EXHIBIT 10.33
SOFTWARE LICENSING AGREEMENT
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 the AirBoss
Client Software to Subscribers utilising the BT Wireless properties, using
the EXPIDAS environment and utilising applications tested in that
environment.
(B) Geoworks wishes to provide their AirBoss Software to BT Wireless and BT
Wireless wishes to license the AirBoss Client Software to an initial number
of BT Wireless Subscribers up to a total of 1000 at any one time according
to terms substantially similar to those set forth in Appendix 4.
IT IS HEREBY AGREED:
1. DEFINITIONS
In this Agreement the following words shall bear the following meanings:
"Subscriber License" means a license as described in clause 4.2 (b) for the
AirBoss Client Software, initially from Geoworks to Subscribers, such
licenses to be in the form or substantially the form set out in Appendix 4;
"Documentation" mean 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;
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"Live Service" includes the commercial launch of an Application,
proposition 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 the AirBossTM 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;
(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,
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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.
"Subscriber" means an individual permitted to use or provided access to the
AirBoss Client Software by BT Wireless pursuant to the terms of this
Agreement.
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 10.
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.
In particular, GEOWORKS shall:
(a) Install and set up and test to the parties mutual satisfaction, at no
cost, one (1) additional AirBoss server, including the AirBoss server
software, as part of the EXPIDAS environment, at a location to be
determined by the Parties to enable BT Wireless to provide Live
Service to Subscribers as described in Clauses 4.2(a) and 4.2(b). BT
Wireless will provide the necessary hardware and third party software,
as described in Appendix 1, or suitable variants as agreed between the
Parties, required for this environment. All testing will be to the
mutual satisfaction of BT Wireless and Geoworks. t. 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.
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(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.
In particular, BT Wireless shall in addition to the benefits outlined in
Appendix 2:
(a) Adequately staff and train sales, marketing, operational, professional
service and technical support personnel sufficient to perform BT
Wireless' obligations under this Agreement.
(b) Provide Tier One Support to Subscribers 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.
4.2 Licences
(a) 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 Subscribers; (b) demonstrating the AirBoss Software to potential
Subscribers; (c) providing support to Subscribers in accordance with
BT Wireless' obligations under this Agreement (d) installing and
testing AirBoss Client Software to Subscribers receiving the AirBoss
Client Software from BT Wireless pursuant to this Agreement.
(b) During the term of this Agreement, BT Wireless will use commercially
reasonable efforts to promote the license of AirBoss Software and, for
an initial period of sixty (60) calendar days beginning on the
Effective Date and subject to the terms and conditions set forth in
this Agreement, will ensure that any Subscribers provided
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with access to the AirBoss Client Software enter into with GEOWORKS a
limited, non-transferable, non-exclusive, license to use the AirBoss
Client Software in connection with the AirBoss Software licensed to BT
Wireless. BT Wireless and Geoworks will agree upon an appropriate
procedure and agreement for Subscribers to enter into. BT Wireless and
GEOWORKS will discuss a future structure whereby BT Wireless may,
under this Agreement, sublicense the AirBoss Client Software to
Subscribers as an alternative to the above License arrangement.
The rights granted in Clause 4.2(b) are limited under this Agreement
to a total of 1000 Subscribers at any one time, each Subscriber
license is granted for a maximum of six (6) months and each is subject
to a monthly Subscriber licensing fee, if any, as described in Section
5.1.
(c) 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.
(d) 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.
(e) Other than what is expressly provided in this Agreement, BT Wireless
may not modify the AirBoss Software or Documentation or place them in
Live Service without prior written permission from Geoworks, such
consent not to be unreasonably withheld or delayed, and a signed,
in-force commercial license agreement for the AirBoss Software. BT
Wireless agrees not to decompile, disassemble, or otherwise reverse
engineer the AirBoss Software.
(f) 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. BT Wireless agrees that any
such copy shall include the copyright, trademark and proprietary
information notices of Geoworks.
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5. CONSIDERATION, PAYMENT AND TAXES
5.1 BT Wireless and Geoworks will agree, in writing, prior to any licences to
Subscribers being granted under this Agreement, what consideration, if any,
will be paid by such Subscribers for their Subscriber License and to whom.
5.2 BT Wireless and Geoworks will agree, in writing, to appropriate
arrangements in respect of taxes, payment, records and audit rights.
5.3 In the event that a consideration is not agreed under clause 5.1 above, the
parties agree ###.
6. CONFIDENTIALITY AND PUBLICITY
6.1 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.
6.2 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 sublicensing rights related to the AirBoss
Software. Such press release will be developed with a reasonable timeframe
and is subject to agreement by both Parties.
7. INTELLECTUAL PROPERTY INDEMNITY
7.1 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
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.
7.2 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
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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.
7.3 In the event that a claim of infringement is made against Geoworks or BT
Wireless or 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 major adverse effects for BT Wireless
and/or its relevant subsidiary; (c) replace the Geoworks Software with
substantially equivalent software that is non-infringing and which delivers
the same or equivalent functionality as described in the Documentation and
has no other major adverse effects for BT Wireless and its subsidiaries. If
Geoworks reasonably determines 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 or part thereof.
7.4 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. 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 AirBoss Software or the use
or dealing therewith.
8. 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.
9. WARRANTY AND INDEMNITY
9.1 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 of the AirBoss
Software, all Errors will be rectified as soon as practicable and free of
charge. Geoworks makes no other warranties, express or implied,
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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.
9.2 If the AirBoss Software does not conform to the limited warranty stated in
clause 9.1 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.
9.3 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 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.
9.4 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.
10. TERMINATION, CONSEQUENCES OF TERMINATION AND SURVIVING CLAUSES
10.1 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.
10.2 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.
10.3 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.
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10.4 Termination of this Agreement shall be without prejudice to any rights that
may have accrued to either Party prior to the date of termination.
10.5 Notwithstanding termination of this Agreement for any reason, Clauses 1,
4.1, 5, 6, 7, 9,10 and 11 of this Agreement shall nevertheless survive
termination.
11. MISCELLANEOUS
11.1 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 consent,
assign this agreement to a third party who acquires all or substantially
all of such party's business.
11.2 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.
11.3 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.
11.4 Any variations to this Agreement shall be mutually agreed between the
Parties in writing and recorded hereto as an amendment to this Agreement.
11.5 This Agreement shall be governed by English Law and be subject to the
non-exclusive jurisdiction of the English courts.
11.6 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 11.7 shall, of itself, operate to prevent
the assignee from taking the benefit of, and enforcing, any rights so
assigned.
11.7 Notices: Any notices required or permitted to be given under this Agreement
shall be deemed sufficiently given if delivered by hand, mailed by
registered mail, postage prepaid and return receipt requested or sent by
overnight courier (with a confirmation of delivery obtained) to the address
indicated below:
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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 PROCURED BY BT WIRELESS LIMITED(1)
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AirBoss Server Hardware
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Compaq ProLiant DL380 - Dual X0-000 XXx Xxxxxxx Processor
-------------------------------------------------------------------------------
512 MB RAM (minimum)
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Dual Ultra SCSI Controllers
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Two 9GB SCSI hard disks (Duplex configuration)
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10/100-Base T Ethernet Adapter Card
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3.5" 144 MB Floppy Drive
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4mm 0/0 XX XXX Xxxxx
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CD ROM Drive (24X)
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Color Monitor (17")
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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
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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
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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 Subscriber
problems and technical assistance, which could be via a BT Wireless 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 Subscriber 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.
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.
"Upgrade" a new release of the AirBoss Software providing additional
functionality and which is not an Update.
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Support and Maintenance Services
BT Wireless will provide Subscribers with Tier One Support. BT Wireless will not
direct any Subscriber to contact Geoworks for Tier One Support. Provided BT
Wireless has timely and 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,
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.
Under the terms and conditions of an executed full commercial license and
distribution agreement, Geoworks will provide maintenance support to BT Wireless
in their support of BT Wireless Subscribers, which maintenance support shall
include time intervals for acknowledgement of reported Errors and also
timeframes for provision of restorations and resolutions, depending upon
pre-defined severity levels of the reported Error.
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.
--------------------------------------------------------------------------------
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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Upgrades
Release programme
It is anticipated that, during the period of this contract, there will be
upgrades to the AirBoss Software. In order to realise the joint benefits of
rapid uptake by Subscribers for each release it is important that BT Wireless
and Geoworks work closely on both actual and provisional release content.
It is therefore agreed that Geoworks will:
(a) make available during the term of this Agreement, at no cost, upgrades to
the AirBoss Software and changes to the Documentation subject to the
license grants and restrictions in this Agreement, when such upgrades are
made available by Geoworks to its licensees generally;
(b) notify BT Wireless for both the planned and provisional content for each
new release. This shall include (1) what will be provided in the AirBoss
Software and (2) planned changes in the documentation.
BT Wireless will:
(a) maintain the right not to accept a particular release from Geoworks;
such non-acceptance shall not be unreasonable
in order to maintain effective communication within EXPIDAS, Geoworks will,
dependent upon mutual agreement between the Parties on timing and
content:,:
(i) provide an advance timetable of any pre-release information
(ii) provide in any pre-release information 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 other members of the EXPIDAS Club
(iv) to modify the pre-release information and incorporate into BT
Wireless documentation for provision to 3rd parties
Change Control
An essential factor affecting the value of the AirBoss Software as used within
EXPIDAS is the rate and nature of changes to the AirBoss Software.
Geoworks will:
(a) make reasonable efforts to notify BT Wireless of all planned and
anticipated changes, including those planned within the lifetime of a given
release for the AirBoss Software;
(b) make all reasonable efforts to notify BT Wireless where delay or failure to
accept a new release is likely to cause additional cost or schedule delays
in the provision of capability or an adverse effect on the ability of
Geoworks to support a given release.
Functional enhancement process
The AirBoss Software capability is influenced both by Geoworks improvements and
by direct requests for new capability from BT Wireless.
Geoworks will:
(a) provide a controlled mechanism for dealing with such requests;
(b) notify BT Wireless of the lead times associated with any requests which are
accepted.
BT Wireless will:
(a) provide a mechanism for pooling requested changes and passing on the subset
to Geoworks that are deemed of interest.
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 3.
All Documentation will be updated on a rolling basis
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to ensure that all changes to the AirBoss 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.
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
AGREEMENT TERMS FOR SUBSCRIBERS
AGREEMENT TERMS FOR SUBSCRIBERS
1. Subscriber acknowledges that the AirBoss client software furnished to
it is owned by Geoworks Corporation ("Geoworks"), a United States
company incorporated under the laws of the State of California.
2. Subscriber is granted a perpetual nontransferable (except as provided
in Section 4 below) and nonexclusive license to use the AirBoss Client
Software worldwide for sale to and use by Subscribers in connection
with BT Wireless' use of the AirBoss Software on the BT Wireless
network. No right is granted to make copies of the Geoworks AirBoss
Software.
3. No title or other rights in the AirBoss Client Software is transferred
to Subscriber.
4. Subscriber shall not transfer the AirBoss Client Software or any
portion thereof to any other party except in connection with a
transfer of the device which contains the AirBoss Client Software.
5. Subscriber) shall not reverse engineer, decompile, disassemble or
decode the Geoworks AirBoss Software or any portion thereof, or derive
any source code or algorithms therefrom.
6. SUBSCRIBER ACKNOWLEDGES AND AGREES THAT GEOWORKS MAKES NO
REPRESENTATIONS, EXTENDS NO WARRANTIES OF ANY KIND, EXPRESS OR
IMPLIED, AND ASSUMES NO RESPONSIBILITY OR LIABILITY WHATSOEVER WITH
RESPECT TO THE USE, SUFFICIENCY OR ACCURACY OF THE AIRBOSS CLIENT
SOFTWARE, OR THE FURNISHING OF ANY SUPPORT OR INFORMATION RELATING TO
THE AIRBOSS CLIENT SOFTWARE, (ii) SUBSCRIBER SHALL MAKE NO CLAIM
AGAINST GEOWORKS OR ITS AFFILIATES WITH RESPECT TO THE AIRBOSS CLIENT
SOFTWARE, AND WAIVES ANY RIGHTS AGAINST GEOWORKS AND ITS AFFILIATES
RELATING TO THE AIRBOSS CLIENT SOFTWARE, AND (iii) THIS AGREEMENT
SHALL BE ENFORCEABLE BY GEOWORKS.
