Software License and Support Agreement - Unwired Planet Inc. and AT&T Wireless Services Inc.
SOFTWARE LICENSE AND SUPPORT AGREEMENT
between
Unwired Planet, Inc.
and
AT&T Wireless Services, Inc.
Dated as of May 1, 1996
[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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CONTENTS
Section 1. Definitions.................................................... 1
Section 2. License........................................................ 4
2.1 Grant of License for UPI Software.................................... 4
2.2 Grant of License for Application Server Software..................... 4
2.2.1 Grant.......................................................... 4
2.2.2 Limitations on Use............................................. 5
2.2.3 No Content Restrictions........................................ 6
2.3 Limitation........................................................... 6
2.4 Delivery............................................................. 6
Section 3. Software Integration Services................................... 6
3.1 Scope................................................................ 6
3.2 Schedule and Duration................................................ 7
3.3 Cooperation.......................................................... 7
Section 4. Support Services................................................ 7
4.1 Scope................................................................ 7
4.2 [****************]................................................... 7
4.3 Duration............................................................. 8
Section 5. Compensation.................................................... 8
5.1 Fee for License and Software Integration Services.................... 8
5.2 [Superseded by Section 5 of Third AT&T Amendment].................... 8
5.3 Fees for Support Services............................................ 8
5.4 Payments............................................................. 9
5.6 Payment in Full...................................................... 9
5.7 [*******************]................................................ 9
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Section 6. Proprietary Rights.............................................. 10
6.1 Ownership........................................................... 10
6.2 Source Code Escrow.................................................. 10
6.3 Trademarks and Trade Names.......................................... 10
6.4 Marketing Limitations............................................... 11
6.5 Content Provider Licenses........................................... 11
Section 7. Warranty and Indemnification.................................... 11
7.1 Warranty............................................................ 11
7.2 Indemnification..................................................... 11
7.2.1 General....................................................... 11
7.2.2 Infringement.................................................. 12
7.2.3 Additional Infringement Remedies.............................. 12
7.2.4 Limitations................................................... 12
7.2.5 Indemnification by AT&T....................................... 12
7.2.6 Entire Liability.............................................. 13
Section 8. Term and Termination............................................ 13
8.1 Term................................................................ 13
8.2 Termination......................................................... 13
8.2.1 Termination of Term........................................... 13
8.2.2 Termination of License........................................ 13
8.3 Effect of Termination of License.................................... 14
8.4 Effect of Termination of Term....................................... 14
8.5 Survival............................................................ 14
Section 9. Arbitration..................................................... 14
9.1 Selection of Arbitrator............................................. 14
9.2 Location............................................................ 14
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9.3 Jurisdiction........................................................ 15
9.4 Decision............................................................ 15
9.5 Costs............................................................... 15
Section 10. Miscellaneous.................................................. 15
10.1 Performance........................................................ 15
10.2 Confidential Information........................................... 15
10.3 No Consequential Damages........................................... 16
10.4 Force Majeure...................................................... 16
10.5 Limitation of Damages.............................................. 16
10.6 Independent Contractor............................................. 16
10.7 Assignment......................................................... 17
10.8 No Delegation of Duties............................................ 17
10.9 Notices............................................................ 17
10.10 Nonwaiver......................................................... 17
10.11 Compliance and Severability....................................... 17
10.12 Counterparts...................................................... 17
10.13 Entire Agreement.................................................. 18
10.14 Governing Law..................................................... 18
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LIST OF EXHIBITS
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Exhibit Description Reference
------- ----------- ---------
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A Licensed. Programs and Documentation
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B Escrow Agreement
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C Software Integration Services
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2C Email Services
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D Specifications
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E Support Services
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F Initial Server Sites
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G [Superseded by Section 5 of the Third AT&T Amendment]
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H Commercial Server Acceptance Criteria
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I Designated Information Services
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SOFTWARE LICENSE AND SUPPORT AGREEMENT
This Agreement, dated as of May 1, 1996, is made and entered into by and
between Unwired Planet, Inc., a Delaware corporation ("UPI"), and AT&T Wireless
Services, Inc., a Delaware corporation ("AT&T").
RECITALS
A. AT&T has made an investment in the capital stock of UPI; and
B. In consideration with and as a part of such investment the parties
understood and agreed that UPI would grant to AT&T certain licenses to certain
UPI software as described in this Agreement; and
C. The terms and conditions of such licenses are the result of AT&T's
investment in UPI.
AGREEMENT
Therefore, AT&T and UPI agree as follows:
Section 1. Definitions
Whenever used in this Agreement with initial letters capitalized, the
following terms will have the following specified meanings:
1.1 "Affiliate" means any Person that controls, is controlled by or is
under common control with a party.
1.2 "ANT Server" means a UPI Air Network Translator server (also referred
to as "UPILink Gateway") used to transmit UPI formatted data to and from UPI
Supported Devices.
1.3 "Application Server" means the server computer or computers on which
the Information Application Software is to be loaded and executed.
1.4 "Application Server Program" means the object code version of the UPI
application server program described in, and which complies with, the
Specifications applicable thereto, together with any and all Upgrades and
Enhancements to such application server program delivered by UPI to AT&T
pursuant to this Agreement.
1.5 "Application Server Software" means the Application Server Program and
the related Documentation.
1.6 "Application Server Software Source Code" means all source code owned
or licensed by UPI for the Application Server Software.
1.7 "AT&T Internal User" means any user of the UPI Service who is an
employee of AT&T or its Affiliates, or an agent, contractor or
representative of AT&T or its Affiliates while engaged on AT&T's or its
Affiliates' behalf.
1.8 "AT&T Network" means any network operated or utilized by AT&T or its
Affiliates.
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1.9 "Confidential Information" means any information of either party which
is not generally known to the public, whether of a technical, business or other
nature (including, but not necessarily limited to: trade secrets, know how,
computer program source codes, and information relating to the customers,
business plans, promotional and marketing activities, finances and other
business affairs of such party); provided that the same is conspicuously marked
or otherwise identified as confidential or proprietary information prior to,
upon or promptly after receipt by the other party; and provided further that the
UPI Software Source Code and the Application Server Software Source Code will be
deemed to constitute the Confidential Information of UPI.
1.10 "Content Provider" means any person that provides content that is made
available to Subscribers over the AT&T Network.
1.11 "Documentation" means all manuals, instructions and other documents
relating to the use, operation, maintenance and servicing of the Licensed
Programs or the AppliCation Server Program, as the case may be, described on the
attached Exhibit A. The Documentation may be in printed or machine readable
form.
1.12 "Enhancement" means any enhancement, improvement, modification, update
or new release of any UPI Software or the Application Server Software, as the
case may be, but does not include Upgrades.
1.13 "Escrow Agent" means Data Securities International, Inc., or another
third party designated by UPI and approved by AT&T (which approval will not be
unreasonably withheld) to act as the escrow agent under the Escrow Agreement.
1.14 "Escrow Agreement" means an escrow agreement substantially in the form
attached as Exhibit B or such other form as may be agreed upon by the parties.
1.15 "HDML" means the handheld device markup language that is used to
select, format, interpret and communicate data to or from a UPI Supported Device
through the ANT Server.
1.16 "Information Application Software" means the AT&T-provided HDML
application software used in connection with the UPI Software and the
Application Server Software to enable data communications between UPI Supported
Devices and the Application Server as a part of the provision by AT&T of an
Information Service.
1.17 "Information Service" means the service provided by AT&T to its
Subscribers that (a) enables them to use UPI Supported Devices to send and
receive information over the ANT Server and the Application Server, and (b) is
implemented using the Information Application Software.
1.18 "Launch Date" means the date on which the parties agree in writing
that the Licensed Programs and Application Server Program are fully installed
and in use by AT&T to provide commercial service to its customers.
1.19 "Licensed Programs" means the computer programs described on the
attached Exhibit A, together with any and all Upgrades and Enhancements to such
computer programs that are delivered by UPI to AT&T pursuant to this Agreement.
1.20 "Major Release Event" means any one of the following: (a) UPI no
longer provides, or no longer has the capability to provide, ongoing maintenance
and support for the UPI Software or the Application Server Software (including,
without limitation, the refusal or total failure to provide to
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AT&T and its Affiliates any of the Support Services required to be provided
under this Agreement); or (b) this Agreement is rejected on behalf of UPI by the
debtor-in-possession or trustee in bankruptcy.
1.21 "Minor Release Event" means any event with gives AT&T the right to
immediately terminate the Term pursuant to paragraph 8.2, regardless of whether
AT&T elects to exercise such right of termination.
1.22 "Person" means any individual, corporation, partnership, trust,
association or other entity.
1.23 "Proprietary Right" means any patent, copyright, trademark, mask work,
trade secret or other intellectual property right.
1.24 "Release Event" means any Major Release Event or any Minor Release
Event.
1.25 "Services" means the Software Integration Services, the Support
Services and any other services performed or to be performed by UPI under this
Agreement.
1.26 "Software Integration Services" means the services performed or to be
performed by UPI under this Agreement in connection with the installation,
integration and implementation of the Licensed Programs and Application Server
Program, as more specifically described in Section 3 and the attached Exhibit C.
1.27 "Specifications" means the design, functional and performance
specifications for the UPI Software and the Application Server Software set
forth in the attached Exhibit D.
1.28 "Subscriber" means a subscriber to the UPI Service who has taken all
steps reasonably required by AT&T to subscribe to the UPI Service. The
Subscribers will not include, without limitation, any AT&T Internal Users.
1.29 "Support Services" means the on-going software maintenance and support
services performed or to be performed by UPI under this Agreement, as more
specifically described in Section 4 and the attached Exhibit E.
1.30 "Term" means the term of this Agreement described in Section 8.
1.31 "Upgrade" means any functional change to the UPI Software or the
Application Server Software, as the case may be, that is required to keep the
code compatible and consistent with the underlying infrastructure, including
without limitation bug fixes, corrections and modifications.
1.32 "UPI" means Unwired Planet, Inc.
1.33 "UPI Client Software" means computer software owned by UPI and used by
UPI Supported Devices to enable such devices to communicate with server
computers utilizing the UPI Software.
1.34 "UPI Service" means the information and/or transaction services
offered by AT&T using the UPI Software to transmit UPI-formatted data over an
AT&T Network to and from UPI Supported Devices.
1.35 "UPI Software" means the Licensed Programs and related Documentation.
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1.36 "UPI Software Source Code" means all source code owned or licensed
by UPI for the UPI Software.
1.37 "UPI Supported Device" means a remote communications device
utilizing UPI Client Software to send and receive data from the ANT Server.
Section 2. License
2.1 Grant of License for UPI Software
UPI hereby grants to AT&T and its Affiliates that operate or utilize an
AT&T Network a nonexclusive, worldwide, license to do the following until such
time as the license granted herein terminates in the manner described in
paragraphs 8.2.2 and 8.3:
(a) install and use the Licensed Programs on any ANT Server situated
at the site or sites identified on the attached Exhibit F and any other
site or sites designated from time to time by AT&T;
(b) copy and reproduce the Licensed Programs in connection with the
exercise of the rights granted under (a), above;
(c) make and keep a reasonable number of copies of the Licensed
Programs for archival or backup purposes provided that AT&T keeps such
copies securely stored in a locked area with access restricted to
employees who need such access in order to operate or maintain the AT&T
Network; and
(d) use, reproduce and distribute internally the related Documentation
in connection with the exercise of any of the rights granted under this
paragraph 2.1;
provided that all such copies of the Licensed Programs and related Documentation
will remain subject to the provisions of Section 10.2.
2.2 Grant of License for Application Server Software
2.2.1 Grant
UPI hereby grants to AT&T a nonexclusive, nontransferable (other than as
provided in paragraph 10.7) license to do the following until such time as the
license granted herein terminates in the manner described in paragraphs 8.2.2
and 8.3:
(a) install and use the Application Server Program on any AT&T
Application Server or on a Content Provider's application server as
provided in paragraph 2.2.2(b) or (c);
(b) copy and reproduce the Application Server Program in connection
with the exercise of the rights granted under (a), above;
(c) make and keep a reasonable number of copies of the Application
Server Program for archival or backup purposes provided that AT&T keeps
such copies securely stored in a locked area with access restricted to
employees who need such access in order to operate or maintain AT&T's
Application Servers; and
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(d) use, reproduce and distribute internally the related Documentation
in connection with the exercise of any of the rights granted under this
paragraph 2.2;
provided that all such copies of the Application Server Program and related
Documentation will remain subject to the provisions of Section 10.2.
2.2.2 Limitations on Use
The Application Server Program shall be installed and used solely for
purposes of developing and running AT&T's Information Application Software for
the following limited Information Services:
(a) any Information Service provided with respect to content that is
owned exclusively by AT&T or any of its Affiliates and not by any other
Content Provider; or
(b) for a period of no more than forty-two (42) months from the Launch
Date, any Information Service provided with respect to content owned by a
Content Provider other than AT&T or any of its Affiliates, where:
(i) the Information Service and the content provided thereby is
distributed and marketed in a real, substantial and meaningful way to
end users by an AT&T Affiliate through an AT&T Network other than the
AT&T network, in addition to being distributed and marketed by AT&T
(or any of its subsidiaries); and
(ii) the cost to AT&T for such Information Service and/or content
is less than or equal to the cost of such Information Service and/or
content to an AT&T Affiliate distributing or marketing such
Information Service and/or content; and
(iii) AT&T has paid the full cost of developing and implementing
the Information Application Software; and
(iv) AT&T, its Affiliates or a Content Provider directly operates
and continues to operate an Application Server or application server;
or
(c) any of the four (4) Content Providers and their Information
Services generally described in the attached Exhibit I, provided:
(i) as of April 8, 1996, AT&T had been engaged in discussions
for such content with the Content Provider; and
(ii) AT&T bears a significant and substantial portion of
development cost of the Information Application Software; and
(iii) AT&T, its Affiliates or a Content Provider operates and
continues to operate an Application Server or application server.
Notwithstanding the foregoing, as to such four (4) Information Services,
the license granted hereunder shall not be used with (A) any other
Information Service or any other content provided by such Content Provider,
or (B) any Information Service or Information Application
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Software marketed to end users by anyone other than AT&T or its dealers,
agents or resellers of AT&T's wireless voice and data transport services.
The license granted under paragraph 2.2.1 applies only to the extent the
Application Server Program is used to market the Information Service and the
related content to end users and may not be sublicensed, sold, assigned or
otherwise transferred in any way (other than as provided in paragraph 10.7).
2.2.3 No Content Restrictions
Nothing in this Agreement shall be construed to preclude AT&T from
marketing or selling content to anyone through any means other than the ANT
Server (utilizing the UPI Software) or the Application Server (utilizing the
Application Server Software).
2.3 Limitation
The rights expressly granted to AT&T under this Agreement (including
without limitation the license set forth in paragraphs 2.1 and 2.2 and the
license set forth in paragraph 6.2) set forth the entirety of AT&T's rights in
the UPI Software and the Application Server Software. Without limiting the
generality of the foregoing, such rights do not include the right to, and AT&T
will not, use, reproduce, print, disclose or otherwise make the UPI Software or
the Application Server Software available to any third party (other than a third
party under contract with AT&T, or any AT&T Affiliate, who is assisting AT&T in
its operation of the AT&T Network and who has agreed to keep the UPI Software
confidential), in whole or in part, in whatever form, except as authorized under
this Agreement. Further, AT&T will not (a) reverse engineer, disassemble,
decompile or, except as necessary to exercise the rights granted under paragraph
6.2, make derivative works from any Licensed Program or Application Server
Program, or (b) except as authorized under paragraph 6.3, remove, obscure or
alter any notice of any Proprietary Right related to the UPI Software or the
Application Server Software.
2.4 Delivery
UPI will deliver to AT&T one (1) copy of each Licensed Program and the
Application Server Program and one (1) copy of the associated Documentation not
later than the earlier of (a) one (1) month prior to the scheduled Launch Date,
and (b) June 17, 1996, but in no event will UPI be obligated to deliver such
items to AT&T prior to sixty (60) days after receipt by UPI of a commercial
quality wireless communications device/telephone (as determined by AT&T) from at
least one of its independent vendors for UPI's testing purposes. UPI will
deliver to AT&T all Enhancements and Upgrades of each Licensed Program and the
Application Server Program and other UPI Software or Application Server Software
to which AT&T is entitled under this Agreement as these Enhancements and
Upgrades are created by UPI.
Section 3. Software Integration Services
3.1 Scope
UPI will provide the installation, training, integration and other
services described in the attached Exhibit C, in accordance with the terms and
conditions of this Agreement.
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3.2 Schedule and Duration
UPI will commence and use commercially reasonable efforts to perform and
complete the Software Integration Services in accordance with the schedule
mutually agreed upon by the parties. if a schedule is not agreed upon, UPI will
commence performance upon notice to proceed from AT&T and will thereafter
diligently prosecute the Software Integration Services to completion. The
parties agree that UPI will complete all Beta testing of the UPI Software and
the Application Server Software, and deliver tested UPI Software and Application
Server Software which meets the criteria listed on Exhibit H, on or before June
17, 1996, but in no event will UPI be obligated to complete such testing or
achieve the Launch Date prior to sixty (60) days after receipt by UPI of a
commercial quality wireless communications device/telephone (as determined by
AT&T) from at least one of its independent vendors for UPI's testing purposes.
Without limiting the generality of any provision of this Agreement, any failure
to complete the Beta testing or achieve the Launch Date within two (2) months
after the later of June 17, 1996, or the expiration of the above sixty (60) day
period will be conclusively deemed to constitute a material breach of this
Agreement and entitle AT&T, at its sole option and in addition to all other
rights or remedies to which it may be entitled under this Agreement or by law,
to immediately terminate this Agreement as provided in paragraph 8.2.1 or to
negotiate a reduction in the dollar and percentage usage fees specified in
Exhibit G. For purposes of this Agreement, an "Alpha" version means a version in
which all features are implemented and which is suitable for internal testing,
and a "Beta" version means the first version in which all features are
functional and which is ready for installation and testing on external units.
3.3 Cooperation
In connection with the performance of the Software Integration Services,
AT&T will inform UPI in writing of work that is being or will be performed by
others with whom UPI will need to work and cooperate with in performing its
obligations under this Section 3. UPI will cooperate with AT&T and coordinate
the Software Integration Services with any related work being performed by AT&T
or others. If any part of the Software Integration Services depends on the
results of work by AT&T or others, UPI will promptly notify AT&T in writing of
any actual or apparent deficiencies or defects in such other work that render it
unsuitable for performance of the Software Integration Services in accordance
with this Agreement.
Section 4. Support Services
4.1 Scope
UPI will furnish to AT&T and its Affiliates the software maintenance and
support services described in the attached Exhibit E. Any Enhancements or
Upgrades furnished in the course of performing such services will be included as
part of the UPI Software or the Application Server Software, as applicable,
under this Agreement.
4.2 [*****************]
UPI will develop and furnish to AT&T, as part of the Support Services, such
Enhancements and Upgrades to the UPI Software and the Application Server
Software as are necessary to ensure that the UPI Software is, [*****************
********************************************************************************
***********************************************************]. If AT&T at any
time believes or otherwise determines that the UPI Software or the Application
Server Software [**************************************************************
***************], AT&T will so notify UPI. If UPI thereafter fails to take any
remedial action reasonably requested by AT&T [*****] the UPI Software or the
Application Server Software, as applicable, [*********], AT&T may, as AT&T's
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sole remedy for a breach of this paragraph 4.2, [******************************
************************************], and UPI will, at AT&T's cost, provide to
AT&T such support services as may be reasonably requested by AT&T [************
***************************************]. The foregoing limitation shall not
prohibit the exercise by AT&T of any remedy for any breach of any provision of
this Agreement other than this paragraph 4.2.
4.3 Duration
The obligation of UPI to furnish the Support Services under paragraph 4.1
will commence on the date of this Agreement and end upon expiration of the Term.
Section 5. Compensation
5.1 Fee for License and Software Integration Services
Subject to the terms and conditions of this Agreement, AT&T will pay to
UPI the sum of [*********************************************] as an initial
license fee for the license rights in the UPI Software and Application Server
Software granted to AT&T and its Affiliates under Section 2 and as full
compensation for performance of the Software Integration Services. [*****
*********************************] of the amount payable under this paragraph
5.1 will be subject to invoice by UPI upon satisfactory conclusion, as
determined by AT&T, of the Beta testing and delivery of tested software
referenced in paragraph 3.2 and the remaining [***************************
**********] of the amount payable under this paragraph 5.1 will be subject to
invoice by UPI upon the Launch Date.
5.2 [Superseded by Third AT&T Amendment]
5.3 Fees for Support Services
As full compensation for performance of the Support Services, AT&T will
pay to UPI an annual support fee of [**********************************] with
respect to the ANT Server or ANT Servers and Application Servers located at the
first site designated by AT&T under paragraph 2.1 (a) and [*******************
***********] with respect to the ANT Server or ANT Servers or Application
Servers located at the second site designated by AT&T thereunder. [*********
**************************] with respect to the ANT Server or ANT Servers or
Application Servers located at any
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subsequent sites so designated by AT&T; provided, however, that AT&T will bear
the reasonable. costs and expenses incurred by UPI with respect to any on-site
maintenance and support services performed by UPI at the request of AT&T with
respect to any ANT Server or ANT Servers or Application Servers located at any
such subsequent site. The annual support fee for the first calendar year of
support will be invoiced in advance upon execution of this Agreement and
thereafter the annual support fee will be invoiced in advance on the first day
of each calendar year during the Term, with the annual support fee being
prorated on a daily basis for any partial calendar year at the beginning and end
of the Term. In the event the end of the Term occurs prior to the end of any
calendar year for which AT&T has paid the annual support fee in advance, UPI
will promptly refund to AT&T the prorated portion of the annual support fee
applicable to the period of time between the end of the Term and the end of such
calendar year.
5.4 Payments
Except as otherwise provided in paragraphs 5.2, AT&T will pay the fees and
other amounts payable to UPI under this Agreement within thirty (30) days after
AT&T's receipt of UPI's invoice therefor. AT&T will pay and be responsible for
any sales, use, value-added, personal property or other taxes assessed against
AT&T by any governmental agency having jurisdiction for any of the rights
granted to AT&T under this Agreement. If UPI is required to pay any such taxes,
AT&T will reimburse UPI therefor. Payments not made by AT&T when due will be
subject to a late charge equal to one and one-half percent (1.5%) per month (or,
if less, the maximum allowed by applicable law) on the overdue balance. AT&T may
withhold or delay payment, in whole or in part, on account of any failure of UPI
to perform in accordance with this Agreement.
5.6 Payment in Full
Payment of the amounts specified in this Section 5 will constitute full
compensation for the license and other rights granted by UPI under this
Agreement and for the Services to be provided by UPI under this Agreement.
5.7 [********************]
UPI warrants and agrees that [******************************************
*****************************************************************************]
under this Agreement shall be, [***********************************************
*******************************************************************************
*******************************************************************************]
[**************************************************************************
*****************************************************************] provided that
in the event the [*************************************************************
********************************************************************************
*******************************************************************************
******************************************************************************
********************************************************]. If UPI shall enter
into [*************************************************************************
**************************************************************************
*************************************************************] then this
Agreement will [***************************************************************
********************************************] and UPI will [*****************
****************************************************************************
*******]. Within [****************************************************], UPI
will deliver to AT&T [*****************************************************
*****************************************************************************
*****************************************************.]
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Section 6. Proprietary Rights
6.1 Ownership
Except for the license granted under Section 2, UPI reserves all of its
Proprietary Rights in the UPI Software and Application Server Software, and no
title to or ownership of the UPI Software or Application Server Software is
transferred to AT&T or its Affiliates under this Agreement.
6.2 Source Code Escrow
Immediately following the execution of this Agreement, the parties and
the Escrow Agent will enter into the Escrow Agreement and UPI will prepare and
deliver to the Escrow Agent to be held in escrow under the Escrow Agreement a
complete, current and accurate copy of the UPI Software Source Code and the
Application Server Software Source Code. Thereafter, UPI will deliver to the
Escrow Agent under the Escrow Agreement all source code for each Enhancement and
Upgrade within three (3) days after such Enhancement or Upgrade is delivered to
AT&T. UPI will resubmit the UPI Software Source Code and the Application Server
Software Source Code to the Escrow Agent promptly after the occurrence of every
Upgrade to such code, and will ensure that the UPI Software and Application
Server Software code held in escrow (both source and object) will at all times
match the UPI Software and Application Server Software which is then being used
by AT&T. All relevant versions of the supporting UPI Software code (as it
relates to the hardware platforms, operating systems, utilities, database
management systems and any other supporting code necessary to run the system)
will also be delivered to and held in escrow by the Escrow Agent. Upon the
occurrence of any Release Event and satisfaction of the conditions described in
the Escrow Agreement, the UPI Software Source Code and the Application Server
Software Source Code will be delivered to AT&T, together with any and all UPI
Software Source Code and the Application Server Software Source Code that, as of
such date, has not been delivered to the Escrow Agent. Upon release of the UPI
Software Source Code or the Application Server Software Source Code, as the case
may be, to AT&T following a Minor Release Event relating to such source code,
UPI grants to AT&T and its Affiliates a license to use, modify and enhance UPI
Software Source Code or the Application Server Software Source Code, as the case
may be, and to take such other actions with respect thereto as may be necessary
to use, correct, maintain and otherwise support the UPI Software or the
Application Server Software, as the case may be. Upon release of the UPI
Software Source Code or the Application Server Software Source Code, as the case
may be, following a Major Release Event relating to such source code, UPI grants
to AT&T and its Affiliates a license to use, modify, enhance and make
derivative works from the UPI Software Source Code or the Application Server
Software Source Code, as the case may be, and to take such other actions with
respect thereto as may be necessary to use, correct, maintain, enhance, make
derivative works from and otherwise support the UPI Software or the Application
Server Software, as the case may be. Notwithstanding the foregoing, if the
default or other reason giving rise to the release of the UPI Software Source
Code or the Application Server Software Source Code from the escrow created by
the Escrow Agreement is cured by UPI, then AT&T will return such source code to
the Escrow Agent to be held in escrow under the Escrow Agreement and the license
granted under this paragraph 6.2 with respect to such source code will terminate
until such time as there is a subsequent occurrence of any Release Event and
satisfaction of the conditions described in the Escrow Agreement.
6.3 Trademarks and Trade Names
UPI reserves any and all trade names and trademarks which UPI uses in
connection with the UPI Software and the Application Server Software. AT&T and
its Affiliates may market, promote, distribute, provide, operate and otherwise
deal with the UPI Service, and any other services offered by AT&T or its
Affiliates over an AT&T Network, using their own private labels, trade names,
logos,
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trademarks, notices (e.g., copyright or otherwise) and other identifications,
and may remove any, private label, trade name, trademark, notice or other
identification of UPI from the UPI Software and the Application Server Software
that would be observable or physically apparent to a user of the UPI Service
other than a small UPI copyright notice. UPI in addition agrees that the UPI
Client Software will [********************] UPI copyright notice, [***********
*************************************************************************];
provided, however, upon AT&T's request, UPI agrees to configure on or before
December 31, 1996, the UPI Client Software provided to any manufacturer of UPI
Supported Devices with whom AT&T has an agreement so that the UPI Client
Software is capable of displaying an AT&T provided private label, trade name,
trademark, logo, notice or other identification.
6.4 Marketing Limitations
AT&T will not promote or otherwise endorse the UPI Service as being
compatible with (a) any integrated communication device used by end users to
communicate with the AT&T ANT Server that uses software for such purposes other
than UPI Client Software, (b) any client software other then UPI Client
Software, (c) any application server that uses application server software to
enable applications to communicate with the ANT Server other than the
Application Server Software, or (d) any application server software other than
the Application Server Software.
6.5 Content Provider Licenses
Upon the request of any content provider which markets or makes available,
or desires to market or make available, its content over the UPI Service, UPI
will license the Application Server Software to each such content provider on
commercially reasonable terms and conditions, which terms and conditions do not
differentiate or discriminate based on whether the content provider is doing
business with AT&T or some other data communication provider.
Section 7. Warranty and Indemnification
7.1 Warranty
UPI represents and warrants that (a) it has sufficient right, title and
interest in and to the UPI Software and the Application Server Software to grant
the license described in Section 2 and paragraph 6.2, (b) the Services will be
performed by UPI in a professional, workmanlike and skillful manner; (c) the
Licensed Programs and the Application Server Program will comply in all material
respects with the applicable Specifications and applicable Documentation; and
(d) the UPI Software and the Application Server Software do not and will not
infringe or misappropriate any Proprietary Right of any third party. OTHER THAN
THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, THERE ARE NO EXPRESS OR
IMPLIED WARRANTIES RELATING TO THE UPI SOFTWARE, THE APPLICATION SERVER SOFTWARE
OR THE SERVICES COVERED BY THIS AGREEMENT, AND UPI EXPRESSLY DISCLAIMS ANY
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7.2 Indemnification
7.2.1 General
Each party will release, indemnify and hold the other party harmless from
and against any and all claims, losses, harm, liabilities, damages, costs and
expenses (including but not limited to attorneys' fees) arising out of any
personal injury, death or property damage that may occur as a result of the acts
or omissions of the indemnifying party or its employees, agents or contractors.
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7.2.2 Infringement
UPI releases will defend, indemnify, and hold harmless AT&T and its
Affiliates from and against any and all claims, losses, harm, costs,
liabilities, damages, and expenses (including but not limited to attorneys'
fees) related to any claim, action, suit or proceeding involving the UPI
Software or the Application Server Software, to the extent such claim, action,
suit or proceeding is based upon any actual or alleged infringement, wrongful
use or misappropriation by the UPI Software or the Application Server Software
of any Proprietary Right of any third party. UPI will have sole control of the
defense of any such claim, action, suit or proceeding and any related
settlement negotiations. In addition, AT&T will notify UPI promptly in writing
of any such claim, action, suit or proceeding, give UPI authority to proceed
as contemplated herein and, at UPI' sole cost and expense, give UPI such
assistance in the defense and settlement of such claim, action, suit or
proceeding as UPI may reasonably request.
7.2.3 Additional Infringement Remedies
If all or any part of the UPI Software or the Application Server Software,
as the case may be, as a result of any proceeding described in paragraph 7.2.2,
is held to constitute infringement of any Proprietary Right of a third party,
and AT&T's or its Affiliates' use of such UPI Software or Application Server
Software is enjoined, UPI will at its sole cost and expense (a) procure for AT&T
and its Affiliates the right to continue to use the UPI Software or the
Application Server Software, as the case may be; (b) replace the UPI Software or
the Application Server Software, as the case may be, with substantially equal
items that do not infringe, wrongfully use or misappropriate any Proprietary
Right of any third party; or (c) modify the UPI Software or the Application
Server Software, as the case may be, so it becomes noninfringing, provided
that the usefulness (in AT&T's reasonable determination) of the same is
maintained. The remedies set forth in this paragraph 7.2.3 are in addition to
all other remedies to which AT&T may be entitled under this Agreement
(including, without limitation, the remedy set forth in paragraph 7.2.2) and
applicable law.
7.2.4 Limitations
Notwithstanding paragraphs 7.2.2 and 7.2.3, UPI assumes no liability for
(a) infringement Phone caused by the combination of the UPI Software or the
Application Server Software with non-UPI software products, including any AT&T
products, if such combination is not contemplated by this Agreement or otherwise
authorized by UPI and such infringement would not have occurred absent such
combination, (b) trademark infringement caused by any marking or branding not
applied by or with the approval of UPI, or (c) infringement caused by the
modification or servicing of the UPI Software or the Application Server Software
without the approval or not done at the direction of UPI, and such infringement
would not have occurred but for such modification or servicing.
7.2.5 Indemnification by AT&T
Except for any infringement, misappropriation and other claims covered by
the UPI indemnity in paragraph 7.2.2, AT&T will indemnify and hold UPI harmless
from any claims, losses, harm, costs, liabilities, damages and expenses
(including but not limited to attorneys' fees) arising out of third party claims
against UPI based on AT&T's (a) representation of the UPI Software or
Application Server Software in a manner inconsistent with UPI's published UPI
Software or Application Server Software descriptions and warranties, or (b) use
or distribution of the UPI Software or Application Server Software in violation
or contravention of the express terms of this Agreement. AT&T will have sole
control of the defense of any such claim and any related settlement
negotiations. In addition, UPI will notify AT&T promptly in writing of any such
claim, give AT&T
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authority to proceed as contemplated herein and, at AT&T's sole cost and
expense, give AT&T such assistance in the defense and settlement of such claim
as AT&T may reasonably request.
7.2.6 Entire Liability
THE FOREGOING PROVISIONS OF PARAGRAPHS 7.2.2, 7.2.3 AND 7.2.4 STATE THE
ENTIRE LIABILITY AND OBLIGATIONS OF UPI AND THE EXCLUSIVE REMEDY OF AT&T AND ITS
CUSTOMERS WITH RESPECT TO ANY ALLEGED INFRINGEMENT OF PROPRIETARY RIGHTS BY THE
UPI SOFTWARE OR APPLICATION SERVER SOFTWARE OR ANY PART THEREOF OR ANY BREACH OF
THE WARRANTY CONTAINED IN PARAGRAPH 7.1(d).
Section 8. Term and Termination
8.1 Term
The term of this Agreement will commence on the date of this Agreement
and, unless earlier terminated in accordance with paragraph 8.2 or renewed as
provided in this paragraph 8.1, will end upon the third anniversary of the date
of this Agreement. The term will be renewed automatically for successive renewal
periods of three (3) years each unless and until AT&T gives UPI written notice
of its intent not to renew the term for any such renewal period at least ninety
(90) days prior to the end of the then-current term.
8.2 Termination
8.2.1 Termination of Term
Either party may, by written notice to the other party, immediately
terminate the Term if the other party fails to cure in all material respects any
material default or breach of this Agreement within thirty (30) days of its
receipt of written notice regarding such default or breach; provided that, so
long as such defaulting party is acting diligently and in good faith, is
exercising commercially reasonable best efforts to cure such default or breach,
is making real and substantial progress toward such a cure, and there is a
reasonable expectation that such defaulting party will achieve such a cure, the
thirty (30) day cure period will be extended, but for not more than two (2)
additional thirty (30) day periods.
8.2.2 Termination of License
The licenses granted to AT&T and its Affiliates under Section 2 will
terminate automatically upon expiration of the Term if and only if such
expiration is due to AT&T's election not to renew the Term for any renewal
period under paragraph 8.2.1. UPI may terminate the licenses granted to AT&T and
its Affiliates under Section 2 only by giving written notice to AT&T following
the occurrence of a substantial and material breach of this Agreement by AT&T
that:
(a) is not cured in all material respects within ninety (90) days
after the date on which AT&T receives written notice from UPI of such
breach; and
(b) is thereafter established by written order of an arbitrator
(e.g., pursuant to Section 9) or a court of competent jurisdiction to be a
substantial and material breach of this Agreement; and
(c) is of such a nature that UPI cannot thereafter be reasonably
made whole through and award of monetary damages (as determined by the
arbitrator or court under (b)
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above); provided that UPI is paid such monetary damages within fifteen
(15) days after the issuance of the written order specified in (b) above,
together with interest on such amount due from the date of the breach at
a rate equal to the lesser of one and one-half percent (1.5%) per month
or the maximum rate permitted by applicable law.
The licenses granted to AT&T and its Affiliates under Section 2 shall not under
any circumstances terminate or be terminated except as expressly provided in
this paragraph 8.2.2.
8.3 Effect of Termination of License
In the event UPI terminates the license pursuant to paragraph 8.2.2, AT&T
and its Affiliates will, upon the resulting termination of the license,
discontinue their use of the UPI Software and the Application Server Software
and promptly deliver to UPI all copies of the UPI Software and the Application
Server Software in its possession. At AT&T's option, all copies of the UPI
Software and the Application Server Software required to be delivered to UPI may
be destroyed by AT&T, in which case AT&T will provide to UPI written
certification that such destruction has been completed.
8.4 Effect of Termination of Term
In the event AT&T, based on the occurrence of a Minor Release Event,
enforces its rights under paragraph 6.2 and the Escrow Agreement, terminates the
Term under paragraph 8.2.1 and continues to exercise the license rights granted
under Section 2, AT&T will continue to pay usage fees to UPI at a rate equal to
[*******************] of the amount that would otherwise be payable under
paragraph 5.2. Further, in such event, AT&T will not be entitled to Support
Services under Section 4 and UPI will not be obligated to provide such services.
8.5 Survival
Sections 7, 9 and 10 and paragraphs 6.1,6.2, 6.3, 6.5, 8.3, 8.4 and 8.5,
any accrued payment obligations of AT&T hereunder and all other provisions of
this Agreement which may reasonably be interpreted or construed as surviving the
expiration or termination of the Term or this Agreement, will survive the
expiration or termination of the Term or this Agreement. Further, subject to
paragraphs 8.2.2, 8.3 and 8.4, Section 2 will survive any termination of the
Term by AT&T pursuant to paragraph 8.2.1.
Section 9. Arbitration
9.1 Selection of Arbitrator
Any controversies between the parties arising out of or relating to this
Agreement will, upon demand of either party, be resolved exclusively by
submission to an arbitrator or a panel of three arbitrators. If the parties
cannot agree upon a single arbitrator, then each party will designate one
arbitrator and the two arbitrators designated by them will designate a third for
the panel of three arbitrators, if the two arbitrators designated by the parties
cannot agree upon the third arbitrator, then, upon request of any party, the
third arbitrator will be appointed by the Court as specified in paragraph 9.3.
No arbitrator will have any direct or indirect interest in either party or the
matter submitted for determination.
9.2 Location
The arbitration will be conducted in [*****************] or such other
location as may be agreed upon by the parties.
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9.3 Jurisdiction
The arbitration will be conducted pursuant to the Commercial Arbitration
Rules of the American Arbitration Association, as the same may have been or may
be amended, and will be subject to the jurisdiction of the [********************
************************************************].
9.4 Decision
The arbitrators will render a decision not later than thirty (30) days
after the matter has been submitted, and such decision will be final and binding
upon the parties. The decision of a panel of three arbitrators will require the
concurrence of at least two arbitrators. The decision will be in writing. The
decision of the arbitrators may be entered as a final decree or judgment in any
court of competent jurisdiction or may be enforced against the parties and their
assets wherever they are found. The arbitrators are specifically authorized to
grant injunctive relief, either as part of the final decision or prior to the
final decision. The parties desire that the courts promptly enforce all
injunctive relief granted prior to final decision as though it were part of a
final decision, even though such enforcement may be requested prior to final
decision.
9.5 Costs
Any costs incurred by any arbitration proceedings (such as compensation
to the arbitrators and reporter and the expense of hearing room facilities) will
be divided equally among the parties, except that each party will bear its own
attorneys' fees and costs of witnesses; provided, that, the arbitrators will
have the authority to require, as part of the final decision, the party against
whom the arbitrators render a decision to reimburse any or all costs, expenses
and attorneys' fees incurred by the other party in connection with the
arbitration.
Section 10. Miscellaneous
10.1 Performance
UPI will perform the Services in a prompt and efficient manner in
accordance with the schedule and other terms of this Agreement. UPI will ensure
that it and its employees are properly licensed, qualified, equipped and
experienced to perform the Services. UPI will, in its performance of the
Services, comply with all applicable laws, ordinances, rules, regulations and
other requirements now or hereafter in effect of any governmental authority
having jurisdiction. Upon request, UPI will furnish AT&T with documentation of
any Services previously performed or then being performed in the form of written
and/or verbal (as requested) progress reports.
10.2 Confidential Information
In the performance of or otherwise in connection with this Agreement, one
party ("Disclosing Party") may disclose to the other party ("Receiving Party")
certain Confidential Information of the Disclosing Party. The Receiving Party
will treat such Confidential Information as confidential and proprietary of the
Disclosing Party and will use such Confidential Information solely for the
purposes for which it is provided by the Disclosing Party and will not disclose
such Confidential Information to any third party (other than a third party under
contract with AT&T (or under contract with any AT&T Affiliate) who is assisting
AT&T in its operations of the AT&T Network and who has agreed to keep the
Confidential Information confidential). Without limiting the generality of the
foregoing, the Receiving Party will take reasonable precautions to prevent any
unauthorized use or disclosure of such Confidential Information. The obligations
under this paragraph will not apply to any: (a) use or
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disclosure of any information pursuant to the exercise of the Receiving Party's
rights under this Agreement; (b) information that is now or later becomes
publicly available through no fault of the Receiving party; (c) information that
is obtained by the Receiving Party from a third party authorized to make such
disclosure (other than in connection with this Agreement) without any obligation
of secrecy or confidentiality; (d) information that is independently developed
by the Receiving Party (e.g., without reference to any Confidential
Information); (e) any disclosure required by applicable law (e.g., pursuant to
applicable securities laws or legal process), provided that the Receiving Party
will use reasonable efforts to give advance notice to and cooperate with the
Disclosing Party in connection with any such disclosure; and (f) any disclosure
with the consent of the Disclosing Party.
10.3 No Consequential Damages
NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY COSTS OF PROCUREMENT OF
SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, INTERRUPTION OF BUSINESS, LOST
PROFITS OR ANY OTHER CONSEQUENTIAL, SPECIAL, INCIDENTAL OR INDIRECT DAMAGES OF
ANY KIND UNDER ANY CAUSE OF ACTION (INCLUDING NEGLIGENCE), WHETHER OR NOT SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS
WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY.
10.4 Force Majeure
Neither party will be liable for, or be considered to be in breach of or in
default under this Agreement on account of, any delay or failure to perform as
required by this Agreement caused or contributed to by any condition,
circumstance, event or occurrence beyond the affected party's reasonable control
and that cannot be overcome by the exercise of reasonable diligence, including
but not limited to: fire, explosion, earthquake, volcanic activity, storm,
flood, wind, drought, and acts of God or the elements; court order and act,
delay, and failure to act by civil, military, and other governmental authority;
and riot, insurrection, sabotage, and war, provided that the affected party
gives the other party written notice of such condition, circumstance, event or
occurrence immediately after the affected party becomes or is made aware of the
same. UPI and AT&T will each cooperate and use their best efforts to eliminate
or minimize any delay resulting from any such condition, circumstance, event or
occurrence.
10.5 Limitation of Damages
[***********************************************************************
***], THE TOTAL LIABILITY OF UPI FOR DAMAGES IN CONNECTION WITH THIS AGREEMENT,
WHETHER IN AN ACTION IN CONTRACT OR TORT OR ANY OTHER FORM OF ACTION, WILL IN NO
EVENT EXCEED [****************************************************************].
10.6 Independent Contractor
UPI and AT&T will be and act as independent contractors in the performance
of the Services and their respective duties hereunder. Neither party will be
entitled to, nor attempt to, create or assume any obligation, express or
implied, on behalf of the other party. This Agreement will not be interpreted or
construed to create an association, joint venture, partnership, or franchise
between the parties or to impose any partnership obligation or liability upon
either party.
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10.7 Assignment
Neither party will (by contract, operation of law or otherwise) assign this
Agreement or any right or interest in this Agreement, except as follows:
(a) to any person or entity into or with which a party is merged
or consolidated or to which a party transfers substantially all of its
assets to which this Agreement relates;
(b) to an Affiliate of a party; or
(c) to any other person or entity with the prior written consent of
the other party.
Subject to the foregoing, this Agreement is binding upon, inures to the benefit
of, and is enforceable by the parties and their respective heirs, successors,
assigns, and personal representatives.
10.8 No Delegation of Duties
Neither party will delegate performance of the Services or any other duties
hereunder or contemplated hereby to any other person or entity, other than its
regular or contract employees, without the prior written consent of the other
party, which consent will not be unreasonably withheld. Any such person or
entity designated by either party with the other party's consent to perform any
of the Services or any other duties hereunder or contemplated hereby will abide
by such rules of conduct and meet such performance standards as may be required
by this Agreement or reasonably established by such other party. Any removal or
replacement of such persons will be made only with notice to and approval by the
other party.
10.9 Notices
Any notice or other communication under this Agreement will be in writing
and will be delivered in person, by facsimile, by nationally recognized
overnight courier, or mailed, properly addressed and stamped, to the intended
recipient at the address appearing on the signature page of this Agreement.
Notices will be deemed received only upon actual receipt. Either party may
change its address by giving the other party notice of the change in accordance
with this paragraph.
10.10 Nonwaiver
The failure of either party to insist upon or enforce strict performance by
the other of any of the provisions of this Agreement or to exercise any right
under this Agreement will not be construed as a waiver or relinquishment of its
right to assert or rely upon any provision or right in that or any other
instance; rather, the provision and right will remain in full force and effect.
10.11 Compliance and Severability
UPI and AT&T will each perform its obligations under this Agreement in
accordance with all applicable laws, rules and regulations now or hereafter in
effect. If any term or provision of this Agreement will be found to be illegal
or unenforceable, this Agreement will remain in full force and effect and such
term or provision will be deemed stricken.
10.12 Counterparts
This Agreement may be signed in counterparts, which together constitute one
instrument.
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10.13 Entire Agreement
This Agreement (together with all attached exhibits, each of which is
hereby incorporated herein by this reference) sets forth the entire agreement of
the parties, and supersedes any and all prior agreements (including, but not
limited to, the Letter of Intent dated December 19, 1995, and executed by UPI
and AT&T), related to the subject matter hereof. No change, amendment, or
modification of any provision of this Agreement will be valid unless set forth
in a written instrument signed by both parties.
10.14 Governing Law
This Agreement will be interpreted, construed and enforced in all
respects in accordance with the laws of the State of Washington without
reference to its choice of law rules.
UPI: AT&T:
---- -----
Unwired Planet, Inc. AT&T Wireless Services, Inc.
By: /s/ A. Rossmann By: K.A. VanderMuelen
---------------------------- --------------------------
Title: CEO & Chairman Title: VP & GM, Wireless Data
------------------------- -----------------------
Address: 90 Middlefield Road, Suite 201 Address: 10230 N.E. Points Dr.
Menlo Park, California 94025 Kirkland, Washington 98033
Attn: President Attn: WDD General Counsel
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EXHIBIT A
Licensed Programs and Documentation
Unless otherwise defined herein, all terms defined in the Agreement will
have the same meanings when used In this Exhibit A with initial letters
capitalized. The computer programs and documentation to be provided by UPI to
AT&T are as follows:
1. The following Licensed Programs, all of which will be provided to AT&T
[******************************] as provided in [***********] of the Agreement:
(a) the exactable version of the UPI Air Network Translator Server
Software and Upgrades developed by or for UPI for integration into an AT&T
Network to allow for the transmission of UPI formatted data (as defined in
Exhibit D and associated documents) to and from integrated communication devices
which will be configured with UPI Client Software, along with any and all
related software applications and/or electronic file generally made available by
UPI to its customers without additional charge including Enhancements (generally
made available by UPI to its customers without additional charge) to Install,
configure, test, manage, and operate the server, including without limitation
configuration files, installation scripts, test scripts, management applications
and subsystems;
(b) the executable version of any other software required for support
of the ANT Servers including without limitation utilities, system management
applications and Interface software developed by or for UPI and used to Install,
configure, test, manage, and operate complementary sewers (e.g. applications,
content access, gateways, etc.), including without limitation configuration
files, installation scripts, test scripts, management applications or
subsystems, but specifically excluding the Oracle database and [**********]; and
(c) all Enhancements to the Licensed Program specified in (a) and (b),
above, that are developed by or for UPI during the Term which are generally made
available by UPI to its customers without additional charge
(d) all Enhancements to the Licensed Programs specified in (a) and (b),
above, that are developed by or for UPI during the Term which are generally made
available by UPI to its customers with an additional charge and which are
purchased by and delivered to AT&T pursuant to the terms of this Agreement.
2. The following Documentation, presented in professional form and content
and sufficiently complete to allow AT&T to readily install and operate the UPI
Software will be available on a prioritized basis (as prioritized by AT&T)
beginning as of the Launch Date, provided that complete Documentation will be
delivered no later than November 1, 1996:
. Licensed Program specifications and implementation and selected design
documents.
. UPI test procedures, results, and recommendations.
. Server installation procedures.
. Server configuration procedures and recommendations.
. Server management procedures.
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EXHIBIT A
Licensed Programs and Documentation (continued)
. Error recovery procedures.
. Server backup and administration procedures.
. Programmer's interface documentation. This should include UPI
documentation used for the integration of Oracle and other similar
service development interfaces.
. Error codes and their meanings.
. Platform configuration recommendations (e.g. operating system
parameters, performance tuning, hardware requirements).
. Provisioning and customer care procedures.
. Billing interfaces, extraction processes/procedures.
. End user manual and quick reference card.
. Any and all documentation of the type described above in this paragraph
2 relating to Enhancements and Upgrades developed by or for UPI during
the Term.
. Sufficient documentation to enable AT&T to troubleshoot to Levels 1,2
and 3.
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EXHIBIT B
See Attached Form Escrow Agreement
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ESCROW AGREEMENT
between
Unwired Planet, Inc.,
AT&T Wireless Services, Inc.,
and
Data Securities International, Inc.
Dated as of _____________,1996
<PAGE>
CONTENTS
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ESCROW AGREEMENT
This Escrow Agreement, dated as of ____________,1996, is made and entered
into by and among AT&T Wireless Services, Inc., a Delaware corporation
("AT&T"); Unwired Planet, Inc., a Delaware corporation ("UPI"); and Data
Securities International, Inc., a _____________ corporation ("Agent").
RECITALS
A. UPI and AT&T have entered into a Software License and Support
Agreement, dated as of May 1, 1996 (the "Software Agreement"). All terms defined
in the Software Agreement shall have the same meanings when used in this Escrow
Agreement with initial letters capitalized.
B. Pursuant to paragraph 6.2 of the Software Agreement, UPi must prepare
and deliver to the Escrow Agent to be held in escrow a complete, current and
accurate copy of all the UPI Software Source Code and the Application Server
Software Source Code.
E. UPI and AT&T desire to appoint Agent to act as the Escrow Agent to
receive, hold and release the UPI Software Source Code and the Application
Server Software Source Code pursuant to the Software Agreement in accordance
with the terms, conditions and provisions set forth in this Escrow Agreement.
AGREEMENT
UPI, AT&T and Agent therefore agree as follows:
1. Appointment
UPI and AT&T hereby appoint Agent, and Agent hereby accepts appointment, to
act as the "Escrow Agent" contemplated by the Software Agreement.
2. Deposit
Upon execution of this Escrow Agreement and thereafter within three (3)
days after any Enhancement is delivered to AT&T, UPI shall deposit with Agent,
and Agent shall accept from UPI, for storage purposes only, a complete, current
copy of all UPI Software Source Code and Application Server Software Source Code
to be held in escrow pursuant to this Escrow Agreement. Further, if UPI
thereafter makes any material revision, supplement, improvement, addition,
update or new version to any UPI Software Source Code or the Application Server
Software Source Code, as the case may be, during the Term relating to an
executable version that is generally provided to licensees of the UPi Software
or Application Server Software without additional charge, UPI shall promptly
deposit with Agent, and Agent shall accept from UPI, for storage purposes only,
a complete, current copy of the same to be held in escrow pursuant to this
Escrow Agreement, whereupon UPI may remove from the Deposit any UPI Software
Source Code or Application Server Software Source Code, as the case may be, that
is replaced or superseded by newly deposited items. UPI shall also promptly
deposit with Agent, and Agent shall accept from UPI, for storage purposes only,
all other UPI Software or Application Server Software code required to be
deposited in escrow by UPI under paragraph 6.2 of the Software Agreement. The
items deposited in escrow under this Escrow Agreement are sometimes collectively
referred to herein as the "Deposit".
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3. Deposit List
Upon each deposit under paragraph 2, UPI shall furnish to Agent a complete,
current list ("Deposit List"), identifying all of the items contained in the
Deposit, together with a written certification by an authorized agent of UPI
that: (a) the Deposit List is accurate; and (b) a complete master, reproducible
copy of each item on the Deposit List is in the Deposit. Each time that UPI
deposits any items pursuant to paragraph 2, Agent shall prepare and deliver to
UPI a written receipt for the same. Promptly after each deposit, Agent shall
deliver to AT&T a copy of the Deposit List and certification furnished by UPI
and a copy of the receipt prepared by Agent.
4. Responsibility for Accuracy and Completeness
Agent shall not be required to determine the accuracy or completeness of
any deposit under paragraph 2 or any Deposit List furnished by UPI under
paragraph 3. Further, Agent shall not be responsible for any items not actually
deposited with it, whether or not such items were required to be deposited under
the terms of this Escrow Agreement, the Software Agreement or any other
agreement.
5. Retention and Release of Deposit
Agent shall hold in safekeeping and preserve in confidence the Deposit
during the Term and shall release or disclose the Deposit only in accordance
with the terms of this Agreement.
6. Release of Deposit
Agent shall release the Deposit only as follows:
(a) Agent shall release the Deposit to UPI or AT&T upon Agent's
receipt of written instructions to do so signed by an officer of each of
UPI and AT&T; provided that all fees payable to Agent for performance of
its services hereunder have been fully paid.
(b) Agent shall release the Deposit to UPI at any time that Agent
ceases doing business or is unable to hold the Deposit in accordance with
the terms of this Agreement clue to forces beyond its reasonable control;
provided that all fees payable to Agent for performance of its services
hereunder have been fully paid, and provided further that Agent gives such
advance notice to UPI and AT&T as is reasonably practicable in the
circumstances. Upon such notice, UPI and AT&T shall use their best efforts
to agree upon a substitute escrow agent and enter into an escrow agreement
containing substantially the same terms as this Escrow Agreement pursuant
to which UPI shall deliver the Deposit to the substitute escrow agent.
(c) Agent shall release the Deposit to AT&T on the eleventh (11th)
day after Agent gives UPI a written Release Notice therefor pursuant to
paragraph 7.3, provided that Agent does not receive a Dispute Notice from
UPI in the manner and within the time specified in paragraph 7.4.
(d) Agent shall release all or a portion of the Deposit in accordance
with any arbitration award pursuant to Section 8 determining that a Release
Event as to the UPI Software or the Application Server Software, as the
case may be, has occurred, but in no event less than ten (10) days
following such award.
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(e) Agent shall release the Deposit to such persons and in such
manner as may be directed by order of any court of competent jurisdiction
pursuant to Section 9 or otherwise.
(f) Upon the termination or expiration of the Term pursuant to Section
13, Agent shall release the Deposit to UPI or, if directed in writing signed by
an officer of UPI and an officer of AT&T, to a substitute escrow agent.
7. Release Events
7.1 Release Events
AT&T shall be entitled to release of the Deposit upon the occurrence of a
Release Event.
7.2 Release Notice
Upon the occurrence of any Release Event, AT&T may deliver to Agent a
written notice (the "Release Notice") of the Release Event and requesting
release of the Deposit as provided for in paragraph 7.1. The Release Notice must
contain a statement, verified by an officer of AT&T, that the applicable Release
Event has occurred and that the Deposit is to be released.
7.3 Agent's Notice to UPI
Upon receipt of a Release Notice, Agent shall promptly give UPI written
notice of such receipt and transmit with such notice a copy of the Release
Notice.
7.4 Dispute
UPI may dispute a Release Notice at any time within ten (10) days after
UPI receives written notice thereof pursuant to paragraph 7.3, by giving
written notice to Agent specifically denying the occurrence of such Release
Event and setting forth a description of any facts that indicate that the
Release Event did not occur (the "Dispute Notice").
7.5 Agent's Notice to AT&T
Upon receipt of a Dispute Notice, Agent shall promptly give AT&T notice of
such receipt and transmit with such notice a copy of the Dispute Notice.
7.6 Withdrawal of Notice
AT&T may withdraw its Release Notice at any time by giving Agent and UPI
written notice of such withdrawal. UPI may withdraw its Dispute Notice at any
time by giving Agent and AT&T written notice of such withdrawal.
8. Arbitration
8.1 General
Any dispute of a Release Notice pursuant to paragraph 7.4 shall be settled
by final and binding arbitration in accordance with the provisions of this
section. The sole issue to be decided in any such arbitration shall be whether
any Release Event has occurred.
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8.2 Notice
If, within fifteen (15) days after receipt of any notice from Agent that it
has received a Dispute Notice, the dispute has not been resolved in a mutually
acceptable manner, either party may initiate the arbitration procedure under
this section by giving the other party written notice demanding arbitration of
the dispute.
8.3 Arbitration
Unless otherwise agreed by UPI and AT&T, any dispute submitted to
arbitration under this section shall be presented to a panel of three
arbitrators. The party demanding arbitration under paragraph 8.2 shall appoint
and specify one of the arbitrators in its notice demanding the arbitration. The
other party shall appoint a second arbitrator and give the demanding Party
written notice of such appointment within thirty (30) days after the notice
demanding the arbitration. The two arbitrators so appointed shall appoint a
third arbitrator who shall act as chairman of the arbitration panel. If the two
arbitrators appointed by the parties do not agree upon the third arbitrator
within thirty (30) days after appointment of the second arbitrator, then, upon
request of UPI or AT&T, the third arbitrator shall be appointed in accordance
with the Arbitration Rules of the Judicial Arbitration and Mediation Services,
Inc. (J.A.M.S.). If any arbitrator is unable to serve as an arbitrator, then a
substitute arbitrator shall be promptly designated by the person or persons who
appointed the arbitrator who is unable to serve.
8.4 No Ex Parte Discussions
No party may discuss the dispute to be arbitrated with any arbitrator after
such arbitrator is appointed and prior to the arbitration panel's determination,
without providing the other party with reasonable advance notice and the
opportunity to participate in such discussions.
8.5 Procedures
The arbitration shall be conducted in accordance with the Arbitration Rules
of J.A.M.S. Additional rules of procedure for the conduct of the arbitration may
be determined by a majority of the arbitrators. Such rules of procedures shall
direct the expeditious evaluation of the merits of the dispute and rendering of
a decision consistent with the complexity of the dispute being arbitrated. In
any arbitration, each party shall have:
(a) full access to the records of the other parties that pertain to
the dispute;
(b) the power to call for testimony of any director, officer,
employee, agent or representative of the other parties; and
(c) all other rights of discovery accorded to parties in civil actions
under the Federal Rules of Civil Procedure (or rules or laws applicable to court
proceedings adopted in lieu thereof) applicable in proceedings before the court
specified in section 9.8.
8.6 Decision
Unless otherwise agreed by UPI and AT&T, the arbitrators shall render a
decision determining whether the Release Event has occurred within thirty (30)
calendar days after completion of the arbitration proceeding. The decision of
the arbitration panel shall be made by a majority of the arbitrators and shall
be binding upon the parties.
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8.7 Location
Any arbitration hearings under this Agreement shall be held at a mutually
acceptable location in or near San Francisco, California, U.S.A.
8.8 Jurisdiction
The Superior Court of the State of California in and for the City and
County of San Francisco, shall be the forum for any court supervision of any
arbitration under this section.
8.9 Costs
Each party shall pay for the services and expenses of the arbitrator
appointed by it. The costs for the services and expenses of the third arbitrator
and all administration costs of the arbitration shall be paid by the non-
prevailing party.
9. Interpleader
Notwithstanding any other provision of this Agreement, if Agent receives a
Release Notice and Agent is uncertain whether the Release Notice was timely or
otherwise effective, then Agent may, in its sole discretion, begin an
interpleader action and deposit the Deposit with the clerk of the court or
withhold release of the Deposit until instructed otherwise by court order. In
connection with any such deposit, Agent shall seek an appropriate order to seal
the deposit so as to prevent release or disclosure to third parties.
10. Fees
AT&T shall pay to Agent the initial and annual fees prescribed on the
attached Exhibit I for performance of services by Agent during the Term. Agent
may change its rates from time to time by providing at least sixty (60) days'
advance written notice of such change to AT&T.
11. No Duty to Inquire Into Truth, Authenticity or Authority; Right to
Require Additional Documents
Agent shall not be required to inquire into the truth of any statements or
representations contained in any notices, certificates or other documents
required or otherwise provided hereunder, and shall be entitled to assume that
the signatures on such documents are genuine, that the persons signing on behalf
of any party thereto are duly authorized to execute the same, and that all
actions necessary to render any such documents binding on the party purportedly
executing the same have been duly undertaken. Without in any way limiting the
foregoing, Agent may in its discretion require from UPI or AT&T additional
documents which it deems to be necessary or desirable in the course of
performing its obligations hereunder.
12. Indemnification
Agent shall be responsible to perform its obligations under this Agreement
and to act in a reasonable and prudent manner with regard to the escrow
arrangement set forth herein. Provided Agent has acted in the manner stated in
the preceding sentence, AT&T and UPI each agree to indemnify, defend and hold
harmless Agent from any and all claims, actions, damages, arbitration fees and
expenses, costs, attorney's fees and other liabilities incurred by Agent
relating in any way to the escrow arrangement set forth in this Agreement.
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13. Termination
13.1 Termination by Agent
Agent may, at any time, terminate the term of this Agreement by resigning
as escrow agent hereunder. Agent shall provide UPI and AT&T ninety (90) days'
advance written notice of its intention to resign. Further, Agent may terminate
the term of this Agreement upon written notice to UPI and AT&T if AT&T defaults
in the payment of the fees payable to Agent under section 10 and fails to cure
such default within ten (10) days after its receipt of written notice of default
from Agent.
13.2 Termination by AT&T
AT&T may, at any time, terminate the term of this Agreement by providing
Agent fourteen (14) days advance written notice of such termination, signed by
an officer of AT&T; provided that all fees payable to Agent for performance of
its services hereunder have been fully paid.
13.3 No Other Termination
Except as provided in paragraphs 13.1 and 13.2, this Escrow Agreement may
not be terminated or modified except in writing signed by Agent, UPI and AT&T;
provided, however, that this Agreement will terminate and all items held in
escrow hereunder will be returned to UPI upon any termination of the license
granted to AT&T under Section 2 of the Software Agreement.
14. Miscellaneous
14.1 Entire Agreement
This Escrow Agreement constitutes the final and entire agreement among the
parties with respect to the subject matter hereof and supersedes all prior
arrangements or understandings.
14.2 Notices
All notices, requests, consents and other communications provided for
herein to any party shall be deemed to be sufficient if contained in a written
instrument either: (a) delivered in person or by facsimile or telex; or (b) sent
by first-class registered or certified mail postage prepaid, addressed to the
party at the address set forth below, or such other address as may be hereafter
be designated in writing by the party. Notices will be effective only upon
actual receipt.
If to UPI: Unwired Planet, Inc.
90 Middlefield Road, Suite 201
Menlo Park, California 94025
Attn: President
If to AT&T: AT&T Wireless Services, Inc
Wireless Data Division
10230 N E Points Dr.
Kirkland, Washington 98033
Attn: WDD General Counsel
PAGE 6
<PAGE>
If to Agent: Data Securities International, Inc.
425 California Street, Suite 1450
San Francisco, CA 94104
Attn: _____________________
14.3 Changes
The terms of this Escrow Agreement may not be modified or amended, or any
of the provisions hereof waived, temporarily or permanently, except pursuant to
the written consent of the parties.
14.4 Severability
If any term or provision of this Escrow Agreement or the application
thereof as to any person or circumstance shall to any extent be invalid or
unenforceable, the remaining terms and provisions of this Escrow Agreement or
the application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable shall not be affected
thereby and each term and provision of this Escrow Agreement shall be valid and
enforceable to the fullest extent permitted by law.
14.5 Facsimile
This Escrow Agreement may be executed by facsimile signature.
14.6 Counterparts
This Escrow Agreement may be executed in any number of counterparts, and
each such counterpart shall be deemed to be an original instrument. All such
counterparts together shall constitute but one agreement.
14.7 Headings
The headings of the various sections of this Escrow Agreement have been
inserted for convenience of reference only and shall not be deemed to be a part
of this Escrow Agreement.
14.8 Specific Performance
In the event of any breach of or default under this Agreement by any party,
other than a breach or default of a monetary obligation, the other party may
suffer irreparable harm and have no adequate remedy at law. Consequently, in the
event of such breach or default, or any threat of such breach or default, by any
party, then the other parties will be entitled to temporary or permanent
injunctive relief, specific performance and such other equitable relief as may
be appropriate in he circumstances in order to restrain or enjoin the breach or
default. This paragraph will not be interpreted or construed to require the
release of the Deposit pursuant to a Release Notice that has been disputed in
good faith by UPI in accordance with paragraph 7.4, prior to resolution of the
dispute pursuant to Section 8. The rights and remedies under this paragraph are
in addition to, and not in lieu of, any other right or remedy afforded under any
other provision of this Agreement, by law or otherwise.
14.9 Governing Law
This Escrow Agreement shall be governed by and construed in accordance with
the laws of the State of California without regard to the principles of
conflicts of laws.
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14.10 Successors and Assigns
This Agreement shall inure to the benefit of, be binding upon and be
enforceable by each of the parties and their respective successors and assigns.
The assignment and delegation rights of the Parties with respect to this
Agreement are set forth in Section 10.5 and 10.6 of the Software Agreement.
IN WITNESS WHEREOF, the parties have executed this Escrow Agreement as
of the date set forth above.
UPI: Unwired Planet, Inc.
By __________________________
Title ______________________
AT&T: AT&T Wireless Services, Inc.
By __________________________
Title ______________________
Agent: Data Securities International, Inc.
By __________________________
Title ______________________
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EXHIBIT 1 TO ESCROW AGREEMENT
Fee Schedule
------------
Fee: Amount:
---- -------
1. Initial Fee ________________
2. Annual Fee ________________
(One Container)
3. Additional Container ________________
(Per Year)
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EXHIBIT C
Software Integration Services
Unless otherwise defined herein, all terms defined in the Agreement will
have the same meanings when used in this Exhibit C with initial letters
capitalized.
The Software Integration Services to be provided by UPI to AT&T are defined
as follows:
UPI will, in conjunction with AT&T, define specifications for hardware,
operating systems, Oracle database versions, and [********] or a UPI-specified
email engine/package and configuration that will support the UPI Software and
Application Server Software and will integrate into AT&T's network. Upon receipt
of such specifications from UPI, AT&T will establish its computer or computers
on which the ANT Server and Application Server run along with all other
hardware, operating system, Oracle database, email engine, and other software
necessary to operate the ANT Server and Application Server and their connection
to the AT&T Network, with the exception of the UPI Software and the Application
Server Software. Such computers will be fully functioning and will conform to
the specifications supplied by UPI as described above. In connection with AT&T's
initial installation of the computers to be used as the ANT Server and the
Application Server, UPI will provide the following services:
1. Installation of the UPI Software and Application Server Software on
the AT&T computers to establish an ANT Server and an Application
Server on the AT&T Network to support an initial user/client
population of [****] on the Launch Date, [****] by [******************
********], [*****] by [***************************] and [*****] by [**
************************].
2. Cooperation with and provision of assistance to agents and
representatives of AT&T and AT&T's other software and hardware
suppliers which supply elements of the interface with the ANT Server
and Application Server, in the appropriate initial configuration of
the other software and hardware elements to support an initial
user/client population of [****].
3. Cooperation with and provision of assistance to agents and
representatives of AT&T in the initial configuration of AT&T's billing
system and information extraction processes and procedures to support
an initial user/client population of [****].
4. Cooperation with and provision of assistance to agents and
representatives of AT&T in the initial configuration of AT&T's
customer care and provisioning procedures to support an initial
user/client population of [****].
UPI representatives will be present at the site of the installation of the
UPI Software and Application Server Software on the first computer
configurations to serve as an ANT Server and an Application Server, and will
provide training to an AT&T team with the understanding that at the conclusion
of the installation of the UPI Software and Application Server Software, the
team will be capable of conducting a similar installation on the next AT&T
computer to be designated as an ANT Server or an Application Server. The visit
will be at UPI's cost and expense. In the second such installation, UPI
representatives will be present at the site and will not conduct the
installation, but will act as advisors to AT&T staff conducting the
installation. This visit will be at UPI' cost and expense. In the third and all
subsequent installations, UPI representatives will provide remote telephone and
fax assistance until each installation is formally accepted by AT&T according to
installation standards established at the time of the first installation by the
UPI/AT&T installation
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EXHIBIT C
Software Integration Services (continued)
team. If the installation of the UPI Software cannot be accomplished with remote
assistance, representatives of UPI will appear on site to assist in such
installation. Such visits will be at UPI's cost and expense; provided that if
the problem or error is not attributable to the UPI Software or UPI's
instructions on the installation of subsequent updates or releases, AT&T will
reimburse UPI for such costs and expenses. AT&T will retain responsibility for
the AT&T Network, including responsibility for procuring necessary hardware,
operating systems and software scheduling, planning, and coordinating other
third party suppliers, and other similar activities.
In connection with the installation of updates and subsequent releases of
the UPI Software or Application Server Software to which AT&T is entitled under
the Agreement, UPI will provide AT&T with disks or other media containing such
updates and releases along with instructions on appropriate installation of such
updates and releases. Representatives of UPI will be available by telephone to
assist in such installation and if such installation cannot be accomplished with
remote assistance in conformity with ordinary and routine procedures, practices
and response times, representatives of UPI will appear on site to assist in such
installation. Such visits will be at UPI's cost and expense; provided that if
the problem or error is not attributable to the UPI Software, the Application
Server Software or UPI's instructions on the installation of subsequent updates
or releases, AT&T will reimburse UPI for such costs and expenses. AT&T will not
update or install new releases of any other elements of the ANT Server, the
Application Server or the AT&T Network (such as the Oracle database or the
platform operating system) until UPI shall have confirmed in writing that the
UPI Software or the Application Server Software, as applicable, will operate and
is compatible with such update or release or has provided AT&T with an update or
release of the UPI Software that will operate and is compatible with the update
or release of such other element.
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EXHIBIT 2C
Email Services
Unless otherwise defined herein, all terms defined in the Agreement will
have the same meanings when used in this Exhibit 2C with initial letters
capitalized.
In connection with AT&T's initial installation of the computer to be used
as the ANT Server, UPI will cooperate with and provide assistance to agents and
representatives of AT&T and Oracle in the appropriate configuration of the
Oracle database and HPOpenMail or some other UPI-specified email package to
support an initial user/client population of 10,000, including without
limitation the following:
1. UPI will cooperate with and assist agents and representatives of AT&T
in evaluating alternative email engines and/or software packages
including, but not limited to, HPOpenMail, and any other email
software that UPI considers using to offer, store and forward
functionality to customers.
2. If AT&T elects to license the email code which UPI has developed to
run in conjunction with HPOpenMail (the "UP/HP Email Code"), UPI will
grant to AT&T a nonexclusive, nontransferable (other than as provided
in paragraph 10.7 of the Agreement) and nonsublicensable license to
such UP/HP Email Code in connection with the AT&T Network at a
mutually agreed upon price not to exceed $200,000. UPI will provide to
AT&T training and code review for a period not to exceed 7 business
days over elapsed time of three (3) weeks. This support will be
provided by a UPI employee fully qualified and experienced in the
development of the UP/HP Email Code set. Thereafter, UPI will not be
obligated to provide any support of the code to AT&T. AT&T will not
sell, sublicense or otherwise transfer the UP/HP Email Code to any
third party. Each employee or contractor used by AT&T in customizing
or further developing the UP/HP Email Code will be required to sign a
document~ promising that they will not develop or work on any code for
a competing product (i.e., any messaging or email service designed to
operate on a handheld wireless device) for a period of one (1) year
after performance of the work on the UP/HP Email Code. AT&T will not
be liable for the actions of any employees following termination of
their employment with AT&T or any contractors following termination of
their contracted activities with AT&T.
3. If AT&T elects to license UPI's email application (the "UPI Email
Application"), UPI will license such application to AT&T at a price of
$23 per seat for the first 20,000 seats, $13 per seat for the next
40,000 seats and $8 per seat for each seat over 60,000. In addition,
UPI will provide to AT&T maintenance and upgrade support at an annual
rate of $1.60 per seat. Enhancements will not be included. Seats may
be purchased in blocks of 10,000 each, with payment for each block due
upon issuance of the seats for such block.
4. UPI will utilize documented API's and/or standard data communications
protocols to communicate between the ANT and UPI Mail. UPI software
will not utilize undocumented system features, system calls, or
communications links in the integration of the UPI Email Application.
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EXHIBIT 2C
Email Services (continued)
5. If AT&T elects to license UPI Email Application, UPI will cooperate
with and assist agents and representatives of AT&T in integrating the
AT&T-based UPI email server with the AT&T-based ANT in accordance with
the terms of the agreement between UPI and AT&T relating to such
email products;
6. [************************************************************
**************************************************************
**************************************************************
**************************************************************
**************************************************************
**************************************************************
**************************************************************
**************************************************************]
7. If, during the Term of this Agreement, AT&T elects to license UPI
Email Application, UPI will continue to provide email Support Services
hereunder for prior versions of the UPI Email Application used by AT&T
in its service offering for a period of twelve (12) months following
the latest maintenance release, but in no event less than two (2)
years from the Launch Date.
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EXHIBIT D
Specifications
Unless otherwise defined herein, all terms defined in the Agreement will
have the same meanings when used in this Exhibit D with initial letters
capitalized.
1. General Description of UPI Software
The UPI Software as described, demonstrated, and defined within the
documents below is described as the AirNet Service. The AirNet Network
Translator (ANT) is the core of this system. It is responsible for request and
notification translation, subscriber authorization and billing, and overall
system fault detection and reporting. The ANT shall provide this service as an
Internal Fixed End System (F-ES) within an AT&T Network. It is developed upon
standard, object oriented software development methods. It has been initially
developed to run on the Solaris operating system of SunSoft, utilizing an Oracle
database (not included within the definition of 'UPI Software"). The design
documents denote an anticipated [********] plus Subscriber load that the ANT has
been designed to scale to.
In addition to the performance requirements set forth in Section 4 of this
Exhibit D, the minimum performance characteristics for the UPI Software are to
support:
. [****] Subscribers as of the Launch Date
. [****] Subscribers by [**********]
. [*****] Subscribers by [**********]
. [*****] Subscribers by [**********]
UPI will consult with AT&T regarding AT&T Network architecture needs as UPI's
plans for product migration unfold. AT&T will provide UPI with notice of AT&T
Network architectural needs and changes. UPI will design its UPI Software so
that AT&T is required to use no more than a commercially reasonable amount and
type of hardware to operate such UPI Software.
2. General Description of Application Server Software
The Application Server Software sits on a Web server and allows the Web
servers to interact with the ANT Server and the UPI Supported Devices. The
Application Server Software is responsible for the real time translation of HDML
into a compressed format which can be processed by the UPI Supported Devices.
The first version of the Application Server Software will be available for the
Solaris Operating System, with subsequent versions available for Windows NT, and
other versions of the Unix operating system. UPI will design its Application
Server Software so that AT&T is required to use no more than a commercially
reasonable amount and type of hardware to operate such Application Server
Software.
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EXHIBIT D
Specifications (continued)
3. Specific Technical Requirements
The specific technical requirements necessary to implement the UPI Software
and the Application Server Software as described above shall be determined with
reference to the designs, definitions, and specifications as presented to AT&T
and the following documents, copies of which have been previously provided to
AT&T:
. UPI ANT Scalability Performance Characteristics (April 22, 1996, and
subsequent updates delivered to AT&T)
. UPI Uplink Gateway Specification (April 22, 1996, and subsequent updates
delivered to AT&T)
. UPI Gateway Protocol UGP Overview (April 22, 1996, and subsequent
updates delivered to AT&T)
. UPI Software Developer's Kit Specification (April 22, 1996, and
subsequent updates delivered to AT&T)
4. UPI Software Performance Requirements
The UPI Software will meet the following minimum performance
characteristics, with such characteristics being subject to acceptance by AT&T
pursuant to Exhibit C and Exhibit H:
The environment under which the UPI Software will perform is as follows:
. Support at least [****] Subscribers at the initial installation site on
or before the Launch Date, and [****] Subscribers on or before [******
******].
. Be compatible with providing electronic mail boxes (addresses and email
store and forward capability) to at least [****] Subscribers at the
initial installation site on or before the Launch Date, and to [****]
Subscribers on or before [*************].
. Provide maximum user response times (independent of non-UPI licensed
software constraints) of no greater than [******] from user input to
system response (with non-UPI licensed software latencies removed)
during peak utilization periods. Peak utilization periods are defined
as no less than [*] Subscriber utilization (e.g., [***************]
accessing the system at the same time at initial installation). A
Subscriber' accessing the system is hereafter referred to as an "Active
Subscriber." Such response times shall not include device cached
responses. Response must be from the UPI Software (ANT).
. A transaction is defined as:
. An Active Subscriber inputs information into a device which
generates a server request.
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EXHIBIT D
Specifications {continued)
. This request is received by the ANT Server.
. The ANT Server interprets the request and processes the information
required for a response.
. The response is sent to the Active Subscriber's device.
. The average transaction rate per Active Subscriber is [*******] seconds.
5. Application Server Software [*********] Requirements
The minimum [*********] characteristics of the Application Server Software
are to not add more than [**] seconds of processing time on a Web server hosting
an HDML application during peak utilization periods. Peak utilization periods
are defined as no less than [*] Subscriber utilization (e.g., [***] Subscribers
accessing the system at the same time at initial installation). The utilization
support levels are defined as:
. [****] Subscribers as of the Launch Date
. [****] Subscribers by [***************]
. [*****] Subscribers by [***************]
. [*****] Subscribers by [***************]
PAGE 3
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EXHIBIT E
Support Services
Unless otherwise defined herein, all terms defined in the Agreement will
have the same meanings when used in this Exhibit E with initial letters
capitalized.
The Support Services to be provided by UPI to AT&T include on-going
maintenance of the UPI Software and Application Server Software as well as
system level support to ensure a high level of availability as set forth below.
In the event AT&T notifies UPI of any actual or suspected error or defect
in the UPI Software or Application Server Software, UPI will provide Support
Services and qualified personnel necessary to correct the error or defect in
accordance with the terms of this Agreement. UPI shall use its commercially
reasonable [**] efforts to remedy each error or defect as soon as reasonably
possible with as little disruption to AT&T or the UPI Service. In any event, UPI
will use its commercially reasonable [**] efforts to remedy all program errors
or defects at the following defect classification levels, as determined by AT&T
in its sole discretion, at least as quickly as the following response levels:
SEVERE - This category includes any material defect (or other material
failure of the UPI Software or Application Server Software to function according
to its Specifications) which is demonstrable on the ANT Server or the
Application Server, as applicable, and causes the UPI Software or Application
Server Software to be inoperable, to operate improperly or produces results
materially different from those described in the Documentation that prevents or
seriously impairs the performance of one or more of the UPI Software or
Application Server Software major functions. This category includes, but is not
limited to, the following:
. Overall Performance Standards: A [*] or greater under-performance as
measured against the performance standards set forth in Exhibit D
(e.g., the ability to support only [***] Subscribers by [**********],
rather than the required [****] Subscribers).
. Protocol Stability: Any material failure of user commands attributable
to UPI protocols or software.
. Billing Information Accounting and Transfer: Any material failure to
accurately account for and transfer Customer billing information on a
timely basis.
. User Configuration: Any material rejection by UPI server or software of
attempted changes and/or updates of Customer profiles;
. Server Communications Links: Any material breakdown or failure of
communications between the ANT, Application Server, database server, and
the message storage facility.
. External Communications Links: Any material failure due to UPI Software
or Application Server Software of the internet link or other gateways.
UPI's response to a "SEVERE" defect will be as follows:
Contact - [******]
Workaround - [******]
Solution - [******]
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EXHIBIT E
Support Services (continued)
MODERATE- This category includes any defect (or other failure of the UPI
Software or Application Server Software to function according to its
Specifications) which is demonstrable on the ANT Server or Application Server,
as applicable, and causes the UPI Software or Application Server Software to be
inoperable, to operate improperly or produces results materially different from
those described in the Documentation that causes erratic or marginally impaired
performance of one or more of the UPI Software or Application Server Software
major functions, but is not a "SEVERE" defect. UPI's response to a "MODERATE"
defect will be as follows:
Contact - [********]
Workaround - [********]
Solution - [********]
MILD - This category includes any defect (or other failure of the UPI
Software or Application Server Software to function according to its
Specifications) which is demonstrable on the ANT Server or Application Server,
as applicable, and causes the UPI Software or Application Server Software to be
inoperable, to operate improperly or produces results materially different from
those described in the Documentation that is not a "SEVERE" defect or a
"MODERATE" defect. UPI's response to a "MILD" defect will be as follows:
Contact - [********]
Workaround - [********]
Solution - [********]
For the purposes of the aforementioned defect classification levels
and response times, the following shall apply:
1. [*******************************************************************
********************************************]
2. "Contact" means a telephone call from a qualified support
specialist of UPI to determine the nature of the problem and to begin
telephone/remote diagnosis and support.
3. "Workaround" means UPI has diagnosed the problem and has determined the
steps required to remedy the problem and has implemented or has enabled AT&T to
implement, a temporary workaround solution that allows the UPI Software or
Application Server Software, as applicable, to regain functionality and
substantial operational status of major functions.
4. "Solution" means that the UPI Software or Application Server Software,
as applicable, functions have been fully restored (including permanent code
fixes, documentation, source code updates and similar information) and the UPI
Software or Application Server Software, as applicable, operates without
material defects.
Notwithstanding the foregoing, if an error, defect or failure is MILD and
does not degrade operation of the AT&T Network in a manner observable or
otherwise noticeable to the user, then UPI will have the option to remedy such
error, defect or failure in the next regular release of the UPI Software or
Application Server Software, as applicable. Program errors, defects or failures
will not include errors, defects or failures resulting from AT&T's improper use
of the UPI Software or
PAGE 2
<PAGE>
Application Server Software, modifications or damage to the UPI Software or
Application Server Software by AT&T, or AT&T's use of the UPI Software or
Application Server Software on or with hardware, an operating system or other
software other than as specified in writing or otherwise approved in writing
by UPI as being compatible with the UPI Software. If UPI is acting diligently
and in good faith, is exercising commercially reasonably best efforts to
remedy such errors, defects or failures, is making real and substantial
progress toward such remedies and there is a reasonable expectation that UPI
will achieve such remedy, then UPI will be deemed to be in compliance with its
obligation to provide the Support Services, provided that such efforts and
progress are sufficient to actually meet the response times for program error
"Solution" specified above.
. Maintenance. UPI shall provide remote maintenance on a 7 day, 24 hour
per day, 365 day per year basis. Should an on-site visit become necessary, UPI
shall provide, [**********************] maintenance personnel to the site where
the UPI Software or Application Server Software is installed; provided that if
the problem or error is not attributable to the UPI Software or Application
Server Software, as applicable, or UPI's instructions on the installation of the
subsequent release, AT&T will reimburse UPI for the costs and expenses
reasonably incurred by UPI for the site visit. This software maintenance may
include, without limitation, software error correction, diagnostic testing (if
such testing can be conducted with the UPI Software or Application Server
Software running and available for use), reconfiguration, reinstallation of
software, and installation of patches (software fixes).
. Upgrades and Enhancements. UPI shall provide, [********************]
software maintenance releases to correct software program errors. Such software
maintenance releases will be provided to AT&T as necessary to meet the response
times for program error "Solution" specified above. Notwithstanding anything in
the Agreement to the contrary, all Enhancements created by or for UPI that are
made available without charge by UPI to its customers generally during the Term
of this Agreement will be provided to AT&T at no additional charge promptly
after the Enhancement is so created, whereas all Enhancements created by or for
UPI that are made available with a charge by UPI to its customers generally
during the Term of this Agreement will be made available to AT&T upon request in
accordance with the provisions of paragraph 5.7 of the Agreement.
. UPI Master Server Updates. UPI shall also provide to AT&T, [****
*****************] [***] updates of all content sites which have become UPI-
capable [****************************************************************] For
those content sites for which access to both the content and the UPI capable
server or application that accesses such site [******************************]
to AT&T customers or the public generally, UPI shall, on a daily basis, provide
an updated address map to be loaded onto the AT&T UPI-capable server(s), [**
*****************************************************************************
*********************************************************]
. Additional Services. UPI will provide to AT&T such additional services
relating to the UPI Software and Application Server Software not otherwise
provided as part of the Services hereunder as may be requested by AT&T from time
to time on terms and conditions and at such rates as may be mutually agreed upon
by the parties in writing. In the event AT&T requests any such additional
services from UPI, the parties will negotiate in good faith with the objective
of agreeing upon a written statement of work that will provide, among other
things, a detailed description of the services and the compensation to be paid
to UPI therefor.
PAGE 3
<PAGE>
EXHIBIT E
Support Services (continued)
. Obligations of AT&T. AT&T will provide UPI with access on an as-needed-
by-AT&T basis to the AT&T ANT Server and AT&T Application Servers to enable UPI
to update such address map and to monitor the proper functioning of the UPI
Software and Application Server Software. The mapping services provided by UPI
will include providing a directory of all available UPI front-ended servers to
AT&T on a no-charge basis, providing this directory registration service at
nominal or no cost to Software Development Kit owners, selective mapping (AT&T's
mapping configuration will not be obliterated by UPI master mapping), and a full
directory of all UPI front-ended servers that have a right to be seen by AT&T
customers (excluding only those that are proprietary to another UPI customer).
General Obligations
. Version Level Support - During the Term of this Agreement, UPI will
continue to provide Support Services hereunder for prior versions of the UPI
Software and Application Server Software used by AT&T in its service offering
for a period of twelve (12) months following the release of the next maintenance
release and for a period of twelve (12) months following the release of the next
major release, or three (3) years if backward compatibility is interrupted for
the installed base of AT&T clients.
. Quality Assurance - UPI will develop and implement quality assurance
measures to insure that all program error corrections and other Support Services
are of workmanlike quality and completed in a timely manner in accordance with
all terms and conditions of this Agreement.
. Staffing of Services - UPI will ensure that only fully experienced and
properly qualified persons perform the Support Services hereunder and that all
Services are staffed adequately with personnel capable of providing the Support
Services. UPI will, if requested by AT&T, remove from performance of the
Services hereunder any person AT&T reasonably determines to be incompetent,
insubordinate, careless, disorderly or otherwise~vise objectionable.
PAGE 4
<PAGE>
EXHIBIT F
[*******************]
[**************************************************************************
****************************************************************************
******************************************************************************]
PAGE 1
<PAGE>
EXHIBIT G
[Superseded by Section 5 of Third AT&T Amendment]
PAGE 1
<PAGE>
EXHIBIT H
Commercial Server Acceptance Criteria
Unless otherwise defined herein, all terms defined in the Agreement will
have the same meanings when used in this Exhibit H with initial letters
capitalized. Further, the terms "Severe," "Moderate" and "Mild" will have the
meanings given them in Exhibit E when used herein.
The UPI Software and the Application Server Software shall not contain any
Severe or Moderate defects, and shall not have more than fifty (50) outstanding
Mild defects. UPI shall notify AT&T of all known defects in the UPI Software or
the Application Server Software at least ten (10) days prior to its scheduled
delivery date. AT&T may challenge the classification of any defect prior to
acceptance. Prior to delivery of the UPI Software and the Application Server
Software, UPI will demonstrate for AT&T the server functions, capabilities and
transaction throughput as specified in Exhibit D. AT&T will issue a first level
approval based on the successful completion of this test to AT&T's satisfaction.
Full and final acceptance of the UPI Software and the Application Server
Software by AT&T will occur when AT&T's Quality Assurance Group completes final
testing of the UPI Software and the Application Server Software and issues
written acceptance of the UPI Software and the Application Server Software based
on the test results. Such test results will be made available to UPI upon
request.
PAGE 1
<PAGE>
EXHIBIT I
Designated Information Services
[Exhibit I has been completed, sealed and deposited with Perkins Cole,
counsel for AT&T, and will be released to UPI at such time as AT&T gives Perkins
Cole notice that AT&T has obtained the consent of the designated Content
Providers to the release of this Exhibit I to UPI]
PAGE 1
<PAGE>
FIRST AMENDMENT TO THE
May 1, 1996 SOFTWARE LICENSE AND SUPPORT AGREEMENT
BETWEEN
UNWIRED PLANET, INC. and AT&T WIRELESS SERVICES, INC.
This FIRST AMENDMENT ("the Amendment")is made as of this 25th day of
---------
November 1996 (the "Effective Date"), by and between UNWIRED PLANET, INC.
--------------
("UPI"), a Delaware corporation having a principal office at 390 Bridge Parkway,
---
Redwood City, CA 94065; and AT&T Wireless Services, Inc. ("AT&T"), a Delaware
corporation, having a principal office at 10230 N.E. Points Drive, Kirkland, WA
98033.
This Agreement amends that SOFTWARE LICENSE AND SUPPORT AGREEMENT (the
"Master Agreement"), dated May l, 1996, by and between UPI and AT&T. Unless
-----------------
otherwise defined herein, capitalized terms used herein shall have the meanings
ascribed to them in the Master Agreement.
1. UPI EMAIL APPLICATION LICENSE
1.1 As provided under Exhibit 2C to the Master Agreement, UPI hereby
grants to AT&T and its Affiliates that operate or utilize an AT&T Network a
nonexclusive, worldwide, license for UPI's electronic mail application (the "UPI
---
Email Application") to do the following until such time as the license granted
-----------------
herein terminates in the manner described in paragraphs 8.2.2 of the Master
Agreement or AT&T and its Affiliates discontinue the UPI Email Application
pursuant to Section 5 of this Amendment:
(a) install and use the UPI Email Application on any servers situated
at the site or sites identified on the Exhibit F of the Master
Agreement and any other sites designated from time to time by AT&T;
(b) copy and reproduce the UPI Email Application in connection with
the exercise of the fights granted in (a) above;
(c) make and keep a reasonable number of copies of the UPI Email
Application for archival or backup purposes, provided that AT&T keeps
such copies securely stored in a locked area with access restricted to
employees who need such access in order to operate or maintain the UPI
Email Application; and
(d) use, reproduce and distribute internally the UPI Email Application
Documentation, as defined herein, in connection with the exercise of
any rights granted under this Section 1;
<PAGE>
provided that all such copies of the UPI Email Application programs and related
UPI Email Application Documentation will remain subject to the provisions of
Section 10.2 of the Master Agreement. The UPI Email Application Documentation
shall include all then-current documentation related to the UPI Email
Application made available to any UPI customer, including but not limited to,
the design and product specifications, configuration requirements, user manuals,
installation and operating instructions, and test results.
1.2 UPI will deliver to AT&T one (1) copy of the UPI Email Application and
one (1) copy of the current UPI Email Application Documentation no later than
fifteen (15) days after entering into this Amendment.
1.3 UPI will deliver all Upgrades and all Enhancements to the UPI Email
Application as those Upgrades and Enhancements are created by UPI at no
additional charge to AT&T All Upgrades and Enhancements provided to AT&T will be
deemed a part of the UPI Email Application.
2. LICENSE FEES
2.1 In consideration of the license granted herein to the UPI Email
Application, AT&T shall pay to UPI the one-time license fees in the amount and
in accordance with the payment terms as follows:
No. of Seats Price (per seat)
------------ ----------------
Per Seat License [******] [******]
[******] [******]
[******] [******]
2.2 UPI will invoice AT&T upon shipping the UPI Email Application for the
initial block of [*******************] seats. Additional seats may be purchased
in blocks of [*******************] each.
2.3 [*********************************************************************
*******************************************************************************
********************************************************************]
3. SUPPORT SERVICES AND FEES
3.1 UPI will, with respect to the UPI Email Application, furnish AT&T and
its affiliates the software maintenance and support services described in
Schedule 1 hereto (the "UPI Email Support Services") for the term of the UPI
--------------------------
Email Application license.
3.2 AT&T shall pay to UPI an annual fee for the performance of the UPI
Email Support Services in the amount of one dollar and sixty cents ($1.60) per
each seat of the UPI Email Application purchased by AT&T.
2
<PAGE>
3.3 UPI will invoice AT&T for the first calendar year of Email Support
Services for a block of UPI Email Application seats upon shipping such block of
seats. UPI will invoice AT&T for subsequent calendar years of Email Support
Services on the anniversary date of the issuance of such block of seats.
4. OBLIGATIONS OF UPI
4.1 The UPI Email Application 2.0 release will [************************
********************************************] to communicate with the ANT
Server. UPI will cooperate with and assist agents and representatives of AT&T in
integrating the UPI Email Application licensed hereunder with the ANT Server
located on AT&T premises. The UPI Email Application will [**********
******************************************************************] in the
integration of the UPI Email Application.
4.2 UPI will ensure that the UPI Email Application meets the requirements
set forth in the Documentation and in Schedule 2 hereto.
4.3 UPI shall provide the UPI Email Application software integration
services set forth in Schedule 3 hereto. UPI will commence and use commercially
reasonable efforts to perform and complete the UPI Email Application software
integration and testing services in accordance with the schedule mutually agreed
upon by the parties in writing.
5. [*********************]
[*****************************************************************
*****************************************************************************
*****************************************************************************
*****************************************************************************
*****************************************************************************
*****************************************************************************
*****************************************************************************
*****************************************************************************
*****************************************************************************
*****************************************************************************
*****************************************************************************
*****************************************************************************
**************************************************]
6. OWNERSHIP
6.1 Except for the license granted under Section 1 of this Amendment, UPI
reserves all of its Proprietary Rights in the UPI Email Application, and no
title to or ownership of the UPI Email Application is transferred to AT&T or its
Affiliates under this Amendment or the Master Agreement.
3
<PAGE>
6.2 UPI reserves any and all trade names and trademarks which UPI uses in
connection with the UPI Email Application. AT&T may market, promote, distribute,
provide, operate and otherwise deal with the UPI Email Application using their
own private labels, trade names, logos, trademarks, notices (e.g., copyright or
otherwise) and other identifications, and may remove any private label, trade
name, trademark, notice or other identification of UPI from the UPI Email
Application that would be observable or physically apparent to a user of the UPI
Email Application, including any UPI copyright notice. The parties agree that
the UPI copyright notice appearing in the initial flash screen of the UPI Client
Software is intended to provide UPI copyright notice to users of the UPI Email
Application, which is activated at the same time as the UPI Client Software.
7. SOURCE CODE ESCROW
Within ten (10) days after the Effective Date of this Amendment, the
parties and the Escrow Agent will enter into an amendment to the Escrow
Agreement to provide for the delivery of the UPI Email Application source code
to the Escrow Agent to be held in escrow, and UPI will deliver to the Escrow
Agent under the Escrow Agreement a complete, current and accurate copy of the
UPI Email Application source code. Thereafter, UPI will deliver to the Escrow
Agent all source code for each Upgrade and Enhancement provided to AT&T
hereunder within three (3) days after such Upgrade or Enhancement is delivered
to AT&T. UPI will resubmit the UPI Email Application source code to the Escrow
Agent promptly after the occurrence of every Upgrade and Enhancement provided to
AT&T hereunder to such code, and will ensure that the UPI Email Application held
in escrow will at all times match the UPI Email Application code which is then
being using by AT&T. All relevant versions of the supporting UPI Email
Application source code (as it relates to the hardware platforms, operation
systems, utilities, database management systems and any other supporting code
necessary to run the system) will also be delivered to and held in escrow by the
Escrow Agent. The UPI Email Application source code will be delivered to AT&T in
the event of a Minor Release Event or a Major Release Event as follows: (I)
following a Minor Release Event relating to the UPI Email Application source
code, UPI grants to AT&T and its Affiliates a license to use, modify and enhance
the UPI Email Application source code and to take such other actions with
respect thereto as may be necessary to use, correct, maintain and otherwise
support the UPI Email Application; and (ii) following a Major Release Event
relating to the UPI Email Application source code, UPI grants to AT&T and its
Affiliates a license to use, modify, enhance and make derivative works from the
UPI Email Application source code, and to take such other actions with respect
thereto as may be necessary to use, correct, maintain, enhance, make derivative
works from and otherwise support the UPI Email Application. Not withstanding the
foregoing, if a default or other reason giving rise to the release of the UPI
Email Application source code is cured by UPI, then AT&T will return all copies
of such source code to the Escrow Agent to be held in escrow under the Escrow
Agreement and the license granted under this First Amendment with respect to
such source code will terminate until such time as there is a
4
<PAGE>
subsequent occurrence of a default or other reason giving rise to the release of
the UPI Email Application source code.
8. WARRANTY
UPI represents and warrants that (a) it has sufficient fight, title and
interest in and to the UPI Email Application to grant the license described in
Section 1 and 7, (b) the UPI Email Support Services and software integration
services will be performed by UPI in a professional, workmanlike and skillful
manner; (c) the UPI Email Application will comply in all material respects with
the applicable Documentation and the Master Agreement and Amendment; and (d) the
UPI Email Application does not and will not infringe or misappropriate any
Proprietary Right of any third party. OTHER THAN THE WARRANTIES EXPRESSLY SET
FORTH IN THIS AGREEMENT, THERE ARE NO EXPRESS OR IMPLIED WARRANTIES RELATING TO
THE UPI EMAIL APPLICATION OR THE SERVICES COVERED BY THIS AMENDMENT, AND UPI
EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
9. OTHER TERMS
All other terms and conditions of the Master Agreement shall remain in full
force and effect. The following terms and conditions set forth in the Master
Agreement shall apply to the UPI Email Application, and are hereby amended to
include the UPI Email Application, as relevant: Sections 1, 2.3, 4.2, 5.4, 5.6,
5.7, 6.1, 7.2, 8, 9, and 10.. This First Amendment shall be coterminous with the
Master Agreement; provided, however, that a breach of any term or condition of
this Amendment relating to the UPI Email Application shall not provide a basis
for terminationof the Master Agreement or any other amendments thereto.
Each party hereby represents to the other that the undersigned has full and
binding authority to execute this Amendment.
ACCEPTED AND AGREED:
UNWIRED PLANET, INC. AT&T WIRELESS SERVICES, INC.
Signature: /s/ Charles M. Parrish Signature: /s/ Kendra VanderMeulen
------------------------ ------------------------
Printed Name: Charles M. Parrish Printed Name: Kendra VanderMeulen
Title: President Title: VP & GM, Wireless Data Div.
------------------------ ----------------------------
5
<PAGE>
Schedule 1
Email Support Services
The Support Services to be provided by UPI to AT&T with respect to the UPI
Email Application include on-going maintenance of the UPI Email Application
software to ensure a high level of availability as set forth below.
In the event AT&T notifies UPI of any actual or suspected error or defect
in the UPI Email Application, UPI will provide Support Services and qualified
personnel necessary to correct the error or defect in accordance with the terms
of this Agreement. UPI shall use its commercially reasonable best efforts to
remedy each error or defect as soon as reasonably possible with as little
disruption to AT&T or the UPI Email Application service as possible. In any
event, UPI will use its commercially reasonable best efforts to remedy all
program errors or defects at the following defect classification levels, as
determined by AT&T in its sole discretion, at least as quickly as the following
response levels:
SEVERE - This category includes any material defect (or other material
failure of the UPI Email Application to function according to the UPI Email
Application Documentation) which causes the UPI Email Application to be
inoperable, to operate improperly or to produce results materially different
from those described in the UPI Email Application Documentation that prevents or
seriously impairs the performance of one or more of the UPI Email Application
functions. This category includes, but is not limited to, the following:
. [******************************************************************
*********************************************************************
*********************************************************************
*********************************]
. Protocol Stability: Any material failure of user commands attributable to
UPI protocols or software.
. User Configuration: Any material rejection by UPI server or software of
attempted changes and/or updates of Customer profiles.
. Server Communications Links: Any material breakdown or failure of
communications between the ANT, Application Server, database server, the
message storage facility, and the UPI Email Application server.
. External Communications Links: Any material failure due to UPI Email
Application software of the internet link or other gateways.
UPI response to a "SEVERE" defect will be as follow:
6
<PAGE>
Contact [*******]
Workaround [*******]
Solution [*******]
MODERATE - This category includes any defect (or other failure of the UPI
Email Application to function in accordance with the UPI Email Application
Documentation) which causes the software to be inoperable, to operate improperly
or to produce results materially different from those described in the UPI Email
Application Documentation that causes erratic or marginally impaired performance
of one or more of the UPI Email Application major functions, but is not a
"SEVERE" defect. UPI response to a "MODERATE" defect will be as follows:
Contact [*******]
Workaround [*******]
Solution [*******]
MILD - This category includes any defect (or other failure of the UPI
Email Application to function according to the UPI Email Application
Documentation) which causes the software to be inoperable, to operate improperly
or to produce results materially different from those described in the UPI Email
Application Documentation that is not a "SEVERE" defect or a "MODERATE" defect.
UPI's response to a "MILD" defect will be as follows:
Contact [*******]
Workaround [*******]
Solution [*******]
For the purpose of the aforementioned defect classification levels and
response time, the following shall apply;
1. [************************************************************
*******************]
2. "Contact" means a telephone call from a qualified support
specialist of UPI to determine the nature of the problem and to begin te
lephone/remote diagnosis and support.
3. "Workaround" means UPI has diagnosed the problem and has determined
the steps required to remedy the problem and has implemented or has enabled
AT&T to implement, a temporary workaround solution and supporting
documentation that allows the UPI Email Application to regain functionality
and substantial operational status of major functions.
4. "Solution" means that the UPI Email Application functions have been
fully restored and permanent code fixes, documentation, source code updates
7
<PAGE>
and similar information have been provided to AT&T in writing and the UPI
Email Application operates without material defects.
Notwithstanding the foregoing, if an error, defect or failure is "MILD" and
does not degrade operation of the AT&T Network in a manner observable or
otherwise noticeable to the user, then UPI will have the option to remedy such
error, defect or failure in the next regular release of the UPI Email
Application. Program errors, defects or failures will not include errors,
defects or failures resulting from AT&T's improper use of the UPI Email
Application, modifications or damage to the UPI Email Application by AT&T, or
AT&T's use of the UPI Email Application on or with hardware, an operating system
or other software other than as specified in writing or otherwise approved in
writing by UPI as being compatible with the UPI Email Application. If UPI is
acting diligently and in good faith, is exercising commercially reasonable best
efforts to remedy such errors, defects or failures, is making real and
substantial progress toward such remedies and there is a reasonable expectation
that UPI will achieve such remedy, then UPI will be deemed to be in compliance
with its obligation to provide the Support Services, provided, that such efforts
and progress are sufficient to actually meet the response times for program
error "Solution" specified above.
UPI shall provide remote maintenance on a 7 day, 24 hour per day, 365 day
per year basis. Should an on-site visit become necessary, UPI shall provide, [**
********************] maintenance personnel to the site where the UPI Email
Application is installed; provided, however, that if the problem or error is not
attributable to the UPI Email Application, or UPI's instructions on the
installation of any subsequent release, AT&T will reimburse UPI for the costs
and expenses reasonably incurred by UPI for the site visit. This software
maintenance may include, without limitation, software error correction,
diagnostics testing (if such testing can be conducted with the UPI Email
Application Software running and available for use), reconfiguration,
reinstallation, of software and installation of patches (software fixes).
UPI shall provide, [**********************] software maintenance releases
to correct software program errors. Such software maintenance releases will be
provided to AT&T as necessary to meet the response times for program error
"Solution" specified above.
UPI will provide to AT&T such additional services relating to the UPI Email
Application software not otherwise provided as part of the Services hereunder as
may be requested by AT&T from time to time on terms and conditions and at such
rates as may be mutually agreed upon by the parties in writing. In the event
AT&T requests any such additional services from UPI, the parties will negotiate
in good faith with the objective of agreeing upon a written statement of work
that will provide, among other things, a detailed description of the services
and the compensation to be paid to UPI therefor.
UPI will continue to provide Support Services hereunder for prior versions
of the UPI Email Application used by AT&T in its service offering for a period
of twelve (12)
8
<PAGE>
months following the latest maintenance release, but in no event less than two
(2) years from the date UPI Email is first offered to its customers, unless AT&T
has discontinued the UPI Email Application pursuant to paragraph 5 of the
Amendment.
UPI will develop and implement quality assurance measures to insure that
all program error corrections and other Support Services are of workmanlike
quality and completed in a timely manner in accordance with all terms and
conditions of this Agreement.
UPI will ensure that only fully experienced and properly qualified persons
perform the Support Services and that all Support Services are staffed
adequately with personnel capable of providing the Support Services. UPI will,
if requested by AT&T, remove from performance of the Support Services any person
AT&T reasonably determines to be incompetent, insubordinate, careless,
disorderly or otherwise objectionable.
9
<PAGE>
Schedule 2
Requirements
The UPI Email application will provide maximum average user response times
(independent of non-UPI licensed software constraints) of no greater than one
(1) second from the time the ANT Server makes a request of the UPI Email
Application to the time the UPI Email Application responds to such request (with
non-UPI licensed software latencies removed) during peak utilization periods.
Peak utilization periods are defined as no less than [*] Subscriber utilization
(e.g., [***] Subscribers accessing the system at the same time at initial
installation) under normal email usage. Such response times shall not include
device cached responses. Response must be from the UPI Email Application server.
In addition, performance levels for [****] users will achieve the
following:
[*******************]
Assumptions
[******************************************]
[******************************************]
[******************************************]
[******************************************]
[******************************************]
[******************************************]
[******************************************]
[******************************************]
[******************************************]
[******************************************]
[******************************************]
[******************************************]
[******************************************]
[******************************************]
Assumptions
[******************************************]
[******************************************]
[******************************************]
[******************************************]
[******************************************]
[******************************************]
10
<PAGE>
[********************************************]
[********************************************]
[********************************************]
[********************************************]
[********************************************]
[********************************************]
[********************************************]
11
<PAGE>
Schedule 3
UPI Email Application Software Integration Services
UPI will, in conjunction with AT&T, define specifications for and integrate
the hardware, operating systems, and Oracle database versions for the UPI Email
Application engine/package. Upon receipt of such specifications from UPI, AT&T
will establish its computer or computers on which the UPI Email Application will
run, along with all other hardware and software necessary to operate the UPI
Email Application on the AT&T Network. In connection with AT&T's initial
installation of the computers to be used as the UPI Email Application server,
UPI will provide the following services:
1. Installation of the UPI Email Application on the AT&T computers to
establish a UPI Email Application server on the AT&T Network to support an
initial user/client population of [****] on the Launch Date, [****] by [**
************************], [*****] by [***************************], and
[*****] by [****************************]
2. Cooperation with and provision of assistance to agents and
representatives of AT&T and AT&T's other software and hardware suppliers
which supply elements of the interface with the UPI Email Application
server, in the appropriate initial configuration of the other software and
hardware elements to support an initial user/client population of [*****]
3. Cooperation with and provision of assistance to agents and
representatives of AT&T in the initial configuration of AT&T's customer
care and provisioning procedures to support an initial user/client
population of [*****]
UPI representatives will be present at the site of the installation of the
UPI Email Application on the first computer configurations to serve as a UPI
Email Application server, and will provide training to an AT&T team with the
understanding that at the conclusion of the installation of the UPI Email
Application, the team will be capable of conducting a similar installation on
the next AT&T computer to be designated as a UPI Email Application server. The
visit will be at UPI's cost and expense. In the second such installation, UPI
representative will be present at the site and will not conduct the
installation, but will act as advisors to AT&T staff conducting the
installation. This visit will be at UPI's cost and expense. In the third and all
subsequent installations, UPI representatives will provide remote telephone and
fax assistance until each installation is formally accepted by AT&T according to
installation standards established at the time of the first installation by the
UPI/AT&T installation team. If the installation of the UPI Email Application
cannot be accomplished with remote assistance, representatives of UPI will
appear on site to assist in such installation. Such visits will be at UPI's cost
and expense; provided that if the problem or error is not attributable to the
UPI Email Application or UPI's instructions on the installation of subsequent
updates or releases,
12
<PAGE>
AT&T will reimburse UPI for such costs and expenses. AT&T will retain for the
AT&T Network, including responsibility for procuring necessary hardware,
operating systems and software scheduling, planning, and coordinating other
third party suppliers, and other similar activities.
In connection with the installation of Upgrades and subsequent releases of
the UPI Email Application to which AT&T is entitled under the Agreement as
amended, UPI will provide AT&T with disks or other media counting such updates
and releases, instructions on appropriate installation of such updates and
releases, and release notes indicating outstanding problems, explanation of new
features, and a list of problems fixed in the release, and shall confirm in
writing that the UPI Email Application will operate and is compatible with other
elements of the ANT Server, the Application Server and the AT&T Network (such as
the Oracle database or the platform operating system). Representatives of UPI
will be available by telephone to assist in such installation and if such
installation cannot be accomplished with remote assistance in conformity with
ordinary and routine procedures, practices and response times, representatives
of UPI will appear on site to assist in such installation. [******************
******************************************************************************
******************************************************************************
****************************************]
13
<PAGE>
SECOND AMENDMENT TO THE
MAY 1, 1996 SOFTWARE LICENSE AND SUPPORT AGREEMENT
BETWEEN
UNWIRED PLANET, INC. and AT&T WIRELESS SERVICES, INC.
This SECOND AMENDMENT (the "Second Amendment") is made as of this 7 day of
---------------- --
August, 1997 (the "Second Amendment Effective Date"), by and between: UNWIRED
-------------------------------
PLANET, INC. ("UPI"), a Delaware corporation having a principal office at 390
---
Bridge Parkway, Redwood City, CA 94065; and AT&T Wireless Services, Inc.
("AT&T"), a Delaware corporation, having a principal office at 10230 N.E. Points
----
Drive, Kirkland, WA 98033.
This Second Amendment amends that SOFTWARE LICENSE AND SUPPORT AGREEMENT,
effective as of May 1, 1996, by and between UPI and AT&T (the "Master
------
Agreement"), including the First Amendment thereto, dated November 25, 1996 (the
---------
"First Amendment", collectively, the "Software License Agreement"). Unless
--------------- --------------------------
otherwise defined herein, capitalized terms used herein shall have the meanings
ascribed to them in the Master Agreement.
1. DEFINITIONS.
"UP.Organizer Application" shall mean UPI's personal information management and
------------------------
organization application software, in machine readable (object code) form.
"Waiver Term" shall mean the period beginning as of the Second Amendment
------------
Effective Date and ending on the earlier of: (i) December 31, 1999: or (ii)
termination by mutual agreement of the parties.
2. UP.ORGANIZER LICENSE.
2.1 License Grant. Subject to the terms and conditions of the Software
-------------
License Agreement, as herein amended, UPI hereby grants to AT&T and its
Affiliates that operate or utilize an AT&T Network a non-exclusive, worldwide,
license for UPI's UP.Organizer Application to do the following until such time
as the license granted herein terminates in the manner described in paragraphs
8.2.2 of the Master Agreement or AT&T and its Affiliates discontinue the
UP.Organizer Application pursuant to Section 11 hereof:
(a) install and use the UP.Organizer Application on any servers
situated at the site or sites identified on Exhibit F of the Master
---------
Agreement and any other sites designated from time to time by AT&T;
(b) copy and reproduce the UP.Organizer Application in connection
with the exercise of the rights granted in (a) above;
1
<PAGE>
(c) make and keep a reasonable number of copies of the
UP.Organizer Application for archival or backup purposes; provided,
--------
however, that AT&T " keeps such copies securely stored in a locked
-------
area with access restricted to employees who need such access in
order to operate or maintain the UP.Organizer Application; and
(d) use, reproduce and distribute internally the UP.Organizer
Application Documentation, as defined herein, in connection with the
exercise of any fights granted under this Section 1; provided,
--------
however, that all such copies of the UP.Organizer Application programs
-------
and related Documentation remain subject to the provisions of Section
10.2 of the Master Agreement. The UP.Organizer Application
Documentation shall include all then-current documentation related to
the UP.Organizer Application made available to any UPI customer,
including but not limited to the design and product specifications,
configuration requirements, user manuals, installations and operating
instructions, and test results.
2.2 UPI will deliver to AT&T one (1) copy of the UP.Organizer Application,
and one (1) copy of the current UP.Organizer Application Documentation no later
than fifteen (15) days after entering into this Second Amendment.
2.3 All use of the UP.Organizer shall be subject to a license agreement
that is downloaded by the user or Subscriber, and that is substantially in the
form set forth in Schedule 1 attached hereto. AT&T shall not be required to take
----------
any action to (i) ensure that users or Subscribers comply with the terms of the
license agreement, or (ii) assist UPI in enforcing the terms of such license
agreement.
3. UPGRADES AND ENHANCEMENTS.
UPI will deliver all Upgrades and Enhancements to the UP.Organizer
Application as those are created by UPI [******************************]
provided, however, and only so long as AT&T is current in its payments to UPI
--------- -------
for UP.Organizer Support Services as set forth in Section 5.2 of this Second
Amendment. All Upgrades and Enhancements provided to AT&T will be deemed to be
part of the UP.Organizer Application hereunder.
4. UP.ORGANIZER LICENSE FEE.
4.1 License Fee. In consideration of the license granted herein to the
-----------
UP.Organizer Application, AT&T shall pay to UPI, the one-time license fees in
the amount and in accordance with the payment terms as follows:
No. of Seats Price (per seat)
------------ ---------------
Per Seat License [****************************]
[****************************]
2
<PAGE>
[***************************]
4.2. Assignment of Seats. Seats shall be assigned to Subscribers at AT&T's
-------------------
sole discretion. [************************************************************
********************************************************************************
**************************]
5. UP.ORGANIZER SUPPORT SERVICES AND FEES.
5.1 UP.Organizer Support Services. UPI will, with respect to the
-----------------------------
UP.Organizer Application, furnish AT&T the software maintenance and support
services described in Schedule 2 hereto (the "UP.Organizer Support Services")
-----------------------------
for the term of the Second Amendment.
5.2 UP.Organizer Support Services Fee. AT&T shall pay to UPI an annual fee
---------------------------------
for the UP.Organizer Support Services in the amount of [***] per seat of the
UP.Organizer Application purchased by AT&T.
6. [****] FEE.
In consideration of the [*********] and rights granted hereunder, AT&T
shall pay to UPI the amount of [********************************] for all fees
related to the UPI Email Application [***************************************
********************************************]. Accordingly the sum of [***
******************************************************] is payable by AT&T to
UPI as follows: (i) [*******************************************************
************************************************] and (ii) [**************
*******************************************************]. Upon expiration of
the Waiver Term, AT&T will [****************************************************
**********] licenses [********************************************************
************************]
7. [****] FEES.
7.1 [*******] Email Application Fees. The Per Seat License fee set forth
--------------------------------
in Section 2 and the UPI Email Support Services fees set forth in Section 3 of
the First Amendment for the Email Application shall not apply to sale or license
of seats of the UPI Email Application to Subscribers during the Waiver Term up
to [*************************************] (the Subscriber Limitation). After
---------------------
the Waiver Term AT&T shall [****] payment to UPI of the UPI Email Support
Services fees [**********************************************************
*********************************]. The Waiver hereunder shall [******] any and
all fees due for UPI Email Application [***************************************
***********************************]
7.2 [*******] UP.Organizer Application Fees. The Per Seat License fee set
---------------------------------------
forth in Section 5 and the UP.Organizer Application Support Services fees set
forth in Section 4 of this Second Amendment for the UP.Organizer Application,
shall not apply to sale or license of seats of the UP.Organizer Application to
Subscribers during the Waiver Term, up to the Subscriber Limitation. After the
Waiver Term AT&T shall [****] payment to UPI of the UP.Organizer
3
<PAGE>
Application Support Services fees set forth in Section 4 of this Second
Amendment. [*********************************] any and all fees [*****]
UP.Organizer Application [**************************************************
************************]
7.3 [*******] Monthly Usage Fees. During the Waiver Term the Monthly
----------------------------
Usage Fees set forth in Exhibit G of the Master Agreement, shall be waived up to
---------
the Subscriber Limitation.
7.4 [*****************] for Support Services. During the Waiver Term, the
-----------------------------------
parties agree that the fees for the Support Services set forth in Section 5.3
of the Master Agreement shall be waived.
8. OWNERSHIP
8.1 Ownership by UPI in UP.Organizer Application. Except for the license
--------------------------------------------
granted under Section 2 of this Second Amendment, UPI reserves all of its
Proprietary Rights in the UP.Organizer Application, and no title to or ownership
of the UP.Organizer Application is transferred to AT&T or its Affiliates under
this Second Amendment or the Software License Agreement.
8.2 Trademarks in UP.Organizer Application. UPI reserves all fights in
--------------------------------------
and to any and all trade names and trademarks which UPI uses in connection with
the UP.Organizer Application. AT&T may market, promote, distribute, provide,
operate, and otherwise deal with the UP.Organizer Application using its private
labels, trade names, logos, and trademark, subject to the obligations of AT&T
pursuant to Section 8.3.
8.3 Proprietary Rights Notices. AT&T agrees not to remove, alter, cover,
--------------------------
obfuscate or otherwise deface any copyright notices of UPI contained on or in
UP.Organizer Installer program or the UP.Organizer Application splash screen.
AT&T may include proprietary notices, in addition to the UPI notices, as AT&T
deems necessary to protect its interests therein.
8.4 Attribution. AT&T shall use its [**] efforts to include the UPI logo,
-----------
in the form provided by UPI to AT&T, in a location and size comparable to co-
branding with AT&T content providers and as mutually agreed by the parties
hereto, on all furore printings of the external packaging of all AT&T-purchased
wireless devices that include the UP.Organizer.
9. SOURCE CODE ESCROW
Within ten (10) days after the Effective Date of this Amendment, the
parties and the Escrow Agent will enter into an amendment to the Escrow
Agreement to provide for the delivery of the UP.Organizer Application source
code to the Escrow Agent to be held in escrow, and UPI will deliver to the
Escrow Agent under the Escrow Agreement a complete, current and accurate copy of
the UP.Organizer Application source code. Thereafter, UPI will deliver to the
Escrow Agent all source code for each Upgrade and Enhancement provided to AT&T
hereunder within three (3) days after such Upgrade or Enhancement is delivered
to AT&T. UPI will resubmit the
4
<PAGE>
UP.Organizer Application source code to the Escrow Agent promptly after the
occurrence of every Upgrade and Enhancement provided to AT&T hereunder to such
code, and will ensure that the UP.Organizer Application held in escrow will at
all times match the UP.Organizer Application code which is then being used by
AT&T. All relevant versions of the supporting UP.Organizer Application source
code (as it relates to the hardware platforms, operating systems, utilities,
database management systems and any other supporting code necessary to run the
system) will also be delivered to and held in escrow by the Escrow Agent. The
UP.Organizer Application source code will be delivered to AT&T in the event of a
Minor Release Event or a Major Release Event as follows' (i) following a Minor
Release Event relating to the UP.Organizer Application source code, UPI grants
to AT&T and its Affiliates a license to use, modify and enhance the UP.Organizer
Application source code and to take such other actions with respect thereto
solely as may be necessary to use, correct, maintain, and otherwise support the
UP.Organizer Application; and (ii) following a Major Release Event relating to
the UP.Organizer Application source code. UPI grants to AT&T and its Affiliates
a license to use, modify, enhance and make derivative works from the
UP.Organizer Application source code, and to take such other actions with
respect thereto as may be necessary to use, correct, maintain, enhance, make
derivative works from and otherwise support the UP.Organizer Application.
Notwithstanding the foregoing, if a default or other reason giving rise to the
release of the UP.Organizer Application source code is cured by UPI, then AT&T
will return all copies of such source code to the Escrow Agent to be held in
escrow under the Escrow Agreement and the license granted under this First
Amendment with respect to such source code will terminate until such time as
there is a subsequent occurrence of a default or other reason giving rise to the
release of the UP.Organizer Application source code.
10. WARRANTY
UPI represents and warrants that: (a) it has sufficient fight, title and
interest in and to the UP.Organizer Application to grant the license described
in Section 2 and 9; (b) the UP.Organizer Support Services and software
integration services will be performed by UPI in a professional, workmanlike and
skillful manner; (c) the UP.Organizer Application will comply in all material
respects with the applicable Documentation and the Software License Agreement
and this Second Amendment; and (d) the UP.Organizer Application does not and
will not infringe or misappropriate any Proprietary Right of any third party.
OTHER THAN THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, THERE ARE NO
EXPRESS OR IMPLIED WARRANTIES RELATING TO THE UP.ORGANIZER APPLICATION OR THE
SERVICES COVERED BY THIS AMENDMENT, AND UPI EXPRESSLY DISCLAIMS ANY IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
11. [*********************]
[*******************************************************************
******************************************************************************
******************************************************************************
******************************************************************************
******************************************************************************
************************************************************************]
5
<PAGE>
****************************************************************************
****************************************************************************
****************************************************************************
****************************************************************************
****************************************************************************
****************************************************************************
****************************************************************************
****************************************************************************
*********]
12. SOFTWARE INTEGRATION SERVICES
UPI shall provide the UP.Organizer Application software integration
services set forth in Schedule 3 hereto. UPI will commence and use commercially
reasonable efforts to perform and complete the UP.Organizer Application software
integration and testing services in accordance with the schedule mutually agreed
upon by the parties in writing.
13. APPLICATION SERVER SOFTWARE
13.1 Paragraph 2.2.1 (a) of the Master Agreement is hereby amended to read
as follows:
(a) install and use the Application Server Program on any AT&T
Application Server.
13.2 Paragraph 2.2.2 of the Master Agreement is hereby deleted in its
entirety.
14. OTHER TERMS.
14.1 Enhancements. The parties agree that the term "Enhancements" as
------------
defined in the Master Agreement includes the UP.Web and the facsimile capability
technology delivered to AT&T in version 2.0 of the ANT Server [***************
********************] Accordingly, the parties agree that the terms and
provisions of the Master Agreement apply to such UP.Web and facsimile capability
technology.
14.2 Terms of Software License Agreement. All other terms and conditions of
-----------------------------------
the Software License Agreement shall remain in full force and effect in
accordance with the terms of such Software License Agreement. The following
terms and conditions set forth in the Master Agreement shall apply to the
UP.Organizer Application, and are hereby amended to include the UP.Organizer
Application, as relevant: Sections 1, 2.3, 4.2, 5.4, 5.6, 5.7, 6.1, 7.2, 8,9,
and 10. Unless earlier expired or terminated, this Second Amendment shall
terminate upon termination or expiration of the Master Agreement; provided,
---------
however, that a breach of any term or condition of this Second Amendment shall
---------
not provide a basis for termination of the Master Agreement or of any other
amendments, including the First Amendment, thereto.
14.3 Conflicting Terms. In the event of any conflict between the terms of
-----------------
this Second Amendment and the terms of the Software License Agreement, the terms
of this Second Amendment shall control solely with respect to the subject matter
herein contained.
6
<PAGE>
14.4 Survival. In the event of termination of this Second Amendment, the
--------
provisions of Sections 8, 10, 14.1, 14.3 and 14.4 shall survive, and all
relevant provisions of the Master Agreement as provided in Paragraph 8.5 hereto.
15. REPRESENTATIONS
Each party hereby represents to the other that the undersigned has full and
binding authority to execute this Second Amendment.
ACCEPTED AND AGREED:
UNWIRED PLANET, INC. AT&T WIRELESS SERVICES, INC.
Signature: /s/ Charles M. Parrish Signature: /s/ D. Hesse
---------------------- ------------------------
Printed Name: Charles M. Parrish Printed Name: D. Hesse
-------------------- -----------------------
Title: President Title: President & CEO
--------------------------- -------------------------------
7
<PAGE>
Schedule 1
to the
SECOND AMENDMENT
License Agreement
-----------------
It is important that you read this entire agreement before deciding whether you
agree its terms.
Your use of the PocketNet/TM/ personal organizer on a single handheld device is
subject to the terms and conditions of this Agreement. You agree not to reverse
engineer, compile, &compile, or disassemble the PocketNet personal organizer.
POCKETNET PERSONAL ORGANIZER IS PROVIDED TO YOU "AS IS", AND NEITHER UNWIRED
PLANET, 1NC. ("UPI") NOR AT&T WIRELESS SERVICES, INC. ("AT&T') MAKES ANY
WARRANTIES, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES,
WITH RESPECT TO THE POCKETNET PERSONAL ORGANIZER.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER UPI NOR AT&T SHALL BE
LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR
CONSEQUENTIAL DAMAGES, ARISING OUT OF THIS AGREEMENT OR CAUSED BY THE USE,
MISUSE OR INABILITY TO USE THE POCKETNET PERSONAL ORGANIZER.
The laws of the State of California, U.S.A., exclusive of its choice of law
principles, shall govern this binding legal agreement. You agree that you will
not distribute, transmit, export, reexport, or transfer the PocketNet personal
organizer except in compliance with the most current U.S. export laws and
regulations. If any provision of this Agreement is held to be void, invalid,
unenforceable, or illegal, the other provisions shall continue in full force and
effect.
BY CLICKING THE "ACCEPT" BUTTON, YOU AGREE TO THE TERMS OF THIS AGREEMENT.
1
<PAGE>
Schedule 2
to the
SECOND AMENDMENT
UP.Organizer Support Services
The Support Services to be provided by UPI to AT&T with respect to the
UP.Organizer Application includes ongoing maintenance of the UP.Organizer
Application software to ensure a high level of availability as set forth below.
In the event AT&T notifies UPI of any actual or suspected error or defect
in the UP.Organizer Application, UPI will provide Support Services and qualified
personnel necessary to correct the error or defect in accordance with the terms
of this Agreement. UPI shall use its commercially reasonable best efforts to
remedy each error or defect as soon as reasonably possible with as little
disruption to AT&T or the UP.Organizer Application service as possible. In any
event, UPI will use its commercially reasonable best efforts to remedy all
program errors or defects at the following defect classification levels, as
determined by AT&T in its sole discretion, at least as quickly as the following
response levels:
SEVERE - This category includes any material defect (or other material
failure of the UP.Organizer Application to function according to the
UP.Organizer Application Documentation) which causes the UP.Organizer
Application to be inoperable, to operate improperly or to produce results
materially different from those described in the UP.Organizer Application
Documentation that prevents or seriously impairs the performance of one or more
of the UP.Organizer Application functions. This category includes, but is not
limited to the following:
. [************************************************************
***************************************************************************
************]
. Protocol Stability: Any material failures of user commands
attributable to UPI protocols or software.
. User Configuration: Any material rejection by UPI server or software
of attempted changes and/or updates of Customer profiles.
. Server Communications Links: Any material breakdown or failure of
communications between the ANT, Application Server, database server, the message
storage facility and the UP.Organizer Application server.
. External Communications Links: Any material failure due to
UP.Organizer Application software of the Internet link or other gateways.
1
<PAGE>
UPI response to a "SEVERE" defect will be as follows:
- Contact [*********]
- Workaround [*********]
- Solution [*********]
MODERATE- This category includes any defect (or other failure of the
UP.Organizer Application to function in accordance with the UP.Organizer
Application Documentation) which causes the software to be inoperable, to
operate improperly or produces results materially different from those described
in the UP.Organizer Application Documentation that causes erratic or marginally
impaired performance of one or more of the UP.Organizer Application major
functions, but is not a "SEVERE" defect. UPI response to a "MODERATE" defect
will be as follows:
- Contact [*********]
- Workaround [*********]
- Solution [*********]
MILD - This category includes any defect (or other failure of the
UP.Organizer Application to function according to the UP.Organizer Application
Documentation) which causes the software to be inoperable, to operate improperly
or to produce results materially different from those described in the
UP.Organizer Application Documentation that is not a "SEVERE" defect or a
"MODERATE" defect. UPI's response to a "MILD" defect will be as follows:
- Contact [*********]
- Workaround [*********]
- Solution [*********]
For the purpose of the aforementioned defect classification levels and
response time, the following shall apply:
1. [****************************************************************
****************************************]
2. "Contact" means a telephone call from a qualified support specialist
-------
of UPI to determine the nature of the problem and to begin telephone/remote
diagnosis and support.
3. "Workaround" means UPI has diagnosed the problem and has determined
----------
the steps required to remedy the problem and has implemented or has enabled AT&T
to implement, a temporary workaround solution that allows the UP.Organizer
Application, to regain functionality and substantial operational status of major
functions.
2
<PAGE>
4. "Solution" means that the UP.Organizer Application functions have
--------
been fully restored (including permanent code fixes, documentation, source code
updates and similar information) and the UP.Organizer Application operates
without material defects.
Notwithstanding the foregoing, if an error, defect, or failure is "MILD"
and does not degrade operation of the AT&T Network in a manner observable or
otherwise noticeable to the user, then UPI will have the option to remedy such
error, defect or failure in the next regular release of the UP.Organizer
Application. Program errors, defects or failures will not include errors,
defects or failures resulting from AT&T's improper use of the UP.Organizer
Application, modifications or damage to the UP.Organizer Application by AT&T, or
AT&T's use of the UP.Organizer Application on or with hardware, an operating
system or other software other than as specified in writing or otherwise
approved in writing by UPI as being compatible with the UP.Organizer
Application. If UPI is acting diligently and in good faith, is exercising
commercially reasonable best efforts to remedy such errors, defects or failures,
is making real and substantial progress toward such remedies and there is a
reasonable expectation that UPI will achieve such remedy, then UPI will be
deemed to be in compliance with its obligation to provide the Support Services,
provided, that such efforts and progress are sufficient to actually meet the
response times for program error "Solution" specified above.
UPI shall provide remote maintenance on a 7 day, 24 hour per day, 365 day
per year basis. Should an on-site visit become necessary, UPI shall provide, at
no additional charge, maintenance personnel to the site where the UP.Organizer
Application is installed; provided, however, that if the problem or error is not
attributable to the UP.Organizer Application, or UPI's instructions on the
installation of any subsequent release, AT&T will reimburse UPI for the costs
and expenses reasonably incurred by UPI for the site visit. This software
maintenance may include, without limitation, software error correction,
diagnostics testing (if such testing can be conducted with the UP.Organizer
Application Software running and available for use), reconfiguration,
reinstallation, of software and installation of patches (software fixes).
UPI shall provide, [**********************] software maintenance releases
to correct software program errors. Such software maintenance releases will be
provided to AT&T as necessary to meet the response times for program error
"Solution" specified above.
UPI will provide to AT&T such additional services relating to the
UP.Organizer Application software not otherwise provided as part of the Services
hereunder as may be requested by AT&T from time to time on terms and conditions
and at such rates as may be mutually agreed upon by the parties in writing. In
the event AT&T requests any such additional services from UPI, the parties will
negotiate in good faith with the objective of agreeing upon a written statement
of work that will provide, among other things, a detailed description of the
services and the compensation to be paid to UPI therefor.
UPI will continue to provide Support Services hereunder for prior versions
of the UP.Organizer Application used by AT&T in its service offering for a
period of twelve (12) months following the latest maintenance release, [********
*************************************]
3
<PAGE>
[***] UPI Email is first offered to its customers, unless AT&T has discontinued
the UP.Organizer Application pursuant to paragraph 5 of the First Amendment.
UPI will develop and implement quality assurance measures to insure that
all program error corrections and other Support Services are of workmanlike
quality and completed in a timely manner in accordance with all terms and
conditions of this Agreement.
UPI will ensure that only fully experienced and properly qualified persons
perform the Support Services and that all Support Services are staffed
adequately with personnel capable of providing the Support Services. UPI will,
if requested by AT&T, remove from performance of the Support Services any person
AT&T reasonably determines to be incompetent, insubordinate, careless,
disorderly or otherwise objectionable.
4
<PAGE>
Schedule 3
to the
SECOND AMENDMENT
UP.Organizer Application Software Integration Services
UPI will, in conjunction with AT&T, define specifications for and integrate
the hardware, operating systems, and Oracle database versions for the
UP.Organizer Application engine/package. Upon receipt of such specifications
from UPI, AT&T will establish its computer or computers on which the
UP.Organizer Application will run, along with all other hardware and software
necessary to operate the UP.Organizer Application on the AT&T Network. In
connection with AT&T's initial installation of the computers to be used as the
UP.Organizer Application server, UPI will provide the following services:
1. Installation of the UP.Organizer Application on the AT&T
computers to establish a UP.Organizer Application server on the AT&T
Network to support an initial user/client population of [*****] on
the Launch Date, [******] by [****************************] [*****]
by [***************************] and [*****] by [******************
*********]
2. Cooperation with and provision of assistance to agents and
representatives of AT&T and AT&T's other software and hardware
suppliers which supply elements of the interface with the
UP.Organizer Application server, in the appropriate initial
configuration of the other software and hardware elements to support
an initial user/client population of [*****]
3. Cooperation with and provision of assistance to agents and
representatives of AT&T in the initial configuration of AT&T's
customer care and provisioning procedures to support an initial
user/client population of [*****]
UPI representatives will be present at the site of the installation of the
UP.Organizer Application on the first computer configurations to serve as a
UP.Organizer Application server, and will provide training to an AT&T team with
the understanding that at the conclusion of the installation of the UP.Organizer
Application, the team will be capable of conducting a similar installation on
the next AT&T computer to be designated as a UP.Organizer Application server.
The visit will be at UPI's cost and expense. In the second such installation,
UPI representative will be present at the site and will not conduct the
installation, but will act as advisors to AT&T staff conducting the
installation. [******************************************] In the third and all
subsequent installations, UPI representatives will provide remote telephone and
fax assistance until each installation is formally accepted by AT&T according to
installation standards established at the time of the first installation by the
UPI/AT&T installation team. If the installation of the UP.Organizer Application
cannot be accomplished with remote assistance, representatives of UPI will
appear on site to assist in such installation. [********************************
*****************************************************************************
********************************************************************************
************************************************************************] AT&T
will retain for the
1
<PAGE>
AT&T Network, including responsibility for procuring necessary hardware,
operating systems and software scheduling, planning, and coordinating other
third party suppliers, and other similar activities.
In connection with the installation of Upgrades and subsequent releases of
the UP.Organizer Application to which AT&T is entitled under the Agreement as
amended, UPI will provide AT&T with disks or other media counting such updates
and releases, instructions on appropriate installation of such updates and
releases, and release notes indicating outstanding, problems, explanation of new
features, and a list of problems fixed in the release, and shall confirm in
writing that the UP.Organizer Application will operate and is compatible with
other elements of the ANT Server, the Application Server and the AT&T Network
(such as the Oracle database or the platform operating system). Representatives
of UPI will be available by telephone to assist in such installation and if such
installation cannot be accomplished with remote assistance in conformity with
ordinary and routine Procedures, practices and response times, representatives
of UPI will appear on site to assist in such installation. [******************
************************************************************************
***************************************************************************
********************************************************************************
******************]
2
<PAGE>
THIRD AMENDMENT TO THE
MAY 1, 1996 SOFTWARE LICENSE AND SUPPORT AGREEMENT
BETWEEN
UNWIRED PLANET, INC. and AT&T WIRELESS SERVICES, INC.
This THIRD AMENDMENT (the "Third Amendment") is made as of this _____
---------------
day of February, 1999 (the "Third Amendment Effective Date"), by and between:
------------------------------
UNWIRED PLANET, INC. ("UPI"), a Delaware corporation having a principal office
---
at 800 Chesapeake Drive, Redwood City, Ca 94063; and AT&T Wireless Services,
Inc. ("AT&T"), a Delaware corporation having a principal office at 10230 N.E.
Points Drive, Kirkland, WA 98033.
This Third Amendment amends that SOFTWARE LICENSE AND SUPPORT AGREEMENT,
effective as of May 1, 1996 by and between UPI and AT&T (the "Master
------
Agreement"), including the First Amendment thereto, dated November 25, 1996 (the
---------
"First Amendment") and the Second Amendment thereto, dated August 7, 1997 (the
---------------
"Second Amendment"), collectively, the "Software License Agreement." Unless
---------------- --------------------------
otherwise defined herein, capitalized terms used herein shall have the meaning
ascribed to them in the Software License Agreement.
1. Definitions. Paragraph 1 ("Definitions") of the Master
-----------
Agreement is hereby amended to include the following definitions:
1.1 [***********] shall mean the right of AT&T or any of its
Affiliates to grant a license to [*****************************] to access or
use a UPI Program [******] through an Enabled Device.
1.2 [*****************] shall mean a Subscriber that is
Provisioned to use or access a particular UPI Program
[*******************************************************************************
***********].
1.3 [*****************************************************
******************************************************************************
*******************************************]
1.4 [******************************************************
*******************************************************************************
*******************************************************************************
*******************************************************************************
*******************************************************************************
*******************]
1.5 ["Ecare" shall mean the following electronic customer
care features, functions and uses: (i) providing the following account
information to customers: monthly voice bucket usage, any indication of which
features are currently subscribed to, monthly data usage, number of messages
sent/received, address information and password information: and (ii) altering
the following account information for customers: changing passwords, addresses,
adding/deleting subscription features, and changing rate plans. Notwithstanding
the foregoing.
1
<PAGE>
"Ecare" specifically does not include (i) a Subscriber's ability to change
---
passwords, addresses and functions using a website (i.e., by accessing AT&T's
website from personal computer via a web browser) or an Enabled Device as
those functions are accomplished as part of the current (as of the Third
Amendment Effective Date) functionality of AT&T's PocketNet service) or (ii)
features, functions and/or applications (such as easy dial, star code functions,
and call forwarding or any other use of the AT&T Network) which entail use of
the AT&T Network to change routing.
1.6 "Enable Device" shall mean any wireless device used by a
Subscriber which has the ability to execute UPI's browser software or a third
party's microbrowser.
1.7 "Provision" (and other forms of the verb) shall mean to
make a UPI Program and/or Ecare accessible or usable by a Subscriber.
1.8 "Revenues" shall mean all amounts for which Subscribers
are invoiced by AT&T and its Affiliates for access to or use of the UPI Programs
and Ecare, not including any taxes or regulatory fees imposed thereon which are
charged to Subscribers, less an amount equal to the revenues as described above
multiplied by AT&T's average Subscriber bad debt rate.
1.9 "Subscriber," as used in the Third Amendment shall mean
any individual with an Enabled Device or an entity with an Enabled Device, which
Enabled Device can be used to access or use any UPI Program or Ecare by means of
the AT&T Network.
1.10 "UPI Programs" shall mean the UP Link Server Software,
the UPI Email Application, the UP Organizer Application and the UP Mail Synch
Application, and such other UPI software as the parties may mutually agree in
writing in the future to include in this Software License Agreement as a UPI
Program.
1.11 "UPI Support Services" shall mean the Support Services,
the UPI Email Support Services, the UP Organizer Support Services, the UP Mail
Synch Support Services, the Ecare Support Services, and such other support and
maintenance services for UPI software added to the definition of "UPI Programs;
as the parties may mutually agree in writing to include in this Software
License Agreement.
1.12 "UP Link Server Software" shall mean the UPI Air Network
Translator Server Software.
1.13 "UP Mail Synch Application" shall mean UPI's electronic
mail synchronization applications software, in machine readable (object code)
form.
2. Addition of UP Mail Synch Application License
---------------------------------------------
2.1 Same Terms as for UP Organizer. Subject to the terms
------------------------------
and conditions of the Software License Agreement, as herein amended, UPI hereby
grants to AT&T and its Affiliates that operate or utilize an AT&T Network a
non-exclusive, worldwide license to UPI's UP Mail Synch Application on the same
terms and conditions as for the UP Organizer Application license set forth in
Sections 2.1 ("License Grant"), 2.3.3 ("Upgrades and
2
<PAGE>
Enhancements"), 4.1 ("License Fee") (except that the pricing and payment terms
shall be as set forth in this Third Amendment), 4.2, 5.1 ("UP Organizer Support
Services") (such support services for the UP Mail Synch Application referred to
herein as "UP Mail Synch Support Services"), 5.2 ("UP Organizer Support Services
------------------------------
Fees") (except that the pricing shall be as set forth in this Third Amendment),
8.1 ("Ownership by UPI in UP Organizer Application"), 8.2 ("Trademarks in UP
Organizer Application"), 8.3 ("Proprietary Rights Notices") (except that UP Mail
Synch has no splash screen), 8.4 ("Attribution"), 9 ("Source Code Escrow"), 10
("Warranty"), 11 ("Discontinuation by AT&T") and 12 ("Software Integration
Services") (except that the quantities of user populations and implementation
dates will be mutually agreed by the parties) of the Second Amendment. For the
purposes of this Third Amendment, AT&T's Affiliates will include those entities
covered by the definition of "Affiliate" in the Master Agreement in addition to
those entities set forth in Schedule 3 to this Third Amendment, as may be
amended by AT&T from time to time upon written notice to UPI; provided that such
entity listed on Schedule 3 (a) uses AT&T's UP Link server, or (b) uses its own
UP Link server and uses AT&T as the point of contact to UPI for all customer
care support issues. In the event an entity listed on Schedule 3 uses its own
UP Link server and uses UPI directly for customer care support issues, such
entity will not be included as an Affiliate under this Third Amendment.
2.2 Delivery. UPI will deliver to AT&T one (1) copy of each
--------
UPI Program and one (1) copy of the current documentation for each UPI Program
upon commercial release of the applicable UPI Program. UPI will deliver all
Upgrades and Enhancements to the UPI Programs as those are created by UPI at no
additional charge to AT&T so long as AT&T is current in its payments for the
applicable UPI Program. All Upgrades and Enhancements to a UPI Program will be
deemed part of such UPI Program.
2.3 Perpetual License. The first sentence of Section 8.2.2
-----------------
and Section 8.4 of the Master Agreement is hereby deleted. Subject to the
remaining portions of Section 8.2.2 of the Master Agreement, the licenses
granted under this Third Amendment are perpetual in nature and will survive
the termination or expiration of the Master Agreement or this Third Amendment.
3. UP Link Ecare Field of Use License. Notwithstanding any other
----------------------------------
provision in the Software License Agreement to the contrary, AT&T agrees and
acknowledges that the licenses granted by UPI to AT&T and its Affiliates under
the Software License Agreement do not include the right to use the UP Link
Server Software to provide or offer Ecare to Subscribers. In the event AT&T
wishes to use the UP Link Server Software to provide or offer Ecare to any
Subscriber(s), AT&T will so notify UPI. UPI will, within ten (10) days of such
notice, grant AT&T and its Affiliates a license to use the UP Link Server
Software to offer or provide Ecare under the same terms and conditions set forth
for the license of the UPI Software set forth in Section 2. Upon the grant of
such license, AT&T will pay to UPI the one-time Active Seat Fee set forth in
Schedule 1 ("Pricing") for each Subscriber Provisioned with Ecare. UPI will,
with respect to Ecare furnish to AT&T software maintenance and support services
comparable to those described in Schedule 2 of the Second Amendment (the "Ecare
-----
Support Services"].
----------------
4. Number of [***********]at Expiration of Waiver Term; and Support
----------------------------------------------------------------
Therefor. The last sentence of Section [**************] of the Second
--------
Amendment is hereby deleted in its
3
<PAGE>
entirety and replaced by the following sentence: "Upon expiration of the
Waiver Term AT&T will have purchased (i) the number of [**********] for the UP
Organizer Application, the UP Link Server Software and the UPI Email
Application equivalent to the number of [**********************************
*******] each such UPI Program up to the Subscriber Limitation on the Waiver
Term expiration date and (ii) additionally, (subject to expiration in accordance
with Section 6.3 ("Expiration [********]) of this Third Amendment and upon
payment in full of the associated fees) the number of [********************
************] of the UPI Email Application, the UP Mail Synch Application and
the UP Link Server Software purchased pursuant to Section 6 ("Purchase of
Additional [*************]) of the Third Amendment (collectively, the "Purchased
Licenses"). Support fees for the [**********] under the preceding subsection (i)
that did not expire at the end of the Waiver Term shall be as set forth in
Schedule 1 ("Pricing") of the Third Amendment. Upon payment in full of the fees
for the Purchased Licenses, AT&T will be deemed to have purchased the Purchased
Licenses and will retain the license granted herein for the Purchased Licenses
into perpetuity. The Perpetual nature of the Purchased Licenses will survive any
termination or expiration of the Master Agreement or this Third Amendment."
5. New Fee Structure. Effective as of the Third Amendment
-----------------
Effective Date, AT&T and UPI agree to amend the Software License Agreement to
create a new fee structure. Specifically, the parties agree to replace the
[****************] described in Paragraph 5.2 ("[**************************
*******]") of the Master Agreement with a one-time license fee for [**********
**********************************************] (as defined below) and to
replace the [*********************************************************] ("Fees
for Support Services") of the Master Agreement with [************************
***********************************]. The terms of this revised payment
structure are set forth in this Section 5 ("New Fee Structure") and Schedule 1
----------
("Pricing"). Furthermore, the parties agree that the amounts of the fees set
forth in Schedule 1 ("Pricing") hereto shall apply to [********************
********************************] and future purchases of additional [*********
****] (collectively, "New Licenses") and to the support services therefor. The
------------
amounts of the [****************************] and [**************************]
set forth in Paragraph 3 of Exhibit 2C ("Email Services") of the Master
Agreement, Sections 2.1 and 3.2 of the First Amendment, and Sections 4.1
("License Fee") and 5.2 ("Up Organizer Support Services Fee") of the Second
Amendment respectively, shall not apply to any New Licenses. Exhibit G [*******
---------
*****] of the Master Agreement is hereby deleted in its entirety. AT&T will
ensure that the Affiliates' use of UPI's software is consistent with all of the
terms and conditions imposed on AT&T under this Software License Agreement, and
AT&T [****************************] of its Affiliates in connection therewith.
[*****************************************************************************
******************************************************************************
**********************].
5.1 License Fee. In consideration of the licenses granted
-----------
under the Software License Agreement with respect to each UPI Program and
Ecare AT&T shall pay to UPI the [*******************************************
*************] Fee") for each UPI Program and Ecare in the amounts set forth in
Schedule 1 ("Pricing") attached hereto and in accordance with the payment terms
set forth herein.[*********************************************************
************************************************].
4
<PAGE>
5.2 [****]. In the event [******************] terminates its
-----
use of and access to, or otherwise becomes unable to use to access, any
particular UPI Program or Ecare, AT&T may Provision a different
[************** *******************************************] to access or use
such UPI Program or Ecare.
5.3 Support Fee. In consideration for the UPI Support
-----------
Services, AT&T shall pay to UPI [************************] (the "Support Fee")
-----------
per [******************************************************] for each UPI
Program and Ecare in the amounts set forth in Schedule 1 ("Pricing") attached
----------
hereto and in accordance with the payment terms set forth herein.
5.4 [*****************************************************
******************************************************************************
******************************************************************************
******************************************************************************
******************************************************************************
******************************************************************************
******************************************************************************
******************************************************************************
******************************************************************************
*************************************].
5.5 [***************]. In further consideration of the
-----------------
licenses granted to each UPI Program under the Software License Agreement, AT&T
shall pay to UPI [**************************************************************
**********] for each UPI Program in the amounts set forth in Schedule 1
("Pricing") attached hereto and in accordance with the payment terms set forth
herein.
5.6 [********] Fees Owed During and After the Waiver Term.
The [*********] Fees Owed During and After Waiver Term. The [*********] Fees
------------------------------------------------------
shall apply to: (i) prior to expiration of the Waiver Term, all new [**********]
in excess of the Subscriber Limitation and (only for the relevant UPI Programs)
in excess of the License Blocks; (ii) after expiration of the Waiver Term
through June 30, 2000, all new [**********] in excess of the number of [******
**********] (for each UPI program) existing on the expiration date of the Waiver
Term and (only for the relevant UPI Programs) in excess of the License Blocks;
and (iii) after June 30, 2001, all new [**********] in excess of the number of
[****************] for each UPI Program existing on June 30, 2001.
Notwithstanding the foregoing, AT&T shall pay all amounts due for the License
Blocks, the UP Mail Synch Application and Ecare as provided elsewhere in this
Third Amendment.
6. Purchase of Additional [************].
-------------------------------------
6.1 [************]. AT&T agrees to purchase from UPI
[***************************************************************] for [*******
**] of the UP Link Server Software; [*****************************************
*****] for the UPI Email Application; and [***********************************
***********] for the UP Mail Synch Application (collectively, the [***********
******], individually, a [**************].
6.2 Payment. AT&T will pay UPI for [****************] as
-------
follows: (i) [************************************] Fees set forth in Schedule
1 ("Pricing") attached hereto upon
5
<PAGE>
delivery to AT&T of the first office application ("FOA") version of [*********]
of the UP Link Server Software (herein, "FOA Delivery") and (ii) [************
******************] of such license fees upon the earlier of [***************]
or (y) the commercial launch by AT&T [*******************] UP Link Server
Software. Accordingly, the aggregate [**************] owed by AT&T for each
[***********] shall be as follows: [**************************************
*******************] for the UP Link Server Software [***************]; [***
******************************************************] for the UPI Email
Application [***********], and [**************************************] for the
UP Mail Synch Application [***********]. For purposes of clarity, the Support
Fees, [***************], and [***********] shall apply to the [************] in
accordance with the terms set forth herein.
6.3 Expiration of [*********] On June 20, 2001 with the
--------------------
exception of the number of [**********] of each [***********] equal to the
maximum number of [****************] existing as of any calendar-quarter end
date through June 30, 2001 with respect to the associated UPI Program (but
prior to January 1, 2000), excluding from the [******************************
*****************] up to the [********************], the [**********] purchased
pursuant to such [************] shall expire.
7. Extension of Initial Term. The first sentence of Paragraph 8.1
-------------------------
("Term") of the Master Agreement is hereby deleted and replaced in its entirety
by the following sentence:
"The term of this Agreement will commence on
the date of this Agreement and, unless earlier
terminated in accordance with Paragraph 8.2 or
renewed as provided in this Paragraph 8.1, will
end on December 31, 2002"
8. [*******] Supplier. AT&T agrees to Provision [*************]
------------------
with the Up Link Server Software and shall allow [******************************
********] Provisioned. AT&T also agrees [***********************************
*************************************] the terms and conditions described in
Schedule 2 ("[******] Supplier Provisions") attached hereto.
----------
9. Other Terms.
-----------
9.1 Terms of Software License Agreement. All other terms
-----------------------------------
and conditions of the Software License Agreement shall remain in full force and
effect in accordance with the terms of such Software License Agreement. The
following terms and conditions set forth in the Master Agreement shall apply to
the UP Mail Synch Application, and are hereby amended to include the UP Mail
Synch Application, as relevant; Paragraphs 2.3, 4.2, 5.4, 5.7, 7.2, 8 (except as
modified in Section 2.3 above), 9 and 10. Unless earlier expired or terminated,
this Third Amendment shall terminate upon termination or expiration of the
Master Agreement; provided, however, that a breach of any term or condition of
-------- -------
this Third Amendment, other than a breach of any payment obligation or Section 8
[*******] Supplier"), shall not provide a basis for termination of the Master
Agreement or of any other amendments, including the First Amendment and Section
Amendment thereto.
6
<PAGE>
9.2 Conflicting Terms. In the event of any conflict between
-----------------
the term of this Third Amendment and the terms of the Software License Agreement
the terms of this Third Amendment shall control solely with respect to the
subject matter herein contained.
9.3 Survival. In the event of termination of this Third
--------
Amendment, the provisions of Sections 1, 4, 5, 6, 7, 8 and 9 shall survive, and
all relevant provisions of the Master Agreement as provided in Section 9.1
("Terms of Software License Agreement") hereof.
9.4 Representations. Each party hereby represents to the
---------------
other that the undersigned has full and binding authority to execute this Third
Amendment.
ACCEPTED AND AGREED:
UNWIRED PLANET, INC. AT&T WIRELESS SERVICES, INC.
Signature: /s/ Alain Rossmann Signature: /s/ K.A. Van der Meulin
------------------------ -----------------------
Printed Name: Alain Rossmann Printed Name: K.A. Van der Meulin
--------------------- -------------------
Title: CEO and Chairman Title: SVP, Product Strategy &
--------------------------- Development
--------------------------
7
<PAGE>
Schedule 1
to the
THIRD AMENDMENT
Pricing
1. License Fees.
a. Per [****************************] Fee). The [*******
**********] Fees are calculated on [*************************************]
separately for each UPI Program [*******], as follows:
If [****************************************], then
[**********************************************************]
(Note: If [************************] is [***********************************]
----
then [***************************])
where:
-----
"Licensed Seats" = [***************************************************
*******] to date.
[*************] Subscribers" = number of [*****] Subscribers [**********
**************************].
[**************] = the number by which [*****************] in the
following chart is [***********************************************************
****************************************************] for the particular UPI
Program [*****************************************].
[*********] Fee Table*:
Number of [***** UP Link UP Email UP Mail UP [*****
*****] Server Application Synch Organizer
Purchased** Software*** Application Application
[********** [***** [***** [***** [***** *****
******************* ***** ***** ***** ***** *****
***************] *****] *****] *****] ***** *****]
* [*******] license fees.
** as calculated cumulatively over the entire term of this Agreement for each
UPI Program or Ecare, as appropriate and excluding [***************] that
expired at the end of the Waiver Term or on June 30, 2001.
8
<PAGE>
*** pricing excludes [*****]
b. [*******************************************************
********************************************************************************
******************************************************
**********************************************************************
**********************************************************************
*****************************************************************************
***************************************************
******
**************************************************************************
********
**********************************************************************
************************
**********************************************************************
******************************************************************************
*******************************************************************
************************
******** ********** ********* ************ ********
*************** ************* ******* **********
************
******* ***** ***** ***** ***** *****
****
*************************]
2. Support Fee [********] fee per [*******************] Support).
The Support Fee listed in the following chart shall be paid [******************]
for each [*********] for which support fees shall be required to be paid (herein
referred to as [********************] Support"). The Support Fees owed for each
-----------------------------
[**************] are calculated separately for each UPI Program and Ecare, on
[********************************************]. The number of [*************
********] Support each [***********] be defined as [**************************
**********] that have been Provisioned (for a particular UPI Program or Ecare
as of any [******************] date through [*********************].
9
<PAGE>
[*******************] Support Fee Table:
UP Link UP Email UP Mail Synch UP Organizer [*****]
Server Application Application Application
Software
[*****] [*****] [*****] [*****] [*****]
3. [***************************************************************
***********************************************
**************************** ***********************
**************************** ***********************
****************************
****************************
*********
************ *****************
******************** *****************
************** *****************
*****************************************************************************
*********************************************************************
*********************************************************************
*********************************************************************
*********************************************************************
*********************************************************************
*********************************************************************
*********************************************************************
****************************************
*****************************************************************************
*****************************************************************************
*****************************************************************************
*****************************************************************************
********************************]
10
<PAGE>
Schedule 2
to the
THIRD AMENDMENT
[****************************]
1. [**********************************]
-----------------------------------
1.1 Evolution of the UP Link Server Software. The UP Link
-----------------------------------------
Server Software (also referred to herein at "UP Link") may be improved and
-------
expanded by UPI from time to time through the addition of new capabilities
and/or functionalities which are integrated by UPI into the UP Link Server
Software (hereinafter referred to as "Features") as part of UPI's routine
--------
commercial release process.
1.2 [********] Supplier. AT&T hereby designates UPI as
------------------
[**************] supplier of UP Link Server Software functionality [*****] by
AT&T for AT&T's browser-enabled service subject to the procedures and
requirements outlined in these [********] Supplier Provisions. [**************
*******************************************************************************
*******************************************************************************
*******************************************************************************
*******************************************************************************
*******************************************************************************
*******************************************************************************
*******************************************************************************
*******************************************************************************
*******************************************************************************
*******************************************************************************
*******************************************************************************
*********************************************************************
******************************************************
******************************************************************************
******************************************************************************
******************************************************************************
******************************************************************************
******************************************************************************
******************************************************************************
******************************************************************************
******************************************************************************
******************************************************************************
******************************************************************************
******************************************************************************
******************************************************************************
******************************************************************************
****************************
**************************************************************
******************************************************************************
******************************************************************************
*********************************************]
11
<PAGE>
[*****************************************************************************
*********************]
**************************************************
*******************************************************************************
*******************************************************************************
*******************************************************************************
*******************************************************************************
*******************************************************************************
*******************************************************************************
*******************************************************************************
******************************************************************************
*******************************************************************************
*******************************************************************************
*******************************************************************************
*******************************************************************************
*******************************************************************************
*******************************************************************************
*******************************************************************************
******************************************************************************
*******************************************************************************
*******************************************************************************
*******************************************************************************
*******************************************************************************
*******************************************************************************
*******************************************************************************
*******************************************************************************
******************************************************************************]
12
<PAGE>
Schedule 3
To the
THIRD AMENDMENT
AT&T Listed Affiliates
[***********
*****************
************
******************
****************************]
13
<PAGE>
AMENDMENT NO. 1
TO
Escrow Agreement
Dated July 24, 1996
between
Unwired Planet, Inc.
and
Data Securities International, Inc.
and
AT&T Wireless Services, Inc.
DATED AS OF December 3, 1996
[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
<PAGE>
AMENDMENT NO. 1
TO
Escrow Agreement
This Amendment No. 1, dated as of December 3, 1996, is made to the Escrow
Agreement (the "Agreement"), dated July 24, 1996, between Unwired Planet, Inc.,
a Delaware corporation ("UPI), Data Securities International, Inc., a
_____________ corporation ("Agent"), and AT&T Wireless Services, Inc., a
Delaware corporation ("AT&T"). Except as otherwise indicated, all terms defined
in the Agreement shall have the same meanings when used in this Amendment No. 1.
The parties agree as follows:
1. The following provision is hereby added to the Agreement as a new
paragraph C:
"UPI and AT&T have entered into a First Amendment To The May 1, 1996
Software License and Support Agreement Between UPI And AT&T, dated
November 25, 1996 ("Amendment to Software Agreement"). All terms defined
in the Amendment to Software Agreement shall have the same meanings when
used in this Escrow Agreement with initial letters capitalized."
2. The following provision is hereby added to the Agreement as a new
paragraph D:
"Pursuant to Section 7 of the Amendment to Software Agreement, within
ten (10) days of the Amendment to Software Agreement UPI will deliver to
the Escrow Agent to be held in escrow a complete, current and accurate
copy of the UPI Email Application source code."
3. Paragraph E of the Agreement is hereby amended to read in its entirety
as follows:
"UPI and AT&T desire to appoint Agent to Act as the Escrow Agent to
receive, hold and release the (i) UPI Software Source Code and the
Application Server Software Source Code pursuant to the Software
Agreement and (ii) UPI Email Application source code pursuant to the
Amendment to Software Agreement in accordance with the terms, conditions
and provisions set forth in this Escrow Agreement."
4. Section 2 of the Agreement is hereby amended to read in its entirety as
follows:
"(a) Upon execution of this Escrow Agreement and thereafter within
three (3) days after any Enhancement is delivered to AT&T, UPI shall
deposit with Agent, and Agent shall except from UPI, for storage
purposes only, a complete, current copy of all UPI Software Source Code
and Application Server Software Source Code to be held in escrow
pursuant to this Escrow Agreement. Further, if UPI thereafter makes any
material revision, supplement, improvement, addition, update or new
version to any UPI Software Source Code or the Application Server
Software Source Code, as the case may be, during the Term relating to an
executable version that is generally provided to licensees of the UPI
Software or Application Server Software without additional charge, UPI
shall promptly deposit with Agent, and Agent shall accept from UPI, for
storage purposes only, a complete, current copy of the same to be held
in escrow pursuant to this Escrow Agreement, whereupon UPI may remove
from the Deposit any UPI Software Source Code or Application Server
Software Source Code, as the case may be, that is replaced or superseded
by newly deposited items. UPI shall also promptly deposit with Agent,
and Agent shall accept from UPI, for storage purposes only, all other
UPI Software or Application Server Software code required to be
deposited in escrow by UPI under paragraph 6.2 of the Software
Agreement.
PAGE 1
<PAGE>
(b) Upon execution of the Amendment to Software Agreement and
thereafter, UPI will deliver to the Escrow Agent all source code for
each Upgrade and Enhancement provided to AT&T under the Amendment to
Software Agreement within three (3) days after such Upgrade or
Enhancement is delivered to AT&T. UPI will resubmit the UPI Email
Application source code to the Escrow Agent promptly after the
occurrence of every Upgrade and Enhancement provided to AT&T hereunder
to such code, and will ensure that the UPI Email Application held in
escrow will at all times match the UPI Email Application code which is
then being used by AT&T. All relevant versions of the supporting UPI
Email Application source code (as it relates to the hardware platforms,
operation systems, utilities, database management systems and any other
supporting code necessary to run the system) will also be delivered to
and held in escrow by the Escrow Agent.
(c) The items deposited in escrow under this Escrow Agreement are
sometimes individually or collectively referred to herein as the
"Deposit"."
5. Section 5 of the Agreement is hereby amended to read in its entirety as
follows:
"Agent shall hold in safekeeping and preserve in confidence the Deposit
during the Term and shall release or disclose the applicable portion of
the Deposit only in accordance with the terms of this Agreement."
6. The amendments made to the Agreement by this Amendment No. 1 shall be
effective as of the date of this Amendment No. 1. The Agreement, as
amended by this Amendment No. 1, remains in full force and effect.
Unwired Planet. Inc.: Data Securities International, Inc.:
--------------------- ------------------------------------
Title: /s/ Rick Title: /s/
--------------------------- ----------------------------
By: CFO By: Contract Administrator
------------------------------- -------------------------------
Date Signed: 12/20/96 Date Signed: 1/20/97
---------------------- ----------------------
AT&T Wireless Services, Inc.:
-----------------------------
Title:
---------------------------
By: V.P. & General Manager
------------------------------
Date Signed: 1/10/97
---------------------
PAGE 2
<PAGE>
ESCROW AGREEMENT
between
Unwired Planet, Inc.,
AT&T Wireless Services, Inc.,
and
Data Securities International, Inc.
Dated as of July 24, 1996
<PAGE>
CONTENTS
1. Appointment.................................................... 1
2. Deposit........................................................ 1
3. Deposit List................................................... 2
4. Responsibility for Accuracy and Completeness................... 2
5. Retention and Release of Deposit............................... 2
6. Release of Deposit............................................. 2
7. Release Events................................................. 3
7.1 Release Events................................................... 3
7.2 Release Notice................................................... 3
7.3 Agent's Notice to UPI............................................ 3
7.4 Dispute.......................................................... 3
7.5 Agent's Notice to AT&T........................................... 3
7.6 Withdrawal of Notice............................................. 3
8. Arbitration.................................................... 3
8.1 General.......................................................... 3
8.2 Notice........................................................... 4
8.3 Arbitration...................................................... 4
8.4 No Ex Parte Discussions.......................................... 4
8.5 Procedures....................................................... 4
8.6 Decision......................................................... 4
8.7 Location......................................................... 5
8.8 Jurisdiction..................................................... 5
8.9 Costs............................................................ 5
PAGE i
<PAGE>
9. Interpleader.................................................... 5
10. Fees............................................................ 5
11. No Duty to Inquire into Truth, Authenticity or Authority;
Right to Require Additional Documents........................... 5
12. Indemnification................................................. 5
13. Termination..................................................... 6
13.1 Termination by Agent.............................................. 6
13.2 Termination by AT&T............................................... 6
13.3 No Other Termination.............................................. 6
14. Miscellaneous................................................... 6
14.1 Entire Agreement.................................................. 6
14.2 Notices........................................................... 6
14.3 Changes........................................................... 7
14.4 Severability...................................................... 7
14.5 Facsimile......................................................... 7
14.6 Counterparts...................................................... 7
14.7 Headings.......................................................... 7
14.8 Specific Performance.............................................. 7
14.9 Governing Law..................................................... 7
14.10 Successors and Assigns........................................... 8
PAGE ii
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ESCROW AGREEMENT
This Escrow Agreement, dated as of July 24, 1996, is made and entered
into by and among: AT&T Wireless Services, Inc., a Delaware corporation
("AT&T"); Unwired Planet, Inc., a Delaware corporation ("UPI"); and Data
Securities International, Inc., a _____________ corporation ("Agent").
RECITALS
A. UPI and AT&T have entered into a Software License and Support
Agreement, dated as of May 1, 1996 (the "Software Agreement"). All terms defined
in the Software Agreement shall have the same meanings when used in this Escrow
Agreement with initial letters capitalized.
B. Pursuant to paragraph 6.2 of the Software Agreement, UPI must prepare
and deliver to the Escrow Agent to be held in escrow a complete, current and
accurate copy of all the UPI Software Source Code and the Application Server
Software Source Code.
E. UPI and AT&T desire to appoint Agent to act as the Escrow Agent to
receive, hold and release the UPI Software Source Code and the Application
Server Software Source Code pursuant to the Software Agreement in accordance
with the terms, conditions and provisions set forth in this Escrow Agreement.
AGREEMENT
UPI, AT&T and Agent therefore agree as follows:
1. Appointment
UPI and AT&T hereby appoint Agent, and Agent hereby accepts appointment,
to act as the "Escrow Agent" contemplated by the Software Agreement.
2. Deposit
Upon execution of this Escrow Agreement and thereafter within three (3)
days after any Enhancement is delivered to AT&T, UPI shall deposit with Agent,
and Agent shall accept from UPI, for storage purposes only, a complete, current
copy of all UPI Software Source Code and Application Server Software Source Code
to be held in escrow pursuant to this Escrow Agreement. Further, if UPI
thereafter makes any material revision, supplement, improvement, addition,
update or new version to any UPI Software Source Code or the Application Server
Software Source Code, as the case may be, during the Term relating to an
executable version that is generally provided to licensees of the UPI Software
or Application Server Software without additional charge, UPI shall promptly
deposit with Agent, and Agent shall accept from UPI, for storage purposes only,
a complete, current copy of the same to be held in escrow pursuant to this
Escrow Agreement, whereupon UPI may remove from the Deposit any UPI Software
Source Code or Application Server Software Source Code, as the case may be, that
is replaced or superseded by newly deposited items. UPI shall also promptly
deposit with Agent, and Agent shall accept from UPI, for storage purposes only,
all other UPI Software or Application Server Software code required to be
deposited in escrow by UPI under paragraph 6.2 of the Software Agreement. The
items deposited in escrow under this Escrow Agreement are sometimes collectively
referred to herein as the "Deposit".
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3. Deposit List
Upon each deposit under paragraph 2, UPI shall furnish to Agent a complete,
current list ("Deposit List"), identifying all of the items contained in the
Deposit, together with a written certification by an authorized agent of UPI
that: (a) the Deposit List is accurate; and (b) a complete master, reproducible
copy Of each item on the Deposit List is in the Deposit. Each time that UPI
deposits any items pursuant to paragraph 2, Agent shall prepare and deliver to
UPI a written receipt for the same. Promptly after each deposit, Agent shall
deliver to AT&T a copy of the Deposit List and certification furnished by UPI
and a copy of the receipt prepared by Agent.
4. Responsibility for Accuracy and Completeness
Agent shall not be required to determine the accuracy or completeness of
any deposit under paragraph 2 or any Deposit List furnished by UPI under
paragraph 3. Further, Agent shall not be responsible for any items not actually
deposited with it, whether or not such items were required to be deposited under
the terms of this Escrow Agreement, the Software Agreement or any other
agreement.
5. Retention and Release of Deposit
Agent shall hold in safekeeping and preserve in confidence the Deposit
during the Term and shall release or disclose the Deposit only in accordance
with the terms of this Agreement.
6. Release of Deposit
Agent shall release the Deposit only as follows:
(a) Agent shall release the Deposit to UPI or AT&T upon Agent's
receipt of written instructions to do so signed by an officer of each of
UPI and AT&T; provided that all fees payable to Agent for performance of
its services hereunder have been fully paid.
(b) Agent shall release the Deposit to UPI at any time that Agent
ceases doing business or is unable to hold the Deposit in accordance with
the terms of this Agreement due to forces beyond its reasonable control;
provided that all fees payable to Agent for performance of its services
hereunder have been fully paid, and provided further that Agent gives such
advance notice to UPI and AT&T as is reasonably practicable in the
circumstances. Upon such notice, UPI and AT&T shall use their best efforts
to agree upon a substitute escrow agent and enter into an escrow agreement
containing substantially the same terms as this Escrow Agreement pursuant
to which UPI shall deliver the Deposit to the substitute escrow agent.
(c) Agent shall release the Deposit to AT&T on the eleventh (11th)
day after Agent gives UPI a written Release Notice therefor pursuant to
paragraph 7.3, provided that Agent does not receive a Dispute Notice from
UPI in the manner and within the time specified in paragraph 7.4.
(d) Agent shall release all or a portion of the Deposit in accordance
with any arbitration award pursuant to Section 8 determining that a Release
Event as to the UPI Software or the Application Server Software, as the
case may be, has occurred, but in no event less than ten (10) days
following such award.
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(e) Agent shall release the Deposit to such persons and in such manner
as may be directed by order of any court of competent jurisdiction pursuant
to Section 9 or otherwise.
(f) Upon the termination or expiration of the Term pursuant to Section
13, Agent shall release the Deposit to UPI or, if directed in writing
signed by an officer of UPI and an officer of AT&T, to a substitute escrow
agent.
7. Release Events
7.1 Release Events
AT&T shall be entitled to release of the Deposit upon the occurrence of a
Release Event.
7.2 Release Notice
Upon the occurrence of any Release Event, AT&T may deliver to Agent a
written notice (the "Release Notice") of the Release Event and requesting
release of the Deposit as provided for in paragraph 7.1. The Release Notice must
contain a statement, verified by an officer of AT&T, that the applicable Release
Event has occurred and that the Deposit is to be released.
7.3 Agent's Notice to UPI
Upon receipt of a Release Notice, Agent shall promptly give UPI written
notice of such receipt and transmit with such notice a copy of the Release
Notice.
7.4 Dispute
UPI may dispute a Release Notice at any time within ten (10) days after
UPI receives written notice thereof pursuant to paragraph 7.3, by giving written
notice to Agent specifically denying the occurrence of such Release Event and
setting forth a description of any facts that indicate that the Release Event
did not occur (the "Dispute Notice").
7.5 Agent's Notice to AT&T
Upon receipt of a Dispute Notice, Agent shall promptly give AT&T notice of
such receipt and transmit with such notice a copy of the Dispute Notice.
7.6 Withdrawal of Notice
AT&T may withdraw its Release Notice at any time by giving Agent and UPI
written notice of such withdrawal. UPI may withdraw its Dispute Notice at any
time by giving Agent and AT&T written notice of such withdrawal.
8. Arbitration
8.1 General
Any dispute of a Release Notice pursuant to paragraph 7.4 shall be settled
by final and binding arbitration in accordance with the provisions of this
section. The sole issue to be decided in any such arbitration shall be whether
any Release Event has occurred.
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8.2 Notice
If, within fifteen (15) days after receipt of any notice from Agent that it
has received a Dispute Notice, the dispute has not been resolved in a mutually
acceptable manner, either party may initiate the arbitration procedure under
this section by giving the other party written notice demanding arbitration of
the dispute.
8.3 Arbitration
Unless otherwise agreed by UPI and AT&T, any dispute submitted to
arbitration under this section shall be presented to a panel of three
arbitrators. The party demanding arbitration under paragraph 8.2 shall appoint
and specify one of the arbitrators in its notice demanding the arbitration. The
other party shall appoint a second arbitrator and give the demanding Party
written notice of such appointment within thirty (30) days after the notice
demanding the arbitration. The two arbitrators so appointed shall appoint a
third arbitrator who shall act as chairman of the arbitration panel, if the two
arbitrators appointed by the parties do not agree upon the third arbitrator
within thirty (30) days after appointment of the second arbitrator, then, upon
request of UPI or AT&T, the third arbitrator shall be appointed in accordance
with the Arbitration Rules of the Judicial Arbitration and Mediation Services,
Inc. (J.A.M.S.). If any arbitrator is unable to serve as an arbitrator, then a
substitute arbitrator shall be promptly designated by the person or persons who
appointed the arbitrator who is unable to serve.
8.4 No Ex Parte Discussions
No party may discuss the dispute to be arbitrated with any arbitrator after
such arbitrator is appointed and prior to the arbitration panel's determination,
without providing the other party with reasonable advance notice and the
opportunity to participate in such discussions.
8.5 Procedures
The arbitration shall be conducted in accordance with the Arbitration Rules
of J.A.M.S. Additional rules of procedure for the conduct of the arbitration may
be determined by a majority of the arbitrators. Such rules of procedures shall
direct the expeditious evaluation of the merits of the dispute and rendering of
a decision consistent with the complexity of the dispute being arbitrated. In
any arbitration, each party shall have:
(a) full access to the records of the other parties that pertain to
the dispute;
(b) the power to call for testimony of any director, officer,
employee, agent or representative of the other parties; and
(c) all other rights of discovery accorded to parties in civil actions
under the Federal Rules of Civil Procedure (or rules or laws applicable to
court proceedings adopted in lieu thereof) applicable in proceedings before
the court specified in section 9.8.
8.6 Decision
Unless otherwise agreed by UPI and AT&T, the arbitrators shall render a
decision determining whether the Release Event has occurred within thirty (30)
calendar days after completion of the arbitration proceeding. The decision of
the arbitration panel shall be made by a majority of the arbitrators and shall
be binding upon the parties.
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8.7 Location
Any arbitration hearings under this Agreement shall be held at a mutually
acceptable location in or near San Francisco, California, U.S.A.
8.8 Jurisdiction
The Superior Court of the State of California in and for the City and
County of San Francisco, shall be the forum for any court supervision of any
arbitration under this section.
8.9 Costs
Each party shall pay for the services and expenses of the arbitrator
appointed by it. The costs for the services and expenses of the third arbitrator
and all administration costs of the arbitration shall be paid by the non-
prevailing party.
9. Interpleader
Notwithstanding any other provision of this Agreement, if Agent receives a
Release Notice and Agent is uncertain whether the Release Notice was timely or
otherwise effective, then Agent may, in its sole discretion, begin an
interpleader action and deposit the Deposit with the clerk of the court or
withhold release of the Deposit until instructed otherwise by court order. In
connection with any such deposit, Agent shall seek an appropriate order to seal
the deposit so as to prevent release or disclosure to third parties.
10. Fees
AT&T shall pay to Agent the initial and annual fees prescribed on the
attached Exhibit 1 for performance of services by Agent during the Term. Agent
may change its rates from time to time by providing at least sixty (60) days'
advance written notice of such change to AT&T.
11. No Duty to Inquire Into Truth, Authenticity or Authority; Right to Require
Additional Documents
Agent shall not be required to inquire into the truth of any statements or
representations contained in any notices, certificates or other documents
required or otherwise provided hereunder, and shall be entitled to assume that
the signatures on such documents are genuine, that the persons signing on behalf
of any party thereto are duly authorized to execute the same, and that all
actions necessary to render any such documents binding on the party purportedly
executing the same have been duly undertaken. Without in any way limiting the
foregoing, Agent may in its discretion require from UPI or AT&T additional
documents which it deems to be necessary or desirable in the course of
performing its obligations hereunder.
12. Indemnification
Agent shall be responsible to perform its obligations under this Agreement
and to act in a reasonable and prudent manner with regard to the escrow
arrangement set forth herein. Provided Agent has acted in the manner stated in
the preceding sentence, AT&T and UPI each agree to indemnify, defend and hold
harmless Agent from any and all claims, actions, damages, arbitration fees and
expenses, costs, attorney's fees and other liabilities incurred by Agent
relating in any way to the escrow arrangement set forth in this Agreement.
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13. Termination
13.1 Termination by Agent
Agent may, at any time, terminate the term of this Agreement by resigning
as escrow agent hereunder. Agent shall provide UPI and AT&T ninety (90) days'
advance written notice of its intention to resign. Further, Agent may terminate
the term of this Agreement upon written notice to UPI and AT&T if AT&T defaults
in the payment of the fees payable to Agent under section 10 and fails to cure
such default within ten (10) days after its receipt of written notice of default
from Agent.
13.2 Termination by AT&T
AT&T may, at any time, terminate the term of this Agreement by providing
Agent fourteen (14) days advance written notice of such termination, signed by
an officer of AT&T; provided that all fees payable to Agent for performance of
its services hereunder have been fully paid.
13.3 No Other Termination
Except as provided in paragraphs 13.1 and 13.2, this Escrow Agreement may
not be terminated or modified except in writing signed by Agent, UPI and AT&T;
provided, however, that this Agreement will terminate and all items held in
escrow hereunder will be returned to UPI upon any termination of the license
granted to AT&T under Section 2 of the Software Agreement.
14. Miscellaneous
14.1 Entire Agreement
This Escrow Agreement constitutes the final and entire agreement among the
parties with respect to the subject matter hereof and supersedes all prior
arrangements or understandings.
14.2 Notices
All notices, requests, consents and other communications provided for
herein to any party shall be deemed to be sufficient if contained in a written
instrument either: (a) delivered in person or by facsimile or telex; or (b) sent
by first-class registered or certified mail postage prepaid, addressed to the
party at the address set forth below, or such other address as may be hereafter
be designated in writing by the party. Notices will be effective only upon
actual receipt.
If to UPI: Unwired Planet, Inc.
390 Bridge Parkway
Redwood Shores, CA 94065
Attn: President
If to AT&T: AT&T Wireless Services, Inc.
Wireless Data Division
10230 N.E. Points Dr.
Kirkland, Washington 98033
Attn: WDD General Counsel
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If to Agent: Data Securities International, Inc.
425 California Street, Suite 1450
San Francisco, CA 94104
Attn: ______________________
14.3 Changes
The terms of this Escrow Agreement may not be modified or amended, or any
of the provisions hereof waived, temporarily or permanently, except pursuant to
the written consent of the parties.
14.4 Severability
If any term or provision of this Escrow Agreement or the application
thereof as to any person or circumstance shall to any extent be invalid or
unenforceable, the remaining terms and provisions of this Escrow Agreement or
the application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable shall not be affected
thereby and each term and provision of this Escrow Agreement shall be valid and
enforceable to the fullest extent permitted by law.
14.5 Facsimile
This Escrow Agreement may be executed by facsimile signature.
14.6 Counterparts
This Escrow Agreement may be executed in any number of counterparts, and
each such counterpart shall be deemed to be an original instrument. All such
counterparts together shall constitute but one agreement.
14.7 Headings
The headings of the various sections of this Escrow Agreement have been
inserted for convenience of reference only and shall not be deemed to be a part
of this Escrow Agreement.
14.8 Specific Performance
In the event of any breach of or default under this Agreement by any party,
other than a breach or default of a monetary obligation, the other party may
suffer irreparable harm and have no adequate remedy at law. Consequently, in the
event of such breach or default, or any threat of such breach or default, by any
party, then the other parties will be entitled to temporary or permanent
injunctive relief, specific performance and such other equitable relief as may
be appropriate in he circumstances in order to restrain or enjoin the breach or
default. This paragraph will not be interpreted or construed to require the
release of the Deposit pursuant to a Release Notice that has been disputed in
good faith by UPI in accordance with paragraph 7.4, prior to resolution of the
dispute pursuant to Section 8. The rights and remedies under this paragraph are
in addition to, and not in lieu of, any other right or remedy afforded under any
other provision of this Agreement, by law or otherwise.
14.9 Governing Law
This Escrow Agreement shall be governed by and construed in accordance with
the laws of the State of California without regard to the principles of
conflicts of laws.
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14.10 Successors and Assigns
This Agreement shall inure to the benefit of, be binding upon and be
enforceable by each of the parties and their respective successors and assigns.
The assignment and delegation rights of the Parties with respect to this
Agreement are set forth in Section 10.5 and 10.6 of the Software Agreement.
IN WITNESS WHEREOF, the parties have executed this Escrow Agreement as of
the date set forth above.
UPI: Unwired Planet, Inc.
By /s/ Rick Smith
-----------------------------
Title CFO
-------------------------
AT&T: AT&T Wireless Services, Inc,
By
-----------------------------
Title Vice President
--------------------------
Agent: Data Securities International, Inc.
By
------------------------------
Title Western Regional Manager
--------------------------
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EXHIBIT 1 TO ESCROW AGREEMENT
Fee Schedule
------------
See Attached.
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ESCROW ANNUAL FEES
ACCOUNT ADDITIONAL
PROTECTION SYSTEM FIRST RENEWAL BENEFICIARY
YEAR YEARS OR DEPOSITOR
Preferred $2,300 $1,300 $ n/a
Master Preferred Depositor 3,300 1,300 650
Master Preferred Beneficiary 3.300 1,300 1,300
Comprehensive Preferred 3,100 2,100 n/a
FlexSAFE 1,500 1,200 50
SAFE 1,500 3,200 200
Technology Protection [POST] 650 650 n/a
1 Included Services
Administrative services and protection vary depending on the system selected.
Please consult with your DSI representative to ensure that you are utilizing
the agreement that is best suited to your needs.
2 Custom Agreements
A $550 customization fee will be added to the first year when contract charges
increase DSI's risk or modify our release, termination or update processors.
3 Preferred Discounts
Preferred fees will be discounted $650/year when the deposit materials are
held in an existing DSI escrow account.
4 Additional Protection Systems
New systems may be added for a fee equal to the setup for the new system. The
setup fee is the difference between the first year and renewal year fees. POST
systems may be upgraded to escrow systems - contact your DSI representative
for further information.
SERVICE OPTIONS
Unlimited deposit updates/replacements + one additional $ 300/yr
storage unit
Individual deposit updates/replacements $ 200/ea
Deposit/Track updates $ 300/ea
Remote vaulting $ 500/yr
Release filing fee no/fee
Additional storage units $ 100/ea
Technical verification (estimates based on $150/hr.)
Verification Level I $ 300-600
Verification Level II (includes level I) $ 600-1,200
Verification Level III (includes level II) $2,400-4,600
<PAGE>
EXHIBIT B
DESCRIPTION OF DEPOSIT MATERIALS
Depositor Company Name
_________________________________________________________
Account Number
_________________________________________________________________
PRODUCT DESCRIPTION:
Product Name __________________________________ Version ______________________
Operating System
_______________________________________________________________
________________________________________________________________________________
Hardware Platform
_____________________________________________________________
________________________________________________________________________________
DEPOSIT COPYING INFORMATION:
Hardware required:
______________________________________________________________
________________________________________________________________________________
Software required:
_____________________________________________________________
________________________________________________________________________________
DEPOSIT MATERIAL DESCRIPTION:
Qty Media Type & Size Label Description of Each Separate Item
(excluding documentation)
_____ Disk 3.5" or ____
_____ DAT tape ____ mm
_____ CD-ROM
_____ Data cartridge tape
_____ TK 70 or ____ tape
_____ Magnetic tape ____
_____ Documentation
_____ Other _________________________
I certify for Depositor that the DSI has inspected and accepted
above described deposit materials materials (any exceptions are
have been transmitted to DSI: noted above):
Signature _________________________ Signature ____________________________
Print Name _______________________ Print Name __________________________
Date ______________________________ Date Accepted ________________________
Exhibit B# ___________________________
Send materials to: DSI, 9555 Chesapeake Dr. #200, San Diego, CA 92123