EXHIBIT
10.35
Microsoft Word
11.0.6502;This
Agreement is made on the 23rd day of
December,
2005 by and between:
1.
NS8 CORPORATION,
a company incorporated in the State of Delaware
and
having its principal office at One Union Square, 600 University Street,
Suite 1525, Seattle,
Washington, 98101 USA
(hereinafter referred
to as
"NS8");
2.
ACME MOBILE PTE LTD, a company incorporated in Singapore,
and having its
offices at 110A Telok Ayer Street, Singapore 068579 (hereinafter
referred
to
as "Acme").
WHEREAS:
A.
NS8 is a mobile
content service provider and Acme is an authorised
distributor of Mobile Entertainment applications and contents.
B.
NS8 intends to make
available to its Customers Contents (as defined
below) to be provided by Acme that will enable the Customers of NS8 to
purchase and run such Contents on their mobile phones.
NOW IT IS AGREED THAT:
1.
DEFINITIONS
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Terms / Expressions
Meaning
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"Contents"
All the JAVA, MMS, graphical and/or
other mobile
entertainment
contents
and/or applications
provided by Acme to
NS8.
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"Content Fee"
The fee paid by Customers for each
downloaded piece of
Content, excluding
airtime &
data
charges
and the
prevailing Goods
and Services Tax.
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"Customers"
Subscribers to NS8's service.
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"Content Licensors"
Third party content
providers for whom
Acme is an authorized distributor.
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"Service"
The Service to
download a selection
of
Contents that are provided by Acme. The
Service shall be made
available to the
Customers via their mobile phones and/or
NS8's web sites or other designated
websites.
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2.
COMMENCEMENT AND TERMINATION
2.1 This
Agreement will take effect on January 3, 2006 ("Effective Date")
and
continue for an initial term of three (3) years, and shall thereafter be
automatically renewed for successive 1-year terms.
2.2
Notwithstanding Clause
2.1, this Agreement or any part thereof may be
terminated:
(a)
By either
party, upon giving at least ninety (90) days' prior
written notice to the other without assigning any reason
thereof;
(b)
Immediately, upon
written notice by
either party,
if the other
breaches a representation, warranty or material obligation of
this
Agreement and
fails to cure the breach within fourteen (14)
business days from the
receipt of a written
request to cure from
the non-breaching party; or
(c)
Immediately, upon
written notice by
either party,
if the other
ceases or threatens to cease to carry on all or a substantial
part
of its business, or becomes insolvent, or makes an assignment for
the benefit of its
creditors, or a
receiver is appointed for its
business, or an order is made for the winding up of it (other
than
for the purposes of amalgamation or reconstruction).
2.3 Upon
termination of this
Agreement or part thereof, NS8 will remove the
relevant Contents and delete the said Contents from its web sites
and any
other storage medium.
All materials in either party's control belonging
to
the other party, including without limitation, Confidential
Information (as
defined below) of either party, will be promptly returned
to
the owner or destroyed according to the owner's written
instructions,
with
such destruction
to be certified to the owner in writing by an
officer of such other party. The termination of this Agreement or part
thereof for any
reason whatsoever shall not affect any rights or
liabilities that have accrued prior to or upon termination.
3.
GRANT OF LICENCE
3.1 In
consideration of the
promises and mutual covenants and agreements set
forth herein,
Acme hereby grants to NS8 a non-exclusive license to
reproduce, digitize,
use, publicly display, publicly broadcast, transmit
and
distribute the
Contents or any part thereof in Thailand, Singapore,
Australia, New Zealand, Taiwan, Hong Kong, and the Philippines on
its web
sites and Customers' mobile phones for the commercial purposes described
herein, including the
downloading and consumption of the Contents by the
Customers.
3.2 NS8
acknowledges
that the Contents
and their source codes constitute
valuable trade
secrets of Acme. Accordingly, NS8 agrees not to: (a)
modify, adapt,
alter, translate, or create derivative works from the
Contents except as expressly permitted herein; (b) sublicense, lease,
rent, loan, or otherwise transfer the Contents to any third
party except
as
expressly permitted herein; (c) reverse engineer, decompile,
disassemble, or
otherwise attempt to derive the source codes of the
Contents.
3.3 NS8
further agrees not to independently, or through its' agents,
pursue
or
negotiate commercially with Acme's developers, artists, engineers or
other related companies without Acme's written consent.
4.
OBLIGATIONS OF ACME
4.1 Acme
shall provide NS8 with an initial selection of Contents as listed
in
Appendix 1 of this Agreement.
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4.2 Acme
warrants that the Content Licensors are the owners of all
rights,
title and interest (including intellectual property rights) in the
Contents or are
otherwise entitled to the rights
thereto, and Acme's
license agreements
with the Content Licensors, under which it has or
shall secure all necessary rights of use for the Contents as
contemplated
under this Agreement,
are or will be legal,
valid and binding as at the
launch date of the
Contents and shall
subsist for the full
duration of
this
Agreement.
4.3 Acme
shall supply the Contents to NS8 in the manner jointly agreed upon
by
Acme and NS8; provided
that NS8 shall provide to Acme all information
and
assistance reasonably required by Acme to supply the Content.
4.4 Acme
shall use commercially reasonable efforts to ensure that the
Contents are compatible with current industry standard handsets;
and that
it
will make available
to NS8 updated
versions of the
Contents as they
become available:
4.5 Acme
shall use commercially
reasonable
efforts to check for
and remove
commonly knoZZwn
viruses prior to providing the Contents to NS8. Without
prejudice to the
aforesaid,
Acme shall assist NS8
to resolve any bugs,
errors and/or viruses discovered in the Contents.
5.
OBLIGATIONS OF NS8:
5.1 NS8
shall host the
Contents on its own
servers (or on the
servers of a
third party that NS8 has engaged for that purpose) and be
responsible for
providing the necessary infrastructure to enable Customers to download
the
Contents onto their handsets, unless otherwise agreed in
writing.
5.2 NS8
shall be responsible
for billing
and collecting all downloading
Content Fees from the Customers, either directly or indirectly,
for the
use
of the Services in accordance with Clause 7.
5.3 NS8
shall test the Contents before they are made available to the
Customers, and shall
have the right to reject any Contents that are not
suitable, and in such
case, be allowed to select another Content(s) as a
replacement.
6.
CHANGES TO THE CONTENTS
NS8
may request
Acme to update
the Contents on a regular basis and
existing Contents may
be deleted and/or new
Contents added thereto upon
the
mutual agreement of Acme and NS8 and under the same
terms of this
Agreement. Any
deletion shall be notified to Acme in writing at
least
fourteen (14) calendar days
