Exhibit 10.11
SOFTWARE LICENSE AGREEMENT
This SOFTWARE LICENSE AGREEMENT (the "Agreement") is dated as of the _12th day
of _December, 2003 ("Effective Date") and is made by and between ALLTEL
COMMUNICATIONS, INC., a Delaware corporation, located at Xxx Xxxxxx Xxxxx,
Xxxxxx Xxxx, Xxxxxxxx 00000, XXX ("ALLTEL") and Dwango North America, Inc., a
Texas corporation whose principal place of business is located at 0000 Xxx
Xxxxxx Xx., Xxxxx 0000, Xxxxxxx, Xxxxx 00000-0000 ("Developer").
Capitalized terms used herein shall have the same meaning ascribed to them in
the BREW Developer Agreement between QUALCOMM and the Developer.
1. License Grant.
1.1 Grant of License to BREW Software. Developer hereby grants
to ALLTEL a fully paid-up, royalty free, within the United States, Canada and
Mexico, assignable, non-exclusive, right and license for the term of the
Agreement to: (i) to reproduce and include each BREW Application and related
documentation developed by Developer in the Carrier Catalog in object code
format only; (ii) to distribute through multiple tiers of distribution to
ALLTEL's end user subscribers ("End Users") an unlimited number of copies of
such BREW Applications in object code form only and all related documentation
and (iii) use and reproduce all logos, marks, screen shots, literature,
demonstration programs and other related items. With respect to each BREW
Application, the foregoing license shall commence on the date the BREW
Applications is downloaded into the ALLTEL Catalog and will terminate on the
earlier of (a) the date the BREW Application is removed from the ALLTEL Catalog,
or (b) the date of termination of this ALLTEL License Agreement. Any such
termination shall not terminate an End User's right to continue to use a BREW
Application downloaded by the End User prior to such termination.
1.2 License Restrictions. Except to the extent permitted by
this Agreement or by applicable law, ALLTEL agrees (i) it will not otherwise
distribute BREW Applications; (ii) it will not modify, reverse assemble,
decompile or reverse engineer a BREW Application, and (iii) it will not remove,
efface or obscure any copyright notices, logos or other proprietary notices or
legends included in a BREW Application.
2. Removal of a BREW Application from the Carrier Catalog.
2.1 Developer's Requested Removal of a BREW Application from
the Carrier Catalog. Developer shall provide ALLTEL thirty (30) days prior
written notice that Developer desires to remove a BREW Application from the
Carrier Catalog. Developer acknowledges and agrees that ALLTEL's removal of any
BREW Application from the Carrier Catalog does not terminate the rights or
licenses of End Users who obtained such BREW Application from ALLTEL prior to
the date of removal.
2.2 ALLTEL's Removal of a BREW Application from the Carrier
Catalog. ALLTEL may remove a BREW Application from the Carrier Catalog at any
time and for any reason in the ALLTEL's sole discretion. Developer acknowledges
and agrees that ALLTEL's removal of any BREW Application from the Carrier
Catalog does not terminate the rights or licenses of End Users who obtained such
BREW Application from ALLTEL prior to the date of removal.
2.3 Developers Refund for Applications. In the event that
ALLTEL or Developer removes a BREW Application or Extension for any reason from
an End User, Developer will be responsible for refunding its revenues associated
with that BREW Application or Extension to Qualcomm.
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3. BREW Extensions. For purposes of Section 1 (License Grant) and
Section 2 (Removal of BREW Applications from the Carrier Catalog) the term "BREW
Application" includes any BREW Extensions used, accessed or called by a BREW
Application.
4. The DAP.
4.1 DAP Negotiation. Developer and ALLTEL may choose, from time
to time, to discuss and negotiate a DAP for a particular BREW Application that
will apply only to ALLTEL. If Developer and ALLTEL agree to an alternate DAP for
a BREW Application, Developer will submit an alternate Pricing Template for the
BREW Application. ALLTEL shall have the right in its sole discretion to charge
any price to the End-Users so long as the Developer and QUALCOMM receive the
proportionate share of the DAP.
4.2 No Fees. No payments shall be made by either Developer or
ALLTEL to the other under this Agreement, or for any use or development of BREW
Applications. Developer shall look solely to QUALCOMM for payment for the
applications licensed under this Agreement. Developer shall not charge ALLTEL
any fees for those BREW Applications which are utilized by ALLTEL employees
solely for sales and demonstration purposes (not to exceed 3,000 ALLTEL
employees in any calendar month, unless otherwise agreed to by the parties in
writing).
4.3 Co-op Advertising. Developer agrees to pay for advertising,
placement fees and any other such fees, as mutually agreed. Such
advertising-related payments shall be made by Developer directly to ALLTEL.
Developer will be solely responsible for all fees, including layout, printing,
shipping, etc. for other advertising materials, such as literature and training
materials. Such advertising materials shall meet ALLTEL's reasonable
specification, which ALLTEL may change from time-to-time. In no event shall
ALLTEL obligated to display such literature without ALLTEL's prior written
consent.
5. Ownership. Subject to the licenses granted in this Agreement and the
End User License Agreement, Developer and its licensors are and will remain the
owner of all right, title and interest in and to each BREW Application and BREW
Extension, including all intellectual property therein.
6. Representations and Warranties.
6.1 No Viruses. Developer represents and warrants to ALLTEL
that each BREW Application developed by Developer will be free from (i) viruses
and code that disrupts, disables, xxxxx, erases the memory of, or otherwise
impedes the operation, features or functions of any software, firmware,
hardware, wireless device, computer system or network, or (ii) code that would
permit Developer or any third party to access the BREW Application to cause the
disablement or impairment of the BREW Application or a BREW Device. In the event
of a breach of the foregoing warranty, Developer will be liable and responsible
for all actual losses, costs, expenses and damages, including, without
limitation, the cost of recalling BREW Devices.
6.2 BREW Application Warranty. Each BREW Application will be
deemed accepted by ALLTEL at the time it is downloaded by the ALLTEL from
QUALCOMM. Developer warrants and represents: (1) that the BREW Application shall
conform in all respects with the requirements of this Agreement; (2) Developer
has the legal right to grant ALLTEL the rights and interests in this Agreement
and that the BREW Application is free from any claim of infringement or other
intellectual property related claim by any third party, and further agrees that
it shall defend, indemnify and hold ALLTEL and its End-Users harmless from any
third party infringement claims relating to the BREW Application in accordance
with Section 8.1 herein. Developer also warrants that it has full power, and
rights to and in, the associated marks and names of the BREW Application; (3)
that BREW Application shall be free from
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defects, including any latent defects, in material, engineering and workmanship
which arise under proper and normal use; (4) that if the BREW Application
contains any authorization codes ("keys") embedded therein, Developer agrees
that these codes, upon expiration, will not result in the disruption of ALLTEL's
or End-User's authorized use of the BREW Application. These codes, if any, will
only be "soft stop" in nature (i.e.: display warning messages); (5) that the
BREW Application as licensed hereunder does not contain any computer viruses;
(6) that the BREW Application does not contain any timer, clock, or other code
which could cause it to cease functioning unless the existence of such code is
disclosed by Developer; (7) that BREW Application and any related services
performed by Developer shall comply with all laws and regulations relating to
the BREW Application or services; (8) any enhancement, fixes, repairs, upgrades,
patches or other services related to the BREW Application licensed hereunder
will comply with the warranties set forth in this Section 6.2; (9) that at the
time of signing this Agreement, Developer is not aware of any claims against
Developer regarding the BREW Application; (10) all services provided to carrier
by Developer shall be provided in a professional and workmanlike manner; and
(11) the BREW Application shall perform in accordance with all written
descriptions and documentation provided by or authored by Developer, including
written representations made by Developer to ALLTEL. Developer warrants to
ALLTEL, during the term of this Agreement or any renewal thereof that after
ALLTEL downloads a copy of a BREW Application from QUALCOMM, that the BREW
Application will perform substantially in accordance with the applicable
documentation. In the event of a breach of this warranty, ALLTEL must provide
written notice to Developer within the warranty period and Developer will, after
receipt of such notice (i) repair the BREW Application, (ii) replace the BREW
Application with a BREW Application which conforms to the foregoing warranty, or
(iii) terminate this Agreement with respect to the BREW Application. Developer
does not warrant that the operation of a BREW Application will be uninterrupted
or error free.
6.3 Warranty Remedies. Developer will provide the following
warranty remedies provided ALLTEL notifies Developer during the specified
warranty period, of any non-conformance to the above warranties.
(i) Developer shall first attempt to promptly repair, remedy or
replace defective BREW Application so that they function in
accordance with the documentation as provided by Developer.
(ii) If, after reasonable attempts, Developer is unable to
otherwise repair, remedy, or replace any such BREW Application
under Section 6.3(c) (i), then Developer shall promptly refund
the full purchase price. In the event that ALLTEL exercises any
remedy for any breach of warranty, ALLTEL shall not be precluded
from seeking any and all remedies available to ALLTEL at law or
in equity.
7. DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES AND REPRESENTATIONS SET
FORTH IN THIS AGREEMENT, NEITHER DEVELOPER, ITS LICENSORS NOR ALLTEL MAKE ANY
OTHER WARRANTIES, EXPRESS OR IMPLIED. EACH PARTY EXPRESSLY DISCLAIMS ALL OTHER
WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY,
INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTIBILITY, FITNESS
FOR A PARTICULAR.
8. Indemnification.
8.1 Indemnification. Developer hereby agrees to defend,
indemnify and hold harmless ALLTEL and its End Users (each, an "Indemnified
Party") against any and all claims, demands, causes
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of action, damages, costs, expenses, penalties, losses and liabilities (whether
under a theory of negligence, strict liability, contract or otherwise) incurred
by an Indemnified Party (including reasonable attorney fees) arising out of,
resulting from or related to (i) a breach of any representation or warranty
under this Agreement or (ii) any authorized use, reproduction or distribution of
a BREW Application or BREW Application documentation developed by Developer
which causes an infringement of any patent, copyright, trademark, trade secret,
or other property rights of any third parties arising in any jurisdiction
throughout the world. ALLTEL agrees to provide Developer with written notice of
any third party claim subject to indemnification, allowing Developer to have
sole control of the defense of such claim and any resulting disposition or
settlement of such claim; provided, however that the ALLTEL may participate in
the defense of a claim on an equal basis at its own expense. Any disposition or
settlement that imposes any liability on or affects the rights of ALLTEL will
require the ALLTEL's prior written consent.
8.2 Remedies. If Developer determines that a BREW Application
becomes, or is likely to become, the subject of an infringement claim or action,
Developer shall: (i) first attempt to procure, at no cost to ALLTEL, the right
to continue distributing such BREW Application, or portion thereof, as
applicable; (ii) then second if 8.2(i) is not possible after Developer has
exerted commercially reasonable efforts, then Developer shall replace or modify
the BREW Application, or portion therefor, as applicable to render it
non-infringing, provided there is no material loss of functionality; or (iii)
after Developer has exerted commercially reasonable efforts and neither 8.2(i)
nor 8.2(ii) above are not commercially feasible, (a) ALLTEL shall immediately
remove the BREW Application from the Carrier Catalog upon Developer's written
request; and (b) Developer may terminate this Agreement for such BREW
Application.
9. Liability Limitations.
9.1 EXECPT FOR THE DEVELOPERS INDEMNIFICATION OBLIGATIONS SET
FORTH IN SECTION 8, ABOVE, EITHER PARTY'S LIABILITY FOR ANY CLAIM OR CAUSE OF
ACTION WHETHER BASED IN CONTRACT, TORT OR OTHERWISE WHICH ARISES UNDER OR IS
RELATED TO THIS AGREEMENT SHALL BE LIMITED TO SUCH PARTY'S DIRECT OUT-OF-POCKET
DAMAGES, ACTUALLY INCURRED, WHICH UNDER NO CIRCUMSTANCES SHALL EXCEED, IN THE
AGGREGATE, THE AMOUNT OF SUCH PARTY'S SHARE OF THE DAP UNDER THIS AGREEMENT.
9.2 IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT,
SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER OR
THE CLAIMS OR EXECPT FOR THE DEVELOPERS INDEMNIFICATION OBLIGATIONS SET FORTH IN
SECTION 8, ABOVE, OR DEMANDS MADE BY ANY THIRD PARTIES, WHETHER OR NOT SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Term and Termination.
10.1 Term. This Agreement will become in effect on the date
ALLTEL downloads a BREW Application developed by Developer from the BREW Catalog
and will remain in effect until terminated as provided in this Agreement.
10.2 Termination. Either Party may terminate this Agreement,
with or without cause, upon thirty (30) days prior written notice to the other
Party. Upon termination of this Agreement, ALLTEL agrees (i) to remove from the
Carrier Catalog all BREW Applications developed by Developer; and (ii) to cease
permitting End Users (or any other person) from downloading BREW Applications
from the Carrier Catalog. Developer acknowledges and agrees that the termination
of this Agreement does not
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terminate the rights or licenses of End Users who obtained a BREW Application
from ALLTEL prior to the date of termination of this Agreement.
10.3 Survival. Upon any termination or expiration of this
Agreement, the following provisions will survive any such termination or
expiration: Sections titled ("Ownership"), ("Indemnification"), ("Liability
Limitations"), ("Term and Termination"), and ("General").
11. General.
11.1 Relationship of Parties. Developer and ALLTEL are
independent contractors and this Agreement shall not establish any relationship
of partnership, joint venture, employment, franchise, or agency between
Developer and ALLTEL. Neither Developer nor ALLTEL shall have the power to bind
the other or incur obligations on the other's behalf without the other's prior
written consent.
11.2 Export Control Compliance. ALLTEL agrees that it will not
export or re-export a BREW Application, or any portion of thereof, in any form
in violation of the laws and regulations of the United States or any other
jurisdiction or country without the appropriate United States and foreign
government export or import licenses or other official authorization.
11.3 Assignment. Neither Party shall assign this Agreement in
whole or in part without the prior written consent of the other party. However,
both Parties shall have the right to assign this Agreement to an affiliate or
subsidiary. This Agreement will bind and inure to the benefit of the respective
successors and permitted assigns of Developer or ALLTEL.
11.4 Entire Agreement and Amendment. This Agreement completely
and exclusively states the agreement between Developer and ALLTEL regarding its
subject matter. Excluding the previously executed non-disclosure agreement
between the parties, this Agreement supersedes and governs all prior or
contemporaneous understandings, representations, agreements, or other
communications between Developer and ALLTEL, oral or written, regarding such
subject matter.
11.5 Severability. If any one or more of the provisions
contained herein shall for any reason be held to be unenforceable in any respect
under law, such unenforceability shall not affect any other provision of this
Agreement, but this Agreement shall be construed as if such unenforceable
provision or provisions had never been contained herein, provided that the
removal of such offending term or provision does not materially alter the
burdens or benefits of either of the parties under this Agreement or any
Exhibit.
11.6 Third Party Beneficiaries. The provisions of this Agreement
are for the benefit of the parties and not for any other person. Should any
third party institute proceedings, this Agreement shall not provide any such
person with any remedy, claim, liability, reimbursement, cause of action, or
other right.
11.7 Governing Law; Forum Selection; Consent of Jurisdiction.
This Agreement shall be governed by and construed in accordance with the laws of
the State of Arkansas, without regard to its conflicts of law principles. All
judicial proceedings to be brought with respect to the Agreement or any other
dispute between the parties hereto shall be brought in any state or federal
court located in Little Rock, Arkansas (the "Court") and by execution and
delivery of this Agreement, the parties hereto each accepts generally and
unconditionally the exclusive jurisdiction of the Court and irrevocably waives
any objection (including, without limitation, any objection of the laying of
venue based on the grounds of forum non-conveniens) which either of them may now
have or hereafter have to the bringing of any such action or proceeding with
respect to this Agreement or any other dispute in the Court.
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11.8 Executed in Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original, but such counterparts shall
together constitute but one and the same document.
11.9 Construction. The headings and numbering of sections in
this Agreement are for convenience only and shall not be construed to define or
limit any of the terms or affect the scope, meaning or interpretation of this
Agreement or the particular section to which they relate. This Agreement and the
provisions contained herein shall not be construed or interpreted for or against
any party because that party drafted or caused its legal representative to draft
any of its provisions.
11.10 Waivers. No waiver of any provisions of this Agreement and
no consent to any default under this Agreement shall be effective unless the
same shall be in writing and signed by or on behalf of the party against whom
such waiver or consent is claimed. No course of dealing or failure of any party
to strictly enforce any term, right or condition of this Agreement shall be
construed as a waiver of such term, right or condition. Waiver by either party
of any default by the other party shall not be deemed a waiver of any other
default. No course of dealing shall be deemed to amend the Agreement in the
absence of any writing signed by duly authorized representatives of each party.
11.11 Remedies Cumulative. Unless otherwise provided for under
this Agreement, all rights of termination or cancellation, or other remedies set
forth in this Agreement, are cumulative and are not intended to be exclusive of
other remedies to which the injured party may be entitled by law or equity in
case of any breach or threatened breach by the other party of any provision in
this Agreement. Use of one or more remedies shall not bar use of any other
remedy for the purpose of enforcing any provision of this Agreement.
11.12 Press Releases. The parties shall consult with each other
in preparing any press release, public announcement, news media response or
other form of release of information concerning this Agreement or the
transactions contemplated hereby that is intended to provide such information to
the news media or the public (a "Press Release"). Neither party shall issue or
cause the publication of any such Press Release without the prior written
consent of the other party; except that nothing herein will prohibit either
party from issuing or causing publication of any such Press Release to the
extent that such action is required by applicable law or the rules of any
national stock exchange applicable to such party or its Affiliates, in which
case the party wishing to make such disclosure will, if practicable under the
circumstances, notify the other party of the proposed time of issuance of such
Press Release and consult with and allow the other party reasonable time to
comment on such Press Release in advance of its issuance.
11.13 Support. At no additional charge to ALLTEL, Developer will
provide ALLTEL and End-Users support for general questions and issues via e-mail
and via phone seven (7) days per week at least 7 AM Central Time to 7 PM Central
Time. Developer must also provide Frequently Asked Questions (FAQ) to ALLTEL
when submitting a BREW Application for consideration. Upon the launch of
networked and/or multiplayer BREW Applications, the Parties agree to the Service
Level Agreement in Exhibit A of this Agreement.
11.14 Taxes. All charges and fees to be paid under this Agreement
are exclusive of any applicable sales, use, value added, excise, services or
other tax which may be assessed currently or in the future on BREW Applications
provided under this Agreement. All taxes of any nature that are attributable to
payments due to Developer under this Agreement except taxes imposed on the net
income of any other third party, including without limitation ALLTEL, shall be
borne by Developer. If a sales, use, value added, excise, goods and/or services
tax is assessed on BREW Applications provided to Developer under this Agreement.
Developer will pay directly, reimburse or indemnify ALLTEL for such
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taxes, as well as any applicable interest and penalties. The parties will
cooperate with each other in determining the extent to which any tax is due and
owing under the circumstances and shall provide and make available to each other
any withholding certificates, information regarding the location of use of the
BREW Applications and any other exemption certificates or information reasonably
requested by either party.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date by their duly authorized representatives.
ALLTEL COMMUNICATIONS, INC. DWANGO NORTH AMERICA, INC.
By: /s/ Xxxxx X. Xxxxxxxxxx By: /s/ Xxxx X. Xxxxxxxxx
------------------------------- -------------------------------
Name: Xxxxx X. Xxxxxxxxxx Name: Xxxx X. Xxxxxxxxx
------------------------------- -------------------------------
Title: Director - Wireless Data Title: President
Products -------------------------------
------------------------------- Date: 12-16-03
Date: 12/19/03 -------------------------------
-------------------------------
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Exhibit A. SERVICE LEVEL AGREEMENT (SLA)
Purpose:
ALLTEL and Developer agree to the identified levels of service to be
provided and to inform operations personnel who will need specific
information to support the BREW Applications.
Support and Uptime:
Developer shall use commercially reasonable efforts to maintain all of its
necessary hardware, software, bandwidth, and other facilities and equipment
to provide the BREW Application in accordance with the Agreement. Developer
shall also provide ALLTEL with access to technical support 24 hours a day
365 days per year for Major Incident Management. The service shall be
available 99.99% of the year. The calculation of availability excludes
scheduled downtimes.
Major Incident Management:
ALLTEL agrees to host first level support for customers who are
experiencing difficulty with the BREW Application, unless submitted via
e-mail directly to Developer. ACI IT User Support will report problems with
Developer's service to the Developer's NOC.
The following outlines major incident prioritization:
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Priority Initial Target Status
Level Error Type Description Response Resolution Reports
--------------------------------------------------------------------------------
1 Fatal Error . There is a service 30 minutes 2 hours Hourly
outage
. There is a reoccurring
outage of the service
. Complete loss of
Developers BREW
Applications
. Unable to provision
customer
--------------------------------------------------------------------------------
2 Severe . Applications are 30 minutes 4 hours Hourly
Impact jumbled, outdated,
repeated, and
ineffective to all
users of the system
. Service is
inconsistent
. Major failure of an
important product
feature, including but
not limited to:
___________________
___________________
___________________
___________________
. Performance results
are materially
different from those
outlined in the
agreement
--------------------------------------------------------------------------------
3 Degraded . Feeds are jumbled, 30 minutes 8 hours Every 2
Operation outdated, repeated, hours
and ineffective to an
isolated number of
users of the system
. Operational impact on
support or
administrative tools,
non-customer facing
--------------------------------------------------------------------------------
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The first update for every type of incident Developer should provide the
following information:
.. Current status of repair
.. Estimated time of repair
.. Complete description of service impact
If resolved:
.. How was the issue fixed?
.. Is this the first time the issue has occurred?
Developer will maintain a log of all issues that occur during the Term of
service and make the log available to ALLTEL upon ALLTEL's request
Service Expectation:
In the event that a Fatal or Severe Error is not resolved in accordance
with the corresponding Target Resolution Time above, Developer will
reimburse ALLTEL $5,000 for each twenty-four (24) hour period in excess of
the Target Resolution, until said error is resolved to ALLTEL's
satisfaction.
Developer must alert ALLTEL in writing of any maintenance or potential
interruptions in service with a minimum of forty-eight (48) hours notice.
Developer Escalation:
[Developer to add information]
ALLTEL Escalation:
Internal ALLTEL sources and Developer will notify the ACI IT User Support
Group at 000-000-0000, option 2 for outages. If long waits are experienced
when dialing 000-000-0000, a back up number 501-905-2887 may be dialed
during business hours. The ACI IT User Support group will notify internal
personnel by Internal e-mail and urgent voice mail of outages via a
distribution list. When the outage is cleared a second message will notify
ALLTEL personnel the problem has been corrected.
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Group Function Hours of Operation CST Phone Number
-------------------------------------------------------------------------------------------------
ACI IT User The ACI IT User Support Group will Hours are 7:00 am - 10:00 pm 000-000-0000
Support Group act as the central point of contact Mon-Fri option 2
for problems. 7:30 am - 5:30 pm Sat or
The ACI IT User Support group will 12:00 pm - 5:00 pm Sun. 000-000-0000
notify users about outages via the All times are CST. (business hours
Web-Unwired and Internet After hours on call. only)
distribution lists.
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ALLTEL CONTACTS (For Developer Use Only)
----------------------------------------------------------------------------
ALLTEL Phone Numbers
all Types ALLTEL Department to Use Hours of Operation
----------------------------------------------------------------------------
Customer Refer to Customer 1-800-ALLTEL-1 7 x 24
Issues Care
----------------------------------------------------------------------------
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----------------------------------------------------------------------------
Hours are 7:00 am
- 10:00 pm Mon-Fri
000-000-0000 option 2 7:30 am - 5:30 pm
or Sat
Operational ACI IT user 000-000-0000 (business 12:00 pm - 5:00 pm
Issues support group hours only) Sun.
All times are CST.
After hours on call.
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