Exhibit 10.35
SUPPLEMENT AND AMENDMENT #4
TO
THE GEOWORKS-TOSHIBA AGREEMENT
FOR MOBILE SERVER+ SOFTWARE
This Supplement and Amendment #4 to the GEOWORKS-TOSHIBA Agreement entered
September 30, 1998, as amended by Amendment #1 effective the 12th day of July
1999, Supplement and Amendment #2 dated the 1st day of April 2000, and
Supplement and Amendment # 3 dated the 31st day of January 2001 is made and
effective the 1st day of April 2001 ("Effective Date") by and between Geoworks
Corporation, a Delaware corporation whose principal address is 000 Xxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 X.X.X. ("Geoworks"), and Toshiba Corporation,
a corporation duly organized and existing under the laws of Japan, having its
principal place of business at 1-1, Xxxxxxxx 0-xxxxx, Xxxxxx-xx, Xxxxx 000-0000,
Xxxxx ("Toshiba").
INTRODUCTION
A. Geoworks and Toshiba entered into a contractual relationship on
September 30, 1998 documented as the "Geoworks-Toshiba Agreement For The
Evaluation of Software; Amendment #1 thereto, effective July 12, 1999;
Supplement and Amendment #2 thereto, effective April 1, 2000; and Supplement and
Amendment #3 thereto, effective January 31, 2001 (collectively the "Agreement");
and
B. Geoworks and Toshiba now wish to supplement and amend certain financial,
licensing and other terms of the Agreement, and document the changes in this
Supplement and Amendment #4 ("Supplement #4").
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SUPPLEMENT AND AMENDMENTS
The Parties agree that all the terms and conditions of the Agreement,
including the definitions of terms and expressions in the Agreement, shall
remain in full force and effect with the exception of those terms and conditions
supplemented, changed, amended or added herein. The Parties agree to supplement,
change and amend numbered sections of the Agreement as follows:
1. DEFINITIONS
1.5. "Licensed Technology," shall mean the object code or machine-executable
code version of the Geoworks Mobile Server+ Version 3.1.3 ("MS+ Version
3.1.3"), formerly known as Jellyfish Software Version 3.0, and Servlet
Version 1.1 ("Servlet Version 1.1"), including Updates as made available by
Geoworks.
1.6. "Maintenance Support," shall mean Bug Fixes and Updates associated with the
Licensed Technology as described in Section 9.2 of this Supplement #4.
1.7. "Source Code," shall mean the computer program expressed in a source or
human readable language consisting of a full source language statement of
the program comprising the Licensed Technology, and all other material
reasonably necessary to allow a reasonably skilled programmer or analyst
who is experienced in the field of developing software, including
documentation, to maintain the Licensed Technology without the assistance
of Geoworks or reference to other material.
2A. EXTENSION OF COMMERCIAL LICENSE (FOR USE IN MPC AND MMS SOFTWARE PRODUCTS
AND SERVICES OF TOSHIBA)
2A.1 Commercial License. Geoworks hereby extends Toshiba's license grant for the
Licensed Technology, for the duration of this Supplement #4, and subject to
the terms and conditions set forth in the Agreement and this Supplement #4.
The MS+ Version 3.1.3 as defined in this Supplement #4 is currently
scheduled to be provided to Toshiba on July 16, 2001. Servlet Version 1.1
was previously provided to Toshiba
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under the terms and conditions of Supplement #3. The continuation of the
limited, non-transferable, non-exclusive commercial license to use the
Licensed Technology in MPC and MMS and to reproduce and distribute such MPC
and MMS only in object code versions to Toshiba's MPC and MMS customers
("MPC and MMS Customers") is in exchange for (1) the Recurring Commercial
License Fee equal to ###,(2) the MS+ Version 3.1.3 License Fee established
in Article 2A.7 below, and (3) the Maintenance Support Fee, also
established in Article 2A.7 below.
2A.7 License Fee and Maintenance Support Fee. In consideration of the license
granted herein, Toshiba will pay Geoworks ###. This License Fee is due to
Geoworks on ###. MS+ Version 3.1.3 is deemed accepted by Toshiba upon
receipt.
In consideration of the Maintenance Support provided herein, Toshiba will
pay ###. This Fee includes Bug Fixes and Updates to the Licensed Technology
during the duration of this Supplement #4. Toshiba will pay this
Maintenance Support Fee to Geoworks as follows:
o. # # #
x. # # #
x. # # #
x. # # #
0. WARRANTY AND DISCLAIMER OF WARRANTY
6.1 Warranty. Geoworks warrants that it has the right and power to enter into
this Supplement and Amendment #4 and that it has the right to grant the
license extension granted in Article 2A above. There are no other
warranties outstanding, express or implied.
9. MAINTENANCE AND SUPPORT
9.1 Features of the Licensed Technology. MS+ Version 3.1.3 will contain the
features mutually agreed-upon between Geoworks and Toshiba which are listed
in Exhibit A attached to this Supplement #4. Servlet
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Version 1.0 contained the features described with the documentation
delivered with the software. Servlet Version 1.1, XML Content Loading
Feature, is as described in the document "Requirements for Reading and
Writing XML Documents within Premion Scripts, Version 0.6", dated October
10, 2000 and provided to Toshiba on October 13, 2000.
Geoworks is currently utilizing four (4) of Toshiba's iPlanet Application
Server licenses and Toshiba agrees that Geoworks may continue to use these
licenses for the Term of this Supplement #4. Upon expiration of Term or any
termination pursuant to Article 10.2, Geoworks will return the iPlanet
Application Server licenses to Toshiba.
In the event Toshiba requires or requests Geoworks to develop any
additional features, which are not included in Maintenance Support (i.e.,
Bug Fixes and Updates), to the Licensed Technology and Geoworks agrees to
develop such features, and Geoworks' standard professional engineering
rates, as periodically published and supplied to Toshiba, will apply.
9.2 Maintenance Support. Subject to payment of the Maintenance Support Fee in
Section 2A.7, beginning April 1, 2001 Geoworks will provide Toshiba with
Bug Fixes and Updates for the duration of this Supplement #4. Toshiba will
make best efforts to submit requests for Maintenance Support (i.e.,
reporting Errors) to Geoworks in writing in the US English language.
Subsequent to receipt of a request in writing,
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Geoworks may contact Toshiba by telephone for clarification and additional
detail and such subsequent discussions will be in Japanese, if necessary.
On-site or remote technical support is not included in this fee, but could
be provided to Toshiba at Geoworks' standard professional engineering rates
as periodically published and made available to Toshiba.
9.3 While the Licensed Technology is in warranty or Toshiba is entitled to
receive Maintenance Support pursuant to the Agreement, Geoworks, at its own
expense, shall place one copy of the Licensed Technology Source Code with
an escrow agent, reasonably acceptable to Toshiba, within sixty (60) days
after ship date of the Licensed Technology to Toshiba. Upon occurrence of
any of the following events, Toshiba shall be entitled to retrieve from the
escrow agent one copy of the Source Code for the Licensed Technology after
ten days notice to Geoworks so long as Toshiba is not in breach of the
Agreement:
a. Geoworks ceases to commercially offer (directly or indirectly) to
provide Maintenance Support for the Licensed Technology; or
b. Geoworks files a voluntary petition for relief against its creditors
by way of reorganization or dissolution under the bankruptcy laws
which prevents Geoworks from performing under the Agreement within the
meaning of the Federal, or any State, Bankruptcy Act; or
c. A filing against Geoworks of an involuntary petition for relief by
Geoworks' creditors under such bankruptcy laws, if such involuntary
petition for relief is not dismissed within one hundred twenty (120)
calendar days of filing and which prevents Geoworks from performing
under the Agreement; or
d. Proceedings such as receivership, insolvency, reorganization,
dissolution, liquidation or other similar proceedings are instituted
by or against Geoworks and which prevents Geoworks from performing
under the Agreement; or
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e. Geoworks ceases doing business for any reason and which cessation
prevents Geoworks (and any successor in interest) from performing
under the Agreement.
Toshiba shall use such Source Code to maintain the Licensed Technology to
support MPC and MMS Customers for which Toshiba has continuing warranty or
Maintenance Service obligations, including internal Toshiba MPC and MMS
Customers for which Toshiba has continuing warranty or Maintenance Service
obligations, on the date Toshiba is entitled to retrieve a copy of the
Source Code from the escrow agent. Toshiba agrees and acknowledges that the
Licensed Technology Source Code is the confidential information of Geoworks
and shall take such precautions to protect the delivered Source Code from
unauthorized disclosure or use as required hereunder. An authorized third
party, under contract with Toshiba to provide such maintenance, may only
access the Source Code after it has executed a nondisclosure agreement,
acceptable to Geoworks (providing Geoworks is still conducting business and
such acceptance is not unreasonably withheld or delayed), to use the Source
Code in accordance with the terms of this Agreement. The delivery to
Toshiba of such Source Code shall be in lieu of and in full satisfaction of
any other warranty or obligation that Geoworks would otherwise have under
the Agreement and any corresponding Amendment to the Agreement with respect
to the Licensed Technology. In the event Toshiba accesses the Source Code
pursuant to the conditions specified in this Supplement #4, Toshiba has no
further obligation to pay any Maintenance Support Fees which are due and
payable at a date after the date Toshiba is entitled to retrieve the Source
Code from the escrow agent provided that all Maintenance Support Fees due
and payable prior to that date have been paid.
In the event Toshiba accesses the Source Code, Toshiba will indemnify
Geoworks from all loss, liability, claims and expense, including attorneys'
and experts' charges, arising from (i) Toshiba's modifications of such
Source Code and any third party's use of such modifications; (ii) any use
outside the limited scope of the license; and (iii) any failure to maintain
the confidentiality of the Source Code. The license to use the Source Code
is non transferable and revocable only in the event of a breach of this
license or the Agreement.
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10. TERM AND TERMINATION
10.1 Term. The term of this Supplement and Amendment #4 shall begin upon the
Effective Date and the parties agree that the Agreement, including
Supplement #4, shall be renewed and continue until the earliest to occur of
the following: (1) termination of the Agreement pursuant to Article 10.2;
or (2) September 30, 2004.
SIGNATURES
GEOWORKS TOSHIBA
/s/ /s/
---------------------------------- ----------------------------------
Signature Signature
Xxxxxxxxxxx X. Xxxxx Xx. Xxxxxxx Xxxxxx
---------------------------------- ----------------------------------
Print Name Print Name
VP Sales
---------------------------------- ----------------------------------
Title Title President & CEO
iValue Creation Company
Toshiba Corporation
9/19/01 9/18/01
---------------------------------- ----------------------------------
Date Date
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Supplement #4
Exhibit A
MS+ Version 3.1.3 Features
o FILEPUT tag - This tag allows MS+ scripts to write data specified in
the tag body to a file. The destination file can be specified using
the path and the file store. This tag complements the FILEGET tag.
o File upload support for HTTP - This is an enhancement to the HTTP
request handling and adds support for receiving multi-part
mime-encoded HTTP posts. It allows MS+ to receive file data from the
web client.
o EXEC tag - This new tag allows MS+ scripts to execute an arbitrary
program on the host operating system using a new process and to
retrieve its result. It is possible to specify timeout and environment
variables for the new process.
o Allowing the FORWARD tag in querymaps called by the RUNQUERYMAP tag -
This restores the behavior of earlier MS+ versions. It removes the
limitation that the FORWARD tag is not allowed in querymaps called by
the RUNQUERYMAP tag.
o URLENCODE and URLDECODE tags - These are new tags. The former
generates a URL encoded string from passed parameters or body. The
latter decodes a passed URL encoded string and returns a map if name
value pairs are detected or a string otherwise.
o Improvement of the EXPRESSION tag output format - This fixes the Bug
where the result of 1 + 1 becomes 2.0. The EXPRESSION tag now converts
the result to a whole number if possible.
o Timeout support for the FTP and HTTP tags - These changes allow MS+
scripts to specify timeout for the FTP and HTTP tags. If the request
does not return within the specified interval, it will be interrupted
and a null value is returned.
o Enhancement to the HTTP tag - This allows MS+ scripts to specify
arbitrary header information in an HTTP request. A map value
containing header information to submit with the request can be
specified as an attribute to the HTTP tag.
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o Setting a correct value in the Content-Length field in HTTP responses
- In HTTP responses sent back to the web client, the Content-Length
field now contains a correct value.
o REFMPROXY tag (Toshiba Multimedia Engine Support) - This new tag
enables MS+ to proxy requests to another origin server such as
Toshiba's multimedia engine.
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