exv10w4w3





Exhibit 10.4.3


Am Contract No. 750-33576-2001

Amendment # 6


Amendment No. 6 to the

Master Software License and Distribution Agreement

(Contract No. 220-00-0134) between

Cellco Partnership, a Delaware general partnership d/b/a Verizon Wireless

and

Smith Micro Software, Inc.


This Amendment No. 6 (“Amendment”) amends the Master Software License and Distribution
Agreement (“Agreement”) between Cellco Partnership, a Delaware general partnership d/b/a Verizon
Wireless (“Verizon Wireless”) on behalf of itself and for the benefit of its Affiliates and Smith
Micro Software, Inc. (“SMSI”). This Amendment shall be effective on November 1, 2006, (the
“Effective Date”), unless terminated in accordance with the Agreement (Termination).


WHEREAS, Verizon Wireless and SMSI entered into a Master Software License and Distribution
Agreement dated December 1, 2000, which previously has been amended by Amendments No. 1 through
No. 5; and


WHEREAS, Verizon Wireless and SMSI now desire to further amend the Agreement to include additional
projects and revise the pricing as set forth therein;


NOW, THEREFORE, in consideration of the foregoing promises, and for other good and valuable
consideration the receipt and sufficiency of which is hereby acknowledged, SMSI agrees to develop
QuickAccess as provided for herein and to accelerate its planned development of the Software to
add V CAST Music Essentials Manager. It is agreed that V CAST Music Essentials Manager is within
SMSI’s planned development of the Software under Section 2.2 of the Agreement. Verizon Wireless
and SMSI hereby agree as follows:



	 	1.	 	This Amendment is an integral part of the Agreement. The terms used herein which are
defined or specified in the Agreement shall have the meanings set forth in the Agreement.
If there are any inconsistencies between a specific term or condition of this Amendment and
a specific term or condition of the Agreement, the specific term or condition of this
Amendment shall control.
	 
	 	2.	 	The following definitions shall be changed or added to Section 1.1 (Definitions) as set
forth below:






The following definitions shall be added to Section 1.1:




“Activation” means an activation of wireless service with Verizon Wireless of service
for a digital device distributed with QuickAccess, including, without limitation, full
or short term service, initial activation of prepaid service, post-paid service
(excluding conversion from prepaid service), activation of service
via wireless or landline telephone, or other activation of service utilizing an Embedded Product, PC
Card or compatible tethered handsets.



Master Software License and Distribution Agreement, Confidential Amendment No. 6




1



**** Confidential
Treatment has been requested for certain redacted provisions of this
exhibit. The redacted provisions are identified by asterisks and
enclosed by brackets. The confidential portions have been filed
separately with the Securities and Exchange Commission.







 




“Work Product” means tangible and intangible work product, ideas, concepts,
know-how and information and the writings or other tangible media of expression in
which any of the same are fixed (including, without limitation, all reports, computer
software systems, routines, data models, technical data, processes, designs, code
(including all source code) and documentation and systems, concepts and business
information) and all proprietary rights (including, without limitation, rights under
patent, copyright, trade secret and other similar laws) therein, embodied in, or
necessary for the use and operation of, the Software developed under this Agreement.


“V CAST Music Essentials Manager” means the software product developed by SMSI under
the name “QuickLink Music” for Windows OS version XP, which will be adapted and
customized hereunder pursuant to specifications written by SMSI and reviewed and
approved by Verizon Wireless (pursuant to the document entitled V CAST Music Essentials
Manager Specification Version 1.7, dated October 9, 2006, which is attached hereto as
Exhibit A to Schedule A-8). V CAST Music Essentials Manager shall provide end-users a
PC-based application that allows such end-users to purchase and download music to their
PCs, manage such music on their PCs and to allow Verizon Wireless end users to transfer
such music to their compatible Verizon Wireless devices. Version 1.0 will support any V
CAST Music capable Verizon Wireless device that has been commercially launched on or
before November 10, 2006. Version 2.0 will support any V CAST Music capable Verizon
Wireless device commercially launched after November 10, 2006.


The definition of “QuickAccess” in Section 1.1 shall be deleted in its entirety and
replaced with the following:


“QuickAccess” means the current and future versions of the software product developed
for Windows OS version 2000 and above, MAC OS, and any mutually agreed to future
operating systems, which provides Verizon Wireless end-users a mechanism to
self-activate their Embedded Products, PC Cards or compatible’ tethered handsets,
thereby allowing access to the Verizon Wireless 1xRTT and EVDO networks. End users will
be able to sign up for Verizon Wireless prepaid or post paid 1xRTT/EVDO service
offering and shall provide a standardized user interface (UI) for Verizon Wireless
customers to activate access to Verizon Wireless 1xRTT and EVDO networks. In one
version, QuickAccess will be integrated into the Unified client, and in another
version, QuickAccess shall be a stand-alone product. QuickAccess, integrated into the
Unified Client (“QuickAccess Integrated”), can activate access to the Verizon Wireless
1xRTT and EVDO Networks utilizing the Unified Client. QuickAccess as a stand alone
product (“QuickAccess Standalone”) can activate access to the Verizon Wireless 1xRTT
and EVDO Networks by Embedded Products utilizing a network access client supplied by
the Manufacturer of such Embedded Product.”


The definition of “Embedded Product” in Section 1.1 shall be deleted in its entirety
and replaced with the following:


“Embedded Product” means a wireless EVDO module embedded in a digital device,
manufactured by a digital device OEM that is configured for access to and usage of


Master Software License, and Distribution Agreement, Confidential Amendment No. 6


2



**** Confidential
Treatment has been requested for certain redacted provisions of this
exhibit. The redacted provisions are identified by asterisks and
enclosed by brackets. The confidential portions have been filed
separately with the Securities and Exchange Commission.







 






the Verizon Wireless Service by a computer using Windows OS version 2000 and above, MAC
OS, and any mutually agreed to future operating systems.”




The definition of “Related Services” in Section 1.1(k) shall be deleted in its
entirety and replaced with the following:




	 	“k. 	 	“Related Services” means (1) those services such as technical
support, training, customization and adaptation and other services provided for
herein which SMSI will provide to Verizon Wireless hereunder. Those Related
Services which will be provided by SMSI and the charges therefore, if any, shall
be as specified on the Schedules A, A-1, A-2, A-3, A-4, A-6, A-7, A-8, B and E
attached hereto, and incorporated herein by reference.”






The definition of “Software” in Section 1.1(m) shall be deleted in its entirety and
replaced with the following:




	 	“m. 	 	“Software” refers to the computer program and applications,
available hereunder as described in Schedules A, A-l, A-2, A-3, A-4, A-6, A-7 and
A-8 and includes all related documentation and manuals.”






	 	3.	 	Section 1.2 “Scope” shall be deleted in its entirely and replaced with the following:
	 
	 	 	 	“1.2 Scope. SMSI shall provide to Verizon Wireless the Software, Kits and Related Services
as described in Orders Verizon Wireless may from time to time place hereunder. It is
expressly understood and agreed that this Agreement is intended to establish uniform and
consistent terms and conditions for any such Orders and that Verizon Wireless is not
obligated to place any Orders with SMSI. It is further expressly understood and agreed
that this Agreement does not limit, in any way, the right of Verizon Wireless to contract
with any other parties for the procurement of comparable products, software and/or
services, subject to any intellectual property rights of SMSI in and to any SMSI Work
Product.”
	 
	 	4.	 	Section 2.1.13 of the Agreement shall be deleted in its entirety and replaced with
the following:
	 
	 	 	 	“2.1.13 SMSI hereby grants Verizon Wireless the right to sublicense, reproduce, distribute
and market current and future versions of QuickAccess to manufacturers and distributors of
Embedded Products and to grant to such parties the right to reproduce, market and
distribute QuickAccess for use with its Embedded Product.”
	 
	 	5.	 	Section 2.1.14 of the Agreement shall be deleted in its entirety and replaced with
the following:
	 
	 	 	 	“2.1.14 SMSI grants to Verizon Wireless a right to sublicense QuickAccess to manufacturers
and distributors of Embedded Products to permit them to create a Compact Disc containing
QuickAccess solely for the purpose of enabling such parties’ end-users of the Embedded
Product to reinstall QuickAccess, among other products, in the event of a system failure or
hard drive failure on the end-user’s Embedded Product (“Recovery CD”). The Recovery CD may
be distributed after Termination.”





Master Software License and Distribution Agreement, Confidential Amendment No. 6


3



**** Confidential
Treatment has been requested for certain redacted provisions of this
exhibit. The redacted provisions are identified by asterisks and
enclosed by brackets. The confidential portions have been filed
separately with the Securities and Exchange Commission.







 








	 	6.	 	Section 3.2 a of the Agreement (which is preceded by the introductory clause,
“This Agreement may be terminated, by written notice only, as follows:”) shall be deleted
in its entirety and replaced with the following:
	 
	 	 	 	“a. By Verizon Wireless, at least [****] prior to the expiration of any Term or
Renewal Term, or by SMSI at least [****] prior to the expiration of any Term or
Renewal Term, with such termination in either case being effective as of the end of such
Term or Renewal Term. Verizon Wireless shall have the right to place Orders up to and
including the effective date of such termination, and termination of this Agreement
pursuant to this subsection a shall not affect any Outstanding Order as of the effective
date of such termination.”
	 
	 	7.	 	Section 3.3.2 of the Agreement shall be deleted in its entirety and replaced with
the following:
	 
	 	 	 	“3.3.2 Provided Verizon Wireless continues to pay the license fees to acquire new licenses
to use the Unified Client or the Combination Client, QuickAccess, V CAST Music Essentials
Manager and the QuickLink® Mobile Phonebook software, SMSI shall grant to Verizon
Wireless, subject to the terms and conditions of this Agreement, at Verizon Wireless’
option, [****], the irrevocable, non-exclusive, non-transferable (except to a
parent or Affiliate of Verizon Wireless), limited right to manufacture or have
manufactured, enhance or have enhanced, market and distribute the Final Software and the
QuickLink® Mobile Phonebook software to distributors, resellers, Original Equipment
Manufacturer (OEM) customers of Verizon Wireless, subscribers of Verizon Wireless and
end-users.






	 	3.3.2.1	 	In the event that SMSI files for bankruptcy or ceases to do business, or
Termination under Section 3.3 of this Agreement, SMSI shall provide to Verizon
Wireless, subject to the terms and conditions of this Agreement, the source
codes, which will be disclosed to Verizon for use solely in order to perform
under this Agreement and for use of the Software as permitted thereunder, but
not to disclose, make derivative works, transfer, sell or assign to others, as
well as all operating and design documentation, training materials and any
other necessary information, and grant to Verizon Wireless, at Verizon
Wireless’ option, for five (5) years, an irrevocable, non-exclusive,
non-transferable (except to a parent or subsidiary of Verizon Wireless)
limited license to maintain, have maintained and enhance or have enhanced all
SMSI Final Software source codes necessary to support all Software created for
Verizon Wireless under this Agreement. At the expiration of such time period,
Verizon Wireless shall discontinue all of use of such source codes and any
copies thereof, and shall deliver to SMSI or destroy, at SMSI’s option, all
copies of such source codes, including all documentation and related materials
furnished by SMSI.”









	 	8.	 	Section 5.1 (License Fees) shall be deleted in its entirety and replaced with the
following:










Master Software License and Distribution Agreement, Confidential Amendment No. 6


4




**** Confidential
Treatment has been requested for certain redacted provisions of this
exhibit. The redacted provisions are identified by asterisks and
enclosed by brackets. The confidential portions have been filed
separately with the Securities and Exchange Commission.







 







“5.1 License Fees.




a. For orders placed directly by Verizon Wireless, Verizon Wireless shall pay SMSI the
license fees specified in Schedule A for the Single Client, Schedule A-l for the Combination
Client, Schedule A-2 for the QuickLink® Mobile Phonebook software, Schedule A-3 for the
Unified Client, Schedule A-6 for the CD Front End Start Up Application and V Cast Monitor
Tool, for each copy distributed by or for Verizon Wireless or any of its authorized direct
or indirect customers, Schedule A-7 for QuickAccess, or Schedule A-8 for V CAST Music
Essentials Manager.


b. Verizon shall track the number of copies of QuickAccess distributed to manufacturers and
distributors of Embedded Products and the number of Activations and include in its reports
required by this Section 5.1(b) of this Agreement the number of copies of QuickAccess
Integrated and QuickAccess Standalone distributed to manufacturers and distributors
of Embedded Products and the number of Activations during the reporting period using
QuickAccess Integrated and the number of Activations  during the reporting period made
using QuickAccess Standalone. Verizon Wireless shall include in each such report all
information reasonably necessary to verify the accuracy of the copies distributed and the
number of Activations for that reporting period. Verizon Wireless shall submit monthly
reports the month following the month of Activation. SMSI shall thereupon render an Invoice
to Verizon Wireless for Activations during such reporting period.




c. In addition to direct purchases made hereunder by Verizon Wireless, Verizon Wireless may
designate purchases to be made by third parties on behalf of Verizon Wireless. Such
purchases made by third parties on behalf of Verizon Wireless, pursuant to Schedule A or
Section 3(b) of Schedule A-l or Section 3(b) of Schedule A-3, and all payments associated
with such purchases made by third parties on behalf of Verizon Wireless shall be considered,
for purposes of this Agreement, purchases and payments made by Verizon Wireless.




d. Third parties desiring to purchase under Section 5.1(c) of this Agreement shall send a
purchase order to SMSI, which shall specify this contract number, the description of the
item, the number of units and the requested delivery date, but shall not specify the price
for the units (“Zero Dollar Purchase Order”). SMSI shall forward a copy of each such Zero
Dollar Purchase Order to Verizon Wireless for approval (“Approval”). Verizon Wireless shall
indicate its Approval of a Zero Dollar Purchase Order placed by a third party by sending a
notice of approval to SMSI by e-mail or in the same way provided for giving of Notices under
this Agreement (“Notice of Approval”). SMSI shall not be obligated to accept a Zero Dollar Purchase Order from a third party,
unless Verizon Wireless shall have given SMSI a Notice of Approval of such Zero
Dollar Purchase Order, without conditions. On receipt by SMSI of a Notice of
Approval of a Zero Dollar Purchase Order, such Zero Dollar Purchase Order shall
become an Order under this Agreement and, upon shipment, an obligation of Verizon
Wireless at the price set forth herein. The time given to SMSI to fill the Order
shall begin to run when SMSI shall have received Verizon Wireless’s Notice of
Approval and a Master Release Authorization Form, if required.



Master Software License and Distribution Agreement, Confidential Amendment No. 6



5



**** Confidential
Treatment has been requested for certain redacted provisions of this
exhibit. The redacted provisions are identified by asterisks and
enclosed by brackets. The confidential portions have been filed
separately with the Securities and Exchange Commission.







 






e. No terms, provisions or conditions of any purchase order, acknowledgment or other
business form that either Party, or any party designated to make purchases for Verizon
Wireless under section 5.1 (c) of this Agreement, may use in connection with this Agreement
including, without limitation, Zero Dollar Purchase Orders, will have any effect on the
rights, duties, or obligations of the parties under, or otherwise modify, this Agreement,
and each Party hereby continuously objects to any such terms, provisions or conditions.




f. CD-ROM/Production Fee: In addition to the license fee, Verizon Wireless shall pay SMSI a
production/reproduction fee of [****] CD ROM for all CD ROMs produced hereunder by SMSI
at Verizon Wireless’ request. Such fee shall cover the cost of the Master, the CD, CD label,
sleeve, duplication, quality control testing and inspection.




g. Verizon Wireless shall pay SMSI within [****] after receipt of an
Invoice.”




	9.	 	Section 5.5 Risk of Loss shall be deleted in its entirety and replaced with the following:
	 
	 	 	“5.5 Risk of Loss. Verizon Wireless shall bear the risk of loss or damage to the
Software during shipment to the end-user. If Verizon Wireless’ designated freight carrier
is utilized, or in the event Verizon Wireless shall instruct SMSI to expedite a shipment,
Verizon Wireless shall bear the risk of loss of or damage to the Software while in transit
to Verizon Wireless or to third parties purchasing on behalf of Verizon Wireless.”
	 
	10.	 	Section 7.3 shall be added to the Agreement, as follows:





     “7.3 With respect to any Software not heretofore accepted by Verizon Wireless pursuant
to this Agreement, upon certification by SMSI that the Software is ready for acceptance testing,
Verizon Wireless shall (following successful installation of the Software), within a reasonable
time, commence tests on the Software to determine, in its reasonable discretion, whether the
Software conforms to the specifications and any acceptance criteria set forth or referenced in
an applicable Statement of Work, if any, or other similar document setting forth or referencing
such criteria (“Acceptance Criteria”). If the Software successfully conforms to the Acceptance
Criteria, Verizon Wireless shall notify SMSI in writing of its acceptance of the Software by
executing and delivering a Master Release Authorization in the form attached hereto as Schedule
E (“Acceptance”). The Software will be deemed to conform to the Acceptance Criteria if an
executed Master Release Authorization form, or written notice of rejection, is not delivered by
Verizon Wireless to SMSI within 30 days after the date the Software is supplied to Verizon
Wireless. If Verizon Wireless reasonably determines that the Software does not so conform, it
shall advise SMSI in writing, specifying each such non-conformity, and SMSI shall have a
commercially reasonable period of time, to remedy the non-conformance. The parties agree to work
in good faith to be as responsive as reasonably possible to pending deadlines.”



	11.	 	Sections 8.2 and 8.3 shall be deleted in their entirety and replaced with the following:





     “8.2 SMSI’s Warranties. SMSI warrants that during the Warranty Period (as defined
below), the Software and Data Cables from SMSI’s approved manufacturers (“Approved



Master Software License and Distribution Agreement, Confidential Amendment No. 6




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**** Confidential
Treatment has been requested for certain redacted provisions of this
exhibit. The redacted provisions are identified by asterisks and
enclosed by brackets. The confidential portions have been filed
separately with the Securities and Exchange Commission.






 




Data Cables”), furnished hereunder, shall be free from material programming errors and
from material defects in workmanship and materials, and shall perform substantially in
accordance with the specifications set forth in the documentation provided with such Software
and Approved Data Cables. SMSI further warrants that any such documentation (i) is and will
continue to be complete, and will accurately describe the then-current versions of such
Software and Approved Data Cables so as to enable their users to fully utilize such Software
and Approved Data Cable for the purposes for which they are to be licensed to Verizon
Wireless hereunder, and (ii) shall be promptly and accurately updated (at a level of quality
at least equivalent to the initial documentation provided to Verizon Wireless) to reflect any
new versions of such Software and/or Approved Data Cables and any and all other
modifications, enhancements, updates, error corrections, improvements, and the like to such
Software and Approved Data Cables. Verizon Wireless acknowledges that inevitably some errors
may exist in the Software, and the presence of such errors shall not be a breach of this
provision. In no event shall SMSI’s obligations under this warranty exceed those contained in
SMSI’s end user license, as it may be in effect from time to time. This warranty shall be of
no effect should Verizon Wireless cause the Software to be modified or used other than as
licensed hereunder or as provided in the documentation without the written consent of SMSI.
Other than as provided herein for Approved Data Cables, SMSI makes no warranty with respect
to the Hardware. Verizon Wireless’s warranty rights with respect to the Hardware shall be
limited to those provided by the original equipment manufacturer(s) of the Hardware.




     “8.3
SMSI’s Fulfillment of Warranty Obligations. If at any time during the 90-day period
immediately following the release date for the Approved Data Cables or the date of acceptance
of the Software, as applicable (the “Warranty Period”), SMSI or Verizon Wireless shall
discover one or more material defects or errors in the Software or Approved Data Cables or
any other respect in which the Software or Approved Data Cables fail to conform to the
provisions of any warranty contained in this Agreement, SMSI shall, entirely at its own
expense, promptly use reasonable efforts to correct such defect, error or nonconformity by,
among other things supplying Verizon Wireless with corrected versions of the Software or
Approved Data Cables.”


12. Section 9.2 shall be deleted in its entirety and replaced with the following:




     “9.2 Infringement. SMSI
agrees to indemnify, defend, and hold Verizon Wireless and its
sublicensees harmless from and against any and all actions, suits, settlements, claims,
liabilities, damages, losses and expenses (including the reasonable fees of attorneys and
other professionals and related costs and expenses) arising directly or indirectly out of or
in connection with any claim that the Software violates any patent, trademark, copyright and
any other intellectual or industrial property right of third parties, finally awarded in any
such claim, suit or proceeding. SMSI shall have no liability for infringement based on (a)
failure of Verizon Wireless, or its sub-licensees, to make available to their customers any
corrections or enhancements made available by SMSI at no charge that maintain equivalent or
better functionality and performance, to the extent that such correction or enhancement would
have avoided the infringement claim, (b) modification of the Software without SMSI’s written
consent, (c) the combination or use of the Software with any other software, equipment,
product, device, item or process not furnished by SMSI or not contemplated under this
Agreement, if such infringement would have been avoided by the use of the Software as
contemplated herein or alone and in their current unmodified form, (d) Verizon Wireless’s
continued infringing activities more than thirty (30) days after being notified



Master Software License and Distribution Agreement, Confidential Amendment No. 6




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**** Confidential
Treatment has been requested for certain redacted provisions of this
exhibit. The redacted provisions are identified by asterisks and
enclosed by brackets. The confidential portions have been filed
separately with the Securities and Exchange Commission.







 




thereof or after being informed of modifications that would have avoided the
infringement by SMSI, or (e) Software created by SMSI in compliance with the specifications
provided by Verizon Wireless. Verizon Wireless shall indemnify, defend, and hold SMSI harmless
from and against any and all actions, suits, settlements, claims, liabilities, damages, losses
and expenses (including the reasonable fees of attorneys and other professionals and related
costs and expenses) arising directly or indirectly out of or in connection with any claim
excluded from SMSI’s indemnity obligation by the previous sentence.”



13. The following shall be added to the end of Section 10.1 of the Agreement:




          “Notwithstanding anything in the forgoing to the contrary, SMSI may disclose Verizon
Wireless’s Confidential Information to any party whose hardware or software SMSI is required
to support, or maintain compatibility with, under this Agreement, provided that such
disclosure is made on a need to know basis and is made with Verizon Wireless’ written or
e-mail approval, pursuant to a non-disclosure agreement with such party or parties.”



14. Section 10.4 of the Agreement shall be deleted in its entirety and replaced with the
following:



“10.4 Intellectual Property.




     10.4.1 Ownership. Except for the rights and assignments expressly granted herein,
this Agreement does not transfer from SMSI to Verizon Wireless any SMSI Work Product, or any
intellectual property rights therein, and all right, title and interest in and to SMSI Work
Product and its intellectual property will remain solely with SMSI. Except for the rights
expressly granted herein, this Agreement does not transfer from Verizon Wireless to SMSI any
Verizon Wireless Work Product, or any intellectual property rights therein, and all right,
title and interest in and to Verizon Wireless Work Product and its intellectual property will
remain solely with Verizon Wireless.



     Verizon Wireless hereby grants to SMSI a non-exclusive, royalty-free, retroactive and
prospective license to use Verizon Wireless Work Product solely in the development and support
of the applicable custom solutions for Verizon Wireless pursuant to the terms of this
Agreement. SMSI and Verizon Wireless each agrees that it will not, directly or indirectly,
reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other
trade secrets from the other party.



     10.4.2 SMSI Proprietary Technology. Notwithstanding anything to the contrary in
this Agreement, SMSI will not be prohibited or enjoined at any time by Verizon Wireless from
utilizing any SMSI Proprietary Technology, or skills or knowledge of a general nature acquired
during the course of providing the Software and Services contemplated
by this Agreement,
including, without limitation, information publicly known or available, information available
from a third party, or information that was acquired in similar work performed for another
customer of SMSI. SMSI Proprietary Technology includes, without limitation, software tools,
hardware designs, algorithms, source code, object code, user interface designs, architecture,
class libraries, objects and documentation, network designs, know-how, trade secrets and any
related intellectual property rights. SMSI Proprietary Technology further includes any
derivatives, improvements, enhancements or extensions of SMSI Proprietary Technology conceived,
reduced to practice, or developed during the term



Master Software License and Distribution Agreement, Confidential Amendment No. 6




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**** Confidential
Treatment has been requested for certain redacted provisions of this
exhibit. The redacted provisions are identified by asterisks and
enclosed by brackets. The confidential portions have been filed
separately with the Securities and Exchange Commission.







 




of this Agreement that are not uniquely applicable to Verizon Wireless or that have
general applicability. SMSI Proprietary Technology includes, without limitation, the SMSI
Owned Modules identified in Schedule F.




     10.4.3. SMSI Software. Verizon Wireless agrees that the Software provided
hereunder, and any copies thereof, in whole or in part, and all SMSI Proprietary Technology,
Work Product and intellectual property rights therein, including without limitation, patent,
copyright, trademark, trade secret, and any other intellectual or industrial property rights,
are and shall remain the sole property of SMSI, and that all rights thereto are owned and
reserved by SMSI, except as provided in Sections 10.4.4 and 10.4.6, herein. Verizon Wireless
agrees that it will not create derivatives of such Software, nor use, copy, disclose, sell,
assign, sublicense, or otherwise transfer the Software except as expressly provided in this
Agreement. Verizon Wireless is prohibited from the disassembly or decompilation of the object
code or the disclosure of any other aspect of the workings of the Software without the prior
written consent of SMSI.


     SMSI Software includes, without limitation, the software products developed by SMSI under
the name “QuickLink Mobile”, “QuickLink Phonebook”, “QuickLink Phone Manager”, “QuickLink
Music” and “V Cast Music Essentials Manager” and any adaptations, customizations and
modifications thereto made hereunder pursuant to Schedule A-8. Notwithstanding the foregoing,
SMSI agrees that it does not have ownership rights to any artwork provided by Verizon Wireless
and used in the SMSI Software, or rights to use the “V Cast Music Essentials Manager”
trademarks and branding.



     10.4.4 Assignment and License Grant. SMSI hereby assigns to Verizon Wireless all right,
title and interest in any copyrights inhering in, and any intellectual property rights inhering
in and created solely in the development of, the Verizon Wireless Owned Modules identified in
Schedule F that SMSI may have, provided, however, that such assignment does not include any
SMSI Proprietary Technology and SMSI Work Product as defined in Section 10.4.2. SMSI hereby
grants to Verizon Wireless a non-exclusive, non-transferable, royalty free, perpetual license
to use the SMSI Proprietary Technology incorporated into the Verizon Wireless Owned Modules
solely in connection with the use of the Software as a whole. “Use” does not include the making
of new derivative works, or the right to disclose SMSI Proprietary Technology to third parties,
absent SMSI’s prior written consent.


     Verizon Wireless hereby grants to SMSI a non-exclusive, royalty-free, retroactive and
prospective license to use Verizon Wireless Owned Modules solely in the development of
Software, and support thereof, for Verizon Wireless during the term of this Agreement. SMSI
agrees that it will not create derivatives of such Verizon Wireless Owned Modules, nor use,
copy, disclose, sell, assign, sublicense, or otherwise transfer the Verizon Owned Modules
except as expressly provided in this Agreement. SMSI is prohibited from disclosure of any other
aspect of the working of the Verizon Wireless Owned Modules without the prior written consent
of Verizon Wireless.



     As a condition precedent to the assignment herein, Verizon Wireless agrees that its rights
to use, copy, maintain and modify the Verizon Wireless Owned Modules are subject to the terms of
this Agreement including, without limitation, the License Fee provisions of Section 5.1 and the
termination provisions of Section 3. Verizon Wireless further agrees that the License Fee
provisions of Section 5.1 shall apply to derivatives of the Verizon Wireless



Master Software License and Distribution Agreement, Confidential Amendment No. 6




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**** Confidential
Treatment has been requested for certain redacted provisions of this
exhibit. The redacted provisions are identified by asterisks and
enclosed by brackets. The confidential portions have been filed
separately with the Securities and Exchange Commission.







 




Owned Modules created or authorized by Verizon Wireless subject to the then current license
rate.




     10.4.5 Source Code. Notwithstanding section 3.3.2.1, upon request of Verizon
Wireless, SMSI shall deliver to Verizon Wireless a copy of all source code corresponding to
the latest versions of the respective Verizon Wireless Owned Modules.



     10.4.6 Work for Hire. In the event of any future customization projects, Verizon
will own any such Works for Hire in accordance with Schedule G. Each work for hire shall be
identified in advance, and convenience’s sake, shall be numbered consecutively (e.g., Appendix
G-l, Appendix G-2, etc.)”.



     10.4.7 SMSI further agrees that Verizon Wireless owns any specifications created solely
by Verizon Wireless, and provided to SMSI. SMSI further agrees that it will not create an
initial user interface display screen for a third party that is virtually identical to Verizon
Wireless’s, or includes artwork or other branding provided by Verizon Wireless.


15. Section 10.7 shall be added to the Agreement as follows:



“10.7. Verizon Wireless shall obtain from its distributors, including without limitation,
manufacturers and distributors of Embedded Products, prior to shipment of any of the Software
to such sub-distributors, a written agreement for distribution of the Software, containing
terms not less restrictive than those provided for herein.”



16. Section 13.6 of the Agreement shall be deleted in its entirety and replaced with the
following:




     “13.6 LIMITATION OF LIABILITY; CONSEQUENTIAL DAMAGES. EXCEPT FOR THIRD PARTY LIABILITIES
SUBJECT TO THE INDEMNITY PROVISIONS OF SECTIONS 9.1, 9.2 OR 9.3, A BREACH OF THE
CONFIDENTIALITY PROVISIONS IN SECTION 10.1, OR THE INTENTIONAL MISCONDUCT OF A PARTY, NEITHER
PARTY WILL BE LIABLE TO THE OTHER PARTY IN ANY MANNER, UNDER ANY THEORY OF LIABILITY, FOR ANY
INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING FROM THE
SUBJECT MATTER OF THIS AGREEMENT. THIS LIMITATION OF LIABILITY APPLIES EVEN IF THE OTHER PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF
REVENUE, ANTICIPATED PROFITS OR LOST BUSINESS, EXCEPT FOR THIRD PARTY LIABILITIES SUBJECT TO
THE INDEMNITY PROVISIONS OF SECTIONS 9.1, 9.2 OR 9.3, A BREACH OF THE CONFIDENTIALITY
PROVISIONS IN SECTION 10.1, OR THE INTENTIONAL MISCONDUCT OF A PARTY, ONE PARTY’S CUMULATIVE
LIABILITY TO THE OTHER PARTY, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE
LIMITED TO AND WILL NOT EXCEED THE FEES TO BE PAID TO SMSI BY VERIZON WIRELESS DURING THE TERM
OF THIS AGREEMENT. IN NO EVENT WILL VERIZON WIRELESS BE DEEMED LIABLE IN ANY MANNER, DIRECTLY
OR INDIRECTLY, FOR THE ACTS OR OMISSIONS OF ANY OF ITS SUBSCRIBERS.”



Master Software License and Distribution Agreement, Confidential Amendment No. 6




10



**** Confidential
Treatment has been requested for certain redacted provisions of this
exhibit. The redacted provisions are identified by asterisks and
enclosed by brackets. The confidential portions have been filed
separately with the Securities and Exchange Commission.







 





17. Schedule A-2, Section 3, subsection (a) shall be deleted in its entirety and
replaced with the following:


“a. Per Unit Price (License) QuickLink® Mobile Phonebook software:



	 	1.	 	When shipped with VZAccess Manager as part of the Mobile Office
Kits and not as a stand-alone product: [****]
	 
	 	2.	 	When shipped as a stand-alone product: [****]





18. [****]


11



**** Confidential
Treatment has been requested for certain redacted provisions of this
exhibit. The redacted provisions are identified by asterisks and
enclosed by brackets. The confidential portions have been filed
separately with the Securities and Exchange Commission.






 





[****]





12




**** Confidential
Treatment has been requested for certain redacted provisions of this
exhibit. The redacted provisions are identified by asterisks and
enclosed by brackets. The confidential portions have been filed
separately with the Securities and Exchange Commission.






 






[****]




13



**** Confidential
Treatment has been requested for certain redacted provisions of this
exhibit. The redacted provisions are identified by asterisks and
enclosed by brackets. The confidential portions have been filed
separately with the Securities and Exchange Commission.






 



[****]




14



**** Confidential
Treatment has been requested for certain redacted provisions of this
exhibit. The redacted provisions are identified by asterisks and
enclosed by brackets. The confidential portions have been filed
separately with the Securities and Exchange Commission.






 






[****]


19. Schedule A-3, Section 3; subsection (f) shall be deleted in its entirety.



20. Schedule A-7, QuickAccess and Related Services — Description and Pricing, shall be added to
the Agreement in the form attached hereto.



21. Schedule A-8, V CAST Music Essentials Manager and Related Services — Description and
Pricing, shall be added to the Agreement in the form attached hereto.



22. Schedule E, Master Release Authorization, shall be added to the Agreement in the form
attached hereto.



23. Schedule F shall be added to the Agreement in the form attached hereto.



24. Schedule G, Work Product Identification Form, shall be added to the Agreement in the
form attached hereto.



25. Except as specifically provided hereunder, the terms and conditions of the Agreement
shall remain in full force and effect as set forth therein.




Master Software License and Distribution Agreement, Confidential Amendment No. 6




15




**** Confidential
Treatment has been requested for certain redacted provisions of this
exhibit. The redacted provisions are identified by asterisks and
enclosed by brackets. The confidential portions have been filed
separately with the Securities and Exchange Commission.






 





     IN WITNESS WHEREOF, the Parties hereto have caused this Amendment to be executed by
their duly authorized officers or representatives.



	 	 	 	 	 	 	 	 	 	 	 
	CELLCO PARTNERSHIP	 	 	 	SMITH MICROSOFTWARE, INC.	 	 
	d/b/a Verizon
Wireless	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By: 

Name:
	 	/s/ James Straight
 

James Straight	 	 	 	By:

Name:	 	/s/ William W. Smith, Jr.
 

William W. Smith, Jr.	 	 
	Title:
	 	VP Data	 	 	 	Title:	 	President/CEO	 	 
	Date:
	 	1 Nov. 06	 	 	 	Date:	 	Oct. 31, 2006	 	 






Master Software License and Distribution Agreement, Confidential Amendment No. 6





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