exv10w10



 





Exhibit 10.10



***** CONFIDENTIAL TREATMENT REQUESTED

WIRELESS INFORMATION SERVICE LICENSING AGREEMENT




     THIS WIRELESS INFORMATION SERVICE DISTRIBUTION AGREEMENT is entered into as of the
___15th day of October, 2004 ____ (the “Effective Date”), by and between Sorrent, a
corporation incorporated under the laws of the State of California, having its principal
place of business at 1810 Gateway Drive Suite 200 San Mateo, CA 94404 (“LICENSOR”), and
CINGULAR WIRELESS, LLC., a limited liability company under the laws of Delaware,
having a place of business at ___5565 Glenridge Connector Atlanta, GA 30342
(“Cingular”). Each of LICENSOR and Cingular may be referred to herein each as a “Party” and
together, as the “Parties.”



SECTION 1. DEFINITIONS





	1.1.	 	Definitions. In this Agreement, the following terms will have the following
meanings:
	 
	 	 	“Affiliate” means, with respect to any entity, any other entity directly or indirectly
controlling or controlled by, or under direct or indirect common control with, such entity
or one or more of the other Affiliates of that entity (or a combination thereof). For the
purposes of this definition, an entity shall control another entity if the first entity:
(i) owns, beneficially or of record, more than fifty percent (50%) of the voting securities
of the other entity; (ii) has the ability to elect a majority of the directors of the other
entity or (iii) provides day to day management of such entity under contract or as managing
general partner;
	 
	 	 	“Agreement” means this Agreement, the Schedules attached hereto any other documents
included by reference, as each may be amended from time to time in accordance with the
terms of this Agreement;
	 
	 	 	“Background Intellectual Property” means, with respect to a Party, Intellectual Property in
which that Party or any of its Affiliates owns all or part of the Intellectual Property
Rights prior to or independently of the Information Service being developed or provided
hereunder;
	 
	 	 	“Business Day” means any day other than a Saturday, Sunday or statutory holiday in the
State of Georgia, as applicable;
	 
	 	 	“Cingular’s Marks” means those Cingular Marks used in conjunction with the Cingular
Service as identified by Cingular from time to time during the Term;
	 
	 	 	“Cingular Service” means the wireless data services delivered over Cingular’s wireless
data network to End Users;
	 
	 	 	“Cingular Web/WAP Interfaces” means the interfaces through which Cingular will present and
distribute the Information Service to the End Users;
	 
	 	 	“Cingular User Data” means all information directly collected or developed by Cingular
regarding its customers who are Users under this Agreement or derived specifically from an
End User’s use of the Cingular Service or the Cingular Network, including without
limitation, the Mobile Identification Number (MIN) issued by Cingular to identify an End
User and the Network Access Identifier (NAI);
	 
	 	 	“Commercial Launch Date” means the date upon which any Information Service is first made
available to End Users on the Cingular Service;
	 
	 	 	“Confidential Information” means any information which would be considered confidential by
a party exercising reasonable business judgment or that is identified as being confidential
by a Party or by any of its Affiliates and that is furnished by or on behalf of such Party
or any of its Affiliates (collectively, the “Disclosing Party”) to the other Party or to
any of its Affiliates (collectively, the “Receiving Party”), whether such information is or
has been conveyed verbally or in written or other tangible form, and whether such
information is acquired directly or







 





			
	*****	 	The omitted portions of this exhibit have been filed with the Securities and Exchange
Commission pursuant to a request for confidential treatment under Rule 406 promulgated under
the Securities Act of 1933.






 









 






	 	 	indirectly such as in the course of discussions or other investigations by the Receiving Party,
including, but not limited to, trade secrets and technical, financial or business information,
data, ideas, concepts or know-how that is considered and treated as being confidential by the
Disclosing Party.
	 
	 	 	Confidential Information disclosed in tangible or electronic form may be identified by Disclosing
Party as confidential with conspicuous markings, or otherwise identified with a legend as being
confidential, but in no event shall the absence of such a mark or legend preclude disclosed
information which would be considered confidential by a party exercising reasonable business
judgment from being treated as Confidential Information by Receiving Party.
	 
	 	 	“Information Service” means the software applications, products, features, functionality, data,
graphics, sounds, text and other information, material, data or other Information Service (other
than Marks) in electronic form utilizing any and all wireless platforms that are or may become
compliant with the Cingular Service, including without limitation, BREW (Binary Runtime Environment
for Wireless), J2ME (JAVA 2 Micro Edition), WAP (Wireless Application Protocol — XML and xHTML),
Mophun, Symbian, Microsoft Smartphone, n-Gage, i-Mode or iAppli, provided by LICENSOR to Cingular
for transmission to End Users over the Cingular Service. The initial software applications that
will be available as Information Service under this Agreement are set forth on Exhibit A
annexed hereto. The parties acknowledge and agree that Schedule A may be amended from time to time
by mutual agreement of the parties to add additional software applications, products, features,
functionality, data, graphics, sound, text and other information, material, data or other
information service as Information Service hereunder;
	 
	 	 	“End User” means any user of the Cingular Service who is registered or otherwise authorized to use
the Cingular’s DirectBill Service;
	 
	 	 	“Intellectual Property” means anything that is or may be protected by an Intellectual Property
Right such as, but not limited to, works (including computer programs), performances, discoveries,
inventions, trademarks (including trade names and service marks), trade secrets, industrial
designs, confidential information (including Confidential Information as defined herein), mask
work and integrated circuit topographies;
	 
	 	 	“Intellectual Property Right” means any right that is or may be granted or recognized under any
federal, state or local law regarding patents, copyrights, moral rights, trade-marks, trade names,
service marks, confidential information (including Confidential Information as defined herein),
industrial designs, mask work, integrated circuit topography, privacy, publicity, celebrity and
personality rights and any other statutory provision or common or civil law principle regarding
intellectual and industrial property, whether registered or unregistered, and including rights in
any application for any of the foregoing;
	 
	 	 	“Interactive Device” means any mobile device that enables End Users to access the Cingular Service
and for which LICENSOR provides Information Service hereunder;
	 
	 	 	“LICENSOR’S Marks” means, collectively, the trademarks and service marks and the trademarks of
LICENSOR and services marks of its licensors used in conjunction with the Information Service as
identified by LICENSOR from time to time during the Term;
	 
	 	 	“Mark” means trade names, trademarks, service marks, logos, marks or other business identifiers of
any entity;
	 
	 	 	“Person” means any individual, corporation, partnership, joint venture, association, trust or
other entity or group;
	 
	 	 	Premium Placement means deck placement within the first deck of Cingular Recommends (or
equivalent) or of the Individual Categories of the Cingular WAP deck. This placement does not
include the What’s Hot or What’s New categories.
	 
	 	 	“Term” shall have the meaning ascribed to that term in Section 2.1;
	 
	 	 	“Unsuitable Information Services” means Information Services that Cingular determines to
be




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	 	 	inappropriate for billing by Cingular, including images or content that is in any way
unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethically or
otherwise objectionable; Information Services that facilitate illegal activity, depict
sexually explicit images, promote violence, promote discrimination, promote illegal
activities, or incorporate any materials that infringe or assist others to infringe on any
copyright, trademark, or other intellectual property rights.
	 
	 	 	“Use” includes any act, which if committed without the proper authorization of the owner
of an Intellectual Property Right, would constitute an infringement of such Intellectual
Property Right;
	 
	 	 	“Web Page” means a single HTML, WML, VXML, HDML or similar document, which is all or a
portion of a portable or non-portable Web Site; and
	 
	 	 	“Web Site” means, with respect to any Person, all points of presence and/or services
maintained by such Person on or electronically connected (both wired and wireless
connections) with the Internet (including, without limitation, the World Wide Web) or any
successor public data network.





SECTION 2. TERM AND EXCLUSIVITY





	                                                       
	2.1.	 	Term/Renewal. This Agreement shall have a term (the “Term”) commencing on the
Effective Date and ending on the date which is two (2) years following the Commercial Launch
Date (the “Initial Term”). After the expiration of the Initial Term, this Agreement will be
automatically extended for successive one year terms (each, a “Renewal Term”) until terminated
by either party with at least ninety (90) days written notice prior to the end of the Initial
Term or any Renewal Term. The Initial Term and any Renewal Term are collectively referred to
as the “Term.” During Term, Cingular may terminate this agreement for any reason, including
convenience upon ninety (90) days prior written notice.
	                                                        






	2.2.	 	Non-Exclusive. Under no circumstances shall this Agreement be construed or
interpreted as an exclusive dealing agreement by either Party. Nothing in this Agreement shall
be construed as to restrict either Party from entering into any agreement with any other
party, even if similar to or competitive with the transactions contemplated hereunder.





SECTION 3. GRANT OF RIGHTS





	3.1.	 	Resale of Information Service; Use of LICENSOR’s Marks. LICENSOR hereby grants to
Cingular and its Affiliates:






	 	3.1.1	 	a non-exclusive, non-transferable license to Use, reproduce, display,
distribute and resell the Information Service to End Users and permit End Users to use
the Information Service on their Interactive Device(s); and
	 
	 	3.1.2	 	a non-exclusive, non-transferable license to Use, reproduce, publish and display or
sublicense:






	 	3.1.2.1	 	LICENSOR’s Marks on the Cingular Web/WAP Interfaces in connection with
posting and maintaining the Information Service thereon; and
	 
	 	3.1.2.2	 	LICENSOR’s Marks in promotional and marketing materials, Information
Service directories and indexes, and electronic and printed advertising,
publicity, press releases, newsletters and other communications about LICENSOR
and the Information Service; and






	3.2.	 	Restrictions on Use of Information Service. Cingular shall not copy, decompile or
reverse compile, reverse engineer or reverse assemble the Information Service.
	 
	3.3	 	Right to Use Cingular’s Marks. Cingular grants LICENSOR a limited, non-exclusive,
non-transferable (with no right to sub-license) license to reproduce, display, distribute and
transmit Cingular’s Marks: (a) on tangible written materials promoting the Cingular Service;
and (b) in connection with the marketing and promotion of the Cingular Serviceprovided that
any such use shall be subject to Cingular’s prior written approval and Cingular’s brand and
trademark guidelinesLICENSOR shall not be permitted to use any of







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	 	 	Cingular’s Marks for any
other purpose without Cingular’s prior written consent






SECTION 4. INFORMATION SERVICE AND PRESENTATION; TECHNICAL SUPPORT





	4.1	 	LICENSOR Responsibility. LICENSOR is solely responsible for the licensing, creation
and delivery of the Information Service to Cingular. LICENSOR shall manage, renew, create,
delete, edit and otherwise control any and all aspects of the Information Service in its sole
and absolute discretion. LICENSOR shall provide a single point of contact at a phone number
that is reachable during eastern time zone standard business hours for Cingular to report
bugs, defects, problems and other issues with the Information Service.
	 
	4.2	 	Cingular Responsibility. Cingular shall create, design, edit, manage, host and
otherwise control the presentation of the Cingular Web/WAP Interfaces at its sole cost and
expense. Cingular shall host the presentation of the Information Service through the
Cingular Web/WAP Interfaces designed and maintained by Cingular. LICENSOR will provide and
deliver the Information Service to Cingular’s server as may be mutually agreed to by the
Parties from time to time. Cingular shall have sole responsibility to deliver the Information
Service to the End Users’ Interactive Devices at its sole cost and expense.
	 
	                                                       
	4.3	 	No Obligation to Distribute. Cingular will from time to time, in its sole and
absolute discretion, assess the reliability and trustworthiness of LICENSOR, and the
utility, appropriateness, and desirability, of LICENSOR’s Information Services. Based on
Cingular’s assessment of LICENSOR and LICENSOR’s Information Services, Cingular shall
determine whether to continue this Agreement. If Cingular determines in it sole and absolute
discretion based on Cingular’s assessment of LICENSOR and LICENSOR’s Information Services that
this Agreement should be terminated, Cingular shall give LICENSOR
ninety (90) days prior
notice of the effective date of such termination. Notwithstanding the foregoing, if Cingular
at any time determines that that LICENSOR’s Information Services or any part of them are
Unsuitable Information Services, Cingular may suspend the performance of this Agreement
immediately and without notice until and unless the Unsuitable Information Services are
removed. If Licensor’s Information Services is generating an excessive amount of refunds
due to the technical failures with the Information Services, Cingular has the right to remove
the Information Services from the site. To be clear, this term supersedes all commitments
referred to in Exhibit C.
	                                                        
	 
	4.4	 	Credits. Cingular shall ensure that LICENSOR’s branding, LICENSOR’s copyright notice
and other proprietary rights notices are displayed with all Information Service licensed and
distributed by Cingular on the Cingular Web Interface, in a size and placement mutually agreed
to by the Parties. Cingular may include a reference to such notices on Cingular’s Wap
Interface.
	 
	4.5	 	Responsibility for Costs. Except as otherwise expressly provided hereunder, each
Party shall be responsible for all costs and expenses incurred by it in connection with its
performance of this Agreement.





SECTION 5. COMPENSATION AND PAYMENT





	5.2	 	Pricing for LICENSOR Information Services. Cingular shall charge End Users as
Cingular may designate for the use of Information Service.
	 
	5.3	 	Revenue Share. Cingular agrees that LICENSOR shall receive as compensation for the
rights licensed hereunder that amount more fully described on Exhibit B (“Revenue Share”).
	 
	5.4	 	Credits. Cingular may credit End Users with the amount of any charge for Information
Services which is disputed by the End User.
	 
	5.5	 	Payments and Reports. Cingular will calculate the Revenue Share payable to LICENSOR
at the end of every calendar month and will provide to LICENSOR a monthly revenue statement by
the 10th business day of the following month. Cingular will provide a final
statement describing the Revenue Share due to LICENSOR, and pay that Revenue Share to LICENSOR
in United States dollars, within sixty (60) days after the end of each calendar month . If
the amount owed LICENSOR for any quarter is less than $25.00, Cingular will not mail a
statement or payment until the next regular accounting period at which time the amounts owed
(including withheld






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	 	 	amounts) exceed $25.00. Cingular agrees to maintain accurate books and records regarding
the Revenue Share payable to LICENSOR under this Agreement. Each statement will be deemed
final and binding unless LICENSOR provides notice of its specific objections thereto to
Cingular within one (1) year of the date on which such statement was due. During the
one-year period following LICENSOR’s receipt of any statement from Cingular, a certified
public accountant acting on LICENSOR’s behalf may inspect Cingular’s books and records
related to that statement, at LICENSOR’s expense, to ensure that LICENSOR has been properly
accounted to. Any such accountant must agree to maintain the confidentiality of Cingular’s
books and records.





SECTION 6. ADVERTISING AND MARKETING





	6.1.	 	Cingular Marketing Campaigns. Cingular may, in its discretion, create, implement and
administer direct marketing and promotional campaigns designed to promote the availability of
the Information Service on the Cingular Service both to existing and potential End Users.
Nothing in this section will be construed as a commitment by Cingular to include references
to the Information Service in any marketing efforts for the Cingular Service.
	 
	6.2	 	LICENSOR Marketing Campaigns. LICENSOR may, in its discretion, engage in a
marketing campaign to promote the Information Service and market the availability of the
Cingular Service in connection with its marketing activities. Nothing in this section will be
construed as a commitment by LICENSOR to include references to the Cingular Service in any
marketing efforts for the Information Service. LICENSOR shall at a minimum make the
promotional steps shown on Exhibit C.
	 
	6.3	 	Publicity. LICENSOR shall not issue or release for publication any articles or
advertising or publicity matter relating to the work performed hereunder or mentioning or
implying the name of Cingular or any Affiliate, or any of their personnel, unless prior
written consent is granted by Cingular. c. Cingular will respond to Licensor’s request for
Publicity within 15 business days. No response from Cingular will be deemed as a rejection of
the offer and Licensor shall not go forward with the Publicity.





SECTION 7. CINGULAR USER DATA





	 	 	Cingular User Data. All Cingular User Data is Confidential Information and is the
exclusive property of Cingular. If Cingular User Data is made available to LICENSOR,
LICENSOR will not store, copy, analyze, monitor or otherwise use that data unless the
parties have entered into a separate written agreement governing the use of that data
except that data which the Company needs deliver its services, applications, game play, and
fulfill customer purchases, subscriptions, inquiries and relationships.





SECTION 8. WARRANTY





	8.1.	 	Mutual Representations. Each Party represents to the other Party and acknowledges the
other Party’s reliance upon such representations, that this Agreement has been duly
authorized, executed and delivered by its representative and that it has the power and
authority to enter into and perform its obligations under this Agreement.
	 
	8.2.	 	Warranties by LICENSOR. LICENSOR warrants to Cingular that: (a) it has all necessary
rights in and to the Information Service and LICENSOR’s Marks for Use within the scope of this
Agreement, and has the power and authority to authorize the Use of any and all Intellectual
Property Rights which it purports to authorize hereunder, free and clear of any and all
security interests, liens, claims, charges or encumbrances; (b) the Information Service will
not infringe upon or violate any applicable laws or regulations or any rights of third
parties, including, but not limited to, infringement or misappropriation of Intellectual
Property Rights, or to defamation or contain any libelous, obscene or unlawful material; and
(c) that the Information Service shall not contain imbedded advertising messages.




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	8.3.	 	No Other Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, BOTH PARTIES’
SERVICES, INFORMATION, INFORMATION SERVICE AND OTHER MATERIALS ARE PROVIDED ON AN “AS IS,” “AS
AVAILABLE” BASIS. EXCEPT FOR THE EXPRESS WARRANTIES MADE IN THIS AGREEMENT: (1) NEITHER PARTY
MAKES ANY WARRANTY THAT ITS INFORMATION SERVICE OR SERVICE WILL BE UNINTERRUPTED, SECURE OR
ERROR FREE, OR THAT DEFECTS IN EITHER PARTY’S INFORMATION SERVICE OR SERVICE WILL BE
CORRECTED; AND (2) EACH PARTY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES,
EXPRESS OR IMPLIED, REGARDING ANY MATERIALS PROVIDED UNDER THIS AGREEMENT, INCLUDING ANY
IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED
WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. THE PARTIES ACKNOWLEDGE THAT USE OF
ANY DATA OR INFORMATION OBTAINED BY END USERS THROUGH EITHER PARTY’S INFORMATION SERVICE OR
SERVICE IS AT SUCH END USERS’ OWN DISCRETION AND RISK, AND THAT END USERS WILL BE SOLELY
RESPONSIBLE FOR ANY DAMAGE RESULTING FROM USE OF THAT SERVICE.





SECTION 9. CONFIDENTIALITY





	9.1.	 	Use/Safeguarding Confidential Information. Receiving Party shall not use Disclosing
Party’s Confidential Information for any purpose other than to exercise or perform its rights
or obligations under this Agreement. Receiving Party shall not, without the prior written
consent of Disclosing Party, copy or otherwise reproduce Disclosing Party’s Confidential
Information, or disclose, disseminate or otherwise communicate, in whole or in part,
Disclosing Party’s Confidential Information to any third party except to officers, directors
and employees of Receiving Party (and, in the case of Cingular, to any Licensee and their
subcontractors and agents) who need to know the Confidential Information and who will have
undertaken to treat the Confidential Information in accordance with the provisions of this
Section. Receiving Party further agrees that it shall safeguard Disclosing Party’s
Confidential Information from disclosure using efforts no less commensurate with those
Receiving Party employs for protecting the confidentiality of its own Confidential Information
which it does not desire to disclose or disseminate, but in no event less than reasonable
care. If Receiving party becomes compelled by law or order of court or administrative body to
disclose any Disclosing Party’s Confidential Information, Receiving Party shall be entitled to
disclose such Confidential Information provided that: (i) Receiving Party provides Disclosing
Party with notice of such requirements to allow Disclosing Party to take any necessary
action to safeguard the Confidential Information; and (ii) if required to do so, Receiving
Party shall furnish only that portion of Disclosing Party’s Confidential Information which is
legally required to be disclosed and shall exercise its best efforts to obtain assurances that
Confidential Information will be treated in confidence.
	 
	9.2.	 	Exceptions. Notwithstanding anything to the contrary herein, the
following will not constitute “Confidential Information” for the purposes of this
Agreement: (i) information that Receiving Party can show, by documented and competent
evidence, was known by it prior to the disclosure thereof to it, or independently developed by
it, in both cases, without using the Confidential Information; (ii) information that is or
becomes generally available to the public other than as a result of a disclosure directly or
indirectly by Receiving Party in breach of this Agreement; (iii) information that is or
becomes available to Receiving Party on a non-confidential basis from a source other than
Disclosing Party, provided that such source is not known by Receiving Party to be subject to
any prohibition against transmitting the information to Receiving Party; or (iv) information
for which Disclosing Party has authorized the relevant disclosure or other use.
	 
	9.3.	 	Remedies. Receiving Party agrees that Disclosing Party may be irreparably injured by
a breach of this Section 9 of this Agreement and that Disclosing Party may be entitled to seek
equitable relief, including a restraining order, injunctive relief, specific performance and
any other relief that may be available from any court to prevent breaches of this Section 9
and to enforce specifically the terms and provisions hereof in any action instituted in any
court having subject matter jurisdiction, in addition to any other remedy to which Disclosing
Party may be entitled at law or in equity in the event of any breach of the provisions hereof.
Such remedies shall not be deemed to be the exclusive remedies for a breach of this Section 9
but shall be in addition to all other remedies available at law or in equity.




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	9.4.	 	Return of Confidential Information. Upon the Disclosing Party’s request and, in any
event, when this Agreement has expired or terminated, the Receiving Party will promptly return
to the Disclosing Party or destroy, except for one copy of Disclosing Party’s Confidential
Information, which may be retained for evidence purposes only:






	 	9.4.1.	 	all Confidential Information that has been supplied by the Disclosing Party and is in
the Receiving Party’s possession or control; and
	 
	 	9.4.2.	 	all analyses, studies, or other materials, or part thereof, that were created by the
Receiving Party and that are based on or contain Confidential Information of the
Disclosing Party.






	9.5.	 	Certification. Upon the Disclosing Party’s request, a senior officer of the
Receiving Party shall certify in writing on behalf of the Receiving Party that all
Confidential Information required to be returned or destroyed pursuant to this Agreement has
been returned or destroyed, as applicable.





SECTION 10. PROPERTY RIGHTS





	10.1.	 	Background Intellectual Property. Unless otherwise expressly provided hereunder,
each Party shall retain all Intellectual Property Rights in any Background Intellectual
Property which it contributes to the Cingular Service or the Information Service and shall
not be deemed to have assigned all or part of the Background Intellectual Property to the
other Party.





SECTION 11. INDEMNITY





	11.1.	 	General Indemnity. Each Party agrees to defend, fully indemnify and hold harmless
the other Party and its directors, officers, affiliates, shareholders, employees and agents
(collectively, the “Indemnified Persons”), from and against any and all claims, demands,
suits, actions, causes of action and/or liability, of any kind whatsoever (a “Claim”), for
damages, losses, costs and/or expenses (including reasonable legal fees and disbursements):
(i) to the extent resulting from a breach by the indemnifying Party of any obligations,
representations or warranties under this Agreement, or (ii) alleging that the indemnifying
Party has infringed any Intellectual Property Right or violated any trade secret right or
other right of any third party.
	 
	11.2.	 	LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY
INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING,
WITHOUT LIMITATION, LOSS OF REVENUE OR LOSS OF PROFITS, REGARDLESS OF THE
FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, EVEN IF SUCH PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL
NOT APPLY TO EITHER PARTY’S BREACH OF SECTION 9 OR SECTION 11.1 OF THIS AGREEMENT.





SECTION 12. TERMINATION





	12.1.	 	Insolvency. Either Party may immediately terminate this Agreement, upon written
notice to the other Party, if such other Party is subject to proceedings in bankruptcy or
insolvency, voluntarily or involuntarily, if a receiver is appointed with or without the other
Party’s consent, if the other Party assigns its property to its creditors or performs any
other act of bankruptcy or if the other Party becomes insolvent and cannot pay its debts when
they are due.
	 
	12.2.	 	Material Breach. Either Party (the “Terminating Party”) may terminate this
Agreement in the event of material breach by the other Party (the “Defaulting Party”) of its
obligations hereunder, provided that such breach in the Terminating Party’s reasonable opinion
is not cured by or on behalf of Defaulting Party within twenty (20) Business Days of
notification by the Terminating Party of such breach.
	 
	12.3.	 	No Prejudice. Except as otherwise provided above, the Parties’ right to terminate
this Agreement is without prejudice to, and shall not affect any other remedies available to,
the Parties.




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SECTION 13. ARBITRATION





	13.1.	 	The parties agree that any and all disputes or controversies of any nature between them
arising at any time shall be determined by binding arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association (“AAA”) before a single
neutral arbitrator (“Arbitrator”). The Arbitrator shall be an attorney or retired judge with
at least ten (10) years experience in content licensing and technology and shall be mutually
agreed upon by LICENSOR and Cingular. If LICENSOR and Cingular are unable to agree on an
Arbitrator, the Arbitrator shall be appointed by the AAA. The fees of the Arbitrator shall be
borne equally by LICENSOR and Cingular. The parties shall be entitled to conduct discovery as
determined by the Arbitrator, provided that (a) the Arbitrator must authorize such all
discovery in advance based on findings that the material sought is relevant to the issues in
dispute and that the nature and scope of such discovery is reasonable under the circumstances,
and (b) discovery shall be limited to depositions and production of documents unless the
Arbitrator finds that another method of discovery (e.g., interrogatories) is the most
reasonable and cost efficient method of obtaining the information sought. There shall be a
record of the proceedings at the arbitration hearing and the Arbitrator shall issue a
Statement of Decision setting forth the factual and legal basis for the Arbitrator’s decision.
If neither party gives written notice requesting an appeal within ten (10) business days after
the issuance of the Statement of Decision, the Arbitrator’s decision shall be final and
binding as to all matters of substance and procedure, and may be enforced by a petition to a
court of competent jurisdiction, which may be made ex parte, for confirmation and enforcement
of the award. If either party gives written notice requesting an appeal within ten (10)
business days after the issuance of the Statement of Decision, the award of the Arbitrator
shall be appealed to three (3) neutral arbitrators (the “Appellate Arbitrators”), each of whom
shall have the same qualifications and be selected through the same procedure as the
Arbitrator. The appealing party shall file its appellate brief within thirty (30) days after
its written notice requesting the appeal and the other party shall file its brief within
thirty (30) days thereafter. The Appellate Arbitrators shall in all cases issue a final award
and shall not remand the matter to the Arbitrator. The decision of the Appellate Arbitrators
shall be final and binding as to all matters of substance and procedure, and may be enforced
by a petition to a court of competent jurisdiction, which may be made ex parte, for
confirmation and enforcement of the award





SECTION 14. GENERAL PROVISIONS





	14.1.	 	Assignment. This Agreement may not be assigned by either Party in whole or in
part, without the other Party’s prior written consent, except to an Affiliate; provided,
however, that either Party may assign or transfer this Agreement as part of a sale of all or
substantially all of its assets without the prior consent of the other Party.
	 
	14.2.	 	Relationship of Parties. LICENSOR is an independent contractor of Cingular. This
Agreement shall not be construed to and does not create a relationship of agency, partnership,
employment or joint venture. Neither Party shall have the authority to bind the other Party
without the prior written consent of the Party who is sought to be bound.
	 
	14.3.	 	Force Majeure. No Party to this Agreement shall be liable to the other Party for
any failure or delay in fulfilling an obligation hereunder, if said failure or delay is
attributable to circumstances beyond its control, including, but not limited to, any fire,
power failure, labour dispute or government measure (“Force Majeure”). The Parties agree that
the deadline for fulfilling the obligation in question shall be extended for a period of time
equal to that of the continuance of the Force Majeure. LICENSOR shall use all commercially
reasonable efforts to minimize the effect of the Force Majeure on its performance under this
Agreement. Notwithstanding the continuance of an event of Force Majeure, LICENSOR may not
delay performance of its obligations under any circumstances by more than thirty (30) Business
Days, otherwise Cingular may terminate this Agreement and procure the Product from a third
party, at its sole discretion.
	 
	14.4.	 	Survival. The following sections shall survive the expiration or termination of this
Agreement, regardless of the reasons for its expiration or termination, in addition to any
other provision which by law or by its nature should survive: Sections 5, 7, 8.2, 9 (for a
period of two (2) years following the termination date), 10, 11, 13 and 14.
	 
	14.5.	 	Governing Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of Georgia without regard to choice of laws principles thereof.




8









 






	14.6.	 	Notices. All notices under the terms of this Agreement shall be given in
writing and sent by registered mail or facsimile transmission or shall be delivered by hand to
the following addresses:





	 	 	 	 	 	 	 
	 	 	CINGULAR WIRELESS, LLC	 	LICENSOR

	 
	 	 	 	 	 	 
	 

	 	    Address:
	 	Cingular Wireless, LLC
	 	Address: 1810 Gateway Blvd, Suite 200,
	 

	 	 	 	5565 Glenridge Connector
	 	San Mateo, CA 94404
	 

	 	 	 	Suite 2000
	 	Phone: (650) 571-1550
	 

	 	 	 	Atlanta, GA 30342-4756
	 	Fax: (650) 571-5698
	 

	 	 	 	Fax 404.236.6145	 	 
	 	 	Attention: General Counsel	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	Attention: Paul Zuzelo, CFO







	 	 	All notices shall be presumed to have been received when they are hand delivered, or five
(5) Business Days of their mailing, or on the Business Day following the day of facsimile
transmission.
	 
	14.7.	 	Severability. If any provision, or portion thereof, of this Agreement is determined
by a court of competent jurisdiction to be invalid, illegal or unenforceable, such
determination shall not impair or affect the validity, legality or enforceability of the
remaining provisions of this Agreement, and each provision, or portion thereof, is hereby
declared to be separate, severable and distinct.
	 
	14.8.	 	Waiver. A waiver of any provision of this Agreement shall only be valid if provided
in writing and shall only be applicable to the specific incident and occurrence so waived.
The failure by either Party to insist upon the strict performance of this Agreement, or to
exercise any term hereof, shall not act as a waiver of any right, promise or term, which shall
continue in full force and effect.
	 
	14.9.	 	Remedies Cumulative. No single or partial exercise of any right or remedy under
this Agreement shall preclude any other or further exercise of any other right or remedy in
this Agreement or as provided at law or in equity. Rights and remedies provided in this
Agreement are cumulative and not exclusive of any right or remedy provided at law or in
equity.
	 
	14.10.	 	Number and Gender. Unless the context requires otherwise, words importing the
singular include the plural and vice versa and words importing gender include all genders.
	 
	14.11.	 	Business Days. Any payment or notice that is required to be made or given pursuant
to this Agreement on a day that is not a Business Day shall be made or given on the next
Business Day.
	 
	14.12.	 	Conflicts. In the event of any conflict or inconsistency between the terms of the
main body of this Agreement and any Schedule, the terms of the main body of this Agreement
shall prevail, unless otherwise expressly indicated and subject to any applicable provisions
or laws in respect of tariffs or other regulatory matters.
	 
	14.13.	 	Amendment. This Agreement may only be amended by written agreement duly executed
by authorized representatives of the Parties.





9









 






	14.14.	 	Entire Agreement. This Agreement shall constitute the entire agreement between the
Parties with respect to the subject matter hereof and shall replace all prior promises or
understandings, oral or written.
	 
	14.15.	 	Counterparts. This Agreement may be executed in one or more counterparts, by
facsimile or otherwise, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.




AGREED TO AND SIGNED by the duly authorized representatives of the Parties as of the date first set
forth above.




	 	 	 	 	 	 	 	 	 	 	 
	CINGULAR WIRELESS,
INC.	 	 	 	LICENSOR	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	[ILLEGIBLE]	 	 	 	By:
	 	/s/ Ray Schaaf	 	 
	 

	 	 

Name:
	 	 	 	 	 	 

Name: Ray Schaaf
	 	 
	 

	 	Title:
	 	 	 	 	 	Title: President of Publishing	 	 
	 

	 	Date:
	 	 	 	 	 	Date: September 16, 2004	 	 






10









 





EXHIBIT A




Description of Information Service




	 	 	 
	PRODUCT NAME	 	DESCRIPTION
	Application

	 	Downloads, other than games or music, which can be used for
personal or business use. Items such as weather and travel
applications fall into this category.
	 
	 	 
	FxTone

	 	Tone embodying solely a sound effect
	 
	 	 
	Game

	 	Downloads designed for use as a game, either single or
multi-player.
	 
	 	 
	Graphic

	 	Inanimate and animated color or black and white images
designed for use as wallpaper on a Wireless Device.
	 
	 	 
	Label Tone

	 	Tone embodying a master sound recording commercially released by a record label
	 
	 	 
	Ringtone

	 	Downloadable monophonic and polyphonic audio segments that
may be used on a Compatible Device in each of the Formats
	 
	 	 
	Voice Ringer

	 	Tone where the most prominent element is the spoken voice of
a celebrity






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EXHIBIT B




Revenue Share



Cingular agrees that LICENSOR shall receive the below percent of the gross amounts (excluding
sales and use taxes) received by Cingular from the End User that are generated by the sale or
other exploitation of the Information Service under this Agreement (the “Revenue Share”).




	 	 	 	 	 
	 	 	Revenue
	 	 	Share
	Product	 	Royalty
	Group	 	Bearing
	Applications & Games
	 	 	*****	%
	Graphics
	 	 	*****	%
	LabelTones
	 	 	*****	%
	Monos/Polys
	 	 	*****	%
	FXTones
	 	 	*****	%
	VoiceRingers
	 	 	*****	%





No Revenue Share will be paid for Information Services which are given away to induce sales or for
promotional purposes or for other uses of an Information Service for which no direct payment is
received by Cingular.



From time to time, Cingular may propose promotional programs including, but not limited to,
programs in which LICENSOR’s Information Service is bundled with the information services of other
licensors and sold for a bundled rate. As a part of such proposals, Cingular may propose a
different Revenue Share for LICENSOR. Cingular shall make such proposals in writing. LICENSOR
shall have seven (7) business days to reject any such proposal, or it shall be deemed accepted by
LICENSOR and this Agreement shall be deemed amended to reflect the terms of such proposal.



LICENSOR agrees that the Revenue Share described above is inclusive of all Revenue Share, fees,
charges and other payments of any kind whatsoever due to any songwriters, publishers, featured or
non-featured performers, producers, engineers, mixers, re-mixers and any other third parties who
may be entitled to compensation as a result of Cingular’s (or its End Users’) use of the
Information Service, or any musical works embodied in the Information Service (including any
amounts that may be payable in connection with the public performance of any musical work embodied
in any Information Service) under this Agreement.





 





			
	*****	 	The omitted portions of this exhibit have been filed with the Securities and Exchange
Commission pursuant to a request for confidential treatment under Rule 406 promulgated under
the Securities Act of 1933.






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Exhibit C




Marketing Commitment





	1.	 	Sorrent and CINGULAR commit to continue working together to develop joint marketing
initiatives to ensure the sell through of Sorrent’s Premium Titles or Brands as referenced in
Schedule 1 of this Exhibit. Sorrent will provide MDF to support these brands. Spend of MDF
will be mutually agreed upon. For advertising programs to be funded by the MDF, Cingular
recommends that the ads include incentive or advertisement on how to get games from the
Cingular Storefront. This may include, but are not limited to, SMS short codes with links to
the WAP Cingular storefront. Additionally, the MDF should be used to drive traffic to the
Cingular sites and should not include advertisements on the Cingular sites.
	 
	2.	 	As part of the MDF commitment and Premium Partnership, Cingular and Sorrent agree to hold the
following meetings:






	 	a.	 	Quarterly Marketing meetings to discuss the administration of funds,
brand/title commitments, and over content strategy. The MDF spends will be reviewed
at this meeting and compared to the agreed-to minimums and percentage commitments.
	 
	 	b.	 	Monthly Sales and Marketing review meetings

	 
	 	c.	 	Weekly meeting to review progress of active programs






	3.	 	Sorrent will commit the greater of *****% of gross revenues or $***** per year into the MDF
during the term of the agreement.
	 
	4.	 	In return for Marketing Commitment, Cingular grants Sorrent
Premium Deck Placement for ***** individual Titles each quarter within the Games and Applications WAP decks. The Titles and/or
Brands that will receive this placement are referred to in Schedule 1. These Titles or Brands
will receive the bulk of the MDF support. All titles will be required to work on an agreed-to
minimum number of handsets.
	 
	5.	 	Cingular will provide Sorrent the following as it relates to these titles:






	 	a.	 	SMS Alert — Games and Applications will be featured in our SMS opt-in messages
	 
	 	b.	 	E-Mail Alert — Games and Applications that are part of this program will be
featured in our E-mail opt-in alert messages
	 
	 	c.	 	Online (Featured placement at Cingular Wireless website)
	 
	 	d.	 	Other Retail and Web opportunities of value equal to other premium titles






	6.	 	Examples of the types of things that the MDF can be used for, but are not limited to:






	 	a.	 	Discounted downloadable content

	 
	 	b.	 	Sponsorship of roadshows to educate sales force on Premium games
	 
	 	c.	 	Radio/TV/SMS/e-mail campaigns on Premium games
	 
	 	d.	 	Event sponsorship and signage opportunities
	 
	 	e.	 	Cingular specific sales and marketing materials
	 
	 	f.	 	Street marketing activities
	 
	 	g.	 	Exclusive opportunities where Sorrent has obtained unique licensing rights
	 
	 	h.	 	List acquisition
	 
	 	i.	 	Sweepstakes Promotions
	 
	 	j.	 	Flash demo development
	 
	 	k.	 	Prizing
	 
	 	l.	 	Special title development and associated costs
	 
	 	m.	 	SPIFFS

	 
	 	n.	 	Newsletter campaigns
	 
	 	o.	 	Web advertisement






	7.	 	If Marketing and Media values are used as part of the MDF, valuation metrics like Cost Per
Thousand (CPM) will used and agreed to by both parties. Examples of some standard CPMs that
Cingular uses for specific mediums are as follows:







 





			
	*****	 	The omitted portions of this exhibit have been filed with the Securities and Exchange
Commission pursuant to a request for confidential treatment under Rule 406 promulgated under
the Securities Act of 1933.






13









 












	 	§ 	 	Network TV—$*****
	 
	 	§ 	 	Network Cable — $*****
	 
	 	§ 	 	Print (national magazine) — $*****
	 
	 	§ 	 	Local Newspaper — $***** (depends on ad size)
	 
	 	§ 	 	Local Radio—$*****
	 
	 	§ 	 	Spot TV-$*****
	 
	 	§ 	 	Outdoor — $*****






	8.	 	Program will be administered through using an agreed-to document that will require both
parties signature to disperse funds. Cingular will maintain a spreadsheet to track the amount
of funds in the MDF.






	9.	 	Cingular and Sorrent agree to meet within 30 days of contract execution to decide on the
initial set of Titles that will receive the Marketing and Premium Placement status to be
outlined in Schedule 1 of Exhibit C. .






 





*****  The omitted portions of this exhibit have been filed with the
Securities and Exchange Commission pursuant to a request for
confidential treatment under Rule 406 promulgated under the
Securities Act of 1933.

14









 











Schedule 1
of Exhibit C




Title and Brand Commitment





15