MASTER TRANSITIONAL SERVICES AGREEMENT
BETWEEN
3COM CORPORATION
AND
PALM, INC.
EFFECTIVE AS OF FEBRUARY 26, 2000
MASTER TRANSITIONAL SERVICES AGREEMENT
This Master Transitional Services Agreement (the "Agreement") is
effective as of February 26, 2000 (the "Effective Date"), between 3Com
Corporation, a Delaware corporation ("3Com"), having an office at 0000 Xxxxxxxx
Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx, 00000 and Palm, Inc., a Delaware corporation
("Palm"), having an office at 0000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx Xxxxx,
Xxxxxxxxxx, 00000.
ARTICLE 1
DEFINITIONS
For the purpose of this Agreement, the following capitalized terms
shall have the following meanings:
1.1 ADDITIONAL SERVICES. "Additional Services" shall have the meaning
set forth in Section 3.5.
1.2 ANCILLARY AGREEMENTS. "Ancillary Agreements" shall have the meaning
set forth in the Master Separation and Distribution Agreement.
1.3 DISTRIBUTION DATE. "Distribution Date" shall have the meaning set
forth in the Master Separation and Distribution Agreement.
1.4 IMPRACTICABLE. "Impracticable" shall have the meaning set forth in
Section 3.3.
1.5 LOCALIZED VERSION. "Localized Version" means localized versions of
the Software.
1.6 MASTER CONFIDENTIAL DISCLOSURE AGREEMENT. "Master Confidential
Disclosure Agreement" shall mean that certain Master Confidential Disclosure
Agreement between 3Com and Palm.
1.7 MASTER SEPARATION AND DISTRIBUTION AGREEMENT. "Master Separation
and Distribution Agreement" shall mean that certain Master Separation and
Distribution Agreement between 3Com and Palm.
1.8 SEPARATION DATE. Unless otherwise provided in this Agreement, or in
any agreement to be executed in connection with this Agreement, the effective
time and date of each transfer of property, assumption of liability, license,
undertaking, or agreement in connection with the Separation shall be 12:01 a.m.,
Pacific Time, February 26, 2000 or such other date as may be fixed by the Board
of Directors of 3Com (the "Separation Date").
1.9 SERVICE(S). "Service(s)" shall have the meaning set forth in
Section 3.1.
1.10 SOFTWARE. "Software" means 3Com's software program(s), in object
code only, listed and described in the relevant Transition Service Schedule.
1.11 SOURCE CODE. "Source Code" means any human readable code,
including interpreted code, of 3Com, listed and described in the relevant
Transition Service Schedule.
1.12 SOURCE CODE DOCUMENTATION. "Source Code Documentation" means the
manuals and other documentation that are reasonably necessary to use the Source
Code licensed herein, including those items listed and described in the relevant
Transition Service Schedule hereto.
1.13 SUBSIDIARY. "Subsidiary" of any Person means a corporation or
other organization whether incorporated or unincorporated of which at least a
majority of the securities or interests having by the terms thereof ordinary
voting power to elect at least a majority of the board of directors or others
performing similar functions with respect to such corporation or other
organization is directly or indirectly owned or controlled by such Person or by
any one or more of its Subsidiaries, or by such Person and one or more of its
Subsidiaries; provided, however, that no Person that is not directly or
indirectly wholly-owned by any other Person shall be a Subsidiary of such other
Person unless such other Person controls, or has the right, power or ability to
control, that Person. For purposes of this Agreement, Palm shall be deemed not
to be a subsidiary of 3Com.
ARTICLE 2
TRANSITION SERVICE SCHEDULES
This Agreement will govern individual transitional services as
requested by Palm and provided by 3Com, the details of which are set forth in
the Transition Service Schedules attached to this Agreement. Each Service shall
be covered by this Agreement upon execution of a transition service schedule in
the form attached hereto (each transition service schedule, a "Transition
Service Schedule").
For each Service, the parties shall set forth, among other things, the
time period during which the Service will be provided if different from the term
of this Agreement determined pursuant to Article 4 hereof, a summary of the
Service to be provided; a description of the Service; and the estimated charge,
if any, for the Service and any other terms applicable thereto on the Transition
Service Schedule. Obligations regarding each Transition Service Schedule shall
be effective upon execution of this Agreement. This Agreement and all the
Transition Service Schedules shall be defined as the "Agreement" and
incorporated herein wherever reference to it is made.
ARTICLE 3
SERVICES
3.1 SERVICES GENERALLY. Except as otherwise provided herein, for the
term determined pursuant to Article 4 hereof, 3Com shall provide or cause to be
provided to Palm the service(s) described in the Transition Service Schedule(s)
attached hereto. The service(s) described
-2-
on a single Transition Service Schedule shall be referred to herein as a
"Service." Collectively, the services described on all the Transition Service
Schedules (including Additional Services) shall be referred to herein as
"Services."
3.2 SERVICE BOUNDARIES. Except as provided in a Transition Service
Schedule for a specific Service: (i) 3Com shall be required to provide the
Services only to the extent and only at the locations such Services are being
provided by 3Com for Palm immediately prior to the Effective Date; and (ii) the
Services will be available only for purposes of conducting the business of Palm
substantially in the manner it was conducted prior to the Effective Date.
3.3 IMPRACTICABILITY. 3Com shall not be required to provide any Service
to the extent the performance of such Service becomes "Impracticable" as a
result of a cause or causes outside the reasonable control of 3Com including
unfeasible technological requirements, or to the extent the performance of such
Services would require 3Com to violate any applicable laws, rules or regulations
or would result in the breach of any software license or other applicable
contract.
3.4 ADDITIONAL RESOURCES. Except as provided in a Transition Service
Schedule for a specific Service, in providing the Services, 3Com shall not be
obligated to: (i) hire any additional employees; (ii) maintain the employment of
any specific employee; (iii) purchase, lease or license any additional equipment
or software; or (iv) pay any costs related to the transfer or conversion of
Palm's data to Palm or any alternate supplier of Services.
3.5 ADDITIONAL SERVICES. From time to time after the Effective Date,
the parties may identify additional services that one party will provide to the
other party in accordance with the terms of this Agreement (the "Additional
Services"). Accordingly, the parties shall execute additional Transition Service
Schedules for such Additional Services pursuant to Article 2. Except as set
forth in Section 3.6, the parties may agree in writing on Additional Services
during the term of this Agreement.
3.6 OBLIGATIONS AS TO ADDITIONAL SERVICES. Except as set forth in the
next sentence, 3Com shall be obligated to perform, at a charge determined using
the principles for determining fees under Section 5.1, any Additional Service
that: (a) was provided by 3Com immediately prior to the Separation Date and that
Palm reasonably believes was inadvertently or unintentionally omitted from the
list of Services, or (b) is essential to effectuate an orderly transition under
the Master Separation and Distribution Agreement unless such performance would
significantly disrupt 3Com's operations or materially increase the scope of its
responsibility under this Agreement. If 3Com reasonably believes the performance
of Additional Services required under subparagraphs (a) or (b) would
significantly disrupt its operations or materially increase the scope of its
responsibility under this Agreement, 3Com and Palm shall negotiate in good faith
to establish terms under which 3Com can provide such Additional Services, but
3Com shall not be obligated to provide such Additional Services if, following
good faith negotiation, it is unable to reach agreement on such terms.
-3-
ARTICLE 4
TERM
The term of this Agreement shall commence on the Effective Date and
shall remain in effect until one (1) year after the Effective Date (the
"Expiration Date"), unless earlier terminated under Article 7. This Agreement
may be extended by the parties in writing, either in whole or with respect to
one or more of the Services; provided, however, that such extension shall only
apply to the Services for which the Agreement was extended. The parties shall be
deemed to have extended this Agreement with respect to a specific Service if the
Transition Service Schedule for such Service specifies a completion date beyond
the aforementioned Expiration Date. The parties may agree on an earlier
expiration date respecting a specific Service by specifying such date on the
Transition Service Schedule for that Service. Services shall be provided up to
and including the date set forth in the applicable Transition Service Schedule,
subject to earlier termination as provided herein.
ARTICLE 5
COMPENSATION
5.1 CHARGES FOR SERVICES. Palm shall pay 3Com the charges, if any, set
forth on the Transition Service Schedules for each of the Services listed
therein as adjusted, from time to time, in accordance with the processes and
procedures established under Section 5.4 and Section 5.5 hereof. Such fees shall
include the direct costs, as determined using the process described in such
Transition Service Schedule, and indirect costs of providing the Services plus
five percent (5%), unless specifically indicated otherwise on a Transition
Service Schedule. However, if the term of this Agreement is extended beyond the
Expiration Date as provided in Article 4, Palm will reimburse 3Com such costs
plus ten percent (10%) for the Services unless the Transition Service Schedule
for such Service indicates it is to extend beyond the Expiration Date. The
parties also intend for charges to be easy to administer and justify and,
therefore, they hereby acknowledge it may be counterproductive to try to recover
every cost, charge or expense, particularly those that are insignificant or de
minimus. The parties shall use good faith efforts to discuss any situation in
which the actual charge for a Service is reasonably expected to exceed the
estimated charge, if any, set forth on a Transition Service Schedule for a
particular Service; provided, however, that the incurrence of charges in excess
of any such estimate on such Transition Service Schedule shall not justify
stopping the provision of, or payment for, Services under this Agreement.
5.2 PAYMENT TERMS. 3Com shall xxxx Palm monthly for all charges
pursuant to this Agreement. Such bills shall be accompanied by reasonable
documentation or other reasonable explanation supporting such charges. Palm
shall pay 3Com for all Services provided hereunder within forty-five (45) days
after receipt of an invoice therefor. Late payments shall bear interest at the
lesser of 12% or the maximum rate allowed by law.
5.3 PERFORMANCE UNDER ANCILLARY AGREEMENTS. Notwithstanding anything
to the contrary contained herein, Palm shall not be charged under this
Agreement for any
-4-
obligations that are specifically required to be performed under the Master
Separation and Distribution Agreement or any other Ancillary Agreement and
any such other obligations shall be performed and charged for (if applicable)
in accordance with the terms of the Master Separation and Distribution
Agreement or such other Ancillary Agreement.
5.4 ERROR CORRECTION; TRUE-UPS; ACCOUNTING. The parties shall
reasonably agree on a process and procedure for conducting internal audits and
making adjustments to charges as a result of the movement of employees and
functions between parties, the discovery of errors or omissions in charges, as
well as a true-up of amounts owed. In no event shall such processes and
procedures extend beyond two (2) years after completion of a Service.
5.5 PRICING ADJUSTMENTS. In the event of a tax audit adjustment
relating to the pricing of any or all Services provided pursuant to this
Agreement in which it is determined by a taxing authority that any of the
charges, individually or in combination, did not result in an arm's-length
payment, as determined under internationally accepted arm's-length standards,
then the parties, including any 3Com subcontractor providing Services hereunder,
may agree to make corresponding adjustments to the charges in question for such
period to the extent necessary to achieve arm's-length pricing. Any adjustment
made pursuant to this Section 5.5 at any time during the term of this Agreement
or after termination of this Agreement and shall be reflected in the parties'
legal books and records, and the resulting underpayment or overpayment shall
create, respectively, an obligation to be paid in the manner specified in
Section 5.2, or shall create a credit against amounts owed under this Agreement.
ARTICLE 6
GENERAL OBLIGATIONS; STANDARD OF CARE
6.1 PERFORMANCE METRICS: 3COM. Subject to Sections 3.4 and any other
terms and conditions of this Agreement, 3Com shall maintain sufficient resources
to perform its obligations hereunder. Specific performance metrics for 3Com for
a specific Service may be set forth in the corresponding Transition Service
Schedule. Where none is set forth, 3Com shall use reasonable efforts to provide
Services in accordance with the policies, procedures and practices in effect
before the Effective Date and shall exercise the same care and skill as it
exercises in performing similar services for itself.
6.2 DISCLAIMER OF WARRANTIES. 3COM MAKES NO WARRANTIES, EXPRESS,
IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE
SERVICES, SOFTWARE OR OTHER DELIVERABLES PROVIDED BY IT HEREUNDER.
6.3 PERFORMANCE METRICS: PALM. Specific performance metrics for Palm
for a specific Service may be set forth in the corresponding Transition Service
Schedule. Where none is set forth, Palm shall use reasonable efforts, in
connection with receiving Services, to follow the policies, procedures and
practices in effect before the Effective Date including providing
-5-
information and documentation sufficient for 3Com to perform the Services as
they were performed before the Effective Date and making available, as
reasonably requested by 3Com, sufficient resources and timely decisions,
approvals and acceptances in order that 3Com may accomplish its obligations
hereunder in a timely manner.
6.4 TRANSITIONAL NATURE OF SERVICES; CHANGES. The parties acknowledge
the transitional nature of the Services and that 3Com may make changes from time
to time in the manner of performing the Services if 3Com is making similar
changes in performing similar services for itself and if 3Com furnishes to Palm
sixty (60) days written notice regarding such changes.
6.5 RESPONSIBILITY FOR ERRORS; DELAYS. 3Com's sole responsibility to
Palm:
(a) for errors or omissions in Services, shall be to furnish
correct information, payment and/or adjustment in the Services, at no additional
cost or expense to Palm; provided, Palm must promptly advise 3Com of any such
error or omission of which it becomes aware after having used reasonable efforts
to detect any such errors or omissions in accordance with the standard of care
set forth in Section 6.1; and
(b) for failure to deliver any Service because of
Impracticability, shall be to use reasonable efforts, subject to Section 3.3, to
make the Services available and/or to resume performing the Services as promptly
as reasonably practicable.
6.6 GOOD FAITH COOPERATION; CONSENTS. The parties will use good faith
efforts to cooperate with each other in all matters relating to the provision
and receipt of Services. Such cooperation shall include exchanging information,
performing true-ups and adjustments, and obtaining all third party consents,
licenses, sublicenses or approvals necessary to permit each party to perform its
obligations hereunder (including by way of example, not by way of limitation,
rights to use third party software needed for the performance of Services). The
costs of obtaining such third party consents, licenses, sublicenses or approvals
shall be borne by Palm. The parties will maintain in accordance with its
standard document retention procedures, documentation supporting the information
relevant to cost calculations contained in the Transition Service Schedules and
cooperate with each other in making such information available as needed in the
event of a tax audit, whether in the United States or any other country.
6.7 ALTERNATIVES. If 3Com reasonably believes it is unable to provide
any Service because of a failure to obtain necessary consents, licenses,
sublicenses or approvals pursuant to Section 6.6 or because of Impracticability,
the parties shall cooperate to determine the best alternative approach. Until
such alternative approach is found or the problem otherwise resolved to the
satisfaction of the parties, 3Com shall use reasonable efforts, subject to
Section 3.3 and Section 3.4, to continue providing the Service. To the extent an
agreed upon alternative approach requires payment above and beyond that which is
included in 3Com's charge for the Service in question, the parties shall share
equally in making any such payment unless they otherwise agree in writing.
-6-
ARTICLE 7
TERMINATION
7.1 TERMINATION. Palm may terminate this Agreement, either with respect
to all or with respect to any one or more of the Services provided to Palm
hereunder, for any reason or for no reason, at any time upon sixty (60) days
prior written notice to 3Com. In addition, subject to the provisions of Article
16 below, either party may terminate this Agreement with respect to a specific
Service if the other party materially breaches a material provision with regard
to that particular Service and does not cure such breach (or does not take
reasonable steps required under the circumstances to cure such breach going
forward) within sixty (60) days after being given notice of the breach;
provided, however, that the non-terminating party may request that the parties
engage in a dispute resolution negotiation as specified in Article 16 below
prior to termination for breach.
7.2 SURVIVAL. Those Sections of this Agreement that, by their nature,
are intended to survive termination will survive in accordance with their terms.
Notwithstanding the foregoing, in the event of any termination with respect to
one or more, but less than all Services, this Agreement shall continue in full
force and effect with respect to any Services not terminated hereby.
7.3 USER IDS, PASSWORDS. The parties shall use good faith efforts at
the termination or expiration of this Agreement or any specific Service hereto
to ensure that all applicable user IDs and passwords are canceled.
ARTICLE 8
RELATIONSHIP BETWEEN THE PARTIES
The relationship between the parties established under this Agreement
is that of independent contractors and neither party is an employee, agent,
partner, or joint venturer of or with the other. 3Com will be solely responsible
for any employment-related taxes, insurance premiums or other employment
benefits respecting its personnels' performance of Services under this
Agreement. Palm agrees to grant 3Com personnel access to sites, systems and
information (subject to the provisions of confidentiality in Article 13 below)
as necessary for 3Com to perform its obligations hereunder. 3Com personnel agree
to obey any and all security regulations and other published policies of Palm.
ARTICLE 9
SUBCONTRACTORS
3Com may engage a "Subcontractor" to perform all or any portion of
3Com's duties under this Agreement, provided that any such Subcontractor agrees
in writing to be bound by confidentiality obligations at least as protective as
the terms of Article 13 regarding confidentiality below, and provided further
that 3Com remains responsible for the performance of such
-7-
Subcontractor. As used in this Agreement, "Subcontractor" will mean any
individual, partnership, corporation, firm, association, unincorporated
organization, joint venture, trust or other entity engaged to perform
hereunder.
ARTICLE 10
INTELLECTUAL PROPERTY
10.1 ALLOCATION OF RIGHTS BY ANCILLARY AGREEMENTS. This Agreement and
the performance of this Agreement will not affect the ownership of any
copyrights or other intellectual property rights allocated in the Ancillary
Agreements.
10.2 EXISTING OWNERSHIP RIGHTS UNAFFECTED. Neither party will gain, by
virtue of this Agreement, any rights of ownership of copyrights, patents, trade
secrets, trademarks or any other intellectual property rights owned by the
other.
10.3 OWNERSHIP OF DEVELOPED WORKS. Except as set forth in Section 10.2,
3Com will own all copyrights, patents, trade secrets, trademarks and other
intellectual property rights subsisting in the Software Deliverables (as defined
in Section 11.1 below) and other works developed by 3Com for purposes of this
Agreement.
10.4 LICENSE TO PREEXISTING WORKS. Palm grants 3Com a non-exclusive,
worldwide, royalty-free license to use, copy, and make derivative works of,
distribute, display, perform and transmit Palm's pre-existing copyrighted works
or other intellectual property rights solely to the extent necessary to perform
its obligations under this Agreement.
ARTICLE 11
SOFTWARE LICENSE
11.1 SOFTWARE DELIVERABLE/LICENSE. Unless otherwise agreed by the
parties under the Ancillary Agreements or any separate license or technology
agreement, if 3Com supplies Palm with a deliverable that in whole or in part
consists of software, firmware, or other computer code (referred to as a
"Software Deliverable") as indicated in a Transition Service Schedule, such
Software Deliverables will be supplied in object code form only and will be
subject to the terms of this Article 11. In the event that such Software
Deliverables are licensed to 3Com by third parties, Palm agrees to be bound by
any different or additional conditions that are required by such third parties
and are communicated in writing by 3Com to Palm.
11.2 DELIVERY AND ACCEPTANCE.
(a) DELIVERY. 3Com agrees to deliver to Palm one (1): (i)
master copy of the Software in object code form only (as specified on the
relevant Transition Service Schedule of the Agreement) on the media described
on the relevant Transition Service Schedule and (ii) Documentation for the
Software on the media described in the relevant Transition Service Schedule
-8-
((i) and (ii) collectively a "Complete Copy") as listed in the relevant
Transition Service Schedule no later than ten (10) days after the Effective
Date (or any other start date as specifically indicated in the relevant
Transition Service Schedule). If Source Code is licensed under this
Agreement, 3Com agrees to deliver one (1) copy of such Source Code no later
than ten (10) days after the Effective Date (or any other start date as
specifically indicated in the relevant Transition Service Schedule).
Additional Software or Source Code may be added to this Agreement from time
to time by execution by the parties of a Transition Service Schedule.
(b) ACCEPTANCE OF SOFTWARE (NON-SOURCE CODE). Palm will have
thirty (30) days from the date of receipt of a Complete Copy of the Software to
evaluate the Software for conformity with the manuals and other documentation
that 3Com makes available with the Software to end users or which are reasonably
necessary to use the Software licensed herein, including those items listed and
described in the relevant Transition Service Schedule hereto (the
"Documentation") and specifications, and either accept, return for rework
(provided the Software has not previously been reworked), or reject the
Software. Palm shall accept the Software if it substantially conforms with
Documentation and specifications. Palm will be entitled to test and evaluate the
Software and 3Com hereby grants to Palm the right to use and reproduce the
Software only to the extent necessary for Palm to perform its evaluation. Such
license will include the right of Palm to use third party subcontractors bound
by the relevant restrictions herein solely as necessary to achieve the
foregoing. If Palm returns the Software for rework, 3Com will use reasonable
commercial efforts to correct the identified defects and resubmit the Software
for re-evaluation under the same acceptance procedure. In the event Palm rejects
the Software a second time, this Agreement will terminate with respect to that
Software. Payment due from Palm to 3Com under a Transition Service Schedule that
includes Software to be licensed shall be reduced by the pro rata portion of
compensation attributable to the Software unless the Software has been accepted
by Palm in writing or Palm fails to reject the Software within such 30 day
period.
(c) ACCEPTANCE OF SOURCE CODE. The Source Code is provided for
Palm's reference only and subject to the limitations below in Section 11.3. The
Source Code may not be accepted or rejected according to the provisions above in
Section 11.2(b). If Palm rejects the Source Code, Palm must destroy all copies
of such rejected Source Code and promptly furnish evidence of such rejection and
destruction to 3Com.
11.3 RIGHTS GRANTED AND RESTRICTIONS.
(a) LICENSE TO SOFTWARE. Subject to the terms and conditions
of this Agreement, 3Com hereby grants to Palm, under 3Com's intellectual
property rights in and to the Software, a non-exclusive, nontransferable
worldwide license to (a) use and display the Software for its own internal
information processing services and computing needs, and to make sufficient
copies as necessary for such use, and (b) use the Documentation in connection
with the permitted use of the Software and make sufficient copies as necessary
for such use.
(b) LICENSE TO SOURCE CODE. Subject to the terms and
conditions of this Agreement, 3Com hereby grants to Palm, under 3Com's
intellectual property rights in and to the Software, a non-exclusive,
nontransferable worldwide license to (a) use and reproduce (for archival
-9-
and back-up purposes only), and prepare derivative works of the Source Code,
for the sole purpose of supporting the object code version of the Software
(if such object code exists), or, if no object code exists, for the sole
purpose of its own internal information processing services and computing
needs and (b) to use Source Code Documentation in connection with the
permitted use of the Source Code and make copies for archival and back-up
purposes only.
(c) RESTRICTIONS. Palm shall not itself, or through any
Subsidiary, affiliate, agent or third party: (a) sell, lease, license or
sublicense the Software, the Source Code, the Documentation or the Source Code
Documentation; (b) decompile, disassemble, or reverse engineer the Software or
Source Code, in whole or in part, except to the extent such restriction is
prohibited by applicable law; (c) allow access to the Software or Source Code by
any user other than Palm; (d) write or develop any derivative software or any
other software program based upon the Software or Source Code; (e) use the
Software or Source Code to provide processing services to third parties, or (f)
otherwise use the Software or Source Code on a "service bureau" basis; or
provide, disclose, divulge or make available to, or permit use of the Software
or Source Code by any third party without 3Com's prior written consent.
(d) CONFIDENTIALITY. The Source Code and Source Code
Documentation are hereby deemed "Confidential Information" and subject to the
terms and procedures of the Master Confidential Disclosure Agreement. The period
of disclosure shall be one (1) year from the Effective Date of this Agreement,
and the period of confidentiality shall be perpetual.
(e) TRADEMARKS. Neither party is granted any ownership in or
license to the trademarks, marks or trade names (collectively, "Marks") of the
other party with respect to this Software.
(f) OWNERSHIP. 3Com hereby reserves all rights to the
Software, Source Code and Documentation, and any copyrights, patents, or
trademarks, embodied therein or used in connection therewith, except for the
rights expressly granted herein.
(g) COPYRIGHT NOTICES. Palm agrees that it will not remove any
copyright notices, proprietary markings, trademarks or trade names from the
Software, Source Code, Documentation, or Source Code Documentation.
(h) TECHNICAL ASSISTANCE AND TRAINING. 3Com agrees to provide
technical assistance and training to Palm personnel only if such assistance is
set forth in the relevant Transition Service Schedule.
11.4 AS-IS WARRANTY.
(a) AS-IS WARRANTY. THE SOFTWARE AND SOURCE CODE PROVIDED
HEREUNDER IS LICENSED ON AN "AS-IS" BASIS ONLY, WITHOUT ANY EXPRESS WARRANTIES
OF ANY KIND.
-10-
(b) IMPLIED WARRANTY DISCLAIMER. 3COM MAKES NO WARRANTIES
WHATSOEVER, EITHER EXPRESS OR IMPLIED, REGARDING THE SOFTWARE OR SOURCE CODE
(INCLUDING DOCUMENTATION AND SOURCE CODE DOCUMENTATION), ITS MERCHANTABILITY OR
ITS FITNESS FOR ANY PARTICULAR PURPOSE.
11.5 MISCELLANEOUS.
(a) NO OBLIGATIONS. NEITHER PARTY ASSUMES ANY RESPONSIBILITY
OR OBLIGATIONS WHATEVER, OTHER THAN THE RESPONSIBILITIES AND OBLIGATIONS
EXPRESSLY SET FORTH IN THIS AGREEMENT OR A SEPARATE WRITTEN AGREEMENT BETWEEN
THE PARTIES
(b) NON-RESTRICTIVE RELATIONSHIP. Nothing in this Agreement
will be construed to preclude Palm from independently developing, acquiring or
marketing computer software packages which may perform the same or similar
functions as the Software provided by 3Com.
ARTICLE 12
INFRINGEMENT DEFENSE
Notwithstanding anything to the contrary in Article 13 below or the
Master Confidential Disclosure Agreement, to the extent 3Com delivers or
licenses any intellectual property to Palm after the Separation Date in
performance of this Agreement, 3Com agrees to defend Palm and its directors,
officers, employees and agents against any and all claims, actions or suits (any
of the foregoing, a "Claim") incurred by or asserted against Palm based upon
infringement of a third party patent or other intellectual property right. Palm
agrees to notify 3Com promptly of any Claim and permit 3Com at 3Com's expense to
defend such Claim and will cooperate in the defense thereof. 3Com agrees to pay
any awards or settlement amounts arising from a Claim. Neither 3Com nor Palm
will enter into or permit any settlement of any such Claim without the express
written consent of the other party. Palm may, at its option and expense, have
its own counsel participate in any proceeding that is under the direction of
3Com and will cooperate with 3Com and its insurer in the disposition of any such
matter.
ARTICLE 13
CONFIDENTIALITY
The terms of the Master Confidential Disclosure Agreement between the
parties shall apply to any Confidential Information (as defined therein) which
is the subject matter of this Agreement.
ARTICLE 14
LIMITATION OF LIABILITY
-11-
NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, LOSS OF
DATA, LOSS OF USE, COST OF COVER, BUSINESS INTERRUPTION OR OTHER SPECIAL,
INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER
ANY THEORY OF LIABILITY, ARISING FROM THE PERFORMANCE OF, OR RELATING TO, THIS
AGREEMENT. THE FOREGOING LIMITATION WILL NOT LIMIT 3COM'S OBLIGATIONS WITH
RESPECT TO PAYMENT OF DAMAGES OF ANY KIND INCLUDED IN AN AWARD OR SETTLEMENT OF
A THIRD PARTY CLAIM UNDER ANY INDEMNITY OR INFRINGEMENT DEFENSE PROVISIONS
SPECIFIED HEREIN.
ARTICLE 15
FORCE MAJEURE
Each party will be excused for any failure or delay in performing any
of its obligations under this Agreement, other than the obligations of Palm to
make certain payments to 3Com pursuant to Article 5 hereof for services
rendered, if such failure or delay is caused by Force Majeure. "Force Majeure"
means any act of God or the public enemy, any accident, explosion, fire, storm,
earthquake, flood, or any other circumstance or event beyond the reasonable
control of the party relying upon such circumstance or event.
ARTICLE 16
DISPUTE RESOLUTION
16.1 MEDIATION. If a dispute, controversy or claim ("Dispute") arises
between the parties relating to the interpretation or performance of this
Agreement or the Ancillary Agreements, or the grounds for the termination
hereof, appropriate senior executives (e.g. director or V.P. level) of each
party who shall have the authority to resolve the matter shall meet to attempt
in good faith to negotiate a resolution of the Dispute prior to pursuing other
available remedies. The initial meeting between the appropriate senior
executives shall be referred to herein as the "Dispute Resolution Commencement
Date." Discussions and correspondence relating to trying to resolve such Dispute
shall be treated as confidential information developed for the purpose of
settlement and shall be exempt from discovery or production and shall not be
admissible. If the senior executives are unable to resolve the Dispute within
thirty (30) days from the Dispute Resolution Commencement Date, and either party
wishes to pursue its rights relating to such Dispute, then the Dispute will be
mediated by a mutually acceptable mediator appointed pursuant to the mediation
rules of JAMS/Endispute within thirty (30) days after written notice by one
party to the other demanding non-binding mediation. Neither party may
unreasonably withhold consent to the selection of a mediator or the location of
the mediation. Both parties will share the costs of the mediation equally,
except that each party shall bear its own costs and expenses, including
attorney's fees, witness fees, travel expenses, and preparation costs. The
parties may also agree to replace mediation with some other form of non-binding
or binding ADR.
-12-
16.2 ARBITRATION. Any Dispute which the parties cannot resolve through
mediation within ninety (90) days of the Dispute Resolution Commencement Date,
unless otherwise mutually agreed, shall be submitted to final and binding
arbitration under the then current Commercial Arbitration Rules of the American
Arbitration Association ("AAA"), by three (3) arbitrators in Santa Xxxxx County,
California. Such arbitrators shall be selected by the mutual agreement of the
parties or, failing such agreement, shall be selected according to the aforesaid
AAA rules. The arbitrators will be instructed to prepare and deliver a written,
reasoned opinion stating their decision within thirty (30) days of the
completion of the arbitration. The prevailing party in such arbitration shall be
entitled to expenses, including costs and reasonable attorneys' and other
professional fees, incurred in connection with the arbitration (but excluding
any costs and fees associated with prior negotiation or mediation). The decision
of the arbitrator shall be final and non-appealable and may be enforced in any
court of competent jurisdiction. The use of any ADR procedures will not be
construed under the doctrine of laches, waiver or estoppel to adversely affect
the rights of either party.
16.3 COURT ACTION. Any Dispute regarding the following is not required
to be negotiated, mediated or arbitrated prior to seeking relief from a court of
competent jurisdiction: breach of any obligation of confidentiality;
infringement, misappropriation, or misuse of any intellectual property right;
any other claim where interim relief from the court is sought to prevent serious
and irreparable injury to one of the parties or to others. However, the parties
to the Dispute shall make a good faith effort to negotiate and mediate such
Dispute, according to the above procedures, while such court action is pending.
16.4 CONTINUITY OF SERVICE AND PERFORMANCE. Unless otherwise agreed in
writing, the parties will continue to provide service and honor all other
commitments under this Agreement and each Ancillary Agreement during the course
of dispute resolution pursuant to the provisions of this Article 16 with respect
to all matters not subject to such dispute, controversy or claim.
ARTICLE 17
MISCELLANEOUS
17.1 ENTIRE AGREEMENT. This Agreement, the Master Separation and
Distribution Agreement and the other Ancillary Agreements and the Exhibits and
Schedules referenced or attached hereto and thereto constitute the entire
agreement between the parties with respect to the subject matter hereof and
thereof and shall supersede all prior written and oral and all contemporaneous
oral agreements and understandings with respect to the subject matter hereof and
thereof.
17.2 GOVERNING LAW. This Agreement shall be construed in accordance
with and all Disputes hereunder shall be governed by the laws of the State of
California, excluding its conflict of law rules and the United Nations
Convention on Contracts for the International Sale of Goods. The Superior Court
of Santa Xxxxx County and/or the United States District Court for the Northern
-13-
District of California shall have jurisdiction and venue over all Disputes
between the parties that are permitted to be brought in a court of law pursuant
to Article 16 above.
17.3 DESCRIPTIVE HEADINGS. The headings contained in this Agreement, in
any Exhibit or Schedule hereto and in the table of contents to this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Any capitalized term used in any Exhibit or
Schedule but not otherwise defined therein, shall have the meaning assigned to
such term in this Agreement. When a reference is made in this Agreement to an
Article or a Section, Exhibit or Schedule, such reference shall be to an Article
or Section of, or an Exhibit or Schedule to, this Agreement unless otherwise
indicated.
17.4 NOTICES. Notices, offers, requests, or other communications
required or permitted to be given by either party pursuant to the terms of this
Agreement shall be given in writing to the respective parties to the following
addresses:
if to 3Com :
3Com Corporation
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
if to Palm:
Palm, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
or to such other address as the party to whom notice is given may have
previously furnished to the other in writing as provided herein. Any notice
involving non-performance, termination, or renewal shall be sent by hand
delivery, recognized overnight courier or, within the United States, may also be
sent via certified mail, return receipt requested. All other notices may also be
sent by fax, confirmed by first class mail. All notices shall be deemed to have
been given and received on the earlier of actual delivery or three (3) days from
the date of postmark.
17.5 NONASSIGNABILITY. Except as specifically permitted under Article
10 above, neither party may, directly or indirectly, in whole or in part,
whether by operation of law or otherwise, assign or transfer this Agreement,
without the other party's prior written consent, and any attempted assignment,
transfer or delegation without such prior written consent shall be voidable at
the sole option of such other party. Notwithstanding the foregoing, each party
(or its permitted successive assignees or transferees hereunder) may assign or
transfer this Agreement as a whole without consent to an entity that succeeds to
all or substantially all of the business or assets of such party. Without
limiting the foregoing, this Agreement will be binding upon and inure to the
benefit of the parties and their permitted successors and assigns.
-14-
17.6 SEVERABILITY. If any term or other provision of this Agreement is
determined by a court, administrative agency or arbitrator to be invalid,
illegal or incapable of being enforced by any rule of law or public policy, all
other conditions and provisions of this Agreement will nevertheless remain in
full force and effect so long as the economic or legal substance of the
transactions contemplated is not affected in any manner materially adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that
transactions contemplated hereby are fulfilled to the fullest extent possible.
17.7 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. If any term
or other provision of this Agreement or the Exhibits or Schedules attached
hereto is determined by a court, administrative agency or arbitrator to be
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to either party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that transactions contemplated hereby are fulfilled to the fullest
extent possible.
17.8 AMENDMENT. No change or amendment will be made to this Agreement
except by an instrument in writing signed on behalf of each of the parties to
such agreement.
-15-
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed in duplicate originals by its duly authorized representatives.
3COM CORPORATION PALM, INC.
By: By:
---------------------- ---------------------------
Title: Title:
------------------- ------------------------
-16-
TRANSITION SERVICE SCHEDULE TO MASTER TRANSITIONAL SERVICES AGREEMENT
1. TRANSITION SERVICE SCHEDULE #:
-------------------
(To be inserted by responsible individual or department.)
2. FUNCTIONAL AREA:
------------------
3. START/END DATE: The Services start on the Effective Date of the Master
Transitional Services Agreement between 3Com Corporation ("3Com") and
Palm Computing, Inc. ("Palm") to which this Transition Service Schedule
is attached and end on February 1, 2001 unless otherwise indicated
below.
INDICATE BELOW IF OTHER START/END DATE:
START DATE:
------------------
END DATE:
------------------
If Start and End dates vary by service and/or country, please
indicate in Section 5 below.
4. SUMMARY OF SERVICES (Describe the service to be provided in appropriate
detail.
-------------------------------------------------------------- ------------------------------------------------------------
SERVICE NAME DESCRIPTION
-------------------------------------------------------------- ------------------------------------------------------------
5. LIST OF SERVICES TO BE PROVIDED PER COUNTRY AND SITE: (List all the
services to be provided at each site. Enter Start Date and End Date if
different than Section 3 above.)
-------------------------- ----------------------- ----------------------- ----------------------- ------------------------
COUNTRY SITE SERVICE(S) START DATE END DATE
-------------------------- ----------------------- ----------------------- ----------------------- ------------------------
-------------------------- ----------------------- ----------------------- ----------------------- ------------------------
-------------------------- ----------------------- ----------------------- ----------------------- ------------------------
6. PERFORMANCE PARAMETERS/SERVICE LEVEL: (State minimum performance
expected from each service, if applicable.):
7. ESTIMATED TOTAL COMPENSATION:
------------------------------------
8. DESCRIBE COST METHODOLOGY AND COST DRIVERS AFFECTING ESTIMATED TOTAL
COMPENSATION (Describe on an individual service basis if necessary):
9. DESCRIBE THE PROCESS BY WHICH THE COST OF SERVICES WILL BE ADJUSTED IN
THE INSTANCE OF AN INCREASE/REDUCTION IN THE SERVICES PROVIDED:
(Describe on an individual service basis if necessary.)
10. SOFTWARE: Will software be used or included with the Services to be provided
under this Transition Service Schedule: ____ Yes ____ No
If yes, will source code be provided: ____ Yes ____ No
List software to be provided:
SOFTWARE APPLICATION NUMBER OF LICENSES TO BE PROVIDED
--------------------------------------------------------------------
--------------------------------------------------------------------
Upon execution of this Transition Service Schedule by both parties, this
Transition Service Schedule is hereby deemed incorporated into and made part of
that certain Master Transitional Services Agreement between 3Com Corporation and
Palm Computing, Inc.
3COM CORPORATION PALM, INC.
By: By:
---------------------------- -------------------------------
(Authorized Signature) (Authorized Signature
Date: Date:
-------------------------- -----------------------------
Name: Name:
-------------------------- -----------------------------
Title: Title:
------------------------- ----------------------------
-2-
