Exhibit 10.15
T-Mobile USA, Inc.
Java Wireless Applications Agreement
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THIS JAVA WIRELESS APPLICATIONS AGREEMENT (the "Agreement") is made by and
between T-Mobile USA, Inc., a Delaware corporation ("T-Mobile"), and Dwango
North America, Inc., a Texas corporation ("Content Provider"), whose primary
business address is 0000 Xxx Xxxxxx Xx., Xxxxx 0000, Xxxxxxx, Xxxxx 00000-0000,
and is effective as of Sept. 3/rd/, 2003 or, if not filled in, the later of the
two signature dates below (the "Effective Date").
T-Mobile is developing a component of its wireless communications and data
network that enables T-Mobile's subscribers to discover, purchase, download, and
use J2ME games and other J2ME-based applications ("Java Content") on Wireless
Devices via T-Mobile Internet Services.
Content Provider provides Java Content formatted for discovery, download,
and use on Wireless Devices.
The parties desire to make available the wireless Java Content of Content
Provider and to enable T-Mobile Subscribers to access, purchase, download, and
use Java Content and/or related services made available by Content Provider.
This Agreement consists of this cover page, the NDA (defined below), the
attached Terms and Conditions, and the Exhibits hereto (collectively, the
"Agreement").
EXHIBITS
Exhibit A - Content Provider Deliverables
Exhibit B - T-Mobile Deliverables
Exhibit C - Compensation and Payment
Exhibit D - T-Mobile Java Platform Applications Product Requirements
Document ("Java PRD")
Exhibit E - T-Mobile Java Applications Submission Document
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EACH PARTY'S SIGNATURE BELOW ACKNOWLEDGES THAT SUCH PARTY HAS READ AND
UNDERSTANDS EACH OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND
AGREES TO BE BOUND BY THEM.
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Content Provider T-MOBILE USA, Inc.
By: /s/ Xxxx X. Xxxxxxxxx By: /s/ Xxxx Xxxxx
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Title: President Title: VP Pwd Mkt
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Date: 09.03.03 Date: 10/1/03
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TERMS AND CONDITIONS
1. Definitions. As used herein, the following terms have the following
meanings:
"Affiliate" means, with respect to either party, an entity that controls
(whether through ownership of a controlling equity interest, majority of board
members, by contract or otherwise), is controlled by, or is under common control
with said party.
"Commercial Launch Date" means the date upon which the Content Provider content
is first made available to Users through the T-Mobile Internet Service.
"Content Provider Marks" means those Marks of Content Provider as Content
Provider may from time to time notify T-Mobile to be "Content Provider Marks" in
connection with this Agreement.
"Content Provider Mobile Services" means any and all games or other applications
containing Java Content as described in Exhibit A (as such may be amended or
supplemented from time to time by mutual agreement of the parties) and
accessible through the T-Mobile Internet Service. It also includes any
applicable network services, related WML content, and HTML content and services.
"Content Provider User Data" means identification and usage data provided by
T-Mobile or Users to Content Provider or collected by Content Provider in
connection with a User's use of the Content Provider Mobile Services. However,
Content Provider User Data does not include Header Information, Gateway Data, or
User Profile information provided or transmitted by T-Mobile or Users, except
where such User Profile information is keyed in by Users directly to Content
Provider while a User is connected to the Content Provider network. Content
Provider User Data includes aggregate, anonymous User demographic information
collected or derived by Content Provider from sources other than T-Mobile, e.g.
focus group research.
"Equipment" means those certain wireless microbrowser handsets (and other
wireless devices, if any) that support the T-Mobile Internet Service, as
identified by T-Mobile in writing from time to time.
"Gateway Data" means the number of times a User accesses the Content Provider
Mobile Services, the time spent by a User within the Content Provider Mobile
Services, the total number of pages on which such User clicks while inside the
Content Provider Mobile Services, and the URLs accessed by the User during the
session.
"Header Information" means the information, including without limitation,
subscriber identification information, internet protocol address and network
equipment identifier, transmitted as the header in data packets sent through the
T-Mobile Internet Service to the Content Provider Mobile Services.
"Intellectual Property Rights" means all intellectual property rights in any
jurisdiction, whether existing under intellectual property, unfair competition
or trade secret laws, or under statute or at common law or equity, including but
not limited to: (i) copyrights, trade secrets, trademarks, trade names, patents,
inventions, designs, logos and trade dress, "moral rights," mask works, rights
of personality, publicity or privacy, and any other intellectual property and
proprietary rights; and (ii) any application or right to apply for any of the
rights referred to in this clause; and (iii) any and all renewals, extensions
and restorations thereof, now or hereafter in force and effect.
"Look and Feel" means the general background of the Equipment screen while
executing applications of the Content Provider Mobile Services, (whether on a
wireless handset or other device) and the
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functionality and user interfaces relating to such screen. It does not include
any look and feel of the Equipment while executing applications other than the
Java Content.
"Marks" means any trademarks, service marks, trade dress, trade names, corporate
names, proprietary logos or indicia, domain names, and other source or business
identifiers.
"Person" means any natural person, corporation, partnership, limited liability
company, or other legal entity.
"T-Mobile Internet Service" means any or all items included in data products and
services offered by T-Mobile to Users that allow Users to access content
sourced from the Internet that is either pushed to or pulled by the User through
the Equipment.
"T-Mobile Marks" means those Marks of T-Mobile as T-Mobile may from time to time
notify Content Provider to be "T-Mobile Marks" in connection with this
Agreement.
"T-Mobile User Data" means the following identification and usage data provided
by Users to T-Mobile or collected by T-Mobile in connection with the User's use
of the Content Provider Mobile Services (a) Gateway Data, (b) Header
Information, (c) User Profile and (d) any other User Data which is not expressly
included within the definition of Content Provider User Data. Other than Gateway
Data, T-Mobile User Data does not include data arising from Users' activities
within the Content Provider Mobile Services.
"User" means any Person who accesses the Content Provider Mobile Services via
the T-Mobile Internet Service.
"User Data" means T-Mobile User Data and Content Provider User Data.
"User Profile" means User identification information such as name, address,
email addresses, rate plan information or any other profile information that may
be collected by T-Mobile in connection with a User's use of the T-Mobile
Internet Service or use of Content Provider Mobile Services, whether or not
passed by T-Mobile to Content Provider through the T-Mobile Internet Service.
2. Content Provider Mobile Services
2.1 Deliverables. Content Provider will provide to T-Mobile the
deliverables identified on, and in accordance with the terms contained in,
Exhibit A hereto. T-Mobile will provide to Content Provider the deliverables
identified on, and in accordance with the terms contained in, Exhibit B hereto.
Prior to making a material modification to the features or functionality of the
Content Provider Mobile Services as described in Exhibit A, Content Provider
must present such modification to T-Mobile for review and consultation with a
reasonable amount of time to permit T-Mobile to provide feedback on the
modification. In the event T-Mobile disapproves such modifications, T-Mobile may
terminate, upon prior notice, this Agreement or, at its option, that portion of
the Content Provider Mobile Services which have been materially modified, or may
require Content Provider to provide the unmodified Content Provider Mobile
Services for the remainder of the Term.
2.2 Financial Terms. The respective obligations of the parties with
respect to fees to be paid related to this Agreement are set forth in Exhibit C.
Unless otherwise set forth in the Exhibits, the following general terms apply:
(a) each party will pay to the other party all amounts due hereunder when due or
when invoiced, as the case may be; and (b) any undisputed amounts not paid when
due, or as invoiced, will be subject to a finance charge equal to one percent
(1%) per month or the highest rate
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allowable by law, whichever is less. Where an invoiced amount is disputed in
good faith, the parties will meet and confer in a manner reasonable under the
circumstances to resolve the dispute. Where the resolution indicates
underpayment or overpayment, such correction shall be paid within thirty (30)
days of the resolution or the above finance charge will apply thereafter to the
amount owed until paid.
2.3 Service Requirements
2.3.1 Trademark Guidelines. Content Provider will at all times comply
with the T-Mobile Trademark Guidelines with respect to any use by Content
Provider of T-Mobile Marks, in form as provided by T-Mobile. T-Mobile will at
all times comply with Content Provider's mobile logo and Content Provider
trademark guidelines with respect to any use by T-Mobile of Content Provider
Marks, in form as provided by Content Provider. Either party may modify its
respective trademark guidelines from time to time upon and will provide written
notice thereof to the other party, whereupon the other party will comply with
the trademark guidelines as modified.
2.3.2 Hosting and Service Levels. T-Mobile will provide all network
connectivity, authentication, billing, hosting, serving, download and related
first-tier customer support activities in support of the Content Provider Mobile
Services. For network enabled games, or games that allow Users to check
high-scores, interact with other subscribers and similar type of network pulled
features, Content Provider will host and provide such services and connectivity
in compliance with an agreed-upon attached Service Level Agreement.
2.3.3 Service Prohibitions. Content Provider represents and warrants
that the Content Provider Mobile Services: (i) do not and will not violate or
infringe upon the rights of any third party (including, for example, copyrights,
trademarks, privacy, or other personal or proprietary rights); (ii) are not
unlawful, harmful, threatening, defamatory, obscene, harassing or racially
objectionable; (iii) do not depict sexually explicit images; and (iv) do not
promote unreasonable violence or illegal activities (bearing in mind that
certain game genres contain, e.g., inherent simulated violence and/or reference
to illegal activities). Notwithstanding anything to the contrary in this
Agreement, T-Mobile may, in its sole discretion, remove, suspend or otherwise
disable User access to any of the Content Provider Mobile Services if, in
T-Mobile's sole discretion, the Content Provider Mobile Services: (a) infringe
upon the rights of any third party (including, for example, copyrights,
trademarks, privacy, or other personal or proprietary rights); (b) are unlawful,
harmful, threatening, defamatory, obscene, harassing or racially objectionable;
(c) contain sexually explicit images; or (d) promote unreasonable violence or
illegal activities.
2.3.4 Online Advertising. Content Provider may include (a) advertising
on the Content Provider Mobile Services, giving T-Mobile twenty percent (20%) of
the User generated revenues there from; and (b) advertising, sponsorships,
inserts and product/service tie-ins, including but not limited to game title
within the games, content and other applications (if any) which Content Provider
makes available to Users through the Content Provider Mobile Services, giving
T-Mobile twenty percent (20%) of the User generated revenues there from. Any
such advertising, sponsorships, inserts and/or product/service tie-ins shall be
relevant to the premise of the game or application, may not detract from game
play, and may not promote the products or services of any competitor of T-Mobile
or its Affiliates. In the event the parties agree to include a game or other
application within the Content Provider Mobile Service on an exclusive basis,
the parties will negotiate in good faith an equitable share of the advertising
revenue generated thereby and reflect such agreement in an amended Exhibit A.
2.3.5 Service Security. The parties agree to maintain an appropriate
level of security and integrity for the T-Mobile network and its Users in
connection with the Content Provider Mobile Services, including but not limited
to, implementing procedures to prevent third parties who use the
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Content Provider Mobile Services from sending or transmitting to Users (a)
unsolicited data or messages, (b) viruses or (c) a volume of messages that
unreasonably burdens the T-Mobile network. Content Provider will immediately
notify T-Mobile if it knows or has reason to know that any such unsolicited
data, messages or viruses are being sent to Users by virtue of such Users' use
of the Content Provider Mobile Services and agrees to use its best commercially
reasonable efforts to prevent and/or block any such unsolicited data, messages
or viruses from being sent to Users. Content Provider agrees to notify T-Mobile
immediately if it knows or has reason to know that Users are being sent an
unusual or abnormal flow, number or type of messages in connection with the
Content Provider Mobile Services and will use cooperate with T-Mobile to prevent
continuing transmission of such data or messages to Users.
2.4 Privacy and User Data. Notwithstanding anything in this Agreement to
the contrary, the data collected by a party from Users will be subject to that
party's standard privacy policies and the security, privacy and confidentiality
provisions contained in this Agreement. Each party's privacy policy will conform
to applicable legal requirements and industry standards for protection of online
privacy and security. T-Mobile will use commercially reasonable efforts to
comply with Content Provider's requests for aggregate and statistical reporting
of User data, from time to time.
2.4.1 Restrictions on Use of T-Mobile User Data. Content Provider
agrees that it will only use T-Mobile User Data to perform its obligations
under this Agreement. Content Provider will not use any T-Mobile User Data for
direct marketing or promotions to Users. Content Provider will not distribute
T-Mobile User Data to any third party or allow any third party to access
T-Mobile User Data without the prior written approval of T-Mobile. Content
Provider may not provide, authorize, or allow any third party (including
subsidiaries and affiliates) to provide, any T-Mobile User Data to any wireless
carrier or any non-United States government. Content Provider will store all
T-Mobile User Data collected by Content Provider during the Term in the United
States, and make all T-Mobile User Data collected and stored by Content Provider
during the Term available to T-Mobile or T-Mobile's designee for at least two
(2) years from the later of the creation or collection of such T-Mobile User
Data by Content Provider. Content Provider will not, at any time, store or send
T-Mobile User Data, in any form, outside of the United States. Content Provider
will ensure that any and all User Data is not and will not be subject to any
mandatory foreign destruction laws. To the extent Content Provider is permitted
to provide and does provide T-Mobile User Data to any third party (including
subsidiaries and affiliates) in accordance with this Agreement, such third party
must either (a) agree to be bound by the terms and conditions relating to use of
T-Mobile User Data as set forth in this Agreement, or (b) use and enforce
privacy policies which are no less restrictive as to T-Mobile User Data than the
provisions of this Agreement.
2.4.2 Restrictions on Use of Content Provider User Data. T-Mobile
agrees that it will only use Content Provider User Data to perform its
obligations under this Agreement. T-Mobile will not use any Content Provider
User Data for direct marketing or promotions to Users. T-Mobile will not
distribute Content Provider User Data to any third party without the prior
written approval of Content Provider.
2.4.3 Ownership of User Data. The parties agree that all T-Mobile User
Data will be owned by T-Mobile and all Content Provider User Data will be owned
by Content Provider.
2.4.4 Aggregate Data. The parties agree to cooperate in good faith to
share with each other on a confidential basis on the other's request aggregate,
anonymous information (not containing or referring to personally identifiable
information) regarding Users' use of the Content Provider Services, to the
extent that sharing of information is permitted by other Content Provider
agreements.
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2.5 Publicity. Neither party may issue any publicity or general marketing
communications concerning their relationship without the prior written consent
of the other party, which may be withheld in that party's sole discretion.
3. Certain Rights Granted
3.1 Content Provider Grant. Subject to the terms and conditions of this
Agreement, Content Provider hereby grants to T-Mobile the non-exclusive right,
within the United States, Canada and Mexico, to use, reproduce, and distribute
the Content Provider Mobile Services in order to enable Users to access the
Content Provider Mobile Services and all content or applications within the
Content Provider Mobile Services through Equipment via the T-Mobile Internet
Service. Notwithstanding the foregoing, Content Provider agrees and understands
that T-Mobile USA, Inc. customers may access the Content Provider Mobile
Services from countries other than the United States, Canada and Mexico when
using the T-Mobile Internet Service.
3.2 Notices. Neither party may remove, obscure or alter any notices of
Intellectual Property Rights appearing in or on any materials provided by the
other party.
3.3 T-Mobile Marks License. Subject to the other provisions of this
Agreement (including without limitation Section 3.5), T-Mobile hereby grants
Content Provider the right to use, reproduce, publish, perform and display the
T-Mobile Marks in promotional and marketing materials, content directories and
indices, and electronic and printed advertising, publicity, press releases,
newsletters and mailings about Content Provider and its relationship with
T-Mobile and the Content Provider Mobile Services.
3.4 Content Provider Marks License. Subject to the other provisions of
this Agreement (including without limitation Section 3.5), Content Provider
hereby grants T-Mobile the right to use, reproduce, publish, perform and display
the Content Provider Marks in and in connection with the development, use and
reproduction of promotional and marketing materials, content directories and
indices, and electronic and printed advertising, publicity, press releases,
newsletters and mailings about T-Mobile and its relationship with Content
Provider.
3.5 Use of Marks. Prior to each new use of any of the other party's Marks
in the manner permitted herein, the party using such Marks must submit a sample
of such proposed use to the other party for its prior written approval, which
may not be unreasonably withheld or delayed. Once a party approves a particular
use of a Xxxx, the approval will remain in effect for such use until withdrawn
with reasonable prior written notice. Without limiting the generality of the
foregoing, each party must strictly comply with all standards with respect to
the other party's Marks which may be furnished by such party from time to time,
and all uses of the other party's Marks in proximity to the trade name,
trademark, service name or service xxxx of any other Person must be consistent
with the standards furnished by the other party from time to time. Further,
neither party may create a combination xxxx consisting of one or more Marks of
each party. All uses of the other party's Marks shall inure to the benefit of
the party owning such Xxxx and each party hereby assigns to the other any
goodwill arising from such party's use of the other's Marks. Each party hereby
acknowledges and agrees that, as between the parties hereto, the other party is
the owner of the Marks identified as its Marks on the applicable attachment to
the Agreement.
3.6 Non-Exclusivity. Each party acknowledges and agrees that the rights
granted to the other party in this Agreement are non-exclusive and that nothing
in this Agreement prohibits either party from participating in business
arrangements similar to those described herein.
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4. Warranties, Indemnification and Limitation of Liability
4.1 Warranties. Each party to this Agreement represents and warrants to
the other party that (a) it has the full corporate right, power and authority to
enter into this Agreement and to perform the acts required of it hereunder; (b)
its execution of this Agreement by such party and performance of its obligations
hereunder, do not and will not violate any agreement to which it is a party or
by which it is bound; and (c) when executed and delivered, this Agreement will
constitute the legal, valid and binding obligation of such party, enforceable
against it in accordance with its terms.
4.2 Indemnification. Each party (the "Indemnifying Party") will defend,
indemnify and hold harmless the other party and its Affiliates (the
"Indemnified Party"), and the respective directors, officers, employees,
suppliers, and agents of the Indemnified Party, from and against any and all
claims, costs, losses, damages, judgments and expenses (including reasonable
attorneys' fees) (collectively, "Claims") arising out of or in connection with
any third-party claim alleging (i) any breach of such party's representations or
warranties or covenants set forth in this Agreement, (ii) that any
advertisements or other content or materials served to such party to or through
the Content Provider Mobile Services contains any material that is obscene,
libelous, or defamatory, or infringes any Intellectual Property Rights or other
rights of any third party, (iii) any misuse or unauthorized disclosure of User
Data in violation of the terms of this Agreement, (iv) in the case of Content
Provider, that the Content Provider Mobile Services, including any content,
technology, or information contained therein or used in the creation, operation,
maintenance, or use thereof, including use (within the United States, Canada or
Mexico) on or through T-Mobile's telecommunications network infringes on the
Intellectual Property Rights of any person, or (v) in the case of T-Mobile, that
the T-Mobile Internet Service or the technology or information used by T-Mobile
in the creation, operation or maintenance of the wireless telecommunications
network used to deliver the T-Mobile Internet Service (excluding Section 4.2(iv)
above) infringes on the Intellectual Property Rights of any person. The
obligations of the Indemnifying Party are subject to the requirements that (a)
the Indemnified Party notify the Indemnifying Party in writing within a
reasonable time after the Indemnified Party is notified of a claim (provided,
failure to provide timely notice will not alter the Indemnifying Party's duties
hereunder except to the extent such party is materially prejudiced thereby), (b)
the Indemnifying Party have primary control of the defense of the claim (except
that, if an Indemnified Party elects to do so, it may participate in the defense
at its own expense) and all related monetary settlement negotiations (it being
agreed that any non-monetary terms, including any licensing terms, of any
settlement of a claim that directly affects the Indemnified Party shall require
the prior written approval of the Indemnified Party), and (c) the Indemnified
Party provides the Indemnifying Party with reasonable assistance, information
and authority necessary for the Indemnifying Party to perform its obligations
under this section; provided always that the Indemnified Party will not be
required to admit liability under any circumstances. Reasonable out-of-pocket
expenses incurred by an Indemnified Party in providing such assistance must be
reimbursed by the Indemnifying Party promptly upon receipt of an account of such
expenses. The obligations of the parties as set forth in this Section shall
survive expiration or termination of this Agreement for any reason.
4.3 Limitation of Liability; Disclaimer
4.3.1 Liability. EXCEPT WHERE SUCH LIABILITY ARISES PURSUANT TO AN
INDEMNIFIED CLAIM OR A BREACH OF CONFIDENTIALITY OBLIGATIONS, UNDER NO
CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE
OR ANTICIPATED PROFITS OR LOST BUSINESS. EXCEPT FOR LIABILITY ARISING UNDER THE
INDEMNIFICATION OR CONFIDENTIALITY OBLIGATIONS ABOVE,
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THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE TOTAL OF ALL AMOUNTS
RECEIVED BY T-MOBILE HEREUNDER.
4.3.2 No Additional Warranties. THE EXPRESS WARRANTIES SET FORTH IN
THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, IMPLIED OR STATUTORY,
INCLUDING, BUT NOT LIMITED TO ANY: (A) IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OR (B) IMPLIED WARRANTY ARISING FROM COURSE OF
PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.
5. Term and Termination
5.1 Term. The initial term of this Agreement will commence on the
Effective Date and, unless earlier terminated as provided below, will end one
year after the commercial launch of the Content Provider Mobile Service on the
T-Mobile Internet Service (the "Commercial Launch Date"); provided that the term
will automatically renew for successive three-month periods, unless either party
provides written notice of termination to the other party no less than thirty
(30) days prior to the end of the then-current renewal term. The initial term
together with any renewal terms will be referred to herein as the "Term."
5.2 Termination. Either party may terminate this Agreement upon not less
than thirty (30) days' prior written notice to the other party of any material
breach hereof by such other party, provided that such other party has not cured
such material breach within such thirty (30)-day period.
5.3 Effect of Termination. Upon termination of this Agreement for any
reason, all rights and obligations of the parties hereunder will be
extinguished, except that: (a) all accrued payment obligations hereunder will
survive such termination or expiration; (b) termination of this Agreement will
have no effect on licenses of content previously granted to Users, which will
continue in accordance with their terms, and (c) the rights and obligations of
the parties under Sections 2.4, 4, 5, 6, 7 and 8 will survive such termination
or expiration.
5.4 Suspension. In the event the Content Provider Mobile Service fails to
meet T-Mobile's standards, including but not limited to quality, uptimes, and
customer satisfaction, T-Mobile may suspend the link(s) to the Java Content upon
notice to Content Provider. Thereafter, Content Provider shall have thirty (30)
days to cure all noted deficiencies after which, if such are not cured, they
shall become material breach defaults which may lead to termination of this
Agreement by T-Mobile under this Section 5.
6. Intellectual Property
6.1 T-Mobile. As between T-Mobile and Content Provider, and except for the
licenses and rights granted herein by Content Provider, which shall remain the
sole property of Content Provider and its licensors, T-Mobile reserves and
retains all right, title and interest, including but not limited to all
Intellectual Property Rights in the technology owned or licensed from third
parties by T-Mobile in connection with this Agreement, and no title to or
ownership of any of the technology is transferred to Content Provider or any
other Person under this Agreement. Without limiting the foregoing, as between
the parties, T-Mobile retains all Intellectual Property Rights and all other
right, title and interest in and to the T-Mobile Internet Service (but excluding
any items supplied by Content Provider) and the T-Mobile Marks. Except as
specifically set forth in this Agreement, Content Provider obtains no right to
use T-Mobile Intellectual Property Rights beyond the term of this Agreement.
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6.2 Content Provider. As between T-Mobile and Content Provider, and except
for the licenses and rights granted herein by Content Provider, which shall
remain the sole property of Content Provider and its licensors, Content Provider
reserves and retains all right, title and interest, including but not limited to
all Intellectual Property Rights in the technology owned or licensed from third
parties by Content Provider in connection with this Agreement and no title to or
ownership of any of the technology is transferred to T-Mobile or any other
Person under this Agreement. Without limiting the foregoing, as between the
parties, Content Provider retains all Intellectual Property Rights and all
right, title and interest in and to the Content Provider Mobile Services
(including, without limitation, any and all content, data, URLs, domain names,
technology, software, code, user interfaces, the Look and Feel, Marks and other
items posted thereon or used in connection or associated therewith; but
excluding any items supplied by T-Mobile) and the Content Provider Marks. Except
as specifically set forth in this Agreement, T-Mobile obtains no right to use
Content Provider Intellectual Property Rights beyond the term of this Agreement.
6.3 Further Assurances. Each party will take, at the other party's
expense, such action (including, without limitation, execution of affidavits or
other documents) as the other party may reasonably request to effect, perfect or
confirm such other party's ownership interests and other rights as set forth
above in this Section 6.
7. Confidentiality
The terms and conditions of the Non-Disclosure Agreement dated effective April
4, 2003 ("NDA") entered into between the parties are hereby incorporated into
this Agreement, and will apply during the Term hereof, and for two (2) years
thereafter. To the extent that any terms of the NDA conflict with any terms in
this Agreement, this Agreement will control. The terms and conditions of this
Agreement are Confidential Information, as defined in the NDA.
8. General Provisions
8.1 Independent Contractors. T-Mobile and Content Provider are independent
contractors under this Agreement, and nothing herein shall be construed to
create a partnership, joint venture, franchise or agency relationship between
T-Mobile and Content Provider. Neither party has any authority to enter into
agreements of any kind on behalf of the other party.
8.2 Attorneys' Fees. If any arbitration or court action is commenced by
either party, the substantially prevailing party in that action is entitled to
recover its out-of-pocket expenses, including without limitation court costs and
reasonable attorneys' fee, incurred therein.
8.3 Choice of Law. This Agreement will be governed by, and construed in
accordance with, the laws of the State of Washington without reference to its
choice of law rules. The parties hereby submit to the exclusive jurisdiction of
the state and federal courts sitting in King County, Washington regarding any
dispute arising under this Agreement or in connection herewith, and waive all
objection to said jurisdiction, including without limitation forum non
conveniens.
8.4 Assignment. Neither party may assign this Agreement or any of its
rights or delegate any of its duties under this Agreement without the prior
written consent of the other party, not to be unreasonably withheld, provided,
however, that either party may assign this Agreement to an Affiliate of that
party or pursuant to a merger, consolidation, corporate reorganization, or sale
of all or substantially all of the assigning party's stock or relevant business
assets. Subject to the foregoing, this Agreement will be binding upon,
enforceable by, and inure to the benefit of the parties and their respective
successors and assigns.
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8.5 Nonwaiver. No waiver of any breach of any provision of this Agreement
will constitute a waiver of any prior, concurrent or subsequent breach of the
same or any other provisions hereof, and no waiver will be effective unless made
in writing and signed by an authorized representative of the waiving party.
8.6 Force Majeure. Neither party will be deemed to be in default of or to
have breached any provision of this Agreement as a result of any delay, failure
in performance or interruption of service, resulting directly or indirectly from
acts of God, acts of civil or military authorities, civil disturbances, wars,
strikes or other labor disputes, fires, transportation contingencies,
interruptions in telecommunications or Internet services or network provider
services, failure of equipment and/or software, other catastrophes or any other
occurrences which are beyond such party's reasonable control. Should a force
majeure event continue for more than thirty (30) days, the other party shall be
free to terminate this Agreement effective immediately upon the giving of notice
thereof.
8.7 Notices. Any notice or other communication required or permitted to be
given hereunder must be given in writing and delivered in person, mailed, or
delivered by recognized courier service, properly addressed to the applicable
party at its address specified on the cover sheet to this Agreement, with a copy
to the applicable party's Legal Department, and will be deemed effective upon
receipt. Either party may from time to time change the individual to receive
notices or its address by giving the other party notice of the change in
accordance with this section.
8.8 Invalidity. If any provision of this Agreement is for any reason held
to be invalid, illegal or unenforceable in any respect, the remaining provisions
will remain in full force and effect. If any provision of this Agreement is, for
any reason, determined by a court of competent jurisdiction to be excessively
broad or unreasonable as to scope or subject, such provision must be enforced to
the extent necessary to be reasonable under the circumstances and consistent
with applicable law while reflecting as closely as possible the intent of the
parties as expressed herein.
8.9 Integration; Amendment. This Agreement and the NDA contain the entire
understanding of the parties with respect to the subject matter hereof, and
supersedes all previous agreements or negotiations between the parties
concerning the same subject matter. This Agreement cannot be amended except by a
writing signed by both parties.
8.10 Counterparts; Electronic Signature. This Agreement may be executed in
multiple counterparts, each of which shall be deemed an original, and all of
which together shall constitute one and the same instrument. To expedite the
process of entering into this Agreement, the parties acknowledge that
Transmitted Copies (as defined below) of the Agreement will be equivalent to
original documents until such time as original documents are executed and
delivered. "Transmitted Copies" will mean copies that are reproduced or
transmitted via photocopy, facsimile or other process of complete and accurate
reproduction and transmission which reflect the signature of a party or of the
parties.
EXHIBITS FOLLOW
-10-
EXHIBIT A
CONTENT PROVIDER DELIVERABLES
1. Applications:
a. Minimum Features. This Agreement is intended to set forth the terms
and conditions under which Content Provider will provide the Content Provider
Mobile Services across the T-Mobile Telecommunications Network to Users with
Equipment. Content Provider will provide T-Mobile with the data and applications
in appropriate form as described in the T-Mobile Submission Document, attached
hereto as Exhibit E (which shall be completed by Content Provider and submitted
to T-Mobile as to each application of Java Content) in a mutually agreed format
(email, diskette or FTP) for incorporation into the T-Mobile Internet Service.
Content Provider will make the Content Provider Mobile Services available to
T-Mobile for testing and approval as provided below. In providing the Content
Provider Mobile Services, Content Provider agrees to comply with the
requirements of the Java PRD attached to the Agreement as Exhibit D. Content
Provider will make available for release on the Content Provider Mobile
Services, at a minimum, the following titles as of the Commercial Launch Date:
. Star Exceed
. Dwango Racing
. Jumpyon
. AquaX
. BlackJack
. Slots
. Roulette
. Casino Suite (Subscription)
b. Handsets/Wireless Devices: The above titles will be available to
T-Mobile on the Commercial Launch Date and according to the delivery schedule
outlined below and optimized for the following color T-Mobile devices:
Game Title Min MSRP Production Dates
-----------------------------------------------------------------------------------------------------------------
Samsung Samsung Nokia Nokia Moto
S105 X105 3650 3595 V300
Star Exceed $ [**] 1-Sep 15-Sep 1-Sep n/a 30-Sep
dwango Racing $ [**] 1-Sep 15-Sep 1-Sep n/a 30-Sep
JumPuyon $ [**] 1-Sep 15-Sep 1-Sep n/a 30-Sep
BlackJack $ [**] 1-Sep 15-Sep 1-Sep 1-Sep 30-Sep
Slots $ [**] 15-Sep 15-Sep 15-Sep 15-Sep 30-Sep
Roulette $ [**] 15-Sep 15-Sep 15-Sep 15-Sep 30-Sep
Casino Sub* $ [**] 30-Sep 30-Sep 30-Sep 30-Sep 30-Sep
AquaX $ [**] 1-Sep 15-Sep 1-Sep n/a 30-Sep
* Monthly subscription fee.
c. Schedule:
----------------
** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
B-1
(1) The parties will cooperate in good faith to make a test version
of the Java Content available for T-Mobile's beta testing process as promptly as
practicable after signing the Agreement (or an amendment to Exhibit A for
later-added Java Content) and in any event no later than fifteen (15) days
thereafter, unless otherwise agreed to by the parties. T-Mobile will test the
Java Content and communicate any errors or usability problems that it observes
promptly to Content Provider.
(2) Both parties will use commercially reasonable efforts to complete
development and beta testing in order to prepare the Java Content for full-scale
commercial use with the T-Mobile Internet Services as promptly as practicable
after signing the Agreement (or an amendment to Exhibit A for later-added Java
Content) and in any event no later than thirty (30) days thereafter, unless
otherwise agreed to by the parties. Content Provider acknowledges that
T-Mobile, in its sole discretion, will be entitled to determine the Commercial
Launch Date of each item of Java Content as made available via the T-Mobile
Internet Services, and without limiting the foregoing T-Mobile will not be
obligated to make Java Content commercially available to Users until such time
as T-Mobile determines through its beta testing process that Content Provider
has resolved all issues identified by T-Mobile and the applicable Java Content
meets T-Mobile's quality and user experience standards.
d. Trial/Free Versions: Content Provider acknowledges that T-Mobile shall
be entitled to offer the Java Content as free trials to its Users. See Exhibit
B.
e. Screenshots for each application to be hosted by T-Mobile. Details to
be set forth on Exhibit E, Submission Document.
f. Instructions for each application, FAQs, etc., to be hosted by
T-Mobile. Details to be set forth on Exhibit E, Submission Document.
g. Java PRD - Content Provider agrees to conform the Content Provider
Services, and specifically the Java Content to the T-Mobile Java PRD, attached
as Exhibit D to the Agreement.
h. Contextual Download Content:
1. Graphics for download for each application - characters and logos
2. Ringtone(s) for each application
3. If T-Mobile charges a premium for downloading (fee to T-Mobile
Subscribers beyond transport cost of downloading) - Content Provider
and T-Mobile will share [*] of net revenue.
4. T-Mobile, or its designated third-party provider, will host, serve,
and xxxx for any downloadable services
2. Marketing
a. Partner Listing. In the event that Content Provider has a web site
that includes a listing of wireless communications carriers with which Content
Provider has a relationship, Content Provider will provide a listing for
T-Mobile.
b. Co-Marketing and Exclusive Titles: Parties to discuss opportunities
for co-marketing, development of exclusive titles and in-game T-Mobile
advertising -and/or sponsorships.
3. Product/Application Delivery
* Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
B-2
a. Device Schedule: Content Provider will deliver eight (8) applications
as outlined above in Section l(a) and available for the devices referenced in
Section l(b) for the Commercial Launch Date. T-Mobile will choose a subset of
these applications for inclusion on the T-Mobile Internet Service, however
T-Mobile will offer commercially no fewer than three (3) applications for each
device, to its Users for download.
b. T-Mobile and Content Provider will agree on an applications release
schedule.
c. Parties will discuss and agree to product roadmap, preliminary launch
schedules and applications development for the following handsets:
TBD
d. Device Compliance and Pre Launch Requirements. T-Mobile acknowledges
that Content Provider needs devices in advance in order to launch simultaneously
with T-Mobile handset introductions. T-Mobile will use best efforts to provide a
mutually agreed upon number of production or near-production devices to Content
Provider for testing and development in advance of commercial launch.
e. Other Devices: Parties will mutually explore games and launch
schedules for the T-Mobile SideKick and the T-Mobile PocketPC devices.
4. User Support Obligations (SLA).
a. Customer Care. In addition to application FAQ's and other descriptive
materials outlined in Exhibit E, Content Provider shall provide T-Mobile
Customer Care staff or T-Mobile Users (at T-Mobile discretion) with support
related to requests directly based on application play, functionality, and other
issues inherent to the nature of the specific application (i.e. not related to
download, billing or other T-Mobile service obligations), in the following
formats:
1. Toll-free number to be answered at a minimum during business
hours
2. Email support to be answered at a minimum in 24 hours
b. Technical Support. In addition to (a), above, Content Provider will
provide T-Mobile with additional developer and technical support including, but
not limited to:
1. Devoting sufficient resources to resolve problems reported by
T-Mobile within a reasonable time under the circumstances, based on the severity
of the problem and its effect on development and operation of the Content
Provider Mobile Services, and functionality of content thereon.
2. Designated technical account manager
3. Reasonable technical support.
c. General Service Level Agreement. Content Provider acknowledges that
prior to launching any networked games (games that allow users to connect via
GPRS or SMS to high scores, challenge other users, or allow any communication
between users and/or the Content Provider), Content Provider and T-Mobile will
agree to a Service Level Agreement complete with uptime requirements and
escalation procedures.
B-3
EXHIBIT B
T-MOBILE DELIVERABLES
1. General and Support Deliverables:
a. Upon T-Mobile's reasonable acceptance of the Content Provider Mobile
Services, T-Mobile will include a link to the Content Provider Mobile Services
as listed in Section 3 below. T-Mobile, in its reasonable discretion, will
program the overall T-Mobile Internet Service menu and will seek to provide
efficient and consistent user navigation.
b. T-Mobile will provide Content Provider with the highest level
membership in T-Mobile's third-party content developer program, will waive any
fees associated with that program, and will make a designated contact person
available to Content Provider for the provision of services thereunder. T-Mobile
will provide Content Provider with documentation, engineering and technical
resources as reasonably necessary for Content Provider to carry out its
obligations hereunder, but in no event less than those generally provided to
other third-party developers having highest level developer status. T-Mobile
will also provide demonstration Equipment in a quantity to be determined by
T-Mobile, in its reasonable discretion.
c. In addition to b, above, T-Mobile will provide Content Provider with
additional highest-level developer support including, but not limited to:
1. Devoting sufficient resources to resolve problems reported by
Content Provider within a reasonable time under the circumstances, based on the
severity of the problem and its effect on development and operation of the
Content Provider Mobile Services, and download of content therefrom
2. Designated technical account manager
3. Reasonable technical support.
4. Equipment, including but not limited to the following: T-Mobile
to provide Content Provider with not less than two (2) fully functioning and
service-enabled units of each type of Equipment to be enabled for Commercial
Launch of the Java Content (one for development, one for quality assurance).
5. Reasonable access upon request to T-Mobile's developer program
materials, style guides, white papers, etc.
2. Retail Pricing: Parties to discuss retail pricing for the Java Content,
including any minimum suggested retail pricing of Content Provider.
3. Linking/Category Placement Obligations:
a. Provided that Content Provider (i) complies with the then-current
version of T-Mobile's Java PRD, (ii) provides all information required by
T-Mobile to do so, and (ii) is otherwise performing its obligations under this
agreement in all material respects, T-Mobile will, at its discretion:
1. Include a link to the mobile gaming section of Content Provider's
internet web site from a T-Mobile internet web site designed to provide
information about Content Provider Mobile Services,
2. Include a link to information (to be provided by Content
Provider) about Content Provider's wireless product and service offerings
(including game playing instructions and information) accessible by T-Mobile
Users via their Equipment on the T-Mobile Internet Service.
B-4
b. For services available through wireless devices T-Mobile will provide
placement for the Content Provider Mobile Services and the content offered
thereon, including at a minimum placement on the "Games Deck" or equivalent area
of the T-Mobile Internet Service, and on each game genre subcategory page
thereunder. For each newly released Content Provider title, T-Mobile and Content
Provider will mutually agree on inclusion within (a) the appropriate game genre
subcategory(ies), (b) in any other appropriate categories or locations, together
with the duration of such placement.
4. Free Trials. T-Mobile shall make trial versions of each application of Java
Content available to Users for up to one (1) free trial session per application.
5. Marketing:
a. T-Mobile and Content Provider will schedule and hold periodic meetings
on a schedule to be agreed for both parties to keep abreast and informed about
marketing, upcoming handset road map, technical features and updates, allowing
the two parties to make marketing preparations which are not inconsistent with
one another.
b. Parties will discuss in good faith additional marketing opportunities
including advertising, point of sale support, game co-branding, game exclusivity
and launch etc.
B-5
EXHIBIT C
COMPENSATION AND PAYMENT
1. Revenue Share. T-Mobile agrees to pay Content Provider the following:
a. (*) of the Net Revenue per unit of Java Content sold by T-Mobile to a
User (the "Revenue Share"). For the purposes of this Agreement, "Net
Revenue" means all amounts received by T-Mobile, minus taxes, in connection
with any sale of Content Provider content to a User (provided that such
sale shall not occur, and Net Revenue shall not be received by T-Mobile,
until such time as the User has (a) purchased the Content Provider content,
and (b) saved the Content Provider content on the User's Interactive
Device), less a fixed amount ("Basic Deduction") attributable to credits to
Subscribers, customer care, and bad debt of (*) of net revenue. T-Mobile
shall be solely responsible for any expenses relating to fraudulent
transactions and similar expenses, and such expenses shall not affect the
Revenue Share.
b. Formulas for revenue share:
Gross Revenue - tax = Net Revenue
Net Revenue - Basic Deduction = Revenue Share Basis
2. Inclusion on Monthly Billing Statements. T-Mobile will include an itemized
charge on its monthly billing statement to each User for Content Provider
content accessed/downloaded (regardless of pricing model) by that User
during the month in question. Content Provider acknowledges that Users may
see other content providers' charges and line items in the same section as
Content Provider content billing.
3. Payment. Within thirty (30) days after the end of each calendar month,
T-Mobile will provide Content Provider with all activity and reports under
this Exhibit Section 1 for such monthly period. All payments shall be made
within thirty (30) days of the T-Mobile fiscal Quarter, in lawful currency
of the United States of America, shall be accompanied by reports which show
in reasonable detail the basis for the payment made, and shall be sent to
the following attention:
Dwango North America
Attn.: Xxxxxxx Xxxxx
0000 Xxx Xxxxxx Xx.
Xxxxxxx, XX. 00000
4. Audit Right. No more than once in each twelve (12) month period during the
Term and once thereafter. Content Provider shall have the right, during
normal business hours, upon fifteen (15) business days' written notice and
at Content Provider's expense, to examine, audit and take extracts from
T-Mobile's books and records relating to any payments due to Content
Provider hereunder; provided that Content Provider will treat such books
and records as confidential information of T-Mobile subject to Section 7.
In the event that any such examination or audit reveals an underpayment of
amounts due, T-Mobile shall promptly pay the amounts owed. In the event
that the underpayment exceeds ten percent (10%) of amounts due during the
audited period,
* Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
T-Mobile shall also pay Content Provider's actual and reasonable costs of
conducting said audit. If such audit reveals an overpayment, the parties
will agree on whether to generate a refund or credit in the amount of the
overpayment.
5. Multiple Pricing Models.
a. Parties acknowledge that T-Mobile consumers are charged separately
through monthly subscription fees (and overages as applicable) for GPRS
transport associated with Java application downloads ("Current Fee
Structure"), and that such fees are not subject to the revenue share
outlined in Exhibit C, Section 1. However, Content Provider agrees that in
the event T-Mobile modifies its Current Fee Structure so that the cost of
GPRS transport fees become additive to each java application download
price ("Adjusted Price"), any existing revenue share as outlined in Exhibit
C, Section 1, will be based on retail price prior to adding such fees. The
Adjusted Price will be at T-Mobile discretion and based on file size of
application
b. T-Mobile will explore the potential for supporting in the future a
variety of pricing and billing models, including without limitation
pay-per-play, bundles, all-you-can eat, and recurring periodic fee
subscription channel service. However, both parties recognize that as of
the Commercial Launch Date, pay-per-download will be the default
pricing/billing structure.
EXHIBIT D
Java PRD
[Provided Separately]
EXHIBIT E
T-Mobile Java Applications Submission Document
Below is a detailed list of items required from Content Provider in order to
successfully submit the content into the T-Mobile Java Provisioning Server. This
information serves as a starting place for out Beta-testing teams to begin
working with Content Provider.
Partner Information:
--------------------
1. Partner Name
2. Partner Technical Contact Name
3. Partner Technical Contact Information (Phone, Fax, Email, Hours
availability)
Application Information:
------------------------
1. Application Name (as it should appear to the consumer)
2. Application Detailed Description
3. Application Keywords (consumers will be able to search for these keywords
to find the application in the product catalog)
4. Application Version Number
5. Application Size
6. Runtime Memory Requirements
7. Application makes network connections (yes/no, please specify if the
application will transfer information using the T-Mobile data network. If
yes, specify how the application does this and what information will be
transferred.)
Physical Resources:
-------------------
1. .jad file
2. .jar file
3. Screenshots of application (3 images required in .jpg format)
Device Support Information:
---------------------------
1. Device Support (List of targeted T-Mobile devices that application is
supported on)
2. Device Specific API usage (detailed list of device specific APIs used in
the application)
Marketing Information
---------------------
1. Game description (format and restrictions to be supplied by T-Mobile)
2. Game instructions ("How to play")
3. Game FAQ
4. Screenshots
5. Non-interactive demonstration (flash or AVI)
