CO-OPERATION AGREEMENT / Memorandum of Understanding

This Co-operation Agreement and Memorandum of Understanding ("Agreement/MoU") is entered into and is effective as of April 22, 2004 (the "Effective Date") by and between the Open Mobile Alliance Ltd. ("Open Mobile Alliance"), the registered office of which is at 45-51 Whitfield Street London W1T 4HB, England and Massachusetts Institute of Technology, European Research Consortium for Informatics and Mathematics, and Keio University ("W3C Hosts"), on behalf of the World Wide Web Consortium("W3C"), the registered offices of which are at 77 Massachusetts Avenue, Cambridge, MA 02139, USA; 2004, route des Lucioles BP 93, 06902 Sophia-Antipolis Cedex, FRANCE; and 5322 Endo, Fujisawa 252-8520 JAPAN, respectively.

RECITALS

WHEREAS, the Open Mobile Alliance and W3C Hosts (each referred to individually as "party"and collectively as "parties") have the common objective to promote, directly or indirectly, international standardization with the aim of contributing to the establishment of global standards in the wireless telecommunications and Internet domain.

WHEREAS, the Open Mobile Alliance and W3C seek guidelines to structure and strengthen their relationship and to foster closer co-operation.

NOW, THEREFORE, in consideration of the foregoing recitals and the covenants and conditions hereinafter set forth, the Open Mobile Alliance and W3C hereby agree as follows:

1. DEFINITIONS

1. "Work Areas" mean the described work areas as set forth in Exhibit A attached hereto and incorporated herein, as modified from time to time by mutual decision of the parties.
2. "Contact Persons" mean the persons as set forth in Exhibit B, attached hereto and incorporated herein, as may be modified from time to time by either party through notice to the other party.
3. "Contributions" mean any work, whether pre-existing or newly or subsequently created or prepared within a Work Area under the auspices of the Host Organization, as defined below, which is encumbered by Intellectual Property Rights ("IPR"), as defined below.
4. "Host Organization"means, in each particular instance, whichever of either the Open Mobile Alliance or W3C under whose auspices (including its rules and procedures) work product within a defined Work Area is being developed.
5. "Observers" mean those persons representing their respective parties from either the Open Mobile Alliance or W3C, who may attend the other party’s meetings pursuant to the terms of this Agreement/MoU.
6. "Documents" mean copies of Specifications, working documents and drafts each owned by the respective party and shared under the terms of this Agreement/MoU. The method of access is described in Exhibit C, attached hereto and incorporated herein, as may be modified from time to time by either party through notice to the other party. The terms of this Agreement/MoU will apply to all documents exchanged even if accessed in a manner other than as set forth in Exhibit C. Documents may or may not be Contributions under this Agreement/MoU.
7. "Intellectual Property Rights ("IPR")"mean the patents and pending patent applications, copyrights covering software or firmware, and mask works on integrated circuit mask sets, whether in existence now or created, invented or developed in the future.
8. "Specification"means a document, in any form or media including but not limited to paper or an electronic file, containing a set of detailed technical specifications as specifically defined by the organization that produced the same.
9. "Confidential Information" shall mean (i) all information disclosed in tangible form and marked "confidential" or "proprietary" or its equivalent at the time of disclosure, and (ii) all information disclosed orally or otherwise in intangible form and designated as "confidential" or "proprietary" or its equivalent at the time of disclosure and is confirmed by the Disclosing Party in writing within ten (10) working days as being confidential. Confidential Information may include, without limitation, computer programs, code, specifications, names and expertise of employees and consultants, formulas, processes, inventions (whether patentable or not), schematics and other technical, business, and financial plans, forecasts, strategies and information. Confidential Information shall not include any information that is: publicly available prior to the date of the Agreement or becomes publicly available thereafter through no wrongful act of the Receiving Party; was known to the Receiving Party prior to the date of disclosure or becomes known to the Receiving Party thereafter from a third party having an apparent bona fide right to disclose the information; is disclosed by the Receiving Party in accordance with the terms of the Disclosing Party's prior written approval; is disclosed by Disclosing Party to any other third party without restriction on further disclosure; is independently developed by the Receiving Party; or that the Receiving Party is obligated to produce pursuant to an order of a court of competent jurisdiction or a valid administrative or Congressional subpoena.

2. INTRODUCTION

1. The goal of this Agreement/MoU is to encourage cooperation between the parties in the Work Areas and to recognize the developments and Specifications made by the Open Mobile Alliance and W3C.
2. Each organization operates according to its own respective rules and procedures. The parties desire through this Agreement/MoU to establish specific guidelines regarding the sharing of Documents and the participation by Observers in certain meetings.
3. The parties shall exchange, upon request, as mutually desired and at each party’s own cost, information on relevant work programs in the Work Areas.
4. If either party makes reference to the Specifications of the other party, such reference should follow the other party’s published policies regarding the same.

3. DOCUMENT SHARING

1. Each party encourages the sharing of Documents to all of its respective members provided that Contributions may be made only pursuant to section 5(a) of this Agreement/MoU.
2. Documents from one party which are made available to the other party are intended to be accessible on equal terms to all members of the other party.

4. PARTICIPATION IN MEETINGS

1. At either (i) the invitation of the Contact Person of the Host Organization or (ii) if, at the request of the other party, the Contact Person of the Host Organization so agrees, the Observers may attend and, subject to the limitations set forth below, participate in the other party's meetings. Either party may designate any part(s) of its meeting as "closed". Observers may not attend or participate in such "closed" sessions.
2. Within the Work Areas, (i) at the invitation of the chairperson in the case of the Open Mobile Alliance and the chairperson and the staff team contact in the case of W3C of the relevant group of the Host Organization or (ii) if, at the request of the other party, the chairperson in the case of Open Mobile Alliance and the chairperson and the staff team contact in the case of W3C so agrees, an Observer may be permitted to attend and participate in the other party’s relevant Specification/expert groups, technical body or relevant subordinate technical groups/bodies subject to the chairperson of any such meeting designating any part(s) of the meeting as "closed". Observers may not attend or participate in such "closed" sessions.
3. In the event that an Observer is a member or employee of a member of both the Open Mobile Alliance and W3C, the Observer will inform the chairperson of the group/body in which he or she is participating of the affiliation being represented, which must remain consistent during the course of that meeting. Observers may only act as liaison officers and may not bind either the Host Organization or any other member organization. Therefore, any Documents provided to a Host Organization by an Observer shall remain subject to the IPR policy where the document originated.

5. CONTRIBUTIONS

1. The parties have substantially different IPR policies. Any Contribution from one party to the other party shall remain under the IPR policy of the contributing party. For example, in the event that a Contribution is sent from the Open Mobile Alliance to W3C, this Contribution will be pursuant to the IPR policy of the Open Mobile Alliance and in no way will be deemed to be under the W3C IPR policy. W3C agrees and acknowledges that in the event that its IPR policy or any of its other policy statements conflict with section 5(a) of this Agreement, that section 5(a) of this Agreement will control. The Open Mobile Alliance agrees and acknowledges that in the event that its IPR policy or any of its other policy statements conflict with section 5(a) of this Agreement, that section 5(a) of this Agreement will control.
2. The Open Mobile Alliance has currently posted at http://www.openmobilealliance.org/about_Open Mobile Alliance/ipr.html a list of Intellectual Property Rights claims received from its membership ("IPR Declarations List"). The IPR Declarations List is updated from time to time, though at any particular point in time the IPR Declarations List may not reflect all of the information received from the membership. No representations or warranties (whether express or implied) are made by the Open Mobile Alliance regarding any of the Intellectual Property Rights represented on this IPR Declarations List, including but not limited to the accuracy, completeness, validity or relevance of the information or whether or not such rights are essential or non-essential. W3C maintains on the W3C Web site separate public lists of IPR declarations received for each of its recommendations.

6. COPYRIGHT OF MATERIALS

1. A working group or interest group in the case of W3C, or the chairperson of a technical body/group in the case of the Open Mobile Alliance may agree to incorporate text and/or graphics provided by the other party where the copyright in such text or graphics are solely owned by that other party.
2. Provided that the source of such material is acknowledged fully, including any references to and subject to originating parties’ IPR declarations, each party grants to the other party a free, irrevocable, perpetual, non-exclusive, world-wide license to incorporate text or other copyrightable material contained in the material submitted in the parties’ respective publications, provided such publications are distributed free of charge unless the express written consent of the copyright holder is received to do otherwise.
3. The parties do not intend to co-develop any materials. In the event that the parties co-develop any materials, then such materials shall be jointly owned and each party shall be able to use such materials without accounting to the other.

7. CONFIDENTIAL INFORMATION

1. Each of the Open Mobile Alliance and the individual W3C Hosts (the "Receiving Party") understands that the other party (the "Disclosing Party") may disclose certain Confidential Information from time to time as provided herein.
2. The Receiving Party undertakes to:

   (1) for a period of one (1) year following its receipt of Confidential Information from the Disclosing Party, to use reasonable efforts to maintain in confidence and not to disclose the Disclosing Party’s Confidential Information to any third party other than to employees, officers, directors, independent contractors, professional advisors, members of Open Mobile Alliance or of W3C, except where, with the consent of the other party, such information is incorporated into either party’s specifications, standards or official documents (as appropriate).

   (2) not to copy (except to the extent required for the purpose set forth herein or as permitted by applicable law), reverse engineer, reverse compile or attempt to derive the composition or underlying information of any such Disclosing Party’s Confidential Information nor to reduce to writing any part of such Confidential Information;

   (3) to limit the use of and access to the Disclosing Party’s Confidential Information to members of the Open Mobile Alliance and W3C and to the Receiving Party’s employees, officers, directors, members, independent contractors and professional advisors who have been notified that such information is Confidential Information for the purpose set forth herein. In the event that a W3C Host is the Receiving Party, the W3C Host must notify the W3C member of the confidential nature of the information and that the Confidential Information must be maintained according to the W3C confidentiality policies, a current version of which is set forth in Exhibit D (1), prior to making Confidential Information available to the W3C member. In the event that Open Mobile Alliance is the Receiving Party the confidentiality undertaking should be at least be on the same terms as, but not be less restrictive than, that set out in Exhibit D (2)); and

   (4) to use reasonable efforts to protect the Disclosing Party’s Confidential Information from unauthorized disclosure, use, dissemination, or publication.

3. Notwithstanding anything to the contrary in this agreement, and for the avoidance of any doubt, the parties acknowledge and agree that the Receiving Party shall be responsible solely for the actions of its respective employees.

8. TERM AND TERMINATION

This Agreement/MoU shall come into force on the Effective Date and shall, subject to termination hereunder, remain in force for a period of two (2) years from the Effective Date. This Agreement/MoU may be terminated by either party upon thirty (30) days’ written notice to the other party. It is expressly agreed that all the provisions in sections 1 (Definitions), 5 (Contributions), 6 (Copyright of Materials), 7 (Confidential Information), 8 (Term and Termination), 9 (Limitation of Liability) and 10 (General) shall survive the termination or expiration of this Agreement/MoU for any reason.

9. LIMITATION OF LIABILITY

NEITHER PARTY MAKES ANY REPRESENTATIONS WITH RESPECT TO AND DOES NOT WARRANT THE ACCURACY OF ANY INFORMATION OR ANY DOCUMENT. Without limiting the foregoing, each party agrees to reproduce any warranty disclaimers or limitations of liability which are included in any material made available to it under this Agreement/MoU.

10. GENERAL

1. This Agreement/MoU supersedes all prior discussions and constitutes the entire Agreement/MoU between the parties with respect to the subject matter hereof.
2. Neither party acquires any intellectual or industrial property rights under this Agreement/MoU or through any disclosure hereunder except where expressly stated in this Agreement/MoU. No license to any patent, trade mark, copyright or other proprietary right is granted under this Agreement/MoU or through any disclosure hereunder except where expressly stated in this Agreement/MoU or the normal operation of the organization's respective policies and procedures.</p>
3. Nothing contained herein shall be deemed to obligate either party to incorporate the materials presented by the other party.
4. It is expressly declared that this Agreement/MoU and the relationships between the parties established hereby does not constitute a partnership, joint venture, agency, or contract of employment between them.
5. Each party may disclose publicly the terms of this Agreement/MoU.
6. This Agreement/MoU shall be governed by and interpreted in accordance with the laws of the State of California and both parties consent to the jurisdiction of and venue in the state and federal courts sitting in the Northern District of the State of California and the courts of the State of California shall have exclusive jurisdiction to determine any disputes which may arise out of, under, or in connection with this Agreement, solely in the event an action is brought by W3C.
7. This Agreement/MoU shall be governed by and interpreted in accordance with the laws of the Commonwealth of Massachusetts and both parties consent to the jurisdiction of and venue in the state and federal courts sitting in the Commonwealth of Massachusetts and the courts of the Commonwealth of Massachusetts shall have exclusive jurisdiction to determine any disputes which may arise out of, under, or in connection with this Agreement, solely in the event an action is brought by the Open Mobile Alliance.
8. All notices or other communications permitted or required under this Agreement/MoU must be in writing in the English language and must be delivered by personal delivery, or facsimile or e-mail transmission or by commercial express courier service postage prepaid, and shall be deemed given upon personal delivery, or three (3) days after deposit with commercial express courier service, or upon acknowledgment of receipt of facsimile or e-mail transmission, whichever shall first occur. Notices shall be sent to the Contact Persons and to the Chairman of the Board of the Open Mobile Alliance and to the Chair of W3C at the addresses as set forth above or such other address as either party shall have furnished to the other pursuant to this section.
9. The Receiving Party acknowledges and agrees that, due to the unique nature of the Disclosing Party’s Confidential Information, there may be no adequate remedy at law for any breach by the Receiving Party of its obligations. The Receiving Party further acknowledges that any such breach may allow the Receiving Party or third parties unfairly to compete with the Disclosing Party resulting in irreparable harm to the Disclosing Party and, therefore, that upon any such breach or any threat thereof, the Disclosing Party shall be entitled to seek (subject to the equitable jurisdiction of the courts) appropriate equitable relief, including but not limited to, injunctive relief in addition to whatever other remedies it may have. The Receiving Party will notify the Disclosing Party in writing immediately upon the occurrence of any such unauthorized release or other breach.

IN WITNESS whereof this Agreement/MoU was duly signed for and on behalf of the parties on the day and year first above written.

Open Mobile Alliance Ltd.

By: _______________________________

Name (Print): Jari T. Alvinen

Title : Chairman of the Board

Date: ______________________________

Massachusetts Institute of Technology

By: _______________________________

Name (Print):________________________

Title : ______________________________

Date: ______________________________

European Research Consortium for Informatics and Mathematics

By: _______________________________

Name (Print):________________________

Title : ______________________________

Date: ______________________________

European Research Consortium for Informatics and Mathematics

By: _______________________________

Name (Print):________________________

Title : ______________________________

Date: ______________________________

Approved for W3C

By: ______________________________

Name (Print): Timothy Berners-Lee

Title: W3C Director

Date: ____________________________

EXHIBIT A

WORK AREAS

Work in the technical committees of each party

EXHIBIT B

CONTACT PERSONS

Open Mobile Alliance

Name: Mark Cataldo

E-mail Address: mark.cataldo@openwave.com

Phone number: +44 23 8076 8130

W3C

Name: Philipp Hoschka

E-mail Address: ph@w3.org

Phone number: +33 4 92 38 79 84

EXHIBIT C

DOCUMENTS

METHOD OF ACCESS

From the Open Mobile Alliance:

Open Mobile Alliance working documents are available on its Web site and may be accessed at

http://openmobilealliance.org/.

From W3C:

W3C working documents are available on its Web site, and may be accessed at

http://www.w3.org.

EXHIBIT D

Confidentiality Obligations

(1) Excerpt from W3C Process Document:

4.1 Confidentiality Levels

There are three principal levels of access to information at the W3C Web site: public, Member-only, and Team-only.

While much information made available by W3C is public, "Member-only" information is available to authorized parties only, including representatives of Member organizations, Invited Experts, the Advisory Board, the TAG, and the Team. For example, the charter of some Working Groups may specify a Member-only confidentiality level for group proceedings.

"Team-only" information is available to the Team and other authorized parties.

Those authorized to access Member-only and Team-only information:

• MUST treat the information as confidential within W3C,
• MUST use reasonable efforts to maintain the proper level confidentiality, and
• MUST NOT release this information to the general public or press.

The Team MUST provide mechanisms to protect the confidentiality of Member-only information and ensure that authorized parties have proper access to this information. Documents SHOULD clearly indicate whether they require Member-only confidentiality. Individuals uncertain of the confidentiality level of a piece of information SHOULD contact the Team.

Advisory Committee representatives MAY authorize Member-only access to Member representatives and other individuals employed by the Member who are considered appropriate recipients. For instance, it is the responsibility of the Advisory Committee representative and other employees and official representatives of the organization to ensure that Member-only news announcements are distributed for internal use only within their organization. Information about Member mailing lists is available in the New Member Orientation.

4.1.1 Changing Confidentiality Level

As a benefit of membership, W3C provides some Team-only and Member-only channels for certain types of communication. For example, Advisory Committee representatives can send reviews to a Team-only channel. However, for W3C processes with a significant public component, such as the Recommendation Track process, it is also important for information that affects decision-making to be publicly available. The Team MAY need to communicate Team-only information to a Working Group or the public. Similarly, a Working Group whose proceedings are Member-only MUST make public information pertinent to the Recommendation Track process.

This document clearly indicates which information MUST be available to Members or the public, even though that information was initially communicated on Team-only or Member-only channels. Only the Team and parties authorized by the Team change the level of confidentiality of this information. When doing so:

1. The Team MUST use a version of the information that was expressly provided by the author for the new confidentiality level. In Calls for Review and other similar messages, the Team SHOULD remind recipients to provide such alternatives.
2. The Team MUST NOT attribute the version for the new confidentiality level to the author without the author's consent.

If the author has not conveyed to the Team a version that is suitable for another confidentiality level, the Team MAY make available a version that reasonably communicates what is required, while respecting the original level of confidentiality, and without attribution to the original author.

(2) Excerpt from

Open Mobile Alliance FORUM LTD.

(the "Company")

SCHEDULE TO THE APPLICATION FORM

Each person by whom, or on whose behalf, an Application Form is executed and accepted, irrevocably agrees and undertakes, by such execution, that: