Exhibit 10.6
Confidential treatment has been requested with respect to certain
information contained in this document. Confidential portions have been
omitted from the public filing and have been filed separately with the
Securities and Exchange Commission.
(Translation)
DATE: MAR. 31, 1999
POSTA LICENSE AND DISTRIBUTION AGREEMENT
This Agreement is made and entered into by and between K.K. HIKARI TSUSHIN
(hereinafter referred to as "Kou") and Tumbleweed Software, K.K. (Hereinafter
referred to as "Otsu") in connection with Posta System with respect to which
Tumbleweed is authorized to license and distribute.
Article 1 (Grant of License and Distribution Right)
1. Otsu hereby grants to Kou a non-exclusive license (hereinafter
referred to as the "License") to provide certain services (hereinafter referred
to as the "Services") to Kou's users for a consideration by using Posta System
(hereinafter referred to as the "Products"). The scope of the Products covered
by this Agreement will be separately designated by Tumbleweed.
2. Otsu hereby grants to Kou a non-exclusive right (hereinafter referred
to as the "Distribution Right") to sell the Products to certain customers (in
this Agreement a customer shall mean a third party who will use the Products for
such internal purposes as authorized by Tumbleweed). Kou may lease the Products
to its customers in place of the sale of the Products at request of such
customers.
Article 2 (Payment)
In consideration of the License and the Distribution Right set forth in
Article I hereof, Kou shall pay the following amounts plus consumption tax
thereon at the time of the execution of this Agreement:
- In consideration of acquisition of the License Y30 million payable
to Tumbleweed;
- In consideration of acquisition of the Distribution Right,
Y20 million payable to Tumbleweed; and
- As a minimum license fee for the initial contract year are Y94.5
million and Y23.625 million which equivalent of 25% of Y94.5
million payable to Tumbleweed as a first payment in this date of
contract. After that, three months later, six months later, it pay
nine months later by Y23.625 million every the degree. But, it
isn't kept if this contract ends with the responsibility of Otsu
before the payment completes.
Article 3 (Compliance)
Kou shall comply with the rules, regulations, instructions, etc. prescribed
by Otsu and shall exert its sincere effort to expand the market share for the
Services and Products when Kou exercises the rights granted by Article I hereof.
Article 4 (Restrictions)
1. Unless otherwise explicitly provided for in this Agreement, Kou shall
not transfer, sublicense or loan Kou's rights.
2. Kou shall not provide the Services outside of Japan and shall not
directly or indirectly sell or distribute the Products outside of
Japan.
3. Kou shall not reproduce, amend source code, reverse engineer or
decompile the Products in any method whatsoever. Otsu shall be
entitled to insert administration software into the Products without
prior notice at any time in order to prevent Kou or Kou's users or
customers from conducting any activities beyond the extent authorized
by Otsu in advance.
4. Any trademarks, copyright indications, advertisements and promotions
in relation to the Products and the Services will be subject to
mutual agreement both Kou and Otsu.
Article 5 (Training in relation to the Products)
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Kou may receive training in relation to the Products in such method, period
and content as designated by Otsu. Under this Agreement, Kou may receive
such training free of charge only [ * ] of this
Agreement to the extent that three or less persons for each occasion will
receive the training for one time each of education of API and Posta
administrators. Upon request of Kou, any other training and education
than the above-mentioned training will be provided by Otsu for a
consideration in such way as separately designated by Otsu.
Article 6 (Invoice Price)
The invoice prices of the Products shall be equal to the respective amounts
set forth in such invoice price table as separately designated by Otsu plus
consumption tax thereupon.
Article 7 (Appointment of Sub-distributors)
Kou may appoint a sub-distributors of the Products with notify to Otsu's.
Article 8 (Loan of the Products for Providing the Services)
In the event that Kou intends to provide the Services to its users for a
consideration by using the Products, Otsu will loan such number of the
Products as necessary for providing the Services free of charge only during
the effective term of this Agreement. Provided that the free loan of the
Products shall be subject to the completion of the payment set forth in
Article 2 hereof.
Article 9 (Protection of Third Party Licensor's Copyright)
Kou acknowledges that such software of a third party licensor (hereinafter
referred to as the "Licensor") as is integrated with the Products shall be
used
---------------
*Confidential treatment has been requested with respect to certain
information contained in this document. Confidential portions have been
omitted from the public filing and have been filed separately with the
Securities and Exchange Commission.
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for the sole purpose of transmission of files by using the Products and
that the Licensor's software shall not be separated from the Products and
shall not be used independently. Kou shall make a notification thereof to
any customers (who will use the Products) and any users (who will use the
Services provided by Kou) and shall have them comply with the above
restrictions.
Article 10 (Payment of Running Royalty)
1. In the event that any sales volume of Kou exceeds such number of
delivery of files or such number of users as is covered by the
annual minimum license fees after Kou commences to provide the
Services by using the Products, Kou shall pay Otsu such running
royalty (plus consumption tax thereupon) as will be separately
designated by Otsu.
2. Kou shall prepare, maintain and provide to Otsu accurate records based
upon which the above running royalty shall be calculated. During the
effective period of this Agreement and thereafter Otsu and its
designee(s) shall be entitled to examine and make each copy of the
above records.
3. In accordance with the terms of this Agreement, Otsu will send Kou an
invoice covering the running royalty. Such invoice will be closed at
the end of the month in the invoice is received by Kou, who shall pay
the amount designated in the invoice by remitting the same to such
bank account as separately designated by Otsu no later than the end of
the following month.
Article 11 (Sales Plan)
Kou shall prepare sales plans for the Products an the Services provided by
using the Products in such a form as separately designated by Otsu. Kou
shall submit to Otsu such plans every three months on the date separately
designated.
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Article 12 (Supply of the Products)
Any individual sales agreement of the Products shall become effective when
Kou places an order to Otsu for shipment of the Products and such order is
approved by Otsu orally or in writing. Otsu shall deliver the Products to
such place as designated by the order.
Article 13 (Payment of Sales Price of the Products)
After delivering the Products to such place as designated by Kou, Otsu will
send an invoice of sales price of the Products to Kou in accordance with
the terms of this Agreement. The invoiced amount shall be closed at the
end of the month in which the invoice is received by Kou, who shall pay the
amount designated in the invoice by remitting the same to such bank account
as separately designated by Otsu no later than the end of the after three
month.
Article 14 (Entrustment of Maintenance Services)
With respect to maintenance services for the Products to be provided by Kou
to a customer, Kou shall enter into a maintenance agreement with such
customer with cooperation of Otsu. Kou shall pay Otsu annual maintenance
fees which will be separately designated by Otsu.
Article 15 (Prohibition of Modification)
Kou shall not modify the Products and shall prevent its customers and users
from modifying the Products unless otherwise agreed upon by Otsu in writing
and in advance.
Article 16 (Provision of APIs)
1. At Kou's request, Otsu will provide Kou with APIs in order for Kou to
integrate the Products into any other software. In such event, Kou
shall enter into a separate API license agreement as will be
designated by Otsu.
2. In the event that Kou intends to integrate the Products with any other
software by using APIs, Otsu will provide Kou with technical support
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upon Kou's request. Terms and conditions of supply of such technical
support will be determined by both parties upon mutual consultation
depending upon the content of technology required by Kou.
3. The ownership of any media containing APIs belongs to Otsu and any and
all rights relating to APIs will be reserved by Otsu or its licensors.
Article 17 (Termination)
1. In the event that Kou or Otsu falls under any of the following, the
other party shall be entitled to forthwith terminate this Agreement
without any demand or notice. In such event, all of Kou's or Otsu's
debts to the other party shall become due and payable and Kou or Otsu
shall forthwith pay all amounts thereof to the other party:
(a) If the party is subject to any provisional attachment,
preliminary injunction, attachment, or any petition for
bankruptcy and reorganization or any other legal proceeding which
will be likely to interfere with the business of the party;
(b) If the party transfers any right or obligation arising hereunder
to any third party or causes any third party to take over the
same; or
(c) If the party breaches any of the provisions of this Agreement.
2. In the event that Otsu's right to use the Licensor's software which
constitutes components of the Products expires or terminates for
whatever reasons, Otsu may forthwith terminate this Agreement.
3. Upon any expiration or termination of this Agreement, Kou shall not be
entitled to request any compensation from Otsu due to loss of the
License and the Distribution Right, etc.
Article 18 (Warranty and Damages)
1. In the event that there is a defect in media of the Products for any
reason attributable to Otsu, Otsu's liability shall be limited to
replacement of the non-defective products or repayment of the purchase
price of the Products.
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2. Users of the Products (namely, any of Kou, Kou's customers and users)
shall be responsible for any use, operation and administration of the
Products and Otsu shall not be liable for any damage of those users
arising from the use of the Products.
Article 19 (Confidentiality)
During the effective period of this Agreement and thereafter, Kou shall not
disclose to any third party any technical or business confidential
information which is obtained by Kou under this Agreement or in connection
with any transaction hereunder and shall not use such confidential
information for any other purposes than that of this Agreement.
Upon expiration or termination of this Agreement, Kou shall return to Otsu
the Products loaned to Kou hereunder, media containing APIs and any other
materials including Otsu's confidential information (together with all
copies thereof).
Article 20 (Term, etc.)
This Agreement shall become effective as of the date when both parties have
affixed their names and seals hereon and shall remain in force and effect
for one year thereafter. Unless otherwise indicated by either
party no later than one month prior to any expiration date, this Agreement
shall be automatically renewed for additional one year periods under
the same conditions hereof. Provided that no initial payment for
acquisition of the License and the Distribution Right shall be required in
any renewal period and annual minimum license fees applicable to any
renewal period shall be agreed upon in advance based upon mutual
consultation with Otsu.
Article 21 (Good Faith)
1. Kou and Otsu shall cooperate with each other to sincerely perform this
Agreement in good faith.
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2. With regard to any matters not provided for in this Agreement or any
matters that may subject to dispute, both parties shall discuss
such matters in good faith.
Article 22 (Jurisdiction)
In the event any dispute arises between the parties in connection with this
agreement, the Tokyo District Court shall have an exclusive jurisdiction
for the first instance.
IN WITNESS WHEREOF, Kou and Otsu have executed this Agreement by affixing
their names and seals in duplicate, one copy of which is retained by each of the
parties.
(Kou):
0-0-0 Xxxxxxxx Xxxxxxx-xx Xxxxx
K.K. HIKARI TSHUSHIN
President Xxxxxxxxx Xxxxxxx
(Otsu)
Xxxxxxxxx Xxxx. 0X
0-00 Xxxxxxxx-xxx Xxxxxxx-xx Xxxxx
Xxxxxxxxxx Software K.K.
Representative Shinji Xxxx
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