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NOKIA
Exhibit 10.29
AGREEMENT
FOR
SOFTWARE DEVELOPMENT CONTRACTING
DATED 4 NOVEMBER, 1999
BETWEEN
NOKIA MOBILE PHONES LTD.
AND
GEOWORKS CORPORATION
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CONTENTS
CLAUSE 1 - DEFINITIONS............................................................................3
CLAUSE 2 - PURPOSE OF THE AGREEMENT...............................................................5
CLAUSE 3 - SCOPE OF SUPPLY OF THE DEVELOPER.......................................................5
CLAUSE 4 - AVAILABILITY OF NOKIA'S RESOURCES......................................................5
CLAUSE 5 - ENHANCEMENTS AND CHANGES..............................................................6
CLAUSE 6 - MILESTONES AND DELIVERY................................................................6
CLAUSE 7 - ACCEPTANCE OF DELIVERABLES.............................................................7
CLAUSE 8 - WARRANTIES AND MAINTENANCE, QUALITY....................................................7
CLAUSE 9 - DEVELOPMENT PRICE, OTHER CHARGES AND PAYMENT...........................................8
CLAUSE 10 - PERSONNEL.............................................................................8
CLAUSE 11 - CONFIDENTIALITY.......................................................................9
CLAUSE 12 -INTELLECTUAL PROPERTY RIGHTS...........................................................9
CLAUSE 13 - FORCE MAJEURE........................................................................10
CLAUSE 14 - TERM AND TERMINATION.................................................................10
CLAUSE 15 - INDEMNIFICATION AND LIMITATION OF LIABILITY..........................................11
CLAUSE 16 - MISCELLANEOUS........................................................................16
List of Appendices:
Appendix 1 - Quality Requirements
Appendix 2 - Millenium Compliance
Appendix 3 - Model of Project Order
Appendix 4 - Support and Maintenance Agreement
Appendix 5 - Prices
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THIS AGREEMENT is dated the 4th day of November, 1999 and made BETWEEN
(1) Nokia Mobile Phones Ltd of Keilalahdentie 4, FIN-02150 Espoo, including
its Affiliates ("Nokia"); and
(2) Geoworks Corporation, including it Affiliates, of 000 Xxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxx XXX 00000 (the "Developer").
WHEREAS:
(A) Nokia is a developer, manufacturer and supplier of sophisticated
telecommunications equipment and terminals, accessories and connectivity
solutions; and
(B) The Developer is a reputable developer, subcontractor, distributor and
publisher of software technologies; and
(C) The Developer and Nokia desire that the Developer performs certain
development work for Nokia;
NOW IT IS HEREBY AGREED:
1. DEFINITIONS
For the purposes of this Agreement the following definitions shall
govern (and where the context so admits the singular shall include the
plural and vice versa):
"Acceptance"
shall mean, with respect to each Deliverable, that the Deliverable has
been tested by Nokia and meets the acceptance criteria of Nokia. The
Acceptance shall be indicated by a written certificate issued by Nokia
and may be conditional as indicated in such certificate. The Acceptance
criteria shall be set forth in the Project Order for each Deliverable.
"Affiliate"
shall mean Nokia Corporation (in the case of Nokia) or any corporation
or other entity fifty (50) percent or more of whose: (i) shares or other
securities or equity interests entitled to vote for the election of
directors or other managing authority; or (ii) interest in the income
thereof, is, at the time of determination and only so long as it
remains, held, owned or controlled, directly or indirectly and
individually or in combination with any other Affiliate, by Nokia
Corporation (a Finnish corporation having its principal place of
business at Xxxxx Xxxxx, Xxxxxxxxxxxxxx 0, Xxxxx, Xxxxxxx) in the case
of Nokia or by Geoworks Corporation in the case of Developer).
"Agreement" ###
"Appendix"
shall mean a document which the Parties shall, by mutual agreement, sign
and attach to this Agreement on the Effective Date or at any time during
the term of this Agreement. All Appendices shall be subject to the terms
and
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conditions of this Agreement. In the event of a conflict between the
terms of an Appendix and the terms of this Agreement, the terms of this
Agreement shall prevail.
"Changes"
shall mean design changes and/or development of extensions and/or
changes to Deliverables, including updating of relevant Specifications,
documentation, Source and Object Codes (if any), that may be provided by
the Developer to Nokia under this Agreement and Project Order.
"###.
"### "Effective Date"
shall mean ###"Enhancement"
shall mean enhancements to the Specifications, Acceptance criteria, Time
Schedule or delivery arrangements required at any time prior to
Acceptance of the last Deliverable.
"Error"
shall mean any mistake, problem, defect, malfunction or deficiency,
which causes an incorrect or inadequate functioning or non-functioning
of a Deliverable.
"Information"
shall mean technical, financial and commercial information and data
relating to a Party's or its Affiliate's respective businesses,
finances, planning, facilities, products, techniques and processes and
shall include, but is not limited to, discoveries, ideas, concepts,
know-how, techniques, designs, specifications, drawings, blueprints,
tracings, diagrams, models, samples, flow charts, data, computer
programs, disks, diskettes, tapes, marketing plans, customer names and
other technical, financial or commercial information and intellectual
properties, whether in tangible or in intangible form.
"Intellectual Property Rights"
shall mean patents (including utility models), design patents, and
designs (whether or not capable of registration), chip topography rights
and other like protection, copyright, trademark and any other form of
statutory protection of any kind and applications for any of the
foregoing respectively as well as any trade secrets.
"Object Code"
shall mean computer programming code, substantially or entirely in
binary form, which is directly executable by a computer after suitable
processing but without the intervening steps of compilation or assembly.
"Party" and "Parties"
refer to the Developer and/or Nokia.
###
###"Source Code"
shall mean the Deliverable in the form of computer programming code,
other than Object Code, and related to source code level system
documentation, comments and procedural code such as job control
language, which may be printed out or displayed in a form readable and
understandable by a programmer of ordinary skill.
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2. PURPOSE OF THE AGREEMENT
This Agreement sets forth the terms and conditions under which the
Developer shall perform the Development and provide the Deliverables to
Nokia as well as perform such other services and duties as have been
provided for in this Agreement. Time for this purpose shall be of
essence.
3. SCOPE OF SUPPLY OF THE DEVELOPER
3.1 ###
3.2 Except for the Nokia specific items specified ### to be provided by
Nokia, the Developer shall be solely responsible ### for the provision
of any and all hardware, software and other tools that may be required
for the performance of the Development and the provision of the
Deliverables.
3.3 ###
3.4 The Developer shall in the Development of the Deliverables comply with
any quality standards and production control procedures that Nokia may
reasonably require. Without prejudice to the aforesaid, the Developer
shall comply with the quality assurance and production control
procedures specified or referred to in any of the Appendices ### . Nokia
shall be entitled to perform or to have its authorized agent perform
audits of the same and the Developer will correct any deficiencies found
during any such audit.
3.5 The Developer shall upon request provide Nokia with access to all
facilities that may reasonably be required to enable Nokia and/or
Nokia's customers to monitor the progress of Development and afford
Nokia and/or its customers the right to verify at source that a
Deliverable conforms to the Specifications and other specified
requirements. Any such monitoring or verifications shall be without
prejudice to any other rights of Nokia under this Agreement ### and
shall not relieve the Developer from any of its obligations under this
Agreement ### nor a subsequent rejection of Deliverable and nor shall
such verification be used by the Developer as evidence of effective
control of quality.
3.6 The Developer shall not without the prior written consent of Nokia
engage any subcontractor to perform any part of its obligations under
this Agreement ###. However, notwithstanding such consent the Developer
shall remain fully responsible for the performance of any subcontractor.
4. AVAILABILITY OF NOKIA'S RESOURCES
4.1 Nokia shall make available to the Developer the items expressly
specified to be provided by Nokia ### . The Developer shall be
responsible for the safe custody of the items and insurance of any
computer hardware while they are in its care.
4.2 Nokia shall appoint a project manager for the Development ### , who will
be available either in the Developer's or Nokia's premises for the
complete duration of the Development as shall be agreed upon between the
Parties. The project manager will act as the single point of contact and
provide clarifications to the Developer's development team whenever
required.
4.3 Nokia shall provide, if so separately agreed in writing, on temporary
basis suitable office accommodation and services to employees of the
Developer that are working at the premises of Nokia in the course of the
Development, including telephone and photocopying facilities required
for the purposes
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thereof. Employees of the Developer must observe all regulations in
force and working hours laid down by Nokia while working at Nokia's
premises.
5. ENHANCEMENTS AND CHANGES
5.1 Nokia may request and the Developer may recommend Enhancements at any
time prior to Acceptance of the last Deliverable ### . The Developer
undertakes to make Enhancements that may be requested by Nokia on
reasonable price. ### . Enhancements shall be defined and agreed in
writing with reference to the exact terms ### which are affected.
5.2 The Parties will respond in writing or meet to discuss any Enhancement
upon Nokia's request, and the Developer shall advise Nokia of the likely
impact of any Enhancement, including any effect on price and/or Time
Schedule, promptly upon request, and submit a written quotation
accordingly.
5.3 Until such time as any Enhancement is formally agreed, the Developer
will, unless otherwise agreed or requested by Nokia in writing, continue
the Development as if such Enhancement had not been requested or
recommended.
5.4 Nokia may at any time request the Developer to develop Changes and the
Developer hereby undertakes to develop and provide to Nokia Changes
under this Agreement for reasonable price. ###
5.5 The Developer shall not be entitled to independently develop any Changes
to a Deliverable without Nokia's explicit prior written consent. The
terms and conditions applicable to any such development must be agreed
upon between the Parties in writing prior to any such development
activity being undertaken by the Developer.
5.6 Notwithstanding Clause 5.1 above, if a Enhancement described in Clause
5.1 becomes necessary in order to comply with terms and conditions of
this Agreement, the cost of such Enhancement shall be borne by the Party
to whose action or omission such Enhancement is attributable.
6. MILESTONES AND DELIVERY
6.1 The Development shall be divided into various milestones, as specified
in the project plan ### .
6.2 Upon the completion of each milestone the Parties shall review the
Deliverable or the respective part thereof on the basis of a written
report submitted by the Developer.
6.3 Nokia shall approve or reject in writing the results of the milestone in
question ### after the Developer has presented the results of the
milestone to Nokia. The date of such approval shall be deemed to be the
actual date of delivery in respect of the Milestone in question. If the
milestone is rejected, Nokia shall identify the deviations from the
Specifications or from other requirements under the Agreement ### . Upon
such rejection the Developer shall promptly take any and all necessary
action in order to provide Nokia with acceptable milestone results.
6.4 The Developer shall upon obtaining approval of the respective milestone
commence the performance of the subsequent milestone.
6.5 The Developer shall deliver the Deliverables (including documentation)
to Nokia on appropriate media and in a condition acceptable to Nokia no
later
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than by the dates specified in the Time Schedule. The actual date of
delivery of the Deliverable shall be the date when Nokia issues a
certificate of Acceptance in respect of the whole Development and
Deliverables. Time of delivery shall be of the essence of this
Agreement.
6.6 The Developer shall deliver the Source Code version with each
Deliverable, unless otherwise agreed in writing between the Parties.
When a new or modified version of a Deliverable, or any Enhancement, is
prepared by the Developer, the Developer will deliver the new or
modified version of the Deliverable in both Source and Object Code form
together with any consequent amendments to the documentation for the
Deliverable.
6.7 Each Deliverable shall comply with the relevant Specifications and other
criteria set forth in this Agreement ### when delivered and shall meet
the relevant Acceptance criteria.
6.8 The Developer shall as soon as the Developer is or should have been
aware of the delay in respect of a milestone specified ### , inform
Nokia thereof in writing stating the reason for the delay and the effect
of the delay on the Time Schedule.
6.9 ###
6.10 ###
6.11 ###
6.12 ###
7. ACCEPTANCE OF DELIVERABLES
7.1 The Parties shall agree upon such Acceptance criteria for Deliverable
and for each milestone in the Development as may be desired in order to
determine acceptability to Nokia of any particular milestone and
Deliverable. The Acceptance criteria shall be agreed upon ### and
specified no later than prior to the commencement of each milestone of
Development to which the Acceptance criteria would be applied.
7.2 Prior to any delivery of the Deliverables or part thereof in accordance
with the milestones specified ### , the Developer shall test the
Deliverables or part thereof in question in accordance with test
specifications defined ### .
7.3 Nokia shall be entitled to test any Deliverable at the Developer's
premises prior to the delivery thereof to Nokia's premises. The
Developer shall make available to Nokia such tools and instruments as
Nokia may reasonably require for the said purposes. Such testing at the
Developer's premises shall be without prejudice to any subsequent
testing that may be performed at Nokia's premises.
8. WARRANTIES AND MAINTENANCE, QUALITY
8.1 The Developer warrants that each Deliverable (including documentation
and Enhancements), its performance and facilities shall upon delivery
conform with the Specifications and other requirements set forth in this
Agreement ### and shall fulfill the Acceptance criteria.
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8.2 The Developer shall perform the Development with all due skill,
diligence, prudence and foresight which would reasonably be expected
from a services provider skilled and experienced in the nature of the
Development.
8.3 The Developer agrees to comply with the Quality Requirement set forth in
Appendix 1, when performing the Development in order to assure high
quality of the Deliverables. Nokia may, where appropriate, request
improvements in the Developer's practices and procedures to ensure
compliance with the Quality Requirements.
8.4 The Developer warrants that the Development and the Deliverables comply
with the requirements set forth in Appendices 1 and 2.
8.5 The Developer warrants that all Deliverables delivered hereunder will
record, store, process and present calendar dates falling on or after
January 1, 2000, in the same manner, and with the same functionality, as
such software records, stores, processes and presents calendar dates
falling on or before December 31, 1999.
8.6 ###
8.7 Each Error remedied pursuant to this Clause 8 will be subject to a
repetition of the Acceptance procedure.
8.8 ###
9. DEVELOPMENT PRICE, OTHER CHARGES AND PAYMENT
9.1 The Development Price, other charges payable and the payment milestones
are detailed in the Project Order based on the principles stated in this
chapter and in the Appendix 5.
9.2 ###
9.3 ###
9.4 ###
Each Party shall pay any taxes or levies imposed on it as a result of
this Agreement and payments hereunder (including that required to be
withheld or deducted from payments) and shall furnish suitable evidence
of such payments to the other Party to enable it to obtain any credit
that might be available to it.
9.5 ###
10. PERSONNEL
10.1 The Developer shall assign personnel of appropriate qualification and
experience to perform and fulfill its obligations under this Agreement.
The Developer is obliged to replace, without unreasonable delay and at
no cost to Nokia, any member of the personnel whom Nokia considers
lacking the necessary competence or with whom Nokia finds it manifestly
difficult to collaborate.
10.2 ###
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10.3 Each Party shall prior to the commencement of Development nominate the
authorized representative who will be the other Party's prime point of
contact. Such representation may only be changed by notice in writing.
10.4 Notwithstanding any degree of supervision exercised by Nokia over
Developer's personnel assigned to perform development of Deliverable
such personnel at all times shall be deemed to be the employees of the
Developer and in no circumstances shall the relationship of employer and
employee be deemed to arise between Nokia and Developer's personnel.
10.5 ###
11. CONFIDENTIALITY
11.1 Each Party ("Receiving Party" for the purposes of this Clause 11) shall
not disclose to third parties nor use for any purpose other than for the
proper fulfillment of the purpose of this Agreement any Information
received from the other Party ("Disclosing Party") in whatever form
under or in connection with this Agreement without the prior written
permission of the Disclosing Party. ###
11.2 The above mentioned limitations shall not apply to Information which (i)
was in the possession of the Receiving Party prior to disclosure
hereunder as proven by the written records of the Receiving Party; or
(ii) was in the public domain at the time of disclosure or later became
part of the public domain without breach of the confidentiality
obligations herein contained; or (iii) was disclosed by a third party
without breach of any obligation of confidentiality owed to the
Disclosing Party; (iv) was independently developed by personnel of the
Receiving Party; or (v) which are required to be disclosed pursuant to
law, provided, however, that a minimum of ten (10) days written notice
shall be provided by the Receiving Party in order to permit the
Disclosing Party to take such action as it deems appropriate to prevent
or limit such disclosure.
11.3 Each Party shall limit the access to the Information to those of its
personnel for whom such access is necessary for the proper performance
of this Agreement and obtain written undertakings of confidentiality
from them.
11.4 Without prejudice to the generality of the aforesaid, each Party agrees
to protect the confidentiality of the Information at least with the same
degree of care as it exercises in respect of its own confidential
information and business secrets.
11.5 ###
12. INTELLECTUAL PROPERTY RIGHTS
12.1 ###
12.2 Nothing in this Agreement shall be interpreted as granting to the
Developer any rights to the work performed by the Developer under this
Agreement or any license to copy, adapt or take any other action in
respect of any work the intellectual property rights in which are, by
this Agreement or otherwise, vested (or expressed to be vested) in
Nokia.
12.3 Without prejudice to the above, the Developer may upon request at its
own expense make and retain one copy of all work produced under this
Agreement
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for maintenance purposes. Any such copies shall be considered as
confidential information of Nokia and the Developer shall return such
copies to Nokia promptly upon Nokia's request.
13. FORCE MAJEURE
13.1 Neither Party shall be liable to the other for any delay or
non-performance of its obligations hereunder in the event and to the
extent that such delay or non-performance is due to an event of Force
Majeure.
13.2 Events of Force Majeure are events beyond the control of the Party which
occur after the date of signing of this Agreement and which were not
reasonably foreseeable at the time of signing of this Agreement and
whose effects are not capable of being overcome without unreasonable
expense and/or loss of time to the Party concerned. Events of Force
Majeure shall include (without being limited to) war, civil unrest,
strikes, lock-outs and other general national labor disputes, general
and evidenced labour shortages, acts of government, natural disasters,
exceptional weather conditions, breakdown or general unavailability of
transport facilities, accidents, fire, explosions, and general shortages
of energy.
13.3 In the event that the delay or non-performance of either Party hereto
continues for a period ### of six (6) months due to reasons of Force
Majeure, then either Party shall have the right to terminate this
Agreement with immediate effect without liability.
14. TERM AND TERMINATION
14.1 ### .
14.2 This Agreement may be terminated upon ### prior written notice to the
other party.
In addition, this Agreement or the Project Order in question may be
terminated with immediate effect by written notice by the non-defaulting
Party in the event that (i) the other Party commits a breach of this
Agreement or the Project Order and fails to remedy such breach within 30
days after having been given written notice in respect thereof; or (ii)
the other Party suffers distress or execution or commits an act of
bankruptcy or goes or is put into liquidation (otherwise than solely for
the purpose of amalgamation or reconstruction) or if a receiver is
appointed over any part of such other Party's business or if an
administration order is made in respect of such other Party.
14.3 In addition, this Agreement ### may be terminated with immediate effect
by written notice by Nokia in the event that (i) there is a direct or
indirect change of ownership of the Developer or if any agreements are
entered into whereby control over or a substantial portion of
Developer's operations passes or will pass over into the hands of an
undertaking that is in competition with Nokia; or (ii) in Nokia's
judgment the considerations underlying this Agreement or the Project
Order have changed.
14.4 In the event of a termination of this Agreement ### by Nokia pursuant to
Clause 14.3, the Developer shall ### be entitled to receive payment for
Development undertaken up to the point of termination of this Agreement
### . In addition, in the event that Nokia terminates this Agreement ###
in accordance with subclause (ii) of Clause 14.3, the Developer shall
receive an additional compensation for necessary and duly attested
phase-out direct expenses ### .
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14.5 A termination of this Agreement ### shall be without prejudice to the
rights and obligations of the Parties which have accrued up to the date
of termination and especially to the obligation of the Developer to hand
over any and all Deliverables at their state of art at the time of the
termination. Furthermore, Clauses 8, 11, 12, 15 and 16 shall survive the
termination of this Agreement for whatsoever reason.
14.6 Notwithstanding Clauses 14.2 and 14.3 above, if the Developer is in
default of its obligations during the development of any Deliverable (or
milestone thereof) and fails to remedy such default within a reasonable
time of receiving written notice from Nokia in respect thereof, then
Nokia may, without prejudice to its right to terminate.
14.7 ### ###
15. INDEMNIFICATION
15.1 ### ###
15.3 The Developer and Nokia shall indemnify each other against injury to or
death of any of their employees or damage to property caused by any
negligent act or omission of the other Party and will respectively
maintain in force and on request give evidence of adequate insurance
relative to their respective obligations under this clause.
16. MISCELLANEOUS
16.1 Entire Agreement
16.1.1 This Agreement and the Appendices hereto state the entire agreement
between the Parties relating to the subject matter hereof and supersede
all prior communications, written or oral, between the Parties. However,
the Non-Disclosure Agreement executed between the Parties shall not be
overridden by this Agreement. All amendments and modifications to this
Agreement shall be made by an instrument in writing signed by both
Parties.
16.1.2 This Agreement ### may be supplemented or varied from time to time by
the inclusion or revision of Appendices. No purported variation and/or
addition in whole or in part to this Agreement ### shall be of any force
or effect unless and until reduced to writing and signed by both
Parties. Later made addenda and amendments alter the contents of this
Agreement ### only to the extent expressly agreed upon between the
Parties; all other conditions shall always remain unchanged. The
Agreement shall always supersede any conflicting terms in any order
acknowledgement of the Developer.
16.2 Assignment and Transfer
Neither Party shall be entitled to assign nor transfer all or any of its
rights, benefits and obligations under this Agreement without the prior
written consent of the other Party.
16.3 Notices
Any notice given by one Party to the other shall be deemed properly
given if specifically acknowledged by the receiving Party in writing or
when
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delivered to the recipient by registered mail to the following addresses
(or such other address as may be notified in writing from time to time
by either Party):
(a) if to Nokia, to
Nokia Mobile Phones Ltd
X.X. Xxx 000
XXX-00000 Xxxxx Group
Finland
(b) if to the Developer, to
Geoworks Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx XXX 00000
With a copy to:
Geoworks Ltd.
Beechfield House
Lyme Green Business Park
Xxxxxxxxxxxx, Xxxxxxxx, Xxxxxxx XX00 0XX
Each communication and document made or delivered by one Party to
another pursuant to this Agreement shall be in the English language or
accompanied by a translation thereof.
16.4 Remedies and Waivers
No failure to exercise, nor any delay in exercising, on the part of
either Party, any right or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right or remedy
prevent any further or other exercise thereof or the exercise of any
other right or remedy.
16.5 Partial Invalidity
If, at any time, any provision hereof is or becomes illegal, invalid or
unenforceable in any respect under the law of any jurisdiction, neither
the legality, validity or enforceability of the remaining provisions
hereof nor the legality, validity or enforceability of such provision
under the law of any other jurisdiction shall in any way be affected or
impaired thereby.
16.6 Law
This Agreement is governed by, and shall be construed in accordance
with, Swedish law.
16.7 Jurisdiction
Any and all disputes that may arise between the Parties under or in
connection with this Agreement shall be finally settled in arbitration
in
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accordance with the Rules of the Arbitration Committee of the
International Chamber of Commerce pursuant to the regulations in force.
The arbitration shall be conducted in, Stockholm, Sweden in the English
language.
16.8 Headings
Headings are used for the purposes of references only and shall not
affect the interpretation of this Agreement.
IN WITNESS WHEREOF this Agreement has been signed by the duly authorized
representatives of each Party hereto.
NOKIA MOBILE PHONES LTD.
By: /s/ Xxxxx Xxxxx By: /s/ Sari Inleinen
Name: Xxxxx Xxxxx Name: Sari Inleinen
Title: Vice President Title: Director
Date: 16 November 1999 Date: 16 November 1999
GEOWORKS CORPORATION
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxx Xxxxxxx
Name: Xxxxxx X. Xxxxxx Name: Xxx Xxxxxxx
Title: Chief Operating Officer Title: Vice President & General
Geoworks Corporation Manager
Geoworks Ltd.
Date: 21 November 1999 Date: 19 November 1999