EXHIBIT 10.34
SOFTWARE LICENSING AGREEMENT
FOR LICENSE TO DEVELOPERS
THIS AGREEMENT is made on July 23, 2001 by and between:
1. BT WIRELESS LIMITED, a company registered in England & Wales (registered no
2604354) whose registered office is at 00 Xxxxxxx Xxxxxx, Xxxxxx, XX0X 0XX,
("XX Wireless"); and
2. GEOWORKS UK LIMITED, a company registered in England with its registered
offices at Lyme Xxxxx Xxxxxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxxx, Xxxxxxx XX00
0XX ("Geoworks")
Individually referred to as a "Party" and collectively referred to as the
"Parties".
WHEREAS
(A) BT Wireless and Geoworks intend to work together to provide Developers,
which could include BT Wireless subsidiaries, with the AirBoss Client
Software and the associated Software Development Kit ("SDK"), API's,
Documentation, support and training to enable the development of
Applications that can operate within a 2G, GPRS and 3G wireless environment
utilising the BT Wireless properties.
(B) Geoworks wishes to provide their AirBoss Software free of charge for use in
the EXPIDAS environment, to provide suitable hardware for the AirBoss
Software on a loaned basis, and third party software, and to promote the
platform with the BT Wireless development community. The initiative will
result in the developer community gaining access to the SDK at no charge
for development activities with a license requirement before Live Service
can be launched. Geoworks also wishes to provide their AirBoss Software to
BT Wireless, and BT Wireless wishes Geoworks to license the AirBoss Client
Software and SDK to selected Developers upon the Developers' acceptance of
the terms included in the SDK, such terms to be in the form attached as
Appendix 4 ("SDK License Agreement").
(C) Geoworks and BT Wireless will sign a further software licensing agreement
("Software Licensing Agreement"), concurrent with this Agreement, which
will permit BT Wireless to utilise the AirBoss Software in its facility,
integrated into its network, for up to 1000 subscribers at any one time.
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IT IS HEREBY AGREED:
1. DEFINITIONS
In this Agreement the following words shall bear the following meanings:
"Application" means a software system, or design for a software system
developed (utilising the SDK) licensed to BT Wireless and/or to Developers
under this Agreement, that provides a set of user functions aimed at
facilitating the delivery of content and functionality to BT Wireless
customers and/or customers of BT Wireless subsidiaries;
"Developer" means any developer, which would include a BT Wireless
subsidiary, which has executed a Developer License (as defined below) with
Geoworks;
"Developer License" means a licence as described in clause 3(a) for the SDK
and the AirBoss Client Software, provided free of charge from Geoworks to
Developers, upon the Developers' acceptance of the SDK License Agreement.
"Documentation" means the manuals, specifications and other documents
provided with the AirBoss Software.
"Effective Date" is the date the last Party executes this Agreement;
"EXPIDAS" means BT Wireless Application Information Testing and Integration
facility;
"EXPIDAS Club" means the limited group of chosen parties which will have
the benefit of use of EXPIDAS;
"Live Service" includes the commercial launch of an Application, service or
solution utilising the AirBoss Software on a BT Wireless associated network
other than for development and testing purposes;
"AirBoss Client Software" means that portion of the AirBoss Software that
operates on wireless devices and which is dependent upon the server
software within the AirBoss Software to enable it to function.
"AirBoss Software" means Geoworks AirBoss(TM) Application Platform software
consisting of 5 key software components:
(a) Wireless application platform server software that integrates into and
supports the wireless carrier network and back office infrastructure;
(b) Mobile device API's and SDK's for the, Palm OS, Pocket PC, Windows CE
and Windows 2000/NT platforms for C++ development environments:
o ABInet API - client/server API for web-based applications
development;
o ABMAT API - designed for client/server legacy systems;
(c) AirBoss Microbrowser supporting WML browser for the Palm OS;
(d) Pocket IE support for Pocket PC and Windows CE;
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(e) Internet Explorer support for Windows 2000/NT;
"Agreement" means this agreement;
"Background Intellectual Property Rights" or "BGIPR" of a Party means any
IPR of such Party, or any IPR acquired or licensed from a third party to
such Party (including its affiliates), that is conceived, created, or
developed prior to or independent of any work performed under this
Agreement, whether or not such IPR is incorporated into a deliverable; but
excluding Foreground IPR in all cases;
"Equipment" means the equipment and software set out or referred to in
Appendix 1;
"Foreground Intellectual Property Rights" or "FGIPR" means any IPR that is
conceived, created, developed or contracted to be developed by a Party in
the course of performing work under this Agreement, whether or not such IPR
is incorporated into or infringed by the exploitation of one or more
deliverables, and shall include for greater certainty all IPR incorporated
in deliverables that is not Background IPR;
"Intellectual Property Rights" or "IPR" means any patent, registered or
unregistered design, copyright, design right, trade xxxx, semi conductor
topography right, know-how, or similar right exercisable in any part of the
world whether registered or unregistered and shall include any applications
for the registration of any patents or registered designs or trade marks or
similar registerable rights in any part of the world. It includes BGIPR and
FGIPR.
2. TERM
This Agreement shall take effect upon signature and shall remain in place
for a period of two years extendable by written agreement between the
Parties and subject to earlier termination in accordance with Clause 9.
3. DUTIES OF THE PARTIES
The Parties hereby agree:
o To collaborate with each other and use all reasonable endeavours to
carry out the stated activities and avoid any delay in such
collaboration.
o To make sure that the employees involved in the performance of the
work required to be carried out by or referred to in this Agreement,
possess the appropriate skills and experience. All work shall be
carried out in accordance with all applicable laws and regulations.
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In particular, GEOWORKS shall:
(a) Provide, install, set up and test to the parties' mutual satisfaction,
at no cost, one (1) AirBoss server, including the AirBoss Software,
the hardware and third party software within EXPIDAS which will be
enabled with an appropriate licence for the AirBoss Server Software to
support one (1) server. Geoworks will also provide, upon Developers'
acceptance of the SDK License Agreement, unlimited AirBoss SDK
Licenses from Geoworks to Developers for Geoworks AirBoss API's and
SDK toolkits, free of charge. All testing will be to the mutual
satisfaction of BT Wireless and Geoworks. Development Licences to
Developers will be granted on the basis that each Developer accepts an
SDK License Agreement. In the event Geoworks reasonably concludes that
the testing referred to above is complete and BT Wireless disagrees,
then Geoworks may terminate testing and BT Wireless can elect to
terminate this Agreement on ten days' notice as its exclusive remedy.
(b) Develop and maintain, over the term of this Agreement, AirBoss
GSM/GRPS server and wireless device software for, but not limited to,
the RIM Blackberry handhelds, Palm OS and Pocket PC platforms
including a WML Browser for the RIM, Palm and Pocket PC Platforms at
Geoworks' cost. Any withdrawal of support for a client device platform
will only be by prior written mutual agreement between the Parties.
Any BT Wireless request for support of a new client device or platform
must be mutually agreed upon by both Parties.
(c) Provide support for co-branded products or BT Wireless-branded
GSM/GPRS/3G based API's SDK's WML Browsers, documentation and related
developer resources.
(d) Help to define the requirements and assist BT Wireless in the
implementation and launch of a BT Wireless-branded developer programme
for the AirBoss Software.
(e) Provide Support Services, Maintenance Services, Training Services,
Updates, upgrades and Documentation and software licences described or
referred to in Appendix 3.
(f) Notify BT Wireless as far in advance as practicable of any prepared
patches, upgrades, new versions and/or new releases of any of the
AirBoss Software and SDK and related Documentation.
(g) Provide reasonable assistance, as mutually agreed, to support BT
Wireless activities in Marketing and Publicising EXPIDAS.
In particular, BT Wireless shall in addition to the benefits outlined in
Appendix 2:
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(a) Adequately staff and train sales, marketing, operational, professional
service and technical support personnel sufficient to perform BT
Wireless' obligations under this Agreement.
(b) Include Geoworks as a member of the EXPIDAS Club as outlined in
Appendix 2.
(c) Provide Tier One Support to Developers as set out in Appendix 3.
4. BT WIRELESS AND GEOWORKS 'S INTELLECTUAL PROPERTY RIGHTS
4.1 Ownership
(a) Each Party shall maintain all rights in and title to its own BGIPR.
(b) All rights in and title to FGIPR shall vest in the originating Party,
as no joint origination is contemplated.
(c) So long as any Applications developed by Developers do not contain any
portion of the AirBoss Software or any other Geoworks BGIPR or FGIPR,
BT Wireless or Developer shall retain all right, title and interest in
the Applications. To the extent that any Applications include the
AirBoss Software or portions thereof, or require the AirBoss Software
or portions thereof in order to function properly, Geoworks retains
all right and interest in such AirBoss Software and portions thereof
incorporated into the Applications or required by the Application in
order to function.
4.2 Licences
(a) Subject to Clause 4.2(h), Geoworks hereby grants to BT Wireless, for
the term of this Agreement and subject to the terms and conditions set
forth in this Agreement and in Appendix 3, a limited,
non-transferable, non-exclusive, license and right to use one copy of
the AirBoss Software and the Documentation for the purposes of: (a)
promoting the AirBoss Software to Developers; (b) demonstrating the
AirBoss Software to potential Developers; (c) providing training and
support to employees and Developers in accordance with BT Wireless'
obligations under this Agreement (d) installing and testing AirBoss
Client Software to Developers receiving the AirBoss Client Software
from BT Wireless pursuant to this Agreement.
(b) If BT Wireless provides copies of the AirBoss Client Software and SDK
to Developers, BT Wireless will ensure that Developers enter into with
Geoworks an SDK License Agreement. If the copies of the AirBoss Client
Software and SDK are provided directly to Developers by Geoworks, the
execution of the Developer License is Geoworks' responsibility.
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(c) The license rights provided in clause 4.2(a), are provided to BT
Wireless and Developers free of license fees provided that BT Wireless
and Developers do not use Applications in Live Service.
(d) In addition to the license rights provided under this Clause 4,
Geoworks will provide one (1) AirBoss server hardware configuration to
BT Wireless on the basis it is on loan to BT Wireless. Such hardware
configuration shall be returned to Geoworks upon any termination of
this Agreement in accordance with clause 9.
(e) BT Wireless shall reproduce any proprietary rights notices of Geoworks
and/or contributing third parties, if any, contained in or on all
partial or complete copies of the AirBoss software and documentation
on all partial or complete copies of the AirBoss Software or
Documentation.
(f) BT Wireless may not sublicense, assign, or otherwise transfer any of
its rights in the licenses set forth herein to any third party save to
a BT Wireless subsidiary upon the same terms as this Agreement and any
attempt to do so shall be null and void and be cause for immediate
cancellation of the Agreement.
(g) Other than as expressly provided in this Agreement or in the separate
Software Licensing Agreement, BT Wireless may not modify the AirBoss
Software or Documentation or place them into Live Service without
prior written permission from Geoworks, such consent not to be
unreasonably withheld or delayed and subject to appropriate terms
being agreed. BT Wireless agrees not to decompile, disassemble, or
otherwise reverse engineer the AirBoss Software.
(h) BT Wireless agrees not to duplicate or reproduce the AirBoss Software
in whole or in part, except as expressly provided in this Agreement.
BT Wireless may make one copy of part or all of the AirBoss Software
and Documentation for back-up purposes, including the making of any
copies that may be required to be made to enable a move of the server
hosting the AirBoss Software from one BT Wireless location to another.
BT Wireless must give Geoworks reasonable notice of such a move. BT
Wireless agrees that any such copy shall include the copyright,
trademark and proprietary information notices of Geoworks. BT Wireless
shall be entitled to copy the Documentation and SDK or reproduce it on
an EXPIDAS web site to be made available to Developers. For this
purpose, Geoworks will ensure that BT Wireless has available to it at
all times the latest release of the SDK consistent with the
appropriate release of the version of the AirBoss Software within
EXPIDAS.
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5. CONFIDENTIALITY AND PUBLICITY
5.1 This Agreement is subject to the confidentiality, disclosure and other
provisions contained in the Mutual Confidentiality Agreement in place
between the Parties and effective March 19, 2001.
5.2 Neither Party shall make any announcement, circular, press release,
advertisement or publicity, which concerns this Agreement or other related
matter without the other party's prior written consent, which shall not be
unreasonably withheld. Notwithstanding the foregoing, Geoworks and BT
Wireless shall mutually develop a press release related to BT Wireless'
license, deployment and rights related to the AirBoss Software. Such press
release will be developed with a reasonable timeframe and is subject to
agreement by both Parties.
6. INTELLECTUAL PROPERTY INDEMNITY
6.1 If a third party brings any claim, proceeding and/or suit against BT
Wireless alleging that the access to or use of the AirBoss Software or SDK
or Documentation infringes any third party Intellectual Property Right
("Infringement Claims"), then Geoworks shall be responsible, at its own
expense, for defending, or at its option, settling, the Infringement Claim
and shall indemnify BT Wireless or relevant BT Wireless subsidiary against
any costs, damages, liabilities, losses or expenses incurred by BT Wireless
or relevant BT Wireless subsidiary arising from the Infringement Claims.
Geoworks shall immediately on becoming aware of such Infringement Claim,
notify BT Wireless or relevant BT Wireless subsidiary promptly in writing.
6.2 Geoworks' obligations under this Clause shall be conditional on BT Wireless
or relevant BT Wireless subsidiary (i) promptly advising Geoworks in
writing of any such Infringement Claim, (ii) making no admission as to
liability or agreement to any settlement or compromise of any such
Infringement Claim without Geoworks' prior written consent, (iii) giving
Geoworks, at its request, sole conduct or any defence or any related
settlement negotiations, and (iv) co-operating fully with Geoworks and
providing Geoworks with all reasonably required assistance in the defence
or settlement of such Infringement Claim.
6.3 In the event that a claim of infringement is made against Geoworks or BT
Wireless a relevant BT Wireless subsidiary or if Geoworks reasonably
believes that such a claim will be made, Geoworks, at its option and in
lieu of indemnification, may (a) procure for the other Party the right to
use the Geoworks Software without patent or copyright infringement; (b)
modify the Geoworks Software to make it non-infringing provided that is
shall continue to deliver the same or equivalent functionality as described
in the Documentation and has no other material adverse effects for BT
Wireless and/or its relevant subsidiary; (c) replace the Geoworks Software
with substantially equivalent
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software that is non-infringing and which delivers the same or equivalent
functionality as described in the Documentation and has no other material
adverse effects for BT Wireless and its subsidiaries. If Geoworks and BT
Wireless reasonably determine that (a), (b) or (c) above cannot be achieved
on commercially practicable terms, then Geoworks may direct BT Wireless
and/or the relevant BT Wireless subsidiary to cease use of the AirBoss
Software.
6.4 Despite the foregoing, Geoworks shall have no indemnification obligation
with respect to claims that could have been avoided (i) by using more
current releases of the AirBoss Software that have been made available to
BT Wireless; (ii) had BT Wireless or the user not modified the AirBoss
Software without Geoworks' written approval; and (iii) if the AirBoss
Software were being used in isolation rather than in combination with other
technology save as contemplated by this Agreement. The foregoing provisions
of this Clause state the entire liability of Geoworks and the sole remedy
of other Party with respect to any Infringement Claim in connection with
the Geoworks Software or the use or dealing therewith.
7. COSTS AND EXPENSES
Each Party shall be responsible for the costs and expenses of performing
its obligations under this Agreement or an Appendix, unless specifically
stated otherwise, and for any costs and expenses involved in the
preparation and negotiation of this Agreement.
8. WARRANTY AND INDEMNITY
8.1 Subject to the terms and conditions of this Agreement, Geoworks warrants
that for a period of ninety (90) days from the date of completion of
installation, set up and testing under clause 3(a) above, Errors (as
defined in Appendix 3) of the Geoworks Software will be rectified as soon
as practicable and free of charge. Geoworks makes no other warranties,
express or implied, for the AirBoss Software or any services provided under
this Agreement. All claims and remedies under the foregoing warranty are
limited as provided in this Agreement.
8.2 If the AirBoss Software does not conform to the limited warranty stated in
clause 8.1 Geoworks, at its option, shall either (i) provide maintenance
modifications or otherwise remedy such non-conformance, (ii) replace the
Geoworks Software with software that conforms to such limited warranty and
delivers the functionality described in the Documentation,
8.3 Each Party agrees to indemnify and hold harmless the other Party against
any loss, liability, damage or expense, which it may incur as a result of
the failure of the
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indemnifying Party to comply with its obligations under this Agreement or
negligence. In no circumstance will either Party be liable to the other
whether in contract, tort (including negligence) or howsoever otherwise in
respect of any indirect or consequential loss, loss of revenue, profits or
business, loss of use or data whether such loss was foreseen or not or if
the Party has been advised of the possibility of incurring the same.
8.4 The Parties' maximum aggregate liability to each other arising out of or in
connection with this Agreement, whether in contract, tort (including
negligence) or otherwise shall (except for damages resulting from a breach
of Clause 5 and except for the intellectual property indemnity which are in
addition) in no circumstances exceed US$250,000.
9. TERMINATION, CONSEQUENCES OF TERMINATION AND SURVIVING CLAUSES
9.1 In the event that either Party or its assignee is in material breach of its
obligations herein and does not correct such breach within 30 days of
notification by the other Party then without prejudice to its existing
rights and remedies at law, the other Party shall have the right to
terminate this Agreement.
9.2 Either Party may terminate this Agreement forthwith on written notice if
the other Party or its assignees shall be or be declared insolvent, enter
into liquidation, receivership, administrative receivership,
administration, a company voluntary arrangement, or any bankruptcy
proceedings or any circumstances arise which would entitle a court to make
a winding up order or any similar proceedings or events or their equivalent
in any relevant jurisdiction.
9.3 In the event of termination as defined above, the Party not in breach shall
have the right to terminate any rights granted in accordance with Clause 4
and any Information supplied shall be returned to the party which disclosed
it. Additionally, BT Wireless shall return to Geoworks the AirBoss Server
hardware configurations loaned to BT Wireless.
9.4 Termination of this Agreement shall be without prejudice to any rights that
may have accrued to either Party prior to the date of termination.
9.5 Notwithstanding termination of this Agreement for any reason, Clauses 1,
4.1, 5, 6, 7, 8, 9 and 10 of this Agreement shall nevertheless survive
termination.
10. MISCELLANEOUS
10.1 Either Party may transfer or assign any of its rights and obligations under
this Agreement to any subsidiary or holding company of that Party or any
subsidiary of either of them from time to time provided that the other
Party gives its written consent, which shall not be unreasonably withheld
or delayed. Either Party may, however, without the other party's
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consent, assign this agreement to a third party who acquires all or
substantially all of such party's business.
10.2 The relationship of the Parties hereunder are those of two independent
parties and each Party is not an employee, agent or partner of the other
Party. Neither Party shall have any authority whatsoever to make any
binding agreement or incur any obligation, liability and/or make any
representation(s) on behalf of the other.
10.3 Nothing in this Agreement shall prevent either Party from pursuing
independent research or developing products which may compete with the
Applications, provided that in doing so, no use is made of the other
Party's Information, Intellectual Property Rights and Background and/or
Foreground Intellectual Property Rights, unless the Information and/or
Intellectual Property Rights and Background and/or Foreground Intellectual
Property Rights have been licensed to that Party without any restriction as
to their usage.
10.4 Any variations to this Agreement shall be mutually agreed between the
Parties in writing and recorded hereto as an amendment to this Agreement.
10.5 This Agreement shall be governed by English Law and be subject to the
non-exclusive jurisdiction of the English courts.
10.6 No person other than a Party to this Agreement shall be entitled to enforce
any term of it save that where an agreement is entered into pursuant to
which any rights and/or obligations contained in this Agreement are
assigned, nothing in this clause 10.7 shall, of itself, operate to prevent
the assignee from taking the benefit of, and enforcing, any rights so
assigned.
10.7 In the event that BT Wireless generates a standard agreement governing the
detailed terms and conditions of membership of the EXPIDAS Club, such as
security, co-operation as to timing of the use of EXPIDAS, restrictions on
the types of Applications which may be created using EXPIDAS and other
matters Geoworks will enter into such agreement on terms no less favourable
than those extended to other members of the EXPIDAS Club or if Geoworks
fails to do so, BT Wireless can elect to terminate this Agreement on thirty
(30) days notice as its exclusive remedy. There is no current payment
obligation for membership of the EXPIDAS Club.
10.8 The terms and conditions of this Agreement shall apply only to BT Wireless'
and its Developers' use of the AirBoss Software as part of BT Wireless'
EXPIDAS developer program. Any use of the AirBoss Software in a production
or commercial environment must be preceded by the execution of a further
software licensing agreement between the parties.
10.9 Notices: Any notices required or permitted to be given unde this Agreement
shall be deemed sufficiently given if delivered by hand, mailed by
registered mail, postage prepaid
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and return receipt requested or sent by overnight courier (with a
confirmation of delivery obtained) to the address indicated below:
If to Geoworks to:
Geoworks UK Limited
Lyme Xxxxx Xxxxxxxx Xxxx,
Xxxxxxxxxxxx,
Xxxxxxxx,
XX00 0XX
Xxxxxxx
Att: Managing Director
If to BT Wireless
BT Wireless Limited
PPZ.W.41
Slough
SL1 4DX
Att: Head of Applications Development
Xxxx Xxxxxxxxxx
AS WITNESS the duly authorised representatives of the Parties hereto have signed
this Agreement on the date hereof:
SIGNED by //P.H. Lisle// )
For and on behalf of BT WIRELESS LIMITED )
in the presence of: //X. Xxxxxxxx// )
SIGNED by //Xxxx Xxxx// )
For and on behalf of GEOWORKS UK )
LIMITED in the presence of: //X. Xxxxxxxxxx// )
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APPENDIX 1
EQUIPMENT AND SOFTWARE TO BE LOANED BY GEOWORKS TO BT WIRELESS LIMITED1
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AirBoss Server Hardware
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Compaq ProLiant DL380 - Dual X0-000 XXx Xxxxxxx Processor
--------------------------------------------------------------------------------
512 MB RAM (minimum)
--------------------------------------------------------------------------------
Dual Ultra SCSI Controllers
--------------------------------------------------------------------------------
Two 9GB SCSI hard disks (Duplex configuration)
--------------------------------------------------------------------------------
10/100-Base T Ethernet Adapter Card
--------------------------------------------------------------------------------
3.5" 144 MB Floppy Drive
--------------------------------------------------------------------------------
4mm 0/0 XX XXX Xxxxx
--------------------------------------------------------------------------------
CD ROM Drive (24X)
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Color Monitor (17")
--------------------------------------------------------------------------------
4 M High Resolution Graphics Card (Capable of 1280 x 1024)
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Keyboard / Mouse
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AirBoss Server 3rd-Party Software
--------------------------------------------------------------------------------
Sun(R) Solaris(TM) 8 Operating Environment, Intel Platform Edition.
Required Solaris patches for Compaq DL 380:
o CPQary - Compaq Array Controller, Version=1.1.1,
Rev=2000.01.26.02.20
o CPQary2 - Compaq Second Generation Array Controllers,
Version=1.3.0, Rev=2001.02.02.01.30
--------------------------------------------------------------------------------
Sun Java Web Server v2.0
o With Java Web Server 2.0 Patch 4 for Solaris (modified for
Intel-based hardware)
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Oracle 8i Enterprise Edition - Release 3(8.1.7) for Solaris Intel
--------------------------------------------------------------------------------
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APPENDIX 2
BENEFITS OF THE EXPIDAS CLUB
o Access to EXPIDAS, a world class leading edge capability consisting of
a miniature replica of BT Cellnet's networks
o Access to EXPIDAS developer booths at Ealing Studios with dedicated
time slots
o "Plug and Play" capability
o Regular communication with other Developers
o Availability of showcase facility
o Access to targeted global developer community
o BT Wireless European and Asian brand presence coupled with own brand
presence
o Applications and services in a live environment
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APPENDIX 3
SUPPORT SERVICES, MAINTENANCE SERVICES, TRAINING SERVICES,
UPGRADES AND DOCUMENTATION, SOFTWARE LICENCES
Additional Definitions
"Bug Fixes or Error Corrections" shall mean software patches, workarounds, and
all Updates containing software-correcting Errors provided by Geoworks to BT
Wireless pursuant to this Agreement.
"Error" shall mean a failure of the AirBoss Software to operate or perform in
accordance with or otherwise fail to meet the specifications as described in the
software user Documentation.
"Problem Determination" shall mean isolation of a problem as either an Error or
a problem of another nature with the system (e.g., BT Wireless operational,
database, hardware/firmware, interfacing product, software and hardware other
than Geoworks').
"Tier One Support" shall mean the single point of contact for Developer problems
and technical assistance, which could be via an EXPIDAS web site. This includes
restoring system outages and Problem Determination.
"Tier Two Support"Tier Two Support personnel serve as technical resources to the
Tier One Support personnel to provide reasonable limited assistance in answering
Developer queries, analysing reported troubles, offering workarounds, and/or
performing scheduled and unscheduled maintenance. Tier Two Support personnel
assist the Tier One Support personnel in the diagnosis of problems, if
necessary, after Tier One Support has provided reasonable Problem Determination
efforts. Tier Two Support personnel engage the Tier Three Support personnel, if
appropriate.
"Tier Three Support" After Tier One Support Personnel have isolated a problem to
an Error in the AirBoss software, Tier Three Support personnel will provide Tier
3 Support, including Bug Fixes or Error Corrections.
"Updates" shall mean a modification to the AirBoss Software which incorporates
corrections of Errors and which may also provide minor functionality
improvements as designated by Geoworks.
"Upgrades" shall mean a new release of the AirBoss Software providing additional
functionality and which is not an Update.
Support and Maintenance Services
BT Wireless will provide Developer with Tier One Support. BT Wireless will not
direct any Developer to contact Geoworks for Tier One Support. Provided BT
Wireless has timely and
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properly performed Tier One Support and the Error has been isolated to a problem
with the AirBoss Software, Geoworks will promptly provide BT Wireless at no cost
with Tier Two Support and Tier Three Support. Subject to any BT Wireless
security and health and safety at work requirements, BT Wireless will provide
Geoworks with full AirBoss system access and privileges, both on-site and
remotely, twenty-four hours per day, seven days per week as necessary for
Geoworks to provide Tier Two Support and Tier Three Support. Subject to
compliance with any BT Wireless security requirements and server availability BT
Wireless will provide Geoworks with appropriate access, as soon as it is
available, including Telnet and FTP access, to the AirBoss server, both on-site
and remotely, on a reasonable efforts basis, twenty-four hours per day, seven
days per week (and subject to any matters outside the control of BT Wireless
which may prevent this) in order for Geoworks to provide Tier Three Support.
Geoworks will provide at no cost maintenance for the currently available and one
prior major release of the AirBoss Software. In no event will Geoworks support
any release for more than a two year period.
Training Services
Geoworks shall provide to BT Wireless the following training:
Geoworks will provide at no cost one (1) session of each of the following
training workshops to BT Wireless. The Parties will agree upon the location for
delivering the training workshops. One copy of the training materials will be
provided to BT Wireless and BT Wireless may make as many copies as necessary to
meet their obligations under the Agreement and this Appendix 3.
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Course AirBoss Customer Support Training
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Objective At the end of this training, participants will be able
to appropriately gather information, diagnose common
browser problems, and enable callers in some instances
to fix problems and to perform Tier One Support.
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Audience Tier One Support representatives or their trainers.
Size: 4-12.
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Description Participants get hands-on experience with key tasks
including the following: installing AirBoss on a
mobile device (through a PC), configuring AirBoss on a
mobile device, querying the AirBoss database to verify
customer provisioning, testing a mobile device,
reading server event logs, and trouble-shooting common
problems.
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Duration 1 day
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Additionally, Geoworks will provide four (4) sessions of the following training
workshop to BT Wireless and Developers. The Parties will agree upon the location
for delivering the training workshops. One copy of the training materials will
be provided to BT Wireless and BT Wireless
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may make as many copies as necessary to meet their obligations under the
Agreement and this Appendix 3.
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Course ABInet SDK Developer Training
--------------------------------------------------------------------------------
Objective At the end of this training, participants will be able
to identify the key components of the ABInet SDK and
discuss how an application was developed.
--------------------------------------------------------------------------------
Audience Developers using the SDK to create Applications.
--------------------------------------------------------------------------------
Description Topics covered include: ABInet API overview, Customer
Support Call Management (CSCM) Application
demonstration, ABInet API specifications, CSCM Pull
Flow and API usage, CSCM system view and ABInet usage,
CSCM Push Flow and API usage.
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Duration 1/2 day
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Upgrades
During the term of the Agreement, Geoworks will provide, at no cost, upgrades to
the SDK and the Geoworks Software subject to the license grants and restrictions
in this Agreement, when such upgrades are defined by Geoworks to its licensees
generally.
Documentation
AirBoss Software Documentation will be delivered concurrent with the delivery of
the AirBoss software at no cost. BT Wireless will receive one (1) copy of the
user Documentation on CD-ROM and has the rights to make unlimited copies for use
with the AirBoss Software as allowed under the Agreement and in this Appendix
Three. All Documentation will be updated on a rolling basis to ensure that all
changes to the Air Boss Software are accurately reflected in such Documentation.
All update documentation will be delivered on CD-ROM and clearly marked which
version or release of the AirBoss Software is reflected by such Documentation.
In order to maintain effective communication with Expidas developers Geoworks
will, dependent upon mutual agreement between the Parties on timing and
content:,
(i) provide advance timetable of any pre-release information;
(ii) provide in any pre-release information pack any changes including any
changes in functionality, faults fixed, changes to performance, known
faults still remaining;
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(iii)grant rights to BT Wireless to release aspects of the pre-release
information to developers and make the pre-release information
available via the EXPIDAS web site.
Software Licences
In Live Service:
If and when any AirBoss Software or anything provided under Appendix 3 are
agreed to be sold or provided by Geoworks it shall be at ###.
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APPENDIX 4
AirBoss Application Platform
Software Development Kit (SDK) License
Geoworks Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
By accepting this license agreement, you, as a third party developer (Developer)
agree that Geoworks Corporation, a Delaware Corporation, and its wholly owned
subsidiaries (Geoworks) grants you a non-exclusive license to use the Geoworks'
AirBoss Application Platform Software Development Kit (SDK), AirBoss
Microbrowser Client Software, and related documentation (Documentation),
collectively "Software", subject to the following terms and conditions, and that
developer accepts such terms and conditions
WHEREAS Developer has indicated its desire to become a participant in the
Geoworks Application Platform Software Developer Program (Program);
WHEREAS, in connection with the Program, Geoworks may provide to Developer
the Software and support (Support);
WHEREAS, Geoworks has agreed to provide the Software and Support to
Developer subject to and in accordance with the terms and conditions
hereunder;
WHEREAS, Developer wishes to participate in the Program and utilize the
Software and Support to develop certain application programs;
NOW THEREFORE, in consideration of the premises and mutual representations and
covenants contained herein, the parties agree as follows:
1. Term. The term of this Agreement shall be for a period of twelve (12)
months commencing on the Effective Date, unless otherwise terminated
as provided herein. Thereafter, this Agreement may be renewed for
successive terms of 12 months (Renewal terms) each unless otherwise
terminated as provided herein.
2. Software Development Kit. Upon execution of this Agreement, Developer
is authorized to receive the Software that currently supports the
AirBoss Application Platform as described in its Documentation. Use of
the Software requires access to the AirBoss Application Platform
server software and Developer may be assigned up to a maximum of five
(5) registered user access accounts at any one time, each allocated
for a six (6) month period. Individual user access accounts will be
established by Geoworks upon receipt of a Registration Form completed
by each user. Developer shall be responsible for acquiring any
hardware or third party software or services necessary to use the
Software, including but not limited to laptop computer, hand held
device, modem etc. Developer shall also be responsible for making
service arrangements with a wireless service provider supported by the
Program and/or for obtaining an Internet connection.
3. License Grant. Developer is hereby granted a non-exclusive, personal,
non-transferable, non-commercial license to utilize the Software and
Documentation furnished under Section 2 for the Term of this Agreement
for the sole purposes of: (a) developing client applications; (b)
demonstrating the client applications to potential customers at
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Developer's facility; (c) using the Documentation in support of the
above noted authorized uses; and (d) making one (1) copy of the
Software for archival or backup purposes. This copy shall bear all
copyright and proprietary notices of Geoworks appearing on or in the
original material, as furnished by Geoworks to Developer.
4. License Restrictions. The Developer shall not use the Software for any
use which is not specified in this Agreement including but not limited
to (a) its use for internal data processing or for processing customer
data; (b) any commercial purposes; or (c) renting, leasing, granting a
security interest in, transferring right, electronically distributing
the Software by interactive cable or remote processing services or
otherwise distributing the Software.
5. Confidentiality. Developer shall hold the Software in confidence for
the benefit of Geoworks, and restrict disclosure of the Software
solely to those employees of Developer having a need to know, and who
have signed confidentiality agreements with Developer. Developer shall
not disclose the Software, in whole or in part, to any third party
unless Geoworks expressly agrees in writing to such disclosure.
Developer shall not reverse engineer, decompile, decompose,
disassemble, or decode the Software or any portion thereof or derive
any source code or algorithms therefrom. Developer shall be deemed to
have met its obligations under this Section if it uses the same
standard of care for Software that Licensee utilizes for its own
proprietary software, but no less than a reasonable standard of care.
Developer's obligations to keep the Software confidential shall
continue in effect until Geoworks informs Recipient, in writing, that
the Software is no longer deemed confidential by Geoworks. This
Agreement supersedes all previous and contemporaneous communications,
written or oral, with respect to the confidentiality of the Software.
6. Ownership of Software. The Software and Documentation shall be deemed
the property of Geoworks and Developer agrees that it shall not be
reproduced or copied except as permitted above, and that upon request,
or upon completion of this Agreement, all such Software and
Documentation in tangible form, including all copies thereof, will be
returned to Geoworks, and all such Software shall be erased from
Developer's computer systems and written confirmation thereof provided
to Geoworks. Nothing contained in this Agreement shall be construed as
granting or conferring any rights (other than those specifically set
forth hereunder) by license or otherwise in any Software disclosed to
the Developer, or in any proprietary rights related thereto.
7. Ownership of Applications. So long as any applications developed by
Developer (Applications) do not contain any portion of the Software or
any other Geoworks proprietary or intellectual property, Developer
shall own all right, title and interest in the Applications. To the
extent that any Applications include the Software or portions thereof,
or require the Software or portions thereof in order to function
properly, Geoworks retains all right title and interest in such
Software and portions thereof incorporated into the Applications or
required by the Application in order to function.
8. No Rights to Sublicense. In the event Developer desires to license,
sell, distribute or otherwise provide Applications to a third party
and such Applications include the Software, or portions thereof, or
require Software or portions thereof in order to function, Developer
acknowledges and agrees that such license, sale, distribution or
provision may not be exercised by Developer unless Geoworks first
agrees to license the Software to such third party under terms and
conditions acceptable to Geoworks.
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9. Export. Developer acknowledges that any commodities and/or technical
data provided under this Agreement is subject to the Export
Administration Regulations ("the EAR") administered by the U.S.
Commerce Department and that any export or re-export thereof must be
in compliance with the EAR. The receiving party agrees that it shall
not export or re-export, directly or indirectly, either during the
term of this Agreement or after its expiration, any commodities and/or
technical data (or direct products thereof) provided under this
Agreement in any form to destinations in Country Groups D:1 or E:2, as
specified in Supplement No. 1 to Part 740 of the EAR, and as modified
from time to time by the U.S. Department of Commerce, or to
destinations that are otherwise controlled or embargoed under U.S.
law.
10. Governing Law. This Agreement shall be governed by and construed under
the substantive laws of the State of California. The parties hereby
agree that any disputes arising under this Agreement shall be brought
exclusively within the state and federal courts located in the State
of California. In the event of a breach or threatened or intended
breach of this Agreement by Developer, Geoworks, in addition to any
other rights and remedies available to it at law or in equity shall be
entitled to injunctive relief, enjoining and restraining such breach.
The prevailing party in any action related to this Agreement shall be
entitled to recover its reasonable attorneys' and experts' charges.
11. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY. THE SOFTWARE IS
PROVIDED TO DEVELOPER "AS IS" AND GEOWORKS MAKES NO REPRESENTATIONS
AND EXTENDS NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE
SOFTWARE, INCLUDING BUT NOT LIMITED TO, THE WARRANTY AGAINST
INFRINGEMENT OF PATENTS OR OTHER INTELLECTUAL PROPERTY RIGHTS AND THE
IMPLIED WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR ANY PARTICULAR
PURPOSE, EVEN IF GEOWORKS HAS BEEN MADE AWARE OF SUCH PURPOSE. IN NO
EVENT SHALL GEOWORKS OR ANY OF ITS AFFILIATES BE LIABLE FOR ANY
DAMAGES INCURRED BY DEVELOPER, INCLUDING ANY LOST PROFITS OR OTHER
INCIDENTAL OR CONSEQUENTIAL DAMAGES, RELATING TO THE SOFTWARE, WHETHER
IN AN ACTION IN CONTRACT OR TORT. DEVELOPER EXPRESSLY ASSUMES ALL SUCH
RISKS AND LIABILITIES, IF ANY. IN ANY EVENT, DEVELOPER'S LIABILITY
UNDER THIS AGREEMENT SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100.00).
12. Termination. Geoworks shall have the right to terminate this Agreement
in the event any breach by Developer is not cured within 30 days of
notice thereof or immediately in the event of any breach under section
4 hereof. Either party shall have the right to terminate this
Agreement on ninety days' notice to the other party. Upon termination
or expiration of this Agreement, all Software and Documentation will
be returned to Geoworks and deleted from any magnetic media remaining
in Developer's possession.
13. Independent Contractors. This Agreement does not create any
partnership or agency relationship of any kind and the parties shall
be considered independent contractors. Neither party has the right or
authority to assume or create any obligations or to make any
representations or warranties on behalf of any other party, whether
express or implied, or to bind the other party in any manner
whatsoever.
14. Survival. The provisions of this Agreement regarding confidentiality,
warranties, liability, and all others that by their sense and context
are intended to survive the termination or expiration of this
Agreement survive and continue in effect.
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15. Assignment. This Agreement shall not be assignable or transferable (by
insolvency proceedings, mergers, consolidation, purchase, operation of
law or otherwise) by Developer without the written consent of
Geoworks. Any such purported assignment or transfer shall be void
without such written consent.
16. Publicity. Developer consents to and hereby grants to Geoworks the
right to use Developer's name in any Geoworks advertising or Geoworks
publication regarding Developer's participation in the Geoworks
Application Platform Software Developer Program.
