EXHIBIT 10.3
JOLTID SOFTWARE LICENSING AGREEMENT
This LICENSING AGREEMENT (this "AGREEMENT") is entered into as
of May 28, 2003 (the "EFFECTIVE DATE"), by and between Joltid, Ltd. ("JOLTID"),
located at 00-00 Xxx Xxxxxx, Xx Xxxxxx, XX0 0XX, Jersey, Channel Islands, and
Altnet Inc. ("ALTNET"), located at 0000 Xxxxxxx Xxxxxx Xxxxxxxxx, xxxxx 000,
Xxxxxxxx Xxxxx Xxxxxxxxxx, XXX.
RECITALS
A. Joltid (under its previous name Blastoise Limited) and Altnet (through its
predecessor, BrilliantP2P) are parties to that certain P2P Technology Licensing
Agreement, dated as of December 31, 2001, relating to peer to peer technologies
owned by Joltid (the "PRIOR AGREEMENT").
B. Joltid and Altnet desire to enter into this Agreement to provide for the
license to Altnet of software technology (the LICENSED SOFTWARE) that is not
covered by the Prior Agreement.
Certain capitalized terms used herein are defined in SECTION 11, below.
In consideration of the mutual terms, conditions and covenants hereinafter set
forth, Joltid and Altnet agree as follows:
1. LICENSE
(a) Subject to the terms and conditions of this Agreement,
Joltid hereby grants to Altnet, during the term of this Agreement, a
non-exclusive, perpetual, irrevocable, transferable, worldwide license to use
and have used, including the right to sublicense to USERS and CUSTOMERS when
included as part of or for use with an Altnet Product, including for the purpose
of establishing for use by Altnet and/or its Customers one or more virtual
private peer to peer networks (each, a CHANNEL), or services built thereon or
related thereto, the Licensed Software in object code form only.
(b) Subject to the other terms and conditions of this
Agreement, Joltid shall retain all right, title and interest in the Licensed
Software, Upgrades and any modifications or enhancements provided by Joltid
other than an Altnet Development (including, but not limited to, ownership of
all copyrights and other intellectual property rights therein); PROVIDED, that
Altnet shall retain all right, title and interest in any Altnet Product,
including any Altnet GUI, and any modifications or enhancements thereto provided
by Altnet or Joltid (including, but not limited to, ownership of all copyrights
and other intellectual property rights therein), but excluding in all cases that
portion, if any, of any Altnet Product that consists of the Licensed Software
(or any Upgrades, or other modifications or enhancements thereto provided by
Joltid). Altnet shall retain all right, title and interest in any Altnet
Development (including, but not limited to, ownership of all copyrights and
other intellectual property rights therein), other than any Source Code for any
Altnet Development developed by Joltid ("AD SOURCE CODE"), which Joltid shall
own subject to Altnet's rights as set forth in this clause (b). Joltid hereby
grants to Altnet, during the Term of this Agreement, the exclusive (even as to
Joltid, except as provided in the next
*** Terms represented by this symbol are considered confidential. These
confidential terms have been omitted pursuant to a Confidential Treatment
Request filed with the Securities and Exchange Commission ("SEC") and have been
filed separately with the SEC.
sentence), perpetual, irrevocable, transferable, worldwide license to use and
have used the AD Source Code. Notwithstanding the immediately preceding
sentence, Joltid shall have the right to use, and to license to others the right
to use, all or any portion of the AD Source Code during the Term of this
Agreement in a manner that does not violate Altnet's copyrights and other
intellectual property rights in the Altnet Development related to such AD Source
Code. Neither this Agreement, nor any action, omission or statement by Altnet or
Joltid, nor Altnet's use of the Licensed Software shall in any way confer or
imply a grant, other than as provided in this Agreement, of rights, title or
interest thereto or to any element or portion thereof, including without
limitation, copyrights, trademarks, trade names, service marks or goodwill.
(c) ***
(d) Altnet agrees that it shall not remove any proprietary,
copyright, trademark, service xxxx or other legend from any software or
materials provided by Joltid. Altnet further agrees to take other reasonable
steps necessary to protect Joltid's intellectual property rights.
(e) Joltid retains all rights to the Licensed Software not
expressly granted to Altnet under this Agreement.
(f) All costs and expenses related to either the
implementation by Altnet or creation of Altnet Developments (if any) by Joltid
performed at Altnet's written direction, shall be borne solely by Altnet, and if
any such costs and expenses have been borne by Joltid, shall be paid to Joltid
by Altnet, as applicable, upon invoice, all in accordance with the terms of the
Services Agreement.
(g) Notwithstanding any of the other terms of this Section 1,
on the occurrence of any of the events outlined in Section 1(h), below, the
Licensed Software, including all Source Code contained therein, will be released
to Altnet pursuant to Section 1(h), below.
(h) On execution of this Agreement by both Parties, Joltid
shall place all Source Code in an escrow account to be co-owned by both Parties
and to be released to Altnet on the occurrence of any one of the following
events: (a) a material breach of this Agreement by Joltid by including, but not
limited to, (i) a bankruptcy filing or declaration of insolvency, (ii) repeated
failure to provide mission critical services and updates within a reasonable
time, or (iii) failure to provide a substantive response within 30 days to
important communications from Altnet relating to technology or services provided
by Joltid that are considered critical to Altnet conducting business in a manner
to which it is accustomed; (b) ***; or (c) Joltid's breach of any of its
representations or warranties, including but not limited to, those appearing in
Section 9,
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*** Terms represented by this symbol are considered confidential. These
confidential terms have been omitted pursuant to a Confidential Treatment
Request filed with the Securities and Exchange Commission ("SEC") and have been
filed separately with the SEC.
below. The escrow shall be maintained by a mutually agreeable third party.
Joltid agrees to update the escrow with respect to the Source Code and user
documentation on a regular basis at least every sixty (60) days or more
frequently (including upon release of the Source Code and user documentation to
Altnet as set forth herein) in the event that any update or Upgrade to the
Source Code is available to ensure that it is at all times the most current
version available. Following release of the Source Code, Altnet may ***. Altnet
shall have the non-exclusive right to use and exploit the Source Code without
restriction or limitation imposed under this Agreement from and after the time
that the Licensed Software is jointly owned by Altnet. Notwithstanding anything
in this Section 1(h) to the contrary, if Joltid cures the breach or other action
that led to the release of the Source Code from escrow, then Altnet shall return
the Source Code to escrow to be held during the remaining Term in accordance
with this Section 1(h), and thereafter the parties' rights and obligations
hereunder with respect to the Source Code shall be as they were prior to the
release of the Source Code from escrow.
(i) Altnet may not use the Licensed Software except for the
limited license rights as provided in Section 1 above. Altnet agrees not to
reverse engineer, decompile, disassemble or otherwise attempt to discover the
source code of the Licensed Software and/or any component thereof.
(j) Altnet shall not use the Licensed Software, any Altnet
Product, or any other software application in a manner that Altnet intends will
disrupt the operation of the network formed by the Licensed Software, including
by: (i) flooding the network with requests to disrupt use of the network; (ii)
blocking use of the network on channels other than those of Altnet and its
customers (other than allowing Altnet's users to disable the sharing of files
over non-Altnet channels); (iii) de-installing the Licensed Software; or (iii)
rendering the Licensed Software inoperable.
2. UPGRADES; ALTNET DEVELOPMENTS.
(a) USE OF UPGRADES BY ALTNET. Joltid agrees to make available
and to deliver to Altnet all Upgrades for Acceptance Testing pursuant to Section
3, below, prior to general distribution to its other licensees or end users,
excluding delivery of such Upgrades for acceptance testing to other licensees.
Altnet may, in its sole discretion, reject Upgrades that do not pass its
Acceptance Testing procedure or for any other reason, it being understood that
nothing contained in this Agreement shall require Altnet to use any Upgrade.
Joltid shall not have any obligation to provide Upgrades to Altnet unless
Joltid, at its own discretion, provides Upgrades to another licensee of the
Licensed Software.
(b) ALTNET DEVELOPMENTS.
(i) An "ALTNET DEVELOPMENT" means a modification or
enhancement to, change or new release of, the Licensed Software that
constitutes an Innovation, whether made by Joltid, Altnet or a third
party, that is made after the date of this Agreement in accordance with
this procedures set forth in this SECTION 2(b). From time to time
during the Term, Altnet may, by written notice to Joltid, propose that
a significant modification or enhancement to, change or new release of,
the Licensed Software be made which introduces a new feature or new
functionality not
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*** Terms represented by this symbol are considered confidential. These
confidential terms have been omitted pursuant to a Confidential Treatment
Request filed with the Securities and Exchange Commission ("SEC") and have been
filed separately with the SEC.
then existing or specifically contemplated by Joltid (as substantiated
in the manner provided below) (an "INNOVATION") pursuant to
specifications to be developed by Altnet pursuant to Schedule 4. An
Innovation shall not include a routine enhancement or modification
made, or proposed to be made, in the ordinary course of Joltid's
business based on past practice.
(ii) Altnet's initial notice shall briefly describe
the principal elements of the modification. Following receipt of
Altnet's notice, Joltid shall reply to Altnet in writing within ten
(10) days, stating whether or not Joltid agrees that the modification
constitutes an Innovation. If Joltid claims that the proposed
Innovation previously has been specifically contemplated by Joltid,
then Joltid shall substantiate its position by providing Altnet with a
written summary of the Innovation as contemplated by Joltid, which
summary shall contain sufficient detail to enable Altnet and Joltid to
determine whether the modification contemplated by Joltid is
substantially equivalent to the modification requested by Altnet. If
Altnet disagrees with Joltid, or if Joltid claims that the proposed
modification is not an Innovation for any other reason, then the
procedures in clause (iv) below shall apply.
(iii) If Joltid agrees that the modification
constitutes an Innovation, then Altnet shall supply Joltid with a
detailed description of the Innovation and Joltid shall have until
thirty (30) days following receipt of this detailed description to
submit a bid to Altnet for the development of the Innovation, which bid
shall include reasonable detail as to cost, timing, deliverables and
such other information customarily included in bids for software
development projects. Joltid's bid may be based on prices and other
terms which are different from those set forth in the Services
Agreement. Altnet shall either accept or reject Joltid's bid within 15
days following its receipt by Altnet. If Altnet accepts Joltid's bid,
such Innovation shall be made in accordance with the terms of the
Services Agreement. If Altnet rejects Joltid's bid, Altnet shall have
the right to either develop the Innovation internally or contract with
a third party to develop the Innovation. Joltid shall cooperate with
Altnet in all reasonable respects in connection with Altnet's or such
third party's development of the Innovation (provided that Joltid shall
have no obligation to deliver Source Code to Altnet or any such third
party), including, without limitation, implementing the Innovation and
integrating it with the Licensed Software. Altnet shall be responsible
for and shall pay all costs of developing the Innovation, including
paying Joltid to develop the Innovation if Joltid's bid is accepted by
Altnet.
(iv) If Altnet and Joltid cannot agree on whether a
proposed modification constitutes an Innovation, then the parties shall
act in good faith to try to resolve the dispute in a manner mutually
acceptable to both parties as follows:
(A) First, representatives for Altnet and
Joltid shall communicate by telephone conference within seven days of
failing to agree on whether the modifications is an Innovation;
(B) Second, if the parties are unable to
resolve the dispute by telephone conference, then within 30 days
following such conference, representatives for Altnet and Joltid shall
meet in person in Toronto, Canada, at a time and place mutually
acceptable to both parties;
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*** Terms represented by this symbol are considered confidential. These
confidential terms have been omitted pursuant to a Confidential Treatment
Request filed with the Securities and Exchange Commission ("SEC") and have been
filed separately with the SEC.
(C) Finally, if the parties are unable to
resolve the dispute in person, then either party shall have the right
to submit the matter to binding arbitration, which arbitration shall be
conducted in accordance with clause (v) below. The arbitrator's
decision in the binding arbitration shall be final, conclusive and
binding on the parties, will not be subject to appeal and may be
entered as an order in any court of competent jurisdiction in Sydney,
Australia.
(v) Any arbitration instituted under clause (iv)(C)
above shall be conducted in Toronto, Canada before a nationally
recognized arbitration association in accordance with the following
provisions: (aa) the arbitration will be held before a panel of one
arbitrator who will have a minimum of 15 years experience in the
software industry, such that he or she is considered an expert on
software matters; (bb) notice of a party's election to submit the
matter for arbitration shall be given to the other party within five
business days after election to submit the matter to arbitration; (cc)
upon delivery of such notice, the other party will have ten days to
provide the arbitrator (and the other party) with a statement of its
position (with supporting documentation) regarding the matter or
matters in dispute, and the failure to provide a statement of position
within this period will constitute a waiver of a Party's right to have
the arbitrator consider such materials; (dd) the arbitrator will
consider the statements of position the parties submit and shall,
within twenty business days after receipt of such materials, issue his
or her decision; (ee) each party will bear their own costs in the
arbitration, and shall equally bear the costs and fees of the
arbitration; (ff) the arbitrator will specify the basis for his or her
decision; and (gg) any arbitration proceeding hereunder will be
conducted on a confidential basis.
(c) AUTOMATIC DISSEMINATION OF UPGRADES. Joltid agrees that it
will not automatically distribute any Upgrade, or otherwise supplement, modify,
render inoperable, or alter in any way the Licensed Software that has been
distributed to Users by Altnet prior to Altnet's acceptance of the Upgrade,
supplement or modification in accordance with the procedures of Section 3.
Additionally, without a User's express permission by means of an end user
license agreement acceptable to Altnet in form and implementation (to be
evidenced by Altnet in writing), Joltid may not enable or permit a third party
web site or other software application to access and use the Licensed Software
that has been distributed to such User by Altnet. Furthermore, Joltid shall not
take any action, or authorize any third party to take any action, that (i)
causes the Altnet XXXX to be violated by Altnet or any of Altnet's customers, or
(ii) is not permitted by the Altnet XXXX (as if Joltid were a party thereto).
Following the termination of Altnet's rights to the Licensed Software, if ever,
and subject to the additional provisions of Section 6(c), Joltid may render the
Licensed Software that has been distributed to Users by Altnet inoperable,
provided that doing so will not affect any Altnet Products or other components
of Altnet software or software modules that are working together with the
Licensed Software other than to the extent that such Altnet Products or other
components of Altnet software or software modules will no longer be able to use
the Licensed Software. In addition, if any Upgrade or Altnet Development does
not pass the Acceptance Testing procedure or is otherwise not accepted by
Altnet, Joltid expressly agrees not to distribute such Upgrade or Altnet
Development to Users who have received the Licensed Software from Altnet.
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*** Terms represented by this symbol are considered confidential. These
confidential terms have been omitted pursuant to a Confidential Treatment
Request filed with the Securities and Exchange Commission ("SEC") and have been
filed separately with the SEC.
3. DELIVERY AND TESTING.
(a) SOFTWARE DELIVERY. Within three weeks of the
Commencement Date, Joltid shall deliver to Altnet those deliverables (the
"DELIVERABLES") set forth on SCHEDULE 1 including without limitation, one
complete object code version of the Licensed Software and documentation for the
Licensed Software. The Deliverables will be deemed supplied (although not
accepted) when Altnet notifies Joltid in writing that it has received all the
scheduled Deliverables, that they are satisfactory and that they meet the
requirements listed below.
(b) ACCEPTANCE TESTING. Upon notification that the
Deliverables have been properly supplied, Altnet will begin performing
acceptance testing ("ACCEPTANCE TESTING") pursuant to Schedule 2. Altnet will
supply Joltid with the results of its Acceptance Testing within 2 weeks of
commencing such testing. If the Licensed Software fails Acceptance Testing then
Altnet will supply Joltid with a list of reasons for rejection along with
reasonable assistance in helping Joltid address the issues. Joltid will then
have 2 weeks to supply an updated version of the Licensed Software, to which the
same Acceptance Testing will apply. If the Licensed Software does not pass
Acceptance Testing within five iterations of the Acceptance Testing procedure
outlined above, and the failure relates to a material component of the Licensed
Software which materially adversely affects Altnet's business, then Altnet will
have the right to terminate this Agreement. Altnet will, at its sole discretion,
have the right to begin distributing the Licensed Software pursuant to this
Agreement even though it has not passed Acceptance Testing.
(c) ACCEPTANCE DATE. The "ACCEPTANCE DATE" is the earlier
of either (i) the date that the Licensed Software passes Acceptance Testing; and
(ii) the date that Altnet begins commercial distribution of a product containing
the Licensed Software.
4. OPERATIONS; TRAINING.
(a) OPERATIONS. In order to maintain the virtual
peer-to-peer network and the Altnet Channel in the network formed by the
Licensed Software, certain network management operations need to be performed
from time to time. These network operations relate to, but are not limited to,
the following: (1) provision and operation of Network Management Servers which
control the network, (2) updates, bug fixes and patching of the Licensed
Software already installed by Users, (3) remote configuration of the Licensed
Software already installed by Users, (4) publishing of Content, and (5)
operation of Originating Server, on which the Content is initially deployed and
downloaded by Users until subsequent Users are able to download the Content from
other Users (peer-to-peer). Joltid shall perform tasks (1), (2) and (3), and
Altnet or its customers shall perform task (4) and (5). Joltid agrees not to do
any of the foregoing acts to the extent they would constitute an "automatic" or
"remote" updating of the Licensed Software distributed by Altnet, unless and
until Joltid is expressly authorized to do so by Altnet as provided for in
Section 2(c) above.
(b) TRAINING. Joltid shall provide technical training to
Altnet personnel as reasonably requested by Altnet to teach proper installation,
troubleshooting and technical support for the Licensed Software, at Altnet's
cost. Such training shall take place at such times and places mutually
acceptable to Altnet and Joltid. If no agreement can be reached within thirty
(30) days of the date a request for training is provided to Joltid, such
training
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*** Terms represented by this symbol are considered confidential. These
confidential terms have been omitted pursuant to a Confidential Treatment
Request filed with the Securities and Exchange Commission ("SEC") and have been
filed separately with the SEC.
shall occur in Tallinn, Estonia. Altnet shall pay all travel, lodging,
transportation, and related costs of its employees participating in such
training.
5. CONSIDERATION, PAYMENT AND REPORTS
(a) PAYMENTS. Upon execution of this Agreement, Altnet
shall pay any fees due as described in Attachment A ("COMMISSIONS").
Notwithstanding anything else to the contrary contained herein, Altnet shall
have no obligation to pay Joltid more than an aggregate of US $*** in
consideration of this Agreement (the "MAXIMUM COMMISSION"). Altnet shall pay all
Commissions as stipulated in Attachment A on a monthly basis within thirty days
of the previous month end.
(b) RECOUPABLE, NON-REFUNDABLE ADVANCE. During the period
commencing on July 1, 2003 and, so long as this Agreement remains in effect,
continuing on the first day of each month thereafter until the later of (i) June
1, 2006 and (ii) the date that Altnet ceases to commercially utilize the
Licensed Software, Altnet shall pay to Joltid $*** per month as a recoupable,
but non-refundable, advance against Commissions (the "Advance"). Altnet shall be
entitled to recoup the Advance by subtracting the Advances from Commissions
which otherwise would be payable to Joltid. Notwithstanding the foregoing,
Altnet's obligation to pay Advances shall cease once the Maximum Commission has
been paid.
(c) STATEMENTS. Within thirty (30) days of the end of
each calendar month during the Term, Altnet shall furnish to Joltid complete and
accurate statements, certified to be accurate by an officer of Altnet, showing
with respect to the preceding calendar month and on a cumulative basis, (i) if
the amounts due to Joltid hereunder are derived from parameters internal to
Altnet, those parameters and explanations to how these parameters are derived
and (ii) a calculation of all amounts due to Joltid hereunder. Such statements
shall be in such formats as Joltid and Altnet shall mutually agree, and shall be
furnished to Joltid whether or not any Licensed Software has been used during
such calendar month. All payments shall be paid in U.S. dollars, and in the
event Altnet has gross revenue earned in currencies other than in U.S. Dollars,
then Altnet shall convert said amounts each month into U.S. Dollars based upon
the exchange rate published by the Wall Street Journal as of the fifteenth day
of the calendar month during which such amounts were earned, or if such day
shall fall on a non-business day then as of the first business day following
said fifteenth day.
6. TERM AND TERMINATION
(a) TERM. This Agreement shall commence on the Effective
Date and continue until expiration of the last patent and/or copyright
(including any extension thereof) covering the Licensed Software or any
component thereof in any jurisdiction anywhere in the world, unless terminated
earlier in accordance with Sections 6(b) or (c) below ("TERM").
(b) TERMINATION. Either Party shall have the right to
terminate this Agreement upon written notice of termination by such Party, if
the other Party has committed a material breach which is not cured within ninety
(90) days of the breaching Party's receipt of written notice from the
non-breaching Party or, if such material breach is not capable of being cured
within such ninety (90) day period, the breaching Party has not taken within
such ninety (90) day period action reasonably designed to cure such breach as
soon as practicable.
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*** Terms represented by this symbol are considered confidential. These
confidential terms have been omitted pursuant to a Confidential Treatment
Request filed with the Securities and Exchange Commission ("SEC") and have been
filed separately with the SEC.
(c) TERMINATION CONSEQUENCES. Following termination of
Altnet's rights to the Licensed Software, if ever, Altnet shall promptly
discontinue the use of the Licensed Software and, at Joltid's instruction, given
in the exercise of Joltid's sole discretion, shall, or shall permit Joltid to,
deactivate, return, overwrite, and/or delete the Licensed Software and Joltid
Confidential Information then in its possession and eliminate the ability of
Users to download additional Content using the Licensed software. In addition,
Altnet agrees that following termination of Altnet's rights to the Licensed
Software, if ever, Joltid may through means available to Joltid, including by
accessing the Licensed Software remotely or otherwise, (1) disable in whole or
in part the Licensed Software and/or (2) prevent Altnet from using the Licensed
Software to communicate with any or all Users, and/or (3) prevent Users from
downloading additional Content via the Licensed Software, and/or disseminate any
Upgrade, or otherwise supplement, modify, render inoperable, or alter in any way
the Licensed Software in contravention of Section 2(c). In no event will Joltid
prevent Users from accessing or playing Content that they have already
downloaded and that is already on their computers, and in no event will Joltid
have the right to disable any Altnet software application or software module
that is not a Joltid-supplied Licensed Software component. Notwithstanding
anything in this Section 6(c) to the contrary, if this Agreement is terminated
by Altnet or Joltid pursuant to this Section 6, Altnet shall have continued
access to the Licensed Software for a period of up to one hundred twenty (120)
days and Joltid shall not take any of the actions set forth in this Section 6(c)
during such period. During this period, Altnet shall continue to pay the fees
and provide the statements to Joltid set forth in Section 5.
7. AUDIT RIGHTS.
Altnet shall keep adequate records and books of account,
consistent with industry standards for companies offering services similar to
those contemplated by Altnet, containing factual information required to
calculate the amounts payable to Joltid hereunder. Joltid shall have the right
at its own expense, exercisable no more than once in any calendar year, to have
independent certified public accountants selected by Joltid inspect and audit
the applicable records of Altnet pertaining to such payments owing to Joltid
under Section 5. Such audit(s) shall be conducted upon reasonable notice during
normal business hours at the relevant facilities of Altnet. Such independent
certified public accountants shall be obligated in writing to Altnet to treat
all such information as confidential and must agree in writing not to disclose
any of it to anyone, except as necessary to report to Joltid information
regarding Altnet's compliance with its payment obligations hereunder. Should any
such audit reveal a payment shortfall by Altnet, the amount of the shortfall
shall be paid promptly by Altnet after the discovery thereof, together with
interest thereon calculated at an annual rate equal to the lesser of (i) ***
percent (***5%), or (ii) the maximum rate permitted by law, which rate shall be
applied from the date such payment should have been paid until such payment is
made, and should any such payment shortfall exceed (exclusive of interest) ***
percent (***%) of the amount due and is an amount in excess of *** U.S. Dollars
($***), then Altnet shall reimburse Joltid for its costs incurred, if any, in
connection with such audit.
8. CONFIDENTIALITY
(a) CONFIDENTIAL INFORMATION. During the Term, either
Party may come into possession of the other Party's Confidential Information.
For the purposes of this Agreement, "CONFIDENTIAL INFORMATION" means any
information that a Party designates as confidential or which the receiving party
knows or has reason to know is confidential.
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*** Terms represented by this symbol are considered confidential. These
confidential terms have been omitted pursuant to a Confidential Treatment
Request filed with the Securities and Exchange Commission ("SEC") and have been
filed separately with the SEC.
Without limiting the foregoing, Confidential Information includes financial,
business and technical plans and strategies, inventions, new products, services
or technology. Confidential Information does not include information which is:
(a) already known by the receiving Party at time of disclosure; (b) or becomes,
through no act or fault of the receiving Party, publicly known; (c) received by
the receiving party from a third Party without a restriction on disclosure or
use; or (d) independently developed by the receiving Party without reference to
the disclosing Party's Confidential Information. The receiving Party may
disclose Confidential Information to the extent required to be disclosed by a
court or governmental agency pursuant to a statute, regulation or valid order;
provided that the receiving Party first notifies the disclosing Party and gives
it the opportunity to seek a protective order or to contest such required
disclosure.
(b) RESTRICTIONS. Each Party shall hold the disclosing
Party's Confidential Information in confidence and shall not use such
information except as permitted under this Agreement. Each Party shall use the
same precautions to prevent disclosure to third parties of such information as
it uses with its own confidential information, but in no case less than
reasonable efforts.
(c) ADDITIONAL OBLIGATIONS. Each Party agrees (i) not to
alter or remove any identification of any copyright, trademark or other
proprietary rights notice which indicates the ownership of any part of the
Confidential Information, and (ii) to notify the other Party of the
circumstances surrounding any possession, use or knowledge of the Confidential
Information by any person or entity other than those authorized by this
Agreement.
9. WARRANTIES; LIMITATION ON LIABILITY; INDEMNIFICATION
(a) Joltid hereby represents and warrants that it (i) has
the full power and authority to enter this Agreement and has obtained all
government approvals to enter and to perform this Agreement; (ii) shall keep
such approvals in force and shall obtain such additional government approvals as
may from time-to-time be required; (iii) has the right to grant all of the
rights, licenses, and privileges granted to Altnet herein; (iv) it owns all
rights, title and interest in and to the Licensed Software, or has the all
rights to such Licensed Software necessary for Joltid to enter into and perform
its obligations under this Agreement, or that in the case of any third party
software that it has the right to grant a sublicense to use such third party
software, and the Licensed Software is free and clear of any liens, claims or
encumbrances and will not violate any third party's intellectual property rights
(including rights arising under patent, copyright, trademark or trade secret) or
personal rights (including rights arising under privacy, publicity or
defamation); and (v) the Licensed Software shall conform to the specifications
set forth in the Documentation and/or user manuals, and shall be free from
defects in workmanship and materials that prevent them from meeting the
aforementioned criteria.
(b) Altnet hereby represents and warrants that it (i) has
the full right and authority to enter into this agreement and to fulfill its
obligations contemplated herein; (ii) has the full rights to distribute and
exploit the Content under the terms of this agreement, (iii) owns and/or
controls the copyright, trademark and other intellectual property rights
necessary in order to deliver and distribute the Content to Users without
infringement of the rights of any third party, and (iv) complies with and will
continue to comply with applicable law in the operation of its business and
distribution of the Content and maintains or has the legally
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*** Terms represented by this symbol are considered confidential. These
confidential terms have been omitted pursuant to a Confidential Treatment
Request filed with the Securities and Exchange Commission ("SEC") and have been
filed separately with the SEC.
applicable party properly comply with any record keeping or other documentation
requirements in connection with the Content.
(c) If a third party alleges, formally or informally,
that Joltid or Altnet is infringing or violating, or would infringe or violate,
that third party's intellectual property rights or other rights by reason of the
Licensed Software or, if there exist circumstances reasonably suggesting the
substantial likelihood or possibility of such a claim, then Joltid, at its
expense and as approved by Altnet shall: (i) procure for Altnet, in form and
content reasonably satisfactory to Altnet, the right to continue to use the
Licensed Software in accordance with this Agreement, (ii) replace or modify the
Licensed Software at Joltid's expense so that it becomes non-infringing, it
being understood, however, that the Licensed Software as modified or replaced
must continue to materially meet the specifications set forth in the user
manuals; or (iii) take those other actions as may be appropriate given the
credibility, scope and timing of the allegation or claim. If Joltid is not able
to obtain a license or otherwise work around the claim on commercially
reasonable terms within sixty (60) days after Joltid receives notice of such
claim, Joltid may terminate this Agreement by giving a notice to that effect to
Altnet, in which case Joltid's sole and exclusive responsibility, and Altnet's
sole and exclusive remedy, shall be for Joltid to pay to Altnet direct damages
incurred by Altnet and to indemnify Altnet against any third party claims as
provided in clause (f) below.
(d) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS
AGREEMENT, JOLTID PROVIDES THE LICENSED SOFTWARE `AS IS,' WITHOUT WARRANTY OF
ANY KIND, EITHER EXPRESS OR IMPLIED. JOLTID SPECIFICALLY DISCLAIMS THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY
WARRANTIES ARISING BY AFFIRMATION, PROMISE, DESCRIPTION OR SAMPLE. JOLTID SHALL
NOT BE OBLIGATED TO PROVIDE ANY UPGRADES ENHANCEMENTS OR EXTENSIONS UNLESS
SPECIFICALLY SET FORTH IN THIS AGREEMENT. JOLTID NEITHER ASSUMES NOR AUTHORIZES
ANY PERSON TO ASSUME FOR IT ANY OTHER LIABILITY. THE SOFTWARE IS NOT DESIGNED,
INTENDED, OR AUTHORIZED FOR USE IN ANY MEDICAL, LIFE SAVING OR LIFE SUSTAINING
SYSTEMS, OR FOR ANY OTHER APPLICATION IN WHICH THE FAILURE OF THE SOFTWARE COULD
CREATE A SITUATION WHERE PERSONAL INJURY OR DEATH MAY OCCUR. JOLTID NEITHER
ASSUMES NOR AUTHORIZES ANY PERSON TO ASSUME FOR IT ANY OTHER LIABILITY.
(e) EXCEPT FOR THE OBLIGATIONS OF A PARTY TO INDEMNIFY
ANOTHER PARTY FOR THIRD PARTY CLAIMS AS PROVIDED FOR IN CLAUSE (F) BELOW, IN NO
EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST
PROFITS OR FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF
THIS AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY, AND WHETHER OR
NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
(f) Each party hereby agrees to indemnify, defend, and
hold the other party harmless from any claims, losses, liabilities, causes of
action and costs (including reasonable attorneys' fees) arising from, or on
account of, or related to the following: (i) any breach by the indemnifying
party of its obligations, representations and warranties hereunder;
10
*** Terms represented by this symbol are considered confidential. These
confidential terms have been omitted pursuant to a Confidential Treatment
Request filed with the Securities and Exchange Commission ("SEC") and have been
filed separately with the SEC.
and (ii) where Joltid is the indemnifying party, any claim by a third party
arising from the Licensed Software.
10. JOLTID SERVICES. Joltid will, throughout the Term:
(a) Use its commercially best efforts to maintain the
Licensed Software to the highest possible industry standards;
(b) Actively monitor and use the Licensed Software to
ensure that all aspects of it are consistent with the terms of this Agreement;
(c) At Altnet's written request, assist Altnet to
integrate, use and exploit the Licensed Software, at the cost of Altnet;
(d) Carry out, to industry standards, all necessary work
on Upgrades;
(e) Maintain, in a secure location, backups of all source
code and object code relating to the Licensed Software;
(f) Deliver to Altnet all enhancements, updates,
documentation, object code, new features, security updates, etc. to which Altnet
has the right to receive, promptly as they become available. In any event Altnet
should receive these items no later than the same business day that they are
made available to any other Joltid customer;
(g) Provide whatever assistance Altnet needs in order for
Altnet to conduct audits of all paid work being done by Joltid for Altnet. The
purpose of these audits is to ensure that the paid work will meet Altnet's
specifications and requirements; and
(h) Actively monitor internet newsgroups, peer-2-peer
related web sites, news sites and other relevant sources to check for security
breaches, hacker activity, unauthorized use of the Licensed Software, or any
other activity that may compromise the security or functionality of the Licensed
Software by Altnet and/or its customers. If such a breach, etc, is discovered or
if Joltid is notified of such a breach by Altnet or any of its customers, then
Joltid will at the highest priority attempt to develop a solution to said
problem, and as a matter of urgency supply Upgrades, enhancements, patches or
fixes to Altnet for Acceptance Testing, which Altnet shall conduct at the
highest priority.
(i) Maintain the NMS (network management services) class
web servers, software, and other infrastructure necessary to operate a
peer-to-peer network utilizing the Licensed Software with high availability and
fast response times.
(j) Provide to Altnet all statements, reports and other
information, whether written or electronic, produced by Joltid and relevant to
usage of the Licensed Software by Altnet or any of its customers from the NMS
within 24 hours from the date so produced. Joltid shall deliver such reports to
Altnet via e-mail.
11. DEFINITIONS.
"ALTNET XXXX" shall mean the end user license agreement
included in the first download to an end user of an Altnet Product that is
bundled with the Licensed Software.
11
*** Terms represented by this symbol are considered confidential. These
confidential terms have been omitted pursuant to a Confidential Treatment
Request filed with the Securities and Exchange Commission ("SEC") and have been
filed separately with the SEC.
"ALTNET GUI" means the software component developed by Altnet
that presents to the user a graphical user interface which allows the user to
interact with the Licensed Software, and provides features including controlling
settings, viewing, browsing, searching, and downloading; provided that Altnet
GUI shall not include any graphical user interface developed by or for Joltid
that is included as part of the Licensed Software.
"ALTNET PRODUCT" means a product developed by or for Altnet
that makes use of the Licensed Software, including, without limitation, those
products presently contemplated which are described in SCHEDULE 5; PROVIDED,
HOWEVER, that such product provides value or additional services to or functions
for users that are sufficiently significant to result in the product, when used
with the Licensed Software, to not be substantially equivalent to the Licensed
Software.
"CUSTOMERS" means companies or Users to which Altnet is
selling, renting, distributing, etc, an Altnet Product.
A "CHANNEL" is a logical private network within the broader
network provided by the Licensed Software. A Channel is created by assigning
Altnet or an Altnet Customer one or more CHANNEL IDs, with that same Channel ID
not being granted to any other party. The holder of that Channel ID will then
have the ability to assign names or File IDs according to their own preferred
naming conventions, with full assurance that their files will not conflict with
those of holders of other Channel IDs.
"CONTENT" means data files that have been downloaded onto a
User's computer by means of the Licensed Software. "Content" specifically
excludes files that are present on a User's computer, or can be downloaded by
Users, where such files have not been downloaded, or are not in the process of
being downloaded, by means of the Licensed Software, even if an identical file
is available for download via the Licensed Software.
"JOLTID KNOW-HOW" includes, but is not limited to,
confidential and proprietary information developed by and/or licensed to Joltid
from time-to-time that relates to the contents, workings, installation and
implementation of the Licensed Software.
"LICENSED SOFTWARE" is the Content Distribution Environment
computer program under the name PeerEnabler, as more fully described on SCHEDULE
3 hereto, including "Joltid Know-How" and user documentation therefor.
"PARTY" means individually Joltid or Altnet, and "PARTIES"
means collectively Joltid and Altnet.
"SERVICES AGREEMENT" means that certain Services Agreement,
dated as of the date hereof, by and among, Altnet, Joltid, and Brilliant Digital
Entertainment, Inc.
"SOURCE CODE" includes
-- the human-readable source code for all components of
the Licensed Software,
-- all additional documentation, settings, data or other
files needed to compile and run the Licensed software
12
*** Terms represented by this symbol are considered confidential. These
confidential terms have been omitted pursuant to a Confidential Treatment
Request filed with the Securities and Exchange Commission ("SEC") and have been
filed separately with the SEC.
-- all additional tools, utilities, settings,
documentation, data files, network node or IP address information, etc, needed
to set up, operate and maintain a network of computers running the Licensed
Software such that the computers can communicate with each other via the
Licensed Software and perform all the download, sharing, reporting and other
functions that would be expected of the Licensed Software under the terms of
this agreement.
-- all code, documentation and settings for the Network
Management computers, nodes or services.
"UPGRADE" means a modification or enhancements to, change or
new release of, the Licensed Software, that is made by or on behalf of Joltid
after the date of this Agreement and that is intended for broad release by
Joltid to its licensees or end users, other than an Altnet Development.
"USERS" means individual end users of computer systems who
have installed the Licensed Software.
12. GENERAL
(a) PUBLICITY. Except as may be required by applicable
law, regulation or stock exchange rule, the Parties hereto shall not issue a
press release or public announcement or otherwise make any disclosure concerning
this Agreement or the terms hereof, without prior written approval by the other
Party.
(b) ASSIGNMENT. Neither Party may assign this Agreement,
in whole or in part, without the other Party's prior written consent (which will
not be unreasonably withheld or delayed), except that either Party may assign
this Agreement (i) in connection with a sale of all or substantially all of such
party's assets, (ii) to a subsidiary or affiliate, or (iii) as part of a merger,
consolidation or reorganization. It shall be noted that, whenever in this
Agreement one of the Parties hereto is named or referred to, the heirs, legal
representatives, successors, successors-in-title and assigns of such Parties
shall be included, and all covenants and agreements contained in this Agreement
by or on behalf of the Parties shall be binding upon and inure to the benefit of
their respective heirs, legal representatives, successors-in-title and assigns,
whether so expressed or not.
(c) GOVERNING LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of California. The Parties
hereto expressly acknowledge and agree that the exclusive forum for the
resolution of disputes hereunder shall be the courts located in Sydney,
Australia, and waive any objection thereto on the basis of personal jurisdiction
or venue.
(d) ATTORNEYS' FEES. If any action, suit or other
proceeding is instituted concerning or arising out of this Agreement, the
prevailing Party shall recover all of such Party's reasonable outside attorneys'
fees and costs incurred in each and every such action, suit or other proceeding,
including any and all appeals or petitions therefrom.
(e) NOTICE. All notices required to be given hereunder
shall be deemed to have been given: (i) seven (7) days after deposit in the
mail, postage prepaid for first-class mail, return receipt requested; (ii) one
(3) days after deposit with Federal Express or another
13
*** Terms represented by this symbol are considered confidential. These
confidential terms have been omitted pursuant to a Confidential Treatment
Request filed with the Securities and Exchange Commission ("SEC") and have been
filed separately with the SEC.
internationally recognized overnight delivery service, delivery charges prepaid;
or (iii) upon the date of receipt of written confirmation that the notice was
transmitted by electronic facsimile device, as set forth below:
If to Joltid: 00-00 Xxx Xxxxxx
Xx Xxxxxx, XX0 0XX, Jersey
Channel Islands
Attn: Director
Fax: x00 0000 000 000
If to Altnet: Altnet, Inc.
0000 Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxxx, XX 00000
Attn: Chief Executive Officer
Fax: x0 (000) 000-0000
(f) NO AGENCY. The Parties acknowledge and agree that
they at all times shall remain independent contractors and will have no power or
authority to assume or create any obligation or responsibility on behalf of each
other. This Agreement will not be construed to create or imply any partnership,
agency or joint venture.
(g) SEVERABILITY. In the event that any of the provisions
of this Agreement are held to be unenforceable under any applicable law or be so
held by an applicable court decision, the remaining portions of this Agreement
will remain in full force and effect.
(h) MODIFICATIONS AND WAIVERS. Unless otherwise
specified, any amendment, supplement or modification of or to any provision of
this Agreement, any waiver of any provision of this Agreement and any consent to
any departure by the parties from the terms of this Agreement, shall be
effective only if it is made or given in writing and signed by both parties. No
failure or delay on the part of either party in exercising any right, power or
remedy under this Agreement shall operate as a waiver, nor shall any single or
partial exercise of any such right, power or remedy preclude any other or
further exercise or the exercise of any other right, power or remedy.
(i) FORCE MAJEURE. If any Party to this Agreement is
delayed in the performance of any of its obligations under this Agreement or is
prevented from performing any such obligations due to causes or events beyond
its control, including, without limitation, acts of God, fire, flood, strike or
other labor problem, injunction or other legal restraint, present or future law,
governmental order, rule or regulation, then such delay or nonperformance shall
be excused and the time for performance thereof shall be extended to include the
period of such delay or non-performance; provided however, the non-performing
Party is without fault in causing such non-performance or delay, and such
non-performance or delay could not have been prevented by reasonable precautions
and cannot reasonably be circumvented by the non-performing Party through the
use of alternate sources, workaround plans or other means. In any such event,
the non-performing Party shall be excused from any further performance or
observance of the obligation so affected only for so long as such circumstances
prevail and such Party continues to use commercially reasonable efforts to
recommence performance or observance as soon as reasonably practicable. Any
Party so delayed in its performance shall immediately notify the other Parties
to whom performance is
14
*** Terms represented by this symbol are considered confidential. These
confidential terms have been omitted pursuant to a Confidential Treatment
Request filed with the Securities and Exchange Commission ("SEC") and have been
filed separately with the SEC.
due by telephone (to be confirmed in writing within two (2) days of the
inception of such delay) and describe at a reasonable level of detail the
circumstances causing such delay and the Party's efforts to minimize such delay.
Any Party delayed in its performance shall also promptly notify the other
Parties when such force majeure event ends.
(j) HEADINGS. The Headings to the sections and exhibits
of this Agreement are included merely for convenience of reference and do not
affect the meaning of the language included therein.
(k) RIGHTS TO INJUNCTIVE RELIEF. Both Parties acknowledge
that remedies at law may be inadequate to provide full compensation in the event
of a material breach relating to either Party's obligations, representations,
and warranties hereunder, and the non-breaching Party shall therefore be
entitled to seek injunctive relief in the event of any such material breach.
(l) INTERPRETATION. In the event either Party relating to
any conflict, omission or ambiguity in this Agreement makes any claim, no
presumption or burden of proof or persuasion shall be implied by virtue of the
fact that this Agreement was prepared by or at the request of either party or
its counsel.
(m) SURVIVAL. Sections 6(c), 7, 8, 9(d) through (f), and
12 shall survive termination of this Agreement.
(n) COUNTERPARTS. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original. For purposes
hereof, a facsimile copy of this Agreement, including the signature pages
hereto, shall be deemed to be an original.
(o) ENTIRE AGREEMENT. This Agreement is the complete and
exclusive agreement between the Parties with respect to the subject matter
hereof, superseding any prior agreements and communications (both written and
oral) regarding such subject matter. If there is a conflict between this
Agreement and the Prior Agreement, this Agreement shall control and shall
supercede and replace the Prior Agreement to the extent of such conflict. The
parties acknowledge that it is Altnet's present intent to use the Licensed
Software in its product offering, and not the software and other intellectual
property that is the subject of the Prior Agreement. Until termination of the
Prior Agreement, however, Altnet reserves the right to continue to use the
software and other intellectual property that is the subject of the Prior
Agreement in accordance with the terms thereof.
15
*** Terms represented by this symbol are considered confidential. These
confidential terms have been omitted pursuant to a Confidential Treatment
Request filed with the Securities and Exchange Commission ("SEC") and have been
filed separately with the SEC.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the Effective Date.
JOLTID LTD. ALTNET INC.
By: Xxxxxxxx Secretaries (Jersey) Limited By: /S/ XXXXX XXXXXXXXXX
----------------------
Its: Secretary
By: /S/ XXXXXXXX XXXXXXX Name: Xxxxx Xxxxxxxxxx
---------------------------- Title: CEO
Xxxxxxxx XxXxxxx
Its: Authorized Signatory
16
*** Terms represented by this symbol are considered confidential. These
confidential terms have been omitted pursuant to a Confidential Treatment
Request filed with the Securities and Exchange Commission ("SEC") and have been
filed separately with the SEC.
ATTACHMENT A
CONSIDERATION
Altnet shall pay to Joltid *** percent (***%) of the Adjusted Gross Revenue
received from the exploitation of the Licensed Software ("COMMISSION").
"ADJUSTED GROSS REVENUE" shall mean any and all gross revenue actually received
by Altnet in connection with direct exploitation of the Licensed Software, less
any and all verifiable direct costs incurred by Altnet including royalties to
copyright holders, fees payable to third parties for distributing Altnet
products incorporating the License Software, and end user incentives.
*** Terms represented by this symbol are considered confidential. These
confidential terms have been omitted pursuant to a Confidential Treatment
Request filed with the Securities and Exchange Commission ("SEC") and have been
filed separately with the SEC.
SCHEDULE 1
LIST OF DELIVERABLES
1. LICENSED SOFTWARE
The Licensed Software is to be supplied as a Windows COM component (or in other
form as required to meet Altnet's technical and commercial requirements). A
version of the Licensed Software has been delivered to Altnet.
This component will accept commands and instructions to download files from a
P2P network and it will return the requested files along with status
information, error information, etc, as required by Altnet.
The Licensed Software must meet Altnet's technical and commercial requirements,
including but not limited to:
a) compatibility with usage applications planned by Altnet outlined in this
agreement
b) compatibility with other Altnet software applications and/or web services
which need to make use of, or interface, to or download files from, said
Licensed Software
c) secure and robust delivery of content on the P2P network
d) protection against non-licensed parties having access to content belonging
to Altnet's licensed customers, with such "file theft prevention" measures
meeting Altnet's requirements.
e) ability to find, download and share content with both PCs connected to the
internet as well as PCs connected to the same Local Area Network (LAN).
f) 95% or greater bandwidth cost reduction, as measured by bandwidth to Altnet
and its Customer's fallback servers, compared to users downloading the same
files directly from those servers without using the Licensed Software
2. CONTENT SIGNING TOOL
The Content Signing Tool is a program, or set of programs, that calculate a
Content Signature for a specified Signing Certificate and input data file.
The Content Signing Tool will be supplied in the following forms:
a) As a self-contained EXE file.
b) As a DLL which accepts as input the name of the file to be signed and other
parameters, and returns a data structure that includes the Content
Signature of the specified file.
All forms of the Content Signing Tool must meet Altnet's technical and
commercial requirements.
3. CERTIFICATE CREATION TOOL
The Certificate Creation Tool is a program, or set of programs, that generate a
Signing Certificate for a specified customer or user of the Licensed Software.
The Certificate Creation Tool will be supplied as a self-contained EXE file.
The Certificate Creation Tool must meet Altnet's technical and commercial
requirements.
*** Terms represented by this symbol are considered confidential. These
confidential terms have been omitted pursuant to a Confidential Treatment
Request filed with the Securities and Exchange Commission ("SEC") and have been
filed separately with the SEC.
4. INTERFACE FOR REVOKING CERTIFICATES
The software component that can be used to revoke certificates previously
created with the certificate creation tool. This will be provided as a web
interface. Development of the certificate revocation interface will be invoiced
to Altnet subject to received Order and according to agreed upon hourly fees.
5. NETWORK PROPAGATION METHOD OR TOOL
After a file has been digitally signed using the Content Signing Tool, the file
can now be `pushed' or otherwise made available for download via the Licensed
Software.
Joltid will supply Altnet with the tools, software, documentation and anything
else needed to allow Altnet to make its own or its Customers files available on
the P2P network. Such tools, software or services must meet Altnet's commercial
requirements.
6. CHANNELS
Joltid will assign Altnet ten thousand (10,000) Channels forming a continuous
range from Channel 1000-10999.
7. NETWORK MANAGEMENT REPORTS
The Licensed Software incorporates methods of reporting download and other
statistics back to a Network Management Server. Joltid shall make available to
Altnet all reports, statistics or other information gathered from or reported by
Altnet's Users or Customers. Such access shall preferably be real-time reports
via a dedicated web page, but if that is not possible then Joltid will send
Altnet every 7 days a report, in a mutually agreed format, that includes all the
aforementioned information.
Joltid understands that usage reports prepared by Altnet pursuant to this
agreement may be based in whole or in part on stats and reports obtained from
the Joltid NMS or other Joltid stats servers, and that supply of accurate
reporting by Altnet is therefore conditional on the availability of these
reports.
8. DOCUMENTATION
Joltid will supply full and comprehensive documentation including:
o API, usage and architecture documentation for the Licensed Software.
o usage documentation for the Signing Tool, Certificate Creation Tool and
other tools or services needed to publish content, sign files, create
licenses, revoke licenses, etc.
o documentation that explains the stats and reports provided by the NMS
or otherwise available via a Joltid service that show file downloads,
etc.
o documentation describing the operation, usage, and parameters of each
of the following items
- Installer and Uninstaller operation & wording displayed to the user
- time for a file available on a peer to become known across the
network
- how the Control Panel settings influence the behavior and operation
of the Licensed Software.
3
*** Terms represented by this symbol are considered confidential. These
confidential terms have been omitted pursuant to a Confidential Treatment
Request filed with the Securities and Exchange Commission ("SEC") and have been
filed separately with the SEC.
All documentation is to be of industry standard or above and to a level where a
competent software developer is able to develop an optimally-functioning product
that uses the Licensed Software, without needing to directly contact Joltid
staff for assistance.
9. JOLTID TEST PLAN
Joltid will supply full and comprehensive test plans and test results for the
Licensed Software that (a) demonstrate the level of testing undertaken by
Joltid, and (b) provide a basis that allows Altnet to determine what
addititional testing Altnet needs to perform itself or request from Joltid.
3
*** Terms represented by this symbol are considered confidential. These
confidential terms have been omitted pursuant to a Confidential Treatment
Request filed with the Securities and Exchange Commission ("SEC") and have been
filed separately with the SEC.
SCHEDULE 2
ACCEPTANCE TESTING
Acceptance Testing will be performed by Altnet upon delivery of the Licensed
Software, and then upon each additional version of the Licensed Software that
will be used by Altnet.
Altnet will supply Joltid with a detailed Test Plan that outlines Altnet's
Acceptance Testing procedures, and Altnet's Acceptance Testing will be done
according to this Test Plan.
Altnet will supply Joltid with its Test Plan for the Licensed Software within 2
weeks of the signing of this agreement.
The procedure for Acceptance testing is as follows:
1. ANNOUNCEMENT. A planned update is announced via the "Joltid PeerEnabler
Developer News e-mail", giving the planned date for when the test version
is available and the planned release date. The date for the Licensee Test
Period is at least two (2) weeks after the announcement. Joltid will expect
a confirmation from Altnet, in the form of an email reply from the
Licensee, that the announcement has been received.
2. LICENSEE TEST PERIOD. The Licensee Test Period starts when the unreleased
update is distributed through an announcement via "Joltid PeerEnabler
Developer News". The Test Period is two (2) weeks. If problems with the
planned release are found, these must be reported back to Joltid during the
Test Period. Altnet shall together with Joltid determine the cause of any
compatibility problems.
3. PUBLIC RELEASE. If no compatibility problems are found Altnet shall
promptly approve the Acceptance Test and the update will be released after
the approval, which shall not be unreasonable withheld. If problems are
found in the update, the release is cancelled and a new Licensee Test
Period will be started as soon as the problems are solved.
4. AUTOMATIC UPDATES. Automatic Updates of already distributed copies of the
Licensed Software will take place not before thirty (30) days after the
acceptance of the update.
Joltid shall actively pursue that Altnet sends the confirmation of the initial
announcement. If the confirmation is not received three (3) working days after
the announcement, Joltid shall again contact Altnet for a confirmation.
In the event that there would be a need for an Emergency Update the announcement
will be made with the subject "Emergency Update for PeerEnabler" and the message
will have highest priority. In an Emergency Update the update procedure is
modified so that the test period can start right after the announcement of an
Update. The test period is in the case of an Emergency Update two working days
not including Friday.
The Upgrade shall be deemed to have passed Acceptance Testing if after the
Acceptance test Altnet can verify that the Update is compatible with previous
versions of the Application Programming Interface, the Licensed Software
performs and functions as previous versions and that the Update meets
specifications of the Update, where such specifications are provided by Altnet
for any Altnet Developments and by Joltid for any other Updates, and that the
Update still falls within the definition of Description of Licensed Software, as
described in Schedule 3.
*** Terms represented by this symbol are considered confidential. These
confidential terms have been omitted pursuant to a Confidential Treatment
Request filed with the Securities and Exchange Commission ("SEC") and have been
filed separately with the SEC.
SCHEDULE 3
DESCRIPTION OF LICENSED SOFTWARE
The Licensed Software will include the following items:
1. P2P NETWORKING
The client side software component, a Windows COM component that is able to
download and upload files from other computers in the Network. P2P Networking
can be accessed by other applications by an Application Programming Interface
and through an integrated tiny web server.
P2P Networking will be supplied as a self-contained EXE for Windows.
This component will accept commands and instructions to download files from a
P2P network and it will return the requested files along with status
information, error information, etc, in accordance with the Documentation.
The P2P Stack must meet the following technical and commercial requirements:
a) secure and robust delivery of content on the P2P network
b) reasonable protection against non-licensed parties having access to content
belonging to Altnet's licensed customers, with such "file theft prevention"
measures meeting Altnet's requirements as previously specified by Altnet in
writing to Joltid.
c) ability to find, download and share content with both PCs connected to the
internet as well as PCs connected to the same Local Area Network (LAN) ) as
long as the LAN is connected to the Internet..
2. SIGNING UTILITY
The software component that can be used to digitally sign data files which are
to be published on the Network. The Signing Utility is available for the Windows
operating system.
The Content Signing Tool will be supplied in the following forms:
As a self-contained EXE file that accepts command line parameters and
generates the required signature file
As a DLL which accepts as input the name of the file to be signed and other
parameters, and generates the appropriate signature file
The Content Signing Tool must meet the specification in the Documentation.
3. CERTIFICATE CREATION TOOL
The software component that can be used to create certificates for signing data
files.
The Certificate Creation Tool will be supplied in the following forms:
As a self-contained EXE file that accepts command line parameters and
generates the required signature file.
*** Terms represented by this symbol are considered confidential. These
confidential terms have been omitted pursuant to a Confidential Treatment
Request filed with the Securities and Exchange Commission ("SEC") and have been
filed separately with the SEC.
4. INTERFACE FOR REVOKING CERTIFICATES
The software component that can be used to revoke certificates previously
created with the certificate creation tool. This will be provided as a web
interface. Development of the certificate revocation interface is will be
invoiced to Altnet subject to received Order and according to agreed upon hourly
fees.
5. CHANNELS
Joltid will assign Altnet ten thousand (10,000) Channels which Altnet will be
free to use for its own purposes, including Altnet assigning any of those
Channels to its Customers. The Channels will form a continuous sequence from
Channel number 1000 to 10999.
2
*** Terms represented by this symbol are considered confidential. These
confidential terms have been omitted pursuant to a Confidential Treatment
Request filed with the Securities and Exchange Commission ("SEC") and have been
filed separately with the SEC.
SCHEDULE 4
SPECIFICATION AND COSTING FOR ALTNET DEVELOPMENTS
TO BE COMPLETED BY ALTNET AND PRESENTED TO JOLTID:
1. Brief synopsis of the feature requested
2. Describe the business and technical aspects of the feature request in
reasonable detail; such detail may include diagrams, sketches and images
where necessary
3. Provide details of the timeframe required for delivery of the feature.
TO BE COMPLETED BY JOLTID AND PRESENTED TO ALTNET:
1. An itemized fixed price quote for completion of the specified work
including key milestones, details of personnel who will perform the work,
and a payment schedule.
2. A specification of the feature that will be delivered.
3. Updated Licensed Software containing the requested feature, along with
supporting documentation, etc, to the standard that applied to the rest of
the Licensed Software.
*** Terms represented by this symbol are considered confidential. These
confidential terms have been omitted pursuant to a Confidential Treatment
Request filed with the Securities and Exchange Commission ("SEC") and have been
filed separately with the SEC.
SCHEDULE 5
ALTNET PRODUCTS
Altnet intends building a number of products that make use of the Licensed
Software. The initial Altnet Products include, but the Altnet Products shall not
be limited to, the following:
1. ALTNET DOWNLOAD MANAGER
The ALTNET DOWNLOAD MANAGER comprises the BDE installer, Brilliant Download
Manager and/or other Brilliant and/or Altnet software modules plus the Licensed
Software.
As an Altnet Product, Altnet will be able to license, rent, sell, etc, the
Altnet Download Manager to web sites for purposes including, but not limited to:
- bandwidth cost reduction
- serving of TopSearch content
2. ALTNET POINTS MANAGER
The ALTNET POINTS MANAGER comprises the Points Manager Software Application, BDE
Installer and/or other Brilliant and/or Altnet software modules plus the
Licensed Software.
As an Altnet Product, Altnet will be able to license, rent, sell, etc, the
Points Manager to Customers or End Users for purposes including, but not limited
to:
- providing access to usage points or means of redeeming usage points
- providing bandwidth, storage or CPU resource-sharing functionality
- providing a branded presence on the user's desktop
3. TOPSEARCH APPLICATION
The TOPSEARCH APPLICATION comprises the TopSearch DLL and/or other Brilliant
and/or Altnet software modules plus the Licensed Software.
As an Altnet Product, Altnet will be able to license, rent, sell, etc, the
TopSearch Application to Customers or End Users for purposes including, but not
limited to:
- promoting TopSearch content into the Host Application
*** Terms represented by this symbol are considered confidential. These
confidential terms have been omitted pursuant to a Confidential Treatment
Request filed with the Securities and Exchange Commission ("SEC") and have been
filed separately with the SEC.
