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EXHIBIT 10.10
Preferred Content License Agreement
This Content License Agreement ("Agreement") is entered into this 1 day of
MAY, 1997 by and between AT&T Wireless Data, Inc. d/b/a AT&T Wireless Services,
a Delaware corporation ("AWS") and INTELLIGENT INFORMATION INCORPORATED, a
DELAWARE corporation ("Content Licensor") for Content Licensor to provide a
content offering for the AT&T PocketNet(TM) Service ("PocketNet" or "PocketNet
Service" shall mean the wireless data service offered by AWS and interconnected
networks which enables properly equipped devices to wirelessly access
information via networked applications using TCP/IP access protocols such as
HDML).
The parties agree as follows:
1. License Grant
1.1 Within sixty days of execution of this Agreement, Content Licensor
will make available to AWS its Offering ("Offering" shall mean an HDML enabled
content offering developed, maintained, and provided by a content licensor that
an End User may retrieve through the PocketNet Service) for use with the
PocketNet Service. ("HDML" shall mean the handheld device mark up language that
is used to select, format, interpret and communicate data to or from an AT&T
PocketNet device through the AT&T PocketNet gateway.) ("End User" shall mean the
AWS customer using the PocketNet Service)
1.2 Content Licensor grants to AWS during the term of this Agreement a
non-exclusive limited worldwide royalty-free right and license solely to use,
distribute, reproduce, display, transmit, advertise and publicly perform the
Offering as required to provide PocketNet Service and to permit End Users to
access the Offering.
1.3 AWS' license rights granted under this Section 2 shall extend to any
new versions or modifications to the Offering during the term of this Agreement.
1.4 AWS will support Content Licensor's development with a complimentary
membership in AWS's Developers Program.
1.5 AWS will provide Content Licensor access to its fax service for
Content Licensor's development and provision of a fax service in conjunction
with the Offering. Content Licensor may sell advertising banners on the faxed
pages; provided that the banner space will appear on Content Licensor's
informational pages only and will not exceed 20% of the space available for
printing on any given faxed page. Content Licensor is prohibited from selling
such advertising space to any individual or entity that competes with AWS in the
provision of either cellular or data service.
2. Trade Name and Trademarks
2.1 Content Licensor hereby grants AWS the right to use and publish the
trademarks and trade names now or hereafter owned or used by Content Licensor
which are associated with Content Licensor or the Offering ("Content Licensor's
Trademarks") for purposes of advertising and marketing of the PocketNet Service,
provided such use and publication complies with Content Licensor's guidelines,
attached.
2.2 Within a commercially reasonable time after execution of this
Agreement, AWS will display Content Licensor's name or logo on its internet web
site with the intent of creating a hypertext link to Content Licensor's site.
2.3 AWS reserves all right, title and interest in and to its trade name
and trademarks. Accordingly, Content Licensor shall not use any trade name or
trademarks of AWS without the prior written consent of AWS.
3. Connectivity. Content Licensor will connect to the AWS server via the
Internet.
4. Representations, Warranties, and Covenants of Content Licensor
Content Licensor hereby represents, warrants, and covenants to AWS that:
4.1 Content Licensor has the full and exclusive right and power to enter
into and perform according to the terms of this Agreement, and that it has the
exclusive right to grant to AWS each of the rights herein granted. Without
limiting the foregoing, Content Licensor covenants that (i) use and broadcast of
the Offering by AWS as provided under this Agreement will not violate any
patent, trade secret, copyright, trademark, intellectual property, or other
right of any third party, including without limitation independent Contractors
hired by Content Licensor to contribute to the Offering; (ii) the Offering will
not be pornographic, libelous, and its use by AWS as provided hereunder shall
not violate any rights of privacy and/or publicity of any third party; and (iii)
no instruction, advice, or information contained in the Offering will be
injurious to the End User.
4.2 Content Licensor is not aware of any claim by any third parties
adverse to Content Licensor's or the Offering's patent, trade secret, copyright,
trademark or other rights in the Offering.
5. Term; Termination
5.1 This Agreement will be for an initial one year term commencing on the
date first written above and shall continue on a month to month basis
thereafter. Either party may terminate this Agreement at any time and for any
reason, by providing the other party with thirty (30) days prior written notice.
5.2 AWS reserves the right to suspend access to the Offering by its End
Users where, in AWS' reasonable opinion, continued access to the Offering is
likely to cause personal, monetary, or property damage to any individual or
entity. In AWS' sole discretion, AWS may re-establish access to the Offering
upon the termination of the event or modification by Content Licensor to the
extent that the risk has been rendered insignificant.
5.3 In the event Content Licensor's Offering is inaccessible, in whole or
in part, due to circumstances within Content Licensor's control for a period of
five (5) consecutive days and AWS has notified Content Licensor of the problem,
Content Licensor shall make the Offering wholly accessible within five (5) days
of such notification. If the Offering remains inaccessible or has been
inaccessible in whole or in part for over 50% of the days after notification,
AWS may terminate this Agreement.
6. Miscellaneous
6.1 Confidential Information.
6.1.1 As used in this Agreement, "Confidential Information" means
any information of either party that 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 and information relating to the tech-
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Preferred Content License Agreement
nology, customers, leads, customer contacts, business plans, promotional and
marketing activities, finances and other business affairs of such party, and the
terms of this Letter Agreement). Any information disclosed by either party in
connection with the relationship described in this Letter Agreement will be
treated as the Disclosing Party's Confidential Information. In the performance
of or otherwise in connection with this Letter Agreement, any party (the
"Receiving Party") may receive certain Confidential Information of the other
party (the "Disclosing Party").
6.1.2 The Receiving Party, except as expressly provided in this
Letter Agreement, will not disclose such Confidential Information to anyone
without the Disclosing Party's prior written consent. The Receiving Party will
restrict the possession, knowledge, development and use of Confidential
Information to its owners, officers, employees, agents, subcontractors and
entities controlled by it (collectively, "Personnel") who have a need to know
Confidential Information in connection with the purposes set forth in this
Letter Agreement. The Receiving Party's Personnel will have access only to the
Confidential Information they need for such purposes. Both parties will ensure
that its Personnel comply with this Letter Agreement. The Receiving Party will
take all reasonable measures to avoid disclosure, dissemination or unauthorized
use of Confidential Information, including, at a minimum, those measures it
takes to protect its own confidential information of a similar nature.
6.1.3 The provisions of Section 6.1 will not apply to any
information that (a) is or becomes publicly available without breach of this
Letter Agreement, (b) can be shown by documentation to have been known to the
Receiving Party at the time of its receipt from the Disclosing Party, (c) is
rightfully received from a third party who did not acquire or disclose such
information by a wrongful or tortious act, (d) can be shown by documentation to
have been independently developed by the Receiving party without reference to
any Confidential Information, or (e) is required to be disclosed to any
governmental entity with jurisdiction over it.
6.2 This Agreement will not create an exclusive relationship or any
partnership, joint venture or agency relationship between AWS and Content
Licensor.
6.3 Content Licensor will indemnify, defend and hold harmless AWS, and its
officers, employees, representatives and agents, against any claim, suit,
action, or other proceeding which is based on or arises from: (i) a claim that
the use of the Offering in accordance with this Agreement infringes any
third-party intellectual property right, or any right of personality or
publicity, is libelous or defamatory, or otherwise results in injury or damage
to any third party; (ii) any misrepresentation or breach of representation or
warranty of Content Licensor contained herein; (iii) any breach of any covenant
or agreement to be performed by Licensor hereunder; or (iv) any willful
misconduct or negligence by Content Licensor. Content Licensor will pay any and
all costs, damages, and expenses, including, but not limited to, reasonable
attorneys' fees and costs awarded against or otherwise incurred by AWS in
connection with or arising from any such claim, suit, action or proceeding
attributable to any such claim.
6.4 EXCEPT AS PROVIDED IN 6.3 ABOVE, NEITHER PARTY WILL BE LIABLE TO THE
OTHER (OR THE OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS OR
CUSTOMERS OF EITHER OF THEM OR ANY THIRD PARTY) FOR ANY IN-DIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES ARISING OUT OF SUCH PARTY'S FAILURE TO PERFORM UNDER THIS
AGREEMENT.
6.5 EXCEPT AS SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY, AND
EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES,
EXPRESS OR IMPLIED, REGARDING THE PRODUCTS AND SERVICES CONTEMPLATED HEREIN,
INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF
PERFORMANCE.
6.6 The parties shall comply with all applicable federal, state and local
laws, orders and regulations in performing the terms and conditions of this
Agreement.
6.7 This Agreement (i) will be governed by the internal laws of the state
of Washington, without reference to its choice of law rules, (ii) will
constitute, along with the parties' Nondisclosure Agreement, the parties' entire
agreement with respect to the subject matter hereof, and (iii) may be amended
only by a writing signed by both AWS and Content Licensor.
6.8 All notices in connection with this Agreement shall be deemed given as
of the day they are mailed or transmitted by electronic facsimile and addressed
as noted under the signature line below or to such other address as the party to
receive the notice so designates by written notice to the other.
6.9 Content Licensor may not assign this Agreement, or any portion
thereof, to any third party without the express written consent of AWS.
6.10 This Agreement shall not be modified except by written agreement.
Neither this Agreement nor any written or oral statements related hereto
constitute an offer, and this Agreement shall not be legally binding until
executed by both parties.
The parties have executed this Agreement on the date first written above.
AT&T Wireless Data, Inc
d/b/a AT&T Wireless Services
By:
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Its: VP Marketing & Sales
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Address: 10230 NE Points Drive
Kirkland, WA 93033
Attn: Legal Dept.
Phone: 206-803-4000
[Content Licensor]
INTELLIGENT INFORMATION INCORPORATED
By:
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Its: CHIEF EXECUTIVE OFFICER
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Address: ONE DOCK STREET
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STAMFORD, CT 06902
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Attn: ROBERT M. UNNOLD
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Phone (203) 969-0020
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