, Photos
and Files all have comment boxes. A user would have the
opportunity to leave a voice comment in addition to a textual
comment. The instructions, telephone number and unique ID would
either be on the same page as the comments box, or on a separate
page linked from that discussion page.
. Once recorded, the message will appear as a link within the
threaded discussion. Users will listen to the message by clicking
the link causing the message to play if recorded.
. This work is expected to take twelve (12) weeks of development
and QA time. It is scheduled to begin at the end of February.
iii) Descriptions with text and voice
. The welcome page, links and uploaded files and photos, contacts
and calendar events have a textual description. These
descriptions could be enhanced with a Beep. We will look into
this implementation once we receive feedback from using Beep in
these other areas.
3. Excite Personals
a) Excite Personals has two areas of Beep integration:
i) Place Personal Ads
. Users will be able to include a voice message along with their
other static text information to appear in their personal ad
(HTML page). This integration of Beep would occur in the `place
ad' and `detail page rendering' processes.
ii) Respond to Personal Ads
. Users that respond to personal ads can attach a voice message
along with their email response. This integration would occur in
the `send email message' process.
7
<PAGE>
4. Excite Member Directory
a) Integration into the Excite Member Directory pages such that users can
record voice messages for playback as part of their personal profile.
The integration process and plans will be similar to other integration
efforts as described above.
8
<PAGE>
EXHIBIT D
---------
MAINTENANCE AND SUPPORT
VStream shall provide the following support, maintenance, performance and uptime
guarantees to Excite@Home for the BEEP and the Premium Services:
1. Maintenance
a) VStream shall provide during 6:00AM-6:00PM Pacific Time on VStream's
normal business days, telephone consulting services to Excite@Home's
designated personnel to assist such personnel in resolving problems,
obtaining clarification relative to Beep and Premium Services and
providing assistance regarding suspected defects or errors in Beep and
Premium Services.
b) VStream will also provide email development support to Excite@Home.
Excite@Home's use of such support shall be restricted to calls related
to Severity 1 and Severity 2 issues as those terms are defined in
Exhibit D. VStream will make all reasonable efforts to respond to
Excite@Home's "after hours" support requests within the standards set
out in Exhibit D prior to the next business day following receipt of the
request.
c) By mutual agreement of the parties, VStream shall furnish qualified
personnel for on site assistance to Excite@Home to resolve problems and
to assist in customization.
d) VStream agrees to diligently work for the prompt resolution of defects
and errors in Beep and Premium Services. VStream agrees to respond to
Excite@Home by using a dedicated contact telephone number for each
support call.
e) Notwithstanding the forgoing, in the case of a system down condition,
(i.e. Severity 1, as defined below) attributable to VStream, VStream may
utilize other means of communication for both reporting of errors and
the conditions thereof.
f) VStream shall respond to and complete correction of errors, defects and
malfunctions, in accordance with the following schedule:
Severity 1 Causes data corruption or system crash or Excite@Home cannot
make effective use of Beep and/or Premium Services;
Severity 2 Feature does not work as documented, no reasonable work
around exists and Excite@Home has a critical need of the
feature;
9
<PAGE>
Severity 3 Feature doesn't work as documented but a reasonable work
around exist or Excite@Home can wait for the next release for
a fix;
Severity 4 Enhancement request.
g) VStream shall make an initial response to a Severity 1 normal
maintenance call within two hours after receipt Severity 1 calls shall
be responded to on a 24 hour by 7 day a week basis. VStream shall use
best efforts to provide a fix, work around, or to patch Severity 1 bugs
within twenty four (24) hours after the bug is replicated by VStream and
confirmed as a bug by VStream.
h) Provided that maintenance calls are received within VStream's normal
maintenance hours, VStream shall make an initial response to Severity 2
maintenance calls within four hours after receipt. VStream shall make
commercially reasonable efforts to provide a fix or work around for
Severity 2 bugs within five business days.
i) Provided that maintenance calls are received within VStream's
maintenance hours. VStream shall make an initial response to Severity 3
maintenance calls within twenty-four (24) hours after receipt. VStream
shall make reasonable efforts to identify a resolution to Severity 3
bugs within thirty (30) days and to incorporate Severity 3 fixes in the
next upcoming release of the product.
j) Provided that all maintenance calls are received within VStream's
business hours, VStream shall make an initial response to Severity 4
maintenance call within forty-eight (48) hours after receipt. Severity 4
issues will be dealt with on a case-by-case basis and no blanket
commitments will be made.
k) Excite@Home shall appoint one person as the principle point of contact
for the communication of bugs and errors to VStream and for the receipt
of bug and error fixes, work around and updates, if any. Additionally
Excite@Home may appoint another person as a back up of the principle
contact.
2. Uptime Guarantee
a) The portions of Beep and or Premium Services which are operated by
VStream shall have at least the following uptime as measured monthly
excluding planned downtime: for the first six months of commercial
availability of Beep and Premium Services, 98.8%, with a goal of 99.8%;
for months 7-12, 99.4% with a goal of 99.8%, and for months thirteen and
after during the term of the Agreement, 99.8%. In addition, the portion
of Beep and Premium Services operated by VStream will not experience
more than two outages (unscheduled downtime) of more than two hours in
10
<PAGE>
any month. The GUI hosted by Excite@Home shall meet this standard and
the VUI and other components hosted by VStream shall meet this
standard.
b) VStream will notify Excite@Home within fifteen (15) minutes of any
known and verified unscheduled downtime of the Services and update the
status to Excite@Home each and every hour until the service is back up.
VStream will immediately notify Excite@Home when the service is
restored. Excite@Home will notify VStream within (15) minutes of any
known and verified unscheduled downtime of the Services and update the
status to VStream every hour until the service is back up.
c) Scheduled downtime shall be no greater than four hours bi-weekly and
shall happen at a regularly scheduled time during off-peak periods. The
current plan is for scheduled downtime to occur every two weeks between
10PM and 2AM Pacific Time on Saturday evenings. Actual scheduled
downtime for the VUI components of the Excite@Home UM service will
normally not exceed fifteen (15) minutes. A mechanism will be put in
place by which users are notified of scheduled down time expected to be
over one hour at least seventy-two (72) hours before downtime occurs.
d) Components of the system, where technically feasible, shall be
redundant and fault tolerant for both Excite@Home and VStream's
operations.
3. System Performance
a) Latency of any data from the time VStream's server receives the request
to serve such data to the time when VStream's server begins to serve
such data shall be less than or equal to three seconds, outside of the
PIN number example given in Exhibit D, Section 3b, the next section.
b) Latency of PIN numbers during registration being served from VStream to
Excite@Home or Excite@Home to VStream shall be no greater than four
seconds (e.g. PIN numbers during registration.), in at least 90% of
cases, and in no case shall PIN presentment be in excess of 10 seconds,
independent of network or Internet conditions.
c) Throughput of all data being served directly to the end user shall be
sustained at least 50Kbits/sec as measured by Excite@Home's monitoring
stations, in at least 80% of monitoring cases, and assuming such
monitoring stations can receive sustained data rates in excess of
50Kbits/sec from most other locations on the Excite@Home site.
4. Performance Measurement
VStream will provide outage reports to Excite@Home when necessary.
11
<PAGE>
EXHIBIT E
---------
FINANCIAL TERMS
VStream shall make payments to Excite@Home under the following terms:
During the Term of this Agreement, VStream will pay Excite@Home [...**...]% of
gross receipts (less cost of long distance services, taxes and credits) from End
Users of the Premium Services originating from Work.com site. Such payment will
be credited towards the then current quarterly payment for slotting fees and
startup costs set out in Exhibit E (no quarter to quarter carry forward is
allowed). VStream shall be allowed to suspend payment of the slotting fees set
forth in this Exhibit E after the end of any quarter for the Term of this
Agreement if (i) the VStream services have been completely integrated into
Work.com (except where such integration has not occurred due to VStream default)
or (ii) VStream has not sold Premium Service to customers who purchased and used
the Premium Services through work.com as follows:
At least [..**..] customers by March 31, 2000; and
At least [..**..] customers in each subsequent quarter during Term of the
Agreement thereafter.
Notwithstanding the foregoing, if VStream's obligation to make scheduled
payments is suspended, the obligation will resume once the conditions set forth
in the preceding sentence are satisfied and VStream agrees that it shall resume
payments of the slotting fees at the point of suspension and Excite@Home has
the option to extend the Term of the Agreement for same period of any suspension
to assure Excite@Home that the full value of the slotting fees shall be paid by
VStream. Notwithstanding the foregoing, Excite@Home's right to extend the
Agreement pursuant to this section shall not exceed seven additional quarters.
During any extension, all other terms relating to Work.com will still apply.
The only difference is that payments are then due in arrears instead of in
advance, and any missed quotas during the extension period(s) do not translate
to additional extensions.
In the event audio advertising is sold within the service offering, Work.com
will, at its option, be responsible for selling such advertising and will share
[...**...]% of the Net Advertising Revenue with VStream. Work.com may choose,
however, to allow VStream to sell some or all of the advertisements. The selling
party will be compensated for sales commissions up to [...**...]%. The serving
party will be compensated for reasonable serving and tracking costs.
In the event that the Premium Services are incorporated on the Excite@Home
Network outside of the Work.com site, Excite@Home shall, at its option, be
responsible for selling advertising and will share [...**...]% of the Net
Advertising Revenue with VStream. Excite@Home may choose, however, to allow
VStream to sell some or all of the advertisements.
* Confidential Treatment Requested
12
<PAGE>
Further to the extent that the Premium Services are incorporated on the
Excite@Home Network outside of the Work.com site, VStream will pay Excite@Home
[...**...]% of gross receipts (less cost of long distance services) from End
Users of the Premium Services originating from Excite@Home (excluding End Users
originating from the Work.com site).Contract Spending Plan Excite
*Confidential Treatment Requested.
13
<PAGE>
Contract Spending Plan Excite
<TABLE>
<CAPTION>
EXCITE Q4 99 Q1 00 Q2 00 Q3 00 Q4 00 Q1 01 Q2 01 Q3 01 Q4 01 Q1 02
- ----------------------------------------------------------------------------------------------------------------------------------
Sponsorships PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Classifieds 2000
Personals
- ----------------------------------------------------------------------------------------------------------------------------------
Home Pge
Resources Link $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
- ----------------------------------------------------------------------------------------------------------------------------------
Place Ad Pages $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
- ----------------------------------------------------------------------------------------------------------------------------------
Email Response $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
Pages
- ----------------------------------------------------------------------------------------------------------------------------------
Excite Communities
- ----------------------------------------------------------------------------------------------------------------------------------
Voice Chat Room $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
Module
- ----------------------------------------------------------------------------------------------------------------------------------
Directory Page $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
Modules (all
categories listed on
client check list)
- ----------------------------------------------------------------------------------------------------------------------------------
Excite Voice Mail $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
(Graphic Module)
- ----------------------------------------------------------------------------------------------------------------------------------
Excite Mail Module $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
(Text Link)
- ----------------------------------------------------------------------------------------------------------------------------------
TOTAL EXCITE $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
SPONSORSHIPS
- ----------------------------------------------------------------------------------------------------------------------------------
TOTAL EXCITE $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
- ----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
EXCITE Q2 02 Q3 02 Total
- -------------------------------------------------------
Sponsorships PRICE PRICE PRICE
- -------------------------------------------------------
<S> <C> <C> <C>
Classifieds 2000
Personals
- -------------------------------------------------------
Home Pge
Resources Link $[..**..] $[..**..] $[..**..]
- -------------------------------------------------------
Place Ad Pages $[..**..] $[..**..] $[..**..]
- -------------------------------------------------------
Email Response $[..**..] $[..**..] $[..**..]
Pages
- -------------------------------------------------------
Excite Communities
- -------------------------------------------------------
Voice Chat Room $[..**..] $[..**..] $[..**..]
Module
- -------------------------------------------------------
Directory Page $[..**..] $[..**..] $[..**..]
Modules (all
categories listed on
client check list)
- -------------------------------------------------------
Excite Voice Mail $[..**..] $[..**..] $[..**..]
(Graphic Module)
- -------------------------------------------------------
Excite Mail Module $[..**..] $[..**..] $[..**..]
(Text Link)
- -------------------------------------------------------
TOTAL EXCITE $[..**..] $[..**..] $[..**..]
SPONSORSHIPS
- -------------------------------------------------------
TOTAL EXCITE $[..**..] $[..**..] $[..**..]
- -------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
EXCITE CONTENT Q4 99 Q1 00 Q2 00 Q3 00 Q4 00 Q1 01 Q2 01 Q3 01 Q4 01 Q1 02
INTEGRATION
- ----------------------------------------------------------------------------------------------------------------------------------
PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Communities
- ----------------------------------------------------------------------------------------------------------------------------------
Integration Cost $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
- ----------------------------------------------------------------------------------------------------------------------------------
Personals
- ----------------------------------------------------------------------------------------------------------------------------------
Integration Cost $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
- ----------------------------------------------------------------------------------------------------------------------------------
Total $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
TOTAL EXCITE $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
Content Integration
- ----------------------------------------------------------------------------------------------------------------------------------
EXCITE CONTENT Q2 02 Q3 02 Total
INTEGRATION
- -----------------------------------------------------
PRICE PRICE PRICE
- -----------------------------------------------------
<S> <C> <C> <C>
Communities
- -----------------------------------------------------
Integration Cost $[..**..] $[..**..] $[..**..]
- -----------------------------------------------------
Personals
- -----------------------------------------------------
Integration Cost $[..**..] $[..**..] $[..**..]
- -----------------------------------------------------
Total $[..**..] $[..**..] $[..**..]
- -----------------------------------------------------
- -----------------------------------------------------
TOTAL EXCITE $[..**..] $[..**..] $[..**..]
Content Integration
- -----------------------------------------------------
</TABLE>
*Confidential Treatment Requested
14
<PAGE>
Contract Spending Plan Excite
<TABLE>
<CAPTION>
WORK.COM Q4 99 Q1 00 Q2 00 Q3 00 Q4 00 Q1 01 Q2 01 Q3 01 Q4 01
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Sponsorships PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE
- ---------------------------------------------------------------------------------------------------------------------------
Sponsorships $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
- ---------------------------------------------------------------------------------------------------------------------------
Zarco $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
- ---------------------------------------------------------------------------------------------------------------------------
TOTAL WORK.COM $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
SPONSORSHIPS
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
Banners PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE
- ---------------------------------------------------------------------------------------------------------------------------
Banners $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
- ---------------------------------------------------------------------------------------------------------------------------
TOTAL WORK.COM BANNERS $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
Miscellaneous PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE
- ---------------------------------------------------------------------------------------------------------------------------
Cost of Integration $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
- ---------------------------------------------------------------------------------------------------------------------------
TOTAL WORK.COM $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
Miscellaneous
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
TOTAL WORK.COM $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
ACCOUNT MANAGEMENT Q4 99 Q1 00 Q2 00 Q3 00 Q4 00 Q1 01 Q2 01 Q3 01 Q4 01
- ---------------------------------------------------------------------------------------------------------------------------
Production Services PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE
- ---------------------------------------------------------------------------------------------------------------------------
Account Director $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
- ---------------------------------------------------------------------------------------------------------------------------
Account Manager $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
(Excite)
- ---------------------------------------------------------------------------------------------------------------------------
Ad Coordinator $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
- ---------------------------------------------------------------------------------------------------------------------------
Total Account Management $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
Grand Total Excite $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..] $[..**..]
- ---------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
WORK.COM Q1 02 Q2 02 Q3 02 Total
- ---------------------------------------------------------------------
<S> <C> <C> <C> <C>
Sponsorships PRICE PRICE PRICE PRICE
- ---------------------------------------------------------------------
Sponsorships $[..**..] $[..**..] $[..**..] $[..**..]
- ---------------------------------------------------------------------
Zarco $[..**..] $[..**..] $[..**..] $[..**..]
- ---------------------------------------------------------------------
TOTAL WORK.COM $[..**..] $[..**..] $[..**..] $[..**..]
SPONSORSHIPS
- ---------------------------------------------------------------------
- ---------------------------------------------------------------------
Banners PRICE PRICE PRICE PRICE
- ---------------------------------------------------------------------
Banners $[..**..] $[..**..] $[..**..] $[..**..]
- ---------------------------------------------------------------------
TOTAL WORK.COM BANNERS $[..**..] $[..**..] $[..**..] $[..**..]
- ---------------------------------------------------------------------
- ---------------------------------------------------------------------
Miscellaneous PRICE PRICE PRICE PRICE
- ---------------------------------------------------------------------
Cost of Integration $[..**..] $[..**..] $[..**..] $[..**..]
- ---------------------------------------------------------------------
TOTAL WORK.COM $[..**..] $[..**..] $[..**..] $[..**..]
Miscellaneous
- ---------------------------------------------------------------------
- ---------------------------------------------------------------------
TOTAL WORK.COM $[..**..] $[..**..] $[..**..] $[..**..]
- ---------------------------------------------------------------------
- ---------------------------------------------------------------------
ACCOUNT MANAGEMENT Q1 02 Q2 02 Q3 02 Total
- ---------------------------------------------------------------------
Production Services PRICE PRICE PRICE PRICE
- ---------------------------------------------------------------------
Account Director $[..**..] $[..**..] $[..**..] $[..**..]
- ---------------------------------------------------------------------
Account Manager $[..**..] $[..**..] $[..**..] $[..**..]
(Excite)
- ---------------------------------------------------------------------
Ad Coordinator $[..**..] $[..**..] $[..**..] $[..**..]
- ---------------------------------------------------------------------
Total Account Management $[..**..] $[..**..] $[..**..] $[..**..]
- ---------------------------------------------------------------------
- ---------------------------------------------------------------------
Grand Total Excite $[..**..] $[..**..] $[..**..] $[..**..]
- ---------------------------------------------------------------------
</TABLE>
*Confidential Treatment Requested
<PAGE>
EXHIBIT F
---------
SALES AND MARKETING
1. Excite@Home Communities Placements
a) Excite@Home will provide VStream with the following advertising and
promotional placements:
b) Voice Chat Module: Today, our Voice Chat audience is largely made up of
18-30 year olds. VStream can target their age demographic, which will
attract college students, and young adults (age 21-33 is 33% of Voice
Chat traffic). The placement is a graphic module 100x30 2k in size, and
two lines of text, one line an active link.
c) Directory Pages Module: Upon entering Excite People and Chat, users
drill down by category prior to entering a community, chat room, or
message boards. VStream can target all desirable categories, i.e.
Business, Shopping, Auto's etc. The placement is a graphic module
100x30 2k in size, and two lines of text, one line an active link --
right hand navigation.
d) Excite Voicemail: Excite Voicemail, offers users the ability to receive
Voicemail and faxes, in their Excite Mail Inbox. Excite Voicemail is
the only service available nation wide, and available toll free nation
wide. Messages are left via 800#ers, users have personal pins, messages
are retrieved via Excite Mail Inbox in the form of audio files.
VStream's demographic highlight for Excite Voicemail will be the early
adopters age 21-33 is 33% of the prospective traffic. The placement is
a graphic module 100x30 2k in size, and two lines of text, one line an
active link.
e) Excite Mail: Excite Mail is experiencing an average of 5M page views
per day and growing rapidly. Excite Mail recently recorded more than
one million members using their Mail account at least once during the
week (Forrester Research). The placement is a graphic module 100x30 2k
in size, and two lines of text, one line an active link.
2. Excite@Home Personals Placements
a) The homepage of Personals will promote VStream by including a text link
calling out the Beep functionality in the `Resources' area. This link
from the homepage will lead to a splashpage that provides a description
of Beep and how it works within Personals in more detail. This page
could feature VStream's other products and include a "More about
VStream" link or other link to be mutually agreed on. This link could
take users to the Work.com Premium Services or Excite Premium Services
areas.
16
<PAGE>
b) Branding of VStream (or Beep depending on preference) through inclusion
of a static (non-linked) logo at every product integration point (on
place ad pages and send message pages) or as a hyperlink to a co-
branded page agreed upon by both parties.
17
<PAGE>
Detail of Communities and Placements Impressions -- Q499 thru Q300
<TABLE>
<CAPTION>
EXCITE Q4 99 Q4 99 Q1 00 Q1 00 Q2 00 Q2 00 Q3 00 Q3 00 Year One Year One
- ---------------------------------------------------------------------------------------------------------------------------------
Sponsorships IMP PRICE IMP PRICE IMP PRICE IMP PRICE IMP PRICE
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Classifieds 2000 Personals
- ---------------------------------------------------------------------------------------------------------------------------------
Home Page Resources Link [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
- ---------------------------------------------------------------------------------------------------------------------------------
Place Ad Pages [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
- ---------------------------------------------------------------------------------------------------------------------------------
Email Response Pages [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
Excite Communities
- ---------------------------------------------------------------------------------------------------------------------------------
Voice Chat Room Module [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
- ---------------------------------------------------------------------------------------------------------------------------------
Directory Page Modules (all [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
categories listed on
client check list)
- ---------------------------------------------------------------------------------------------------------------------------------
Excite Voice Mail (Graphic [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
Module)
- ---------------------------------------------------------------------------------------------------------------------------------
Excite Mail Module (Text [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
Link)
TOTAL EXCITE SPONSORSHIPS [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
- ---------------------------------------------------------------------------------------------------------------------------------
TOTAL EXCITE [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
*Confidential Treatment Requested
<PAGE>
Detail of Communities and Placements Impressions -- Q400 thru Q301
<TABLE>
<CAPTION>
EXCITE Q4 00 Q4 00 Q1 01 Q1 01 Q2 01 Q2 01 Q3 01 Q3 01 Year Two Year Two
- ---------------------------------------------------------------------------------------------------------------------------------
Sponsorships IMP PRICE IMP PRICE IMP PRICE IMP PRICE IMP PRICE
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Classifieds 2000 Personals
- ---------------------------------------------------------------------------------------------------------------------------------
Home Pge Resources Link [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
- ---------------------------------------------------------------------------------------------------------------------------------
Place Ad Pages [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
- ---------------------------------------------------------------------------------------------------------------------------------
Email Response Pages [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
- ---------------------------------------------------------------------------------------------------------------------------------
Excite Communities
- ---------------------------------------------------------------------------------------------------------------------------------
Voice Chat Room Module [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
- ---------------------------------------------------------------------------------------------------------------------------------
Directory Page Modules (all [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
categories listed on
client check list)
- ---------------------------------------------------------------------------------------------------------------------------------
Excite Voice Mail (Graphic [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
Module)
- ---------------------------------------------------------------------------------------------------------------------------------
Excite Mail Module (Text [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
Link)
TOTAL EXCITE SPONSORSHIPS [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
- ---------------------------------------------------------------------------------------------------------------------------------
TOTAL EXCITE [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
*Confidential Treatment Requested.
<PAGE>
Detail of Communities and Placements Impressions -- Q401 thru Q302
<TABLE>
<CAPTION>
EXCITE Q4 01 Q4 01 Q1 02 Q1 02 Q2 02 Q2 02 Q3 02 Q3 02 Year Three Year Three
- ---------------------------------------------------------------------------------------------------------------------------------
Sponsorships IMP PRICE IMP PRICE IMP PRICE IMP PRICE IMP PRICE
- ---------------------------------------------------------------------------------------------------------------------------------
Classifieds 2000 Personals
- ---------------------------------------------------------------------------------------------------------------------------------
Home Pge Resources Link [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
- ---------------------------------------------------------------------------------------------------------------------------------
Place Ad Pages [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
- ---------------------------------------------------------------------------------------------------------------------------------
Email Response Pages [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Excite Communities
- ---------------------------------------------------------------------------------------------------------------------------------
Voice Chat Room Module [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
- ---------------------------------------------------------------------------------------------------------------------------------
Directory Page Modules [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
(all categories listed
on client check list)
- ---------------------------------------------------------------------------------------------------------------------------------
Excite Voice Mail [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
(Graphic Module)
- ---------------------------------------------------------------------------------------------------------------------------------
Excite Mail Module [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
(Text Link)
TOTAL EXCITE SPONSORSHIPS [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
- ---------------------------------------------------------------------------------------------------------------------------------
TOTAL EXCITE [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..] [..**..]
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
*Confidential Treatment Requested.
<PAGE>
3. VStream Marketing and Promotion Requirements
When possible, VStream will market or describe the relationship with
Excite@Home on their web site.
4. Co-Branded Advertising Purchased by VStream
In the case that VStream purchases advertising from the Excite@Home Network
that promotes the Premium services or any other co-branded VStream services
with a revenue sharing component, the rates for such advertising will be as
follows:
Banner advertisements will be offered at [...**...]% of the then
current rate card
All other advertising products and sponsorships will be offered
VStream at [...**...]% of the then current rate card
*Confidential Treatment Requested.
22
<PAGE>
EXHIBIT G
---------
USAGE REPORTS
All usage reports shall be delivered on a weekly basis by email or in other
formats to be mutually agreed.
1. VStream will provide the following usage reports:
a) Total beeps served by product.
b) Total beeps attempted (did not result in a completed call) by product
c) Average duration of beep calls by product
23
<PAGE>
EXHIBIT H
---------
LINKS AND OWNERSHIP
The Agreement has a large number of interaction points where data and
advertising opportunities are created. One or more of the parties may own
advertising registrations and other data resulting from this Agreement.
Furthermore, the relationship of what VStream advertising points to where is
complex and intertwined with the data question above. The picture below creates
a basis from which we can understand where data is created and where the
ownership of that data lies.
[FLOW CHART APPEARS HERE]
1. Advertising
a) Let's begin by looking at VStream advertising. This advertising comes
from a variety of sources and has restrictions on where they can direct
traffic. These include:
Ad buy mandated by the Excite.com term sheet can point to:Excite.com
VStream co-branded site/services, Work.com co-branded site/services,
or the VStream site.
Ad buy mandated by the Work.com term sheet can only point to the
Work.com co-branded site/services.
3rd party ad buy that VStream makes on its own can point anywhere.
Ad inventory created as a result of the fulfillment of the VStream
service (such as inventory/hyperlinks in confirmation emails,
notification emails, etc.)
24
<PAGE>
From Excite.com generated users can point to Excite.com VStream
integrated services or Work.com co-branded site/services.
From Work.com generated users can only point to the Work.com co-
branded site/services.
From VStream generated users can point anywhere.
This inventory can also be sold to third parties, at the approval
of both Excite@Home and VStream, under the terms defined above.
b) Product Level Integration such as the VStream logo or name
(hyperlinked) within the co-branded property can only point to co-
branded content.
2. User Data Ownership and Rights
a) If the user was generated from an integrated service on Excite.com or
Work.com then that user is tied to that origin and henceforth
considered an Excite.com or Work.com customer (as appropriate). (A user
being defined as a customer who has used one of the integrated Premium
Services or registered within one of the Premium Services/sites.) If
that user was generated from the VStream.com site, that user is a
VStream user.
b) At the termination of the Agreement between Excite@Home and VStream,
Excite@Home retains the rights to the User Data as defined in the
Agreement for the period of six (6) months from the date of
termination. After this period, each party has independent right to the
User Data.
c) The origin of the user must be maintained with the user records for
that user along with the origination date. Once identified, a user is
always tied to that origination source. VStream will make monthly dumps
to Excite.com and Work.com originated user data to Excite@Home in a
mutually agreed to format.
d) Excite.com retains the right for users originating at Excite.com to:
Approve all correspondence and marketing messages to users (VStream may
cross-promote other co-branded services at the approval of
Excite.com).-Best effort will be made to give content approval within
one business day, with a maximum of three business days taken.
Market directly to those users if they are `opt-in' users of the
Premium Services.
Market to those users integrally as part of the Premium Service
(in confirmation emails, etc.).
Choose the tools for delivering notification/confirmation emails
(e.g. VStream or DeliverE).
25
<PAGE>
e) VStream will make an attempt to Opt-in each user it acquires for itself
or on behalf of Excite.com or Work.com. If a user is not opted-in, no
correspondence, marketing, etc. will be delivered to that user other
than that which is standard for the service (such as notify and
confirmation emails.) Every registration/data entry page must present
an opt-in opportunity. An opt-in MUST be presented at every opportunity
that a user enters personal information.
26
<PAGE>
Exhibit I
---------
Terms for Integration of Premium Services
------------------------------------------
within Work.com
---------------
1. Premium Services Definition
Premium Services shall mean the VStream NetCall Service which is
described in the NetCall Technical Manual published by VStream 1999 and
any additions to such Manual, and that includes all of the following
Audio Conferencing and Web Collaboration component services:
a) Audio Conferencing: any "real-time" two-way use of audio over the PSTN
(Public Switched Telephone Network) capable of three or more
participants.
b) Web Collaboration: the ability of two or more people or groups to
exchange and manipulate data and information over the Internet in
"real-time". All of the following services (C-I) are collectively
referred to as Web Collaboration Services.
c) Streaming: the delivery of live or archived media files over the
Internet upon user request wherein the playing of the media file begins
without the file being completely downloaded.
d) Full Text Chat: The ability for a user to send text messages to another
individual user or to multiple users in "real-time" over the Internet.
e) Application Sharing: The ability for a user to share any Windows
Application with one or more participants over an Internet. Such
sharing includes the ability to share or transfer control of the
application to other participants, even though the actual document
being manipulated (such as an Excel spreadsheet) and the software that
controls the document (in the aforementioned example, Excel) are not
resident on the participants' computers.
f) Web Touring: The ability to lead one or more participants through a
controlled series of live Internet web pages.
g) Polling: the ability of a NetCall moderator to poll End Users within a
given NetCall session
h) Voice over IP ("VoIP") conferencing: the ability for End Users within a
NetCall session to chat with each other or the moderator using spoken
voice instead of text.
i) Voting: similar to polling the ability for End Users within a given
NetCall session to vote on issues presented to them by a NetCall
moderator
27
<PAGE>
2. Premium Services Pages
a) At Execution VStream will deliver web pages containing the complete
content and functionality of the NetCall Service described in Section 1
of this Exhibit ("Premium Services Pages") for display on the Work.com
portion of the Excite@Home Network.
b) The Premium Services Pages will be in accordance with Guidelines that
Excite@Home has provided VStream which include but are not limited to
page performance standards, header and other design/user interface
standards.
c) The Premium Services Pages will carry both Work.com branding (or other
branding chosen by Excite@Home) and VStream branding, both visually and
aurally, displayed in substantially equivalent location, size and
prominence. All Excite@Home branding will be displayed as consistent
with the rest of the Excite Network.
d) The "look and feel" of the Premium Services Pages will be consistent
with the "look and feel" of the Excite Network. The final approval over
the "look and feel" of the Premium Services Pages will be for
Excite@Home.
e) VStream will host the Premium Services Pages but they will be served
from a "Work.com" domain name (or such other domain(s) Excite@Home may
determine in its sole discretion) so that Excite@Home can get reach and
page view credit.
3. Terms for Use of Premium Services on the Work.com
a) Subject to any agreements executed by Excite, Inc. or At Home
Corporation for technology that is available for integration on the
Excite@Home Network, and to the terms of this Agreement, VStream will
be the sole provider of Premium Services within Work.com for the Term
of the Agreement.
b) Notwithstanding section 3(a) of this Exhibit, Excite@Home may at any
time integrate third party vendor technology to the Work.com site that
includes various component features of the Premium Services but which
does not include all or substantially all of the complete Premium
Services functionality as a single integrated service similar to
NetCall.
c) Subject to section 3(b), Excite@Home shall give VStream thirty(30)days
written notice of its intent to integrate such features, which notice
shall set forth all material terms of such integration.
28
<PAGE>
d) Subject to section 3(b), VStream may agree to provide such features to
Excite@Home as part of an enhanced NetCall offering (Premium Service)
on the terms set forth in such notice where such VStream services are
comparable to the Excite@Home proposed service in terms of
functionality, performance, price and time to market, Excite@Home and
VStream will enter into an agreement for the integration of such
services. Nothing in this section shall prevent Excite from offering
such component services as components on the Excite@Home Network.
e) The Premium Services Pages will be prominently featured within Work.com
pursuant to the terms of this Agreement.
f) Subject to the terms of this Agreement, Premium Services will receive
no less prominence than any other telephony service featured in
Work.com (exclusive of ad buys).
g) VStream shall ensure that the Premium Services as an aggregate, and
each component thereof are at all times "Best of Breed".
h) During the Term, and subject to VStream full compliance with Section
3(e) above, the Work.com portion of the Excite@Home Network shall not
promote any other aggregated Audio Conferencing and Web Collaboration
services on the Work.com site. Notwithstanding the foregoing,
Excite@Home may promote services as required by agreements executed
prior to this Agreement, and Excite@Home may promote services which
have features similar to individual component features of the Premium
Services, but which do not contain the complete functionality of the
Premium Services (e.g. Excite@Home may offer file upload services to
Work.com users, and such file upload services could include streaming
as a secondary product feature).
i) If at any time during the Term of this Agreement, VStream cannot offer
Best of Breed quality for the Premium Services, or any component
thereof, Excite@Home will notify VStream in writing of its intention to
remove the non-Best of Breed component of the Premium Services from the
Excite@Home Network. On VStream's receipt of any such Notice, VStream
will be allowed two (2) weeks to propose a mutually acceptable remedy
to re-establish the Premium Services and all components as Best of
Breed. VStream agrees that any such plan must be fully implemented
within thirty days of notice to from VStream. (VStream shall have 90
days to remedy the default if the component is a new feature that was
requested for inclusion by Excite; provided however such new feature
must be in a format supported by VStream). If VStream is unable to
submit an acceptable plan to Excite@Home or if VStream confirms that it
cannot provide the requested expanded capabilities, Work.com shall be
able to immediately replace that non-Best of Breed portion of the
Premium Services with an alternate vendor.
29
<PAGE>
j) The Premium Services shall at all times allow End Users to view MS
PowerPoint files, JPEG's or GIF images, ask questions to the moderator
via a modified chat capability, and view the names of other
participants in the collaborative event.
k) In order for the Premium Services to retain their Best of Breed status,
VStream will integrate, within six (6) months of the Work.com Launch
Date, into the Premium Services a separate platform that will include
the majority of the following features on a Best of Breed basis:
. Polling,
. Full Text Chat,
. Web Touring,
. Application Sharing
. VoIP Conferencing, and
. Voting.
The minimum Web Collaboration functionality to be available to Excite@Home
to provide End Users in a form that is fully functional and bug free in
place by the end of January 2000 shall include Full Text Chat, Application
Sharing And Web Touring Functionality ("Minimum Web Collaboration
Functionality").
Should VStream fail to deliver Minimum Web Collaboration Functionality by
end of January 2000, then Excite@Home will not be obligated to feature any
VStream Web Collaboration services and Excite@Home may develop alternate
relationships with other vendors to provide similar services to End Users.
All of the above integration timetables assume that Microsoft delivered to
VStream the source code for Window's Media Player on or before November
17, 1999. In the event that Microsoft does not deliver to VStream the
source code for Window's Media Player on or before November 17, 1999, then
VStream's integration obligations with respect to Beep, as set forth in
the Agreement, will be extended one day for each day that Microsoft delays
in delivering the source code for Window's Media Player to VStream.
l) VStream will provide best commercial (most favored nation) pricing to
Excite@Home End Users of the Premium Services. No other portal
partner (i.e. Yahoo!, Lycos, etc.) users of Premium Services shall
receive more favorable end-user pricing than End Users -- whether
through direct license from VStream, or through any other
distribution points through which VStream provides Premium Services.
m) VStream cannot market any other services outside of this Agreement to
End Users without prior written approval to Work.com users.
30
<PAGE>
n) All materials presented to End Users by VStream, through any medium,
will be co-branded Excite@Home (or any other proprietary brand of
Excite@Home) and VStream with equal or greater prominence to
Excite@Home.
o) VStream has the right to develop and enhance its Premium Services, and
promote those enhancements to Work.com End Users, so long as those
enhancements: a) reasonably fall within the services that Excite
originally contracted with VStream to provide, and b) are a part of the
Premium Services which Excite@Home may elect to provide on any portion
of the Excite@Home Network. Excite@Home and VStream must mutually agree
to any such promotion.
p) If Work.com chooses to offer any streaming services or video
conferencing services to its user base, separate from the automated
conferencing service provided by VStream, where such streaming services
are not components of other product offerings, VStream has the right of
first refusal to be the provider for those services.
31
<PAGE>
4. Terms for Use of Premium Services on the Excite@Home Network
To the extent Excite chooses to offer the Premium Services elsewhere on the
Excite Network and separate from the Work.com URL the following additional
terms shall apply.
a) Excite@Home may integrate the Premium Services on the Excite@Home Network
in areas outside of Work.com in its sole discretion provided that
Excite@Home and VStream shall share revenue from the pages on the
Excite@Home Network which incorporate Premium Services as set out in
Exhibit E and Article 6 of the Agreement.
b) There shall be no restrictions on Excite@Home's use or promotion of third
party services not included in the Premium Services or component portions
of the Premium Services (including without limitation any Audio
Conferencing, Web Collaboration or streaming media services) on non-
Work.com portions of the Excite@Home Network.
c) If commercially reasonable, Excite@Home may, at its discretion, ask VStream
to integrate the Premium Services Pages with Excite@Home's Universal
Registration System. VStream will integrate according to Excite@Home's
technical and operational specifications. Each party will pay their own
costs related to the integration.
d) At Excite's discretion all Work.com branding and URL's may be replaced with
Excite branding and URLs.
e) Linking to the Premium Services Pages from Excite URLs and products will be
subject to the approval of VStream with such approval not to be
unreasonably withheld. Notwithstanding the forgoing Excite may place links
to the Premium Services Pages or integrate the Premium Services into the
Co-Branded Pages at Excite's discretion.
f) The use or promotion of the Premium Services on or from the Excite site,
separate from the Work.com site, shall in no way increase any obligations
to which the Work.com URL may be subject as per the terms of this
Agreement.
32
