NEUSTAR MOBILE CODES PILOT PROGRAM AGREEMENT
EXHIBIT
10.1
NEUSTAR
MOBILE CODES PILOT PROGRAM AGREEMENT
This
Agreement for [the Pilot] is entered into this 12th day of
February (the “Effective Date”) by and between Neustar, Inc., a Delaware
corporation with a principal place of business at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (“Neustar”) and NeoMedia Technologies, Inc. (“Participant”) a
Delaware Corporation, with a principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. (each of the foregoing to hereinafter
referred to individually as a “Party” and collectively the
“Parties”).
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1.
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Scope
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This
Agreement sets forth the terms and conditions under which Participant may
participate in the NEUSTAR MOBILE CODES
PILOT PROGRAM (the
“Pilot”) for the service identified and/or described in Exhibit 1 hereto (the
“Service”). During the Pilot, Neustar may, in its sole discretion and
without notice, modify the capabilities of the Service.
If
Participant desires to receive the Service after the expiration of the Pilot, it
will be required to execute a definitive agreement for the Service setting forth
commercial terms and conditions, including pricing provided, however, that the
terms and conditions of this Agreement shall continue to apply to any campaign
begun during the pilot for a period of one hundred twenty (120) days after the
end of the Pilot. Any campaigns started after the end of the Pilot
shall be subject to the terms and conditions of a definitive
agreement.
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2.
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Term
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The term
of this Agreement shall begin on the Effective Date and shall continue
thereafter until December 31st 2010, unless earlier terminated by either Party
as provided herein.
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3.
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Limitations
and Restrictions
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a.
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Business
Purposes
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Participant
may use the Service solely for its internal business purposes, and not for
resale as a stand-alone product. For the avoidance of doubt, use by
Participant of the Service as a component of its service to its own customers
shall not be considered resale for purposes of this Section 3a.
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b.
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Non-Interference
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In order
to participate in the Pilot, Participant may be required to connect to Neustar’s
system. In such a case, Participant may only use the connection to
Neustar’s systems (“Network Connection”) solely for the permitted purposes set
forth herein. Participant shall not use the Network Connection or its
equipment or systems in a way that interferes in any way with or adversely
affects the use by any third party of any Neustar product or service offering,
including the Service. Neustar reserves the right to cancel and/or
temporarily suspend the delivery of the Service if Participant engages in
activities which cause disruption or damage to Neustar’s network or which
Neustar reasonably believes may cause disruption or damage to Neustar’s network.
Neustar will provide Participant with notice of such suspension and will make
reasonable efforts to work with Participant to restore Service.
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c.
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Compliance With
Laws
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Participant
represents and warrants that it will use the Services in good faith for lawful
purposes and not for any criminal, fraudulent, or other abusive
purpose. Participant shall be responsible for compliance with
all laws and regulations applicable to the services provided by Participant to
its customers, as well as complying with all laws regarding access and use of
any content, and the collection and transfer of data. Participant
shall indemnify and hold harmless Neustar for an third party claim related to
matters arising from the matters set forth in this Section 3c.
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4.
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Pricing
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Companies
who are registered Campaign Manager resolution authorities in the Registry are
responsible for any and all fees associated with the Pilot. Companies
who act as code resolution authorities (Campaign Managers) must comply with the
pricing terms of this agreement. Companies who act in capacities
which do not include Campaign Management resolution authorities will not be
liable for incurred fees.
Pilot Fee
Waiver: Neustar agrees to waive Global Registry fees associated with the
Service. In addition, Neustar shall waive Global Clearinghouse fees
for any campaigns by Participant for which Campaign Manager shall not charge its
customers. During the Pilot, simulated billing shall be conducted
based on fees set forth in Exhibits 2 & 4. All fees are subject
to change during the trial period based on market reception and acceptance but
shall not exceed the maximum fees set forth in Exhibit 2.
In the
event that Participant seeks to derive revenue from customers for any campaign
offered under this Agreement, the Parties shall agree upon Global Clearinghouse
fees associated with the given campaign based upon the fees set forth
in Exhibit 2. To the extent, however, that a Campaign Manager is
required to pay an IP Licensing Fee (See Section 5 below), such Campaign Manager
shall not be considered to be deriving revenue under this Agreement soley by
virtue of the fact that such IP Licensing Fees are passed on to Campaign
Manager’s customers. In the event that Participant elects to receive
the Service after the expiration of the Term, Participant compensation to
Neustar shall be in accordance with the terms and conditions of a definitive
commercial agreement negotiated by the Parties. The prices for the
Services under such definitive agreement shall not exceed the fees set forth in
Exhibit 2 hereto subject to the timeframes established in Section 1 (Scope) of
this agreement. In addition, during the course of the Pilot,
Neustar may implement additional, optional features to the Service that may be
subject to a charge. Participation in the Pilot does not require that
Participant register for any such future capabilities subject to a
charge.
Prior to
the expiration of the Pilot, the Parties shall begin good faith negotiations of
a definitive agreement for full commercial deployment of the
Service.
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5.
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IP
Licensing Fee
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Participants
doing business in the United States and Mexico who do not have an
Intellectual Property Licensing Agreement with NeoMedia Technologies, Inc.
(“NeoMedia) , a Delaware corporation with a principal place of business at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, must agree to
license the NeoMedia patents from Neustar for transactions being presented to
the Global Clearinghouse in the United States under the terms and conditions of
the separate license agreement attached as Exhibit 4.
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6.
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Pilot
Results
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Participants
will be provided with aggregated reports following conclusion of the Pilot
Program documenting best practices, use cases, Pilot Program results and
implementation guidelines. Section 9 hereto notwithstanding,
Participants hereby grant Neustar a fully paid, transferable, worldwide,
irrevocable right to use, display, copy, license, and make derivative works of
transactional and related Confidential Information and data provided and/or
derived from the Pilot; provided, however, that any disclosure of such
Confidential Information or data shall be in aggregate form and shall not
identify, without prior written consent, any Participant or its customers except
as set forth in Section 11 and Exhibit 3. Participants agree to
provide Neustar with the data elements related to their campaign(s) set forth in
Exhibit 3.
Participant
acknowledges that any feedback provided under this Agreement is voluntary and
Neustar may use or not use such feedback in its sole
discretion. In the event that Neustar uses Participant
feedback, Participant, to the extent necessary and unless the Parties have
otherwise agreed in writing, grants to Neustar a fully paid, transferable,
worldwide, irrevocable right to use, display, copy, license, and make derivative
works of any such feedback.
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7.
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Termination
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Participant
may terminate this Agreement at any time for any reason upon no less then thirty
(30) day’s prior written notice. In the event that either Party
commits a material breach of this Agreement, the other Party may, by giving no
less than five (5) days prior written notice to the defaulting Party, terminate
this Agreement. The foregoing notwithstanding, the non-defaulting
Party may pursue any legal remedies it may have under applicable law or
principles of equity relating to such breach and subject to the terms of this
Section. Either Party may immediately terminate Participant’s
participation in the program if the other Party (a) becomes or is declared
insolvent or bankrupt; (b) is the subject of any proceeding related to its
liquidation or insolvency (whether voluntarily or involuntarily) which is not
dismissed within ninety (90) days; or (c) makes an assignment for the benefit of
creditors.
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8.
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Liability
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EXCEPT AS
OTHERWISE EXPRESSLY PROVIDED HEREIN, NO PARTY SHALL BE LIABLE TO ANY OTHER OR
ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR OTHER
INDIRECT DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF
BUSINESS OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT, WHETHER IN
CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FORGOING
LIMITATION SHALL NOT APPLY WITH RESPECT TO THIRD PARTY CLAIMS SUBJECT TO
INDEMNIFICATION, FEES DUE AND OWING HEREUNDER, OR CLAIMS ARISING OUT OF A BREACH
OF ANY CONFIDENTIALITY PROVISIONS. WITHOUT LIMITING THE FOREGOING,
NEUSTAR SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGES SUSTAINED BY PARTICIPANT OR
ITS END USERS BY REASON OF ANY FAILURE IN OR BREAKDOWN OF THE SERVICE OR
ANYTHING PROVIDED OR USED TO PROVIDE ANYTHING HEREUNDER, OR FOR ANY INTERRUPTION
OR DEGRADATION OF THE SAME, WHATEVER THE CAUSE OR DURATION THEREOF.
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9.
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Disclaimers
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PARTICIPANT
ACKNOWLEDGES THAT THE SERVICE IS PROVIDED ON A PILOT BASIS, MAY BE EXPERIMENTAL
OR RISKY IN NATURE, AND MAY NOT HAVE BEEN MADE AVAILABLE FOR GENERAL
RELEASE. AS SUCH, THE SERVICE MAY CONTAIN ERRORS, BUGS, OR OTHER
PROBLEMS NOT USUALLY ASSOCIATED WITH GENERALLY-AVAILABLE PRODUCTS AND
SERVICES. THERFORE PARTICIPANT ASSUMES THE RISK OF RECEIVING THE
SERVICE.
THE
SERVICE SHOULD NOT BE USED IN AN EMERGENCY ENVIRONMENT OR ON A CRITICAL
SYSTEM. PARTICIPANT SHALL HAVE SOLE RESPONSIBILITY FOR THE ADEQUATE
PROTECTION AND BACKUP OF ITS CUSTOMER’S DATA AND/OR EQUIPMENT USED DURING THE
PILOT. NEUSTAR IS UNDER NO OBLIGATION TO PROVIDE PARTICIPANT WITH ANY ERROR
CORRECTIONS, UPDATES, UPGRADES, BUG FIXES AND/OR ENHANCEMENTS.
NEUSTAR
DOES NOT MAKE, AND SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES,
WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT,
WITH RESPECT TO THE SERVICE AND ANYTYHING ELSE RENDERED
HEREUNDER. WITHOUT IN ANY WAY LIMITING ANY
DISCLAIMER OF WARRANTIES HEREUNDER, PARTICIPANT AGREES THAT DURING THE PILOT THE
SERVICE WILL BE PROVIDED ON AN “AS IS” BASIS AND THAT THERE WILL BE NO SERVICE
LEVEL COMMITMENTS, INCLUDING BUT NOT LIMITED TO AVAILABILITY AND SYSTEM RESPONSE
TIMES.
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10.
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Confidentiality
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Each
Party acknowledges that they may be furnished with, receive, otherwise have
access to confidential information of the other Parties. Each Party
shall use at least the same degree of care, but in any event no less than a
reasonable degree of care, to prevent unauthorized disclosure or use of the
other Parties’ Confidential Information as it employs to avoid unauthorized
disclosure of its own Confidential Information of a similar
nature. For purposes of this Agreement, Confidential Information
shall mean any information that a Party indicates to another Party is, or that
the other Party is on notice or with respect to which a reasonable Party should
be on notice, confidential in nature (e.g., marked “confidential” or
“proprietary”).
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11.
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Publicity
and Promotion
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a.
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Publicity
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Neustar will coordinate all publicity
and promotion (in cooperation with each participant.) The
Parties agree to cooperate to actively promote the Pilot and Participant agrees
that Neustar may use Participant’s trade names, trademarks, service marks, or
other proprietary marks in Pilot results and reports, listings of participants,
seminars, industry events, reasonable promotion, news releases, or other
promotional or marketing materials without such other Party’s prior written
consent. Participant agrees to coordinate in advance all media
outreach, analyst discussion, press releases, and other publicity regarding the
Pilot with Neustar.
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b.
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Promotional Materials
and Results
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Participant
agees to, within thirty (30) days of the completion of a campaign using the
Services or by August 15, 2010 (whichever is earlier), to produce, utilizing
forms provided by Neustar, customer use case results and
information, including the information listed in Exhibit 3 to promote
the use of Barcodes. In addition, Participant shall work with Neustar
to develop other such reports, documentation, use cases, testimonials and
promotional materials that the parties find reasonable to promote the
Pilot.
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12.
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Ownership
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Neustar,
and, as applicable, its licensors, has and shall have sole and exclusive
ownership of all right, title and interest in and to the Service, including, but
not limited to, associated hardware, software, interfaces, and documentation,
and all portions and copies thereof, including all associated intellectual
property rights. Except as specifically and expressly provided
herein, Participant shall not modify, create derivative works based on, loan,
rent, lease, give, sublicense, transfer, publish, disclose, display, reverse
engineer, decompile, translate, adapt, or disassemble the Service.
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13.
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Entire
Agreement
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This
Agreement constitutes the entire agreement between the Parties with respect to
the subject matter herein, and supersedes all prior agreements, whether written
or oral, with respect to the subject matter contained therein. This
Agreement may be modified only by a written instrument executed by both
Parties.
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14.
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Assignment
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Neither
Party may assign or otherwise transfer all or any portion of its rights or
obligations under this Agreement without prior written consent of the other
Party, which consent shall not be unreasonably conditioned, withheld or
delayed. Either Party may assign this Agreement without consent to
(a) any of its affiliates; (b) an entity which acquires all or substantially all
of the assets of such Party; or (c) a successor in a merger or
acquisition.
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15.
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Governing
Law
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This
Agreement shall be governed by the laws of the the State of New York, without
reference to its principles of conflict of laws or the U.N Convention on
Contracts for the International Sale of Goods. The Parties hereby
expressly opt-out from the applicability of any State’s version of the Uniform
Computer Information Transactions Act (“UCITA”).
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The
Parties, intending to be legally bound, have caused this Agreement to be
executed as of the Effective Date.
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NEOMEDIA
TECHNOLOGIES, INC.
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NEUSTAR,
INC
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By:
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/s/
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By:
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/s/
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(Signature)
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(Signature)
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Printed
Name:
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▇. ▇▇▇▇
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Printed
Name:
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▇. ▇▇▇▇▇
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Title:
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Chief
Financial Officer
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Title:
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V.P.
Finance and Corporate Controller
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Date:
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February
12, 2010
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Date:
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February
12, 2010
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Address:
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Two
Concourse Parkway
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Address:
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