PALM CONFIDENTIAL EXHIBIT 10.25
LICENSE AGREEMENT
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This LICENSE AGREEMENT (the "Agreement") is entered into by and between YP Net,
Inc., a Nevada corporation with its principal place of business located at 0000
Xxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxxx, Xxxxxxx, 00000 ("Company") and Palm, Inc.,
a Delaware corporation, with a place of business located at 000 X. XxXxxxxx
Xxxx., Xxxxxxxx, XX 00000 ("Palm"). The effective date of this Agreement shall
be February 01, 2003 (the "Effective Date").
1. DEFINITIONS. For purposes of this Agreement, the following terms shall
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have the following meanings:
1.1 Company Content means any and all content and software owned or
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licensed by Company that is accessible on the Company Site.
1.2 Company Link means a hypertext link to the Company Site, as further
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described on Exhibit A, facilitating the provision of the Company Services to
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End Users via a Palm Device.
1.3 Company Marks means the Company trademarks and the associated logos
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set forth on Exhibit B.
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1.4 Company Services means the services described on Exhibit C which
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will be provided to End Users through the Company Site including, without
limitation, the delivery of the Company Content.
1.5 Company Site means the World Wide Web site located at the Company
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URL which is customized to be accessible via a Palm Device and which features
the Company Services.
1.6 Company URL means the universal resource locator, or the unique
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text address of the Company Site, set forth on Exhibit A.
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1.7 Confidential Information means all nonpublic information, whether
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in oral, written or other tangible form that the party disclosing the
information (the "Disclosing Party") designates as being confidential or which,
under the circumstances surrounding disclosure, the receiving party (the
"Recipient") knows or has reason to know should be treated as confidential,
including without limitation, the terms and conditions of this Agreement.
Notwithstanding the foregoing, Confidential Information does not include
information that: (i) is or becomes generally available to the public other than
(a) as a result of a disclosure by the Recipient or its employees or any other
person who directly or indirectly receives such information from Recipient or
its employees, or (b) in violation of a confidentiality obligation to the
Disclosing Party known to the Recipient; (ii) is or becomes available to the
Recipient on a non-confidential basis from a source which is entitled to
disclose it to the Recipient; or (iii) was developed by employees or agents of
the Recipient independently of and without reference to any information
communicated to the Recipient by the Disclosing Party.
1.8 Intentionally left blank.
1.9 End User means a person who accesses the Company Site via a Palm
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Device.
1.10 Intellectual Property Rights means copyrights, trademark rights,
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patent rights, trade secrets, moral rights, right of publicity, authors' rights,
contract and licensing rights, goodwill and all other intellectual property
rights as may exists now and/or hereafter come into existence and all renewals
and extensions thereof, regardless of whether such rights arise under the law of
the United States or any other state, country or jurisdiction.
1.11 Palm Device means any device, including, without limitation, a
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handheld computing device, incorporating the Palm operating system.
1.12 Palm Xxxx means the Palm trademark and the associated logo set
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forth on Exhibit B.
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1.13 Palm Sites means the World Wide Web sites which are co-branded
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with the Palm Xxxx, and any successor sites thereto.
1.14 Intentionally left blank.
1.15 Product means the Palm software described on Exhibit D.
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1.16 Third Party Content means content, including, without limitation,
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third party trademarks, and software which may be licensed from third parties by
Palm and made available to End Users.
1.17 User Data means personally identifiable information collected
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and/or stores by Palm, if any, which is provided to Company by End Users in the
course of End Users' use of the Company Services via Palm Devices, and includes
without limitation, any usage statistics derived from a particular End User's
use of the Company Site, including, without limitation, identity, credit card
information, information and such user's behavior with respect to use of the
Company Services.
2. LICENSE GRANTS AND DEVELOPMENT.
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2.1 Company Link. Company grants to Palm a non-exclusive,
non-transferable, worldwide, fully paid-up and royalty-free license, with the
right to sublicense, to publicly display, use, reproduce and distribute
(directly or indirectly, through multiple levels of distribution, including
without limitation, as incorporated within the Product) the Company Link to
facilitate the provision of the Company Services to End Users. Company shall
deliver the hyperlink component of the Company Link to Palm no later than
February 7, 2003. Company shall deliver the graphic icon component of the
Company link to Palm no later than February 14, 2003.
2.2 Intentionally left blank.
2.3 Company Link. Company acknowledges and agrees that Palm is under no
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obligation to promote the Company Site, the Company Content or the Company
Services, or to distribute, sublicense or otherwise make the Company link
available to End Users or to other third parties, in the event that Palm
determines, in its reasonable discretion, that the Company Content, the Company
Link or the Company Site: (i) suffers from material performance problems; (ii)
results or could result in any transmission of material in violation of any
foreign, international, federal, state or local law or regulation, including
without limitation, material which encourages conduct that would constitute a
criminal offense or otherwise violate any such law or regulation; (iii) violates
the copyright, trade secrets or other proprietary rights of any third party in
any jurisdiction; (iv) in any way violates or infringes upon any third party's
privacy right, right of publicity, or any other right of any person or entity;
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PALM CONFIDENTIAL
(v) is otherwise unsuitable for inclusion in a particular version of the
Product, including, without limitation, a co-branded product or private labeled
version; or (vi) is unlawful, harmful, abusive, hateful, offensive, obscene,
threatening, libelous or defamatory, or contains material which may contain a
computer virus, cancelbot, Trojan horse, work or other harmful or disruptive
component.
2.4 License to Provide End User Access. Company grants to Palm and its
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sublicenses a non-exclusive, non-transferable, worldwide, fully paid-up and
royalty-free license to provide access to the Company Component and the Company
Services on the Company Site via the Company Link to End Users.
2.5 Intentionally Left Blank.
2.6 Non-exclusivity. Either party shall have the right to enter into
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contractual agreements with other providers of content, products and services
similar to those of the other party hereto, in each party's sole discretion.
2.7 Reservation of Rights. Each party reserves all rights no otherwise
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granted in this Section2 (License Grants and Development). Nothing in this
Agreement shall be construed to grant Palm any rights in and to Company Link,
except as specifically provided in Section 2.1 (Company Link).
3. Ownership
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3.1 Ownership by Company. As between Company and Palm, Company shall
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own all right, title and interest, including all Intellectual Property Rights,
in and to the Company URL, the Company Link, the Company Site (excluding the
Palm Xxxx) and the Company Services.
3.2 Ownership by Palm. As between Company and Palm, Palm or its
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suppliers shall own all right, title and interest, including all Intellectual
Property Rights, in and to the Palm Sites (excluding the Company Marks), the
Palm xxxx, the Palm Devices, the Product (excluding the Company Link and the
Company Marks) and the Third Party Content. Company acknowledges that Palm owns
exclusive rights in a family of trademarks that includes, among others, the Palm
Xxxx. Company will not use "Palm" as part of any of Company's product, service,
top-level or second-level domain name or institution names and will not take or
authorize any action inconsistent with Palm's exclusive trademark rights during
the term of this Agreement or thereafter. Company agrees that the use of the
Palm Xxxx by Company shall inure to the benefit of and be on behalf of Palm.
Company acknowledges that Company's utilization of the Palm Xxxx will not create
any right, title or interest in such Palm Xxxx in Company. Company shall use the
Palm Xxxx so that each Palm Xxxx creates a separate and distinct impression from
any other trademark that may be used or affixed to materials bearing the Palm
Xxxx or used in connection with services provided under the Palm Xxxx.
4. OBLIGATIONS OF THE PARTIES.
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4.1 Implementation. The Company Site will be made available to End
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Users on a date to be mutually agreed upon in writing by the parties. The
Company Site will be hosted on Company's servers or on the servers of Company's
Internet service provider. Once made available to End Users, Company shall
ensure that the Company Services remain available through the Company Site
throughout the Term. At all times during the Term, Company shall ensure that the
Company Content is at least as up-to-date as any similar content displayed on
all other sites of Company on the World Wide Web.
4.2 Use and Ownership of User Data.
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(a) Collection of User Data. Company acknowledges that the
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provision of wireless services to enable End Users to access the Company
Services using a Palm Device results in the access by Palm of User Data. Palm
agrees that it shall not disclose User Data to third parties in a manner such
that the User Data is identifiable as belonging to a particular End User. Palm
shall be entitles, however, to use and disclose User Data in the aggregate in a
manner that does not associate the aggregate data with any individual End User.
Notwithstanding anything to the contrary contained herein, Palm agrees that it
will not collect, use or disclose any User Date in violation of any applicable
law or regulation, or in violation of Palm's then-current privacy policy.
(b) Ownership of User Data. Palm acknowledges and agrees that,
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subject to Section 4.2(a) (Collection of User Data), User Data shall be owned by
Company. Company acknowledges and agrees that all user data collected from End
Users (other than the User Data) with respect to wireless use of the Palm
Devices shall be owned by Palm.
4.3 Service Level Agreement. Company shall use commercially reasonable
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efforts to maintain the Company Site and provide Company Services in accordance
with the service level agreement objectives set forth on Exhibit E.
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4.4 Company URL. Company agrees to provide advance notification of at
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least three (3) weeks to Palm of any upcoming or intended changes to the Company
URL. Company further agrees that in the even of a change to the Company URL,
Company will put in place a site redirect from the former Company URL to the new
Company URL to avoid any potential impact to the Subscriber.
4.5 Advertising Guidelines. Company shall ensure that any advertising
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or promotions displayed on the Company Site will comply with the advertising
guidelines set forth on Exhibit F.
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4.6 Support. Company will provide to Palm reasonable levels of
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technical support during business hours via telephone and email. During business
hours, Company shall notify Palm via telephone within one (1) hour of any
conditions which significantly impair or prevent; (a) Company from providing the
Company Services to End Users; or (b) End Users from accessing the Company Site
("Services Impairment"). During non-business hours, Company shall notify Palm
via telephone or email within two (2) hours of any Service Impairment. Palm
acknowledges and agrees that Company is not responsible for downtime on Company
servers due to technical problems relating to the Internet or experienced by
Internet service providers. In the event that any individual Service Impairment
continues for longer than four (4) hours, Company shall use best efforts to
resolve the Service Impairment immediately and will promptly notify Palm via
telephone or email when the problem has been resolved.
5. REPRESENTATIONS AND WARRANTIES
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5.1 Company's Warranties and Representations. Company warrants and
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represents that:
(a) Company possesses full power and authority to enter into this
Agreement to fulfill its obligations hereunder; and
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(b) The performance of the terms of this Agreement and of Company's
obligations hereunder shall not breach any separate agreement by which Company
is bound.
5.2 Palm's Warranties and Representations. Palm warrants and
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represents that:
(a) Palm possesses full power and authority to enter into this
Agreement and to fulfill its obligations hereunder; and
PALM CONFIDENTIAL
(b) The performance of the terms of this Agreement and of Palm's
obligations hereunder shall not breach and separate agreement by which Palm is
bound.
5.3 Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS
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AGREEMENT, COMPANY PROVIDES ALL SERVICES PERFORMEDF BY COMPANY UNDER THIS
AGREEMENT "AS IS". TO THE EXTENT PERMITTED BY THIRD PARTY SUPPLIERS, COMPANY
WILL PASS THROUGH TO PALM ANY WARRANTIES AND INDEMNIFICATION PROVIDED BY SUCH
THIRD PARTY SUPPLIERS TO COMPANY. EXCEPT AS EXORESSLY SET FORTH IN THIS
AGREEMENT, PALM AND ITS SUPPLIERS MAKE NO WARRANTIES WITH RESECT TO THE
PERFORMANCE OF THE PRODUCT, THE PALM SITES AND/OR THE PALM DEVICES, EXPRESS OR
IMPLIED. PALM AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL OTHER
WARRANTIES, WHETHER STATUTORY, EXPRESS, OR IMPLIED, INCLUDING BUT NOT LIMITED TO
THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS UNDER THE
UNIFORM COMMERCIAL CODE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6. TRADEMARK LICENSE.
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6.1 Company License.
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(a) During the Term (as described in Section 9.1 (Term) below), Palm
grants to Company a non-exclusive, worldwide, royalty-free and non-transferable
license to use the Palm Xxxx on the Company Site and in connection with the
promotion of the Company Services accessible via Palm Devices. This license
does not include the right to sublicense the use of the Palm Xxxx. Company
shall be in compliance with Palm's trademark guidelines as updated from time to
time and as currently set forth in Palm's Trademark Policy Guidelines provided
to Company promptly following the execution of this Agreement.
(b) Company agrees that the nature and quality of any materials or
services supplied by Company bearing the Palm Xxxx shall be of high quality in
the Internet industry. Palm shall have the right to approve Company's use of
the Palm Xxxx. Prior to Company's using the Palm Xxxx, Company shall submit a
written request for approval of such use to Palm. Palm shall not unreasonably
withhold its consent to any use by the Company. If Palm does not object in
writing, specifying the reasons for objection, within ten (10) business days of
receipt of such request, Palm shall be deemed to have approved the request (the
"Palm Approval Process"). Company may submit revised requests for approval of
any use to which Palm objected, which shall be governed by the Palm Approval
Process. Company agrees to cooperate with Palm in facilitating Palm's oversight
of Company's use of the Palm Xxxx. Palm shall have the right to receive free
samples of all advertising and promotional materials on which such trademarks
are used. Company shall comply with all requests from Palm to correct any
improper uses of the Palm
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Xxxx. Unless otherwise instructed by Palm, Company will use a legend on the
Company Site and all printed materials and products bearing the Palm Xxxx
similar to the following: "Palm is a trademark of Palm, Inc.".
6.2 Palm License.
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(a) During the Term, Company grants to Palm a non-exclusive,
worldwide and royalty-free license, with the right to sublicense, to use the
Company Marks in connection with the use, display, marketing, promotion and
distribution of the Product, the Palm Devices and the Company Link pursuant to
Sections 2.1 (Company Link) and Exhibit G. Palm shall be in compliance with
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Company's trademark guidelines as updated from time to time and as currently set
forth in Company's Trademark Policy Guidelines provided to Palm promptly
following the execution of this Agreement.
(b) Company shall have the right to approve Palm's use of the Company
Marks. Prior to Palm's using the Company Marks, Palm shall submit a written
request for approval of such use to Company. Company shall not unreasonably
withhold its consent to any use by Palm. If Company does not object in writing,
specifying the reasons for objection, within ten (10) business days of receipt
of such request, Company shall be deemed to have approved the request (the
"Company Approval Process"). Palm may submit revised requests for approval of
any use to which Company objected, which shall be governed by the Company
Approval Process. Palm agrees to cooperate with Company in facilitating
Company's oversight of Palm's use of the Company's Marks. Company shall have
the right to receive free samples of all advertising and promotional materials
on which such trademarks are used. Palm shall comply with all requests from
Company to correct any improper uses of the Company Marks.
7. CONFIDENTIALITY. During the Term, the Disclosing Party may provide
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Confidential Information to the Recipient. The Recipient shall hold the
Confidential Information in confidence, provided that the Confidential
Information may be disclosed to such of the Recipient's or the recipient's
parent companies' or subsidiaries' employees, contractors or advisors, who have
a need to know for the purpose of fulfilling the Recipient's obligations under
this Agreement. The Recipient shall advise any such individuals that the
Confidential Information is confidential and that be receiving such information
such individuals are agreeing to be bound by the terms of this Section 7 and are
agreeing not to use such information for any purpose other than described
herein. Without the Disclosing Party's prior written consent, the Recipient
shall not, and shall direct such individuals not to, disclose the Confidential
Information in whole or in part, except to the extent compelled by law, a court
or other governmental body (including, without limitation, the rules and
regulations of the Securities and Exchange Commission relating to the filing of
exhibits to filings required under the Securities Exchange Act of 1933, as
amended, or the Securities Exchange Act of 1934, as amended); provided, however,
such Recipient shall provide prompt prior written notice thereof to such
Disclosing Party to enable such Disclosing Party to seek a protective order or
otherwise prevent such disclosure. The Recipient shall employ reasonable steps
to protect the Confidential Information from unauthorized or inadvertent
disclosure or use, including, without limitation, the steps that it takes to
protect its own information that is considers trade secret. Either party may
disclose information concerning this Agreement and the transactions contemplated
hereby, including providing a copy of this Agreement: (i) in connection with the
due diligence review of a party potential business partners or investors, or
investment bankers, to such persons and to their employees, agents attorneys and
auditors, (ii) in connection with quarterly and annual financial or tax audits,
to the party's public accounting firm, and (iii) in connection with
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PALM CONFIDENTIAL
obtaining legal advice regarding this Agreement or any related matters, to the
party's outside legal advisors.
8. INDEMNIFICATION.
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8.1 Company Indemnification. Subject to the provisions of this
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paragraph, Company will indemnify, defend and hold harmless Palm and its
officers, directors, employees and agents (the "Palm Indemnification Parties")
from and against any and all losses, liabilities, obligations, costs and
expenses (including, without limitations, reasonable attorney's fees) incurred
in connection with any suit, claim or action by any third party alleging that
the Company URL, the Company Link, the Company Marks, the Company Content, the
Company Services and/or the Company Site (other than the Palm Xxxx) infringe any
Intellectual Property Right of any third party or any claim of damages brought
or sought against Palm by any of Company's advertisers in connection with
advertising on the Company Site. The obligations of this paragraph are
contingent on Palm: (i) giving Company prompt written notice of any such claim;
(ii) allowing Company to control the defense and related settlement negotiations
(but Company shall not enter into any agreement which results in liability to
the Palm Indemnified Parties without their prior written consent); and (iii)
providing reasonable cooperation, at Company's expense, in the defense and all
related settlement negotiations. Company may, at its sole option, elect to limit
its obligations under this Section 8.1 by terminating this Agreement upon
fifteen (15) days written notice to Palm; provided, however, that such
termination shall not affecting indemnity obligations arising prior to
termination. THE RIGHTS GRANTED TO PALM UNDER THIS SECTION 8.1 SHALL BE PALM'S
SOLE AND EXCLUSIVE REMEDY AGAINST COMPANY FOR ANY ALLEGED INFRNGEMENT OF ANY
INTELLECTUAL PROPERTY RIGHTS OF ANY KIND ARISING OUT OF THE SUBJECT MATTER OF
THIS AGREEMENT.
8.2 Palm Indemnification. Subject to the provisions of this paragraph,
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Palm will indemnify, defend and hold harmless Company and its officers,
directors, employees and agents (the "Company Indemnification Parties") from and
against any and all losses, liabilities, obligations, costs and expenses
(including, without limitations, reasonable attorney's fees) incurred in
connection with any suit, claim or action by any third party alleging that the
Product (other than the Company Link, the Company Marks and Third Party
Content), the Palm Site (other than the Company Marks and the Third Party
Content), the Palm Xxxx infringe any Intellectual Property Right of any third
party. The obligations of this paragraph are contingent on Company: (i) giving
Palm prompt written notice of any such claim; (ii) allowing Palm to control the
defense and related settlement negotiations (but Palm shall not enter into any
agreement which results in liability to the Company Indemnified Parties without
their prior written consent); and (iii) providing reasonable cooperation, at
Palm's expense, in the defense and all related settlement negotiations. Palm
may, at its sole option, elect to limit its obligations under this Section 8.1
by terminating this Agreement upon fifteen (15) days written notice to Company;
provided, however, that such termination shall not affecting indemnity
obligations arising prior to termination. THE RIGHTS GRANTED TO PALM UNDER THIS
SECTION 8.2 SHALL BE COMPANY'S SOLE AND EXCLUSIVE REMEDY AGAINST PALM FOR ANY
ALLEGED INFRNGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY KIND ARISING OUT
OF THE SUBJECT MATTER OF THIS AGREEMENT.
9. TERM AND TERMINATION.
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9.1 Term. This Agreement will commence on the Effective Date and,
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unless sooner terminates as provided below, shall continue until twenty-four
(24) months following the Effective Date (the "Initial Term"). This Agreement
shall automatically renew for successive two (2) year periods (each a "Renewal
Term") unless either party gives written notice to the other party of its intent
not to renew the Term no later than sixty (60) days prior to the end of the
then-current term. For each Renewal Term, Company shall be obligated to pay Palm
the Co-Marketing Fees (defined below) as set forth in Exhibit G.
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9.2 Termination for Cause. Either party may terminate this Agreement
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upon written notice of a material branch by the other party as provided below,
subject to thirty (30) day cure period. If the breaching party has failed to
cure the breach within thirty (30) days after the receipt by the breaching party
of written notice of such breach, the non-breaching party may give a second
notice to the breaching party terminating the Agreement.
9.3 Return of Property. Upon the termination or expiration of this
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Agreement, a party shall immediately deliver to the other party upon its written
request all copies of Confidential Information or other materials then in its
possession owned solely by such other party, including without limitation sales
and marketing materials provided to Palm by the Company.
9.4 Effect of Termination. Upon termination or expiration of this
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Agreement: (a) Palm and its sublicenses shall have the right to continue to
manufacture, market, reproduce and distribute all existing versions of the
Products that include the Company Link as of the date of such termination or
expiration and to fulfill any purchase orders or contractual obligations for
such Products existing on the date of such termination or expiration; (b) Palm
and its sublicenses shall have a commercially reasonable period of time to
remove the Company Link from and Product following such termination or
expiration of this Agreement; and (c) Company shall also promptly cease using
and cancel or allow to expire any URL or related alias that includes the word
"Palm" which has been registered or used (directly or indirectly) by Company,
including without limitation in connection with the Company Site. For purposes
of this Agreement, any version of the Product which is a beta, gold master or
commercial release on the date of such expiration or termination shall be deemed
to be an existing version of the Product on such date. The expiration or
termination of this Agreement shall not affect the validity of any End User
license agreements applicable to Products (or other use by End Users) within the
scope of this Section 9.4. Company agrees to support the Company Services
through the Company Site for sixty (60) days following the expiration or
termination of this Agreement, except as otherwise provided in Section
2.4(Company Link).").
10. MARKETING SUPPORT. The parties agree that they will use commercially
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reasonable efforts to engage in joint efforts to promote the Product and the
Company Services as mutually agreed upon in advance and in writing. Each party
agrees to perform those co-marketing obligations set forth on Exhibit G. The
parties shall mutually agree on the substance and timing of a press release
within 30 days regarding this Agreement and the parties' relationship. Neither
Palm or Company shall make any other public announcement, except as they may
mutually agree in advance and in writing, as to the existence and details of the
matters set forth in this Agreement (other than to employees, consultants,
shareholders or a required by such parties' disclosure obligations under the
securities laws or regulations of the United States or any state thereof).
11. CO-MARKETING FEES.
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11.1 Fees. Palm's marketing obligations as set forth on Exhibit G
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shall be subject to Company's payment of the co-marketing fees set forth on
Exhibit G ("Co-Marketing fees") according to the schedule set forth therein.
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Unless stated otherwise in
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PALM CONFIDENTIAL
Exhibit G, the Co-Marketing Fees shall be due in full thirty (30) days from the
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date of invoice. Any amounts which are not paid when due hereunder will be
subject to an interest rate of one and one-half percent (1.5%) per month, or the
maximum rate permitted by law, whichever is less. Payments shall be sent to
Palm at the address set forth at the beginning of this Agreement or such other
address as Palm may designated in writing.
11.2 Taxes. Company shall pay all sales, use, excise and other taxes
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which may be levied upon either party in connection with this Agreement,
excluding taxes based on Palm's net income.
12. LIMITATION OF LIABILITY
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12.1 Consequential Damages Waiver. EXCEPT IN THE EVENT OF A BREACH OF
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THE CONFIDENTIALITY OBLIGATIONS OR CLAIM MADE FOR INDEMNIFACTION, IN NO EVENT
SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL,
CONSEQUENTIAL, SPECIAL, OR INDIRECT DAMAGES ARISING OUT OF THIS AGREEMENT OR ITS
TERMINATION, WHETHER LIABILIY IS ASSERTED IN CONTRACT OR TORT (INCLUDING
NEGLIGENCE AND STRICT PRODUCT LIABILITY) AND IRRESPECTIVE OF WHETHER SUCH APRTY
HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE.
12.2 Limitation of Liability. IN NO EVENT SHALL PLAM'S TOTAL LIABILITY
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UNDER THIS AGREEMENT EXCEED THE AMOUNTS PAID TO PALM HEREUNDER.
12.3 Allocation of Risk. Company and Palm agree that the foregoing
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Section 12.1 and 12.2 on limitation of liability and the Sections 5.1, 5.2, and
5.3 above on warranties and warranty disclaimer fairly allocate the risks in the
Agreement between the parties and that the limitations specified in this Section
12 shall apply notwithstanding any failure of the essential purpose of this
Agreement or any limited remedy hereunder.
13. GENERAL.
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13.1 No Partnership or Joint Venture. Company and Palm are independent
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contractors and neither party is the legal representative, agent, joint
venturer, partner, franchisor, franchisee or employee of the other party for any
purpose whatsoever. Neither party has any right or authority to assume or
create any obligations of any kind or to make any representation or warranty on
behalf of the other party, whether express or implied, or to bind the other
party in any respect whatsoever.
13.2 Notice and Service. All notices or requests, including
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communications and statements which are required or permitted under the terms of
this Agreement, shall be in writing and shall be sent by facsimile, or
nationally recognized commercial overnight courier. Notices shall be deems
received upon receipt of written confirmation of transmission when sent by
facsimile, or signing for receipt of delivery if sent by overnight courier.
Notices shall be sent to the parties a the following addresses:
For Company: XX.xxx, Inc.
0000 X. Xxxxxxx #000
Xxxx, XX 00000
Fax: 000-000-0000
Attention: Xxxx Xxxx
with a copy to: Xxxxx & Rocca, LLP
00 X. Xxxxxxx Xxx.
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
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For Palm: Palm, Inc.
10 New England Business Xxxxxx Xxxxx
Xxxxx 000, Xxxxxxx, XX 00000
Fax: 000-000-0000
Attention: Xxxxx Xxxxxx
with a copy to: Palm, Inc.
Solutions group 000 X. XxXxxxxx Xxxx.
Xxxxxxxx, XX 00000
Attention: General Counsel
13.3 Captions and Counterparts. All indices, titles, subject headings,
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section titles and similar items contained in this Agreement are provided for
the purpose of reference and convenience only and are not intended to be
inclusive, definitive or to affect the meaning, content or scope of this
Agreement. This Agreement may be executed in any number of counterparts, and
each executed counterpart shall have the same force and effect as an original
instrument.
13.4 Assignments. Neither party shall assign, voluntarily, by operation
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of law, or otherwise, any rights or delegate any duties under this Agreement
(other than the right to receive payments) without the other party's prior
written consent, except that either party may, without the other party's
consent, assign all or any part of its rights and duties under this Agreement
pursuant to a corporate reorganization, or to any entity with whom either party
merges, either party acquires or is acquired by or to whom with either party
sells all or substantially all of its assets to which this Agreement relates.
Subject to the foregoing, this Agreement will bind and inure to the benefit of
the parties and their respective successors and permitted assigns.
13.5 Survival. Upon any termination or expiration of this Agreement, the
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following Sections shall remain in full force and effect: 1, 2.7, 4.2, 5, 7, 8,
9.3, 9.4, 11, 12 and 13.
13.6 Governing Law and Jurisdiction. This Agreement shall be governed by
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and construed under the laws of California without regard to conflict of laws
principals. The parties agree and acknowledge that his Agreement is made and
entered into in Santa Clara, California. The parties hereby submit to the
jurisdiction of, and waive any venue objections against, the United States
District Court for the Northern District of California, San Xxxx Xxxxxx and the
Superior and Municipal Courts of the State of California, Santa Xxxxx County, in
any litigation arising out of the Agreement.
13.7 Force Majeure. Neither party shall be liable for any loss or damage
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or be deemed to be in breach of this Agreement to the extent that the
performance of such party's obligations or attempts to cure any breach under
this Agreement are delayed or prevented as a result of any event or circumstance
beyond its reasonable control, including without limitation, war, invasion, act
of foreign enemy, hostilities, civil war or rebellion (whether war be declared
or not), or act of God.
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PALM CONFIDENTIAL
13.8 Waivers; Modification. No failure or delay by either party in
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exercising any right, power, or remedy under this Agreement shall operate as a
waiver of any such right, power or remedy. No waiver or modification of any
provision of this Agreement shall be effective unless in writing and signed by
both parties. Any waiver by either party or any provision of this Agreement
shall not be construed as a waiver of any other provision of this Agreement, nor
shall such waiver operate as or be construed as a waiver of such provision
respecting any future event or circumstance.
13.9 Severability. In the even any provision of this Agreement (or
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portion thereof) is determined by a court of competent jurisdiction to be
invalid, illegal, or otherwise unenforceable, such provision shall be deemed to
have been deleted from this Agreement, while the remainder of this Agreement
shall remain in full force and effect according to its terms.
13.10 Construction. This Agreement reflects the wording negotiated and
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accepted by the parties and no rule of construction shall apply against either
party.
13.11 Language. This Agreement is proposed and executed in the English
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language only and any translation of this Agreement into any other language
shall have no effect. All proceedings related to this Agreement shall be
conducted in the English language.
13.12 Entire Agreement. This Agreement (together with the Exhibits
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hereto) constitutes the entire agreement and understanding between the parties
hereto with respect to the subject matter hereof and supersedes any and all
other agreements, written or oral, that the parties heretofore may have had with
respect to the subject matter herein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed.
XX.XXX, INC.:
BY: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
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Title: Agent
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PALM, INC.
BY: /s/ Xxxxx Xxxxxx
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Name: XXXXX XXXXXX
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Title: Director of Business Development
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EXHIBIT A
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Company Link
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Company shall provide Palm with the following URL for the Company Link as
follows:
Company URL
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to be provided by Company by February 07,
2003
Palm shall have the right to approve in advance and in writing the appearance,
size and content of the Company Link, and any changes Company males to the
Company Link.
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EXHIBIT B
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Company Marks
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[GRAPHIC OMITTED]
XX.xxx
[GRAPHIC OMITTED]
XXXXXX-XXXX.XXX
Making It Easy For You
Palm Xxxx
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THIS SITE IS
Palm wirelessready.
[GRAPHIC OMITTED]
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EXHIBIT C
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Company Services
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XX.Xxx will Provide PDA web site with Yellow and White pages functionality. With
approval from Palm, XX.Xxx may update, improve, enhance and add to it's list of
services from time to time.
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EXHIBIT D
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Product
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Any Palm portal software released by Palm, and all versions thereof, including,
without limitation, all versions which may be Palm-branded, co-branded or
private-labeled.
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EXHIBIT E
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Service Level Agreement Objectives
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1. Company will not exceed a Downtime for more than one-tenth of one percent
(0.1%) over a rolling thirty (30) day period. "Downtime" is defined as any one
(1) minute period during which the Company Services processes no user queries.
2. Company will provide ninety-nine and nine-tenths percent (99.9%) Service
Availability o over a rolling thirty (30) day period, as measured and monitored
from Company's facilities. "Service Availability" is defined as the successful
processing by the Company Services of user queries received by Company from an
End User. Service Availability does not include Downtime or due to technical
problems relating to the Internet or experienced by Internet service providers.
3. Company will not exceed an average Server Latency of eight-tenths (0.8)
of a second over any twenty-four (24) hour period. "Server Latency" is defined
as the time period between the time: (a) when Company receives a user query from
an End User; and (b) when Company has successfully processed the user query.
Server Latency does not include any time associated with transmission of the
user query from Palm to Company:
4. Company will not exceed an average Network Latency of four hundred (400)
milliseconds over any twenty-four (24) hour period, excluding any Downtime or
due to technical problems relating to the Internet or experienced by Internet
service providers. "Network Latency" is defined as the round-trip time of an
ICMP ping packet between Palm's servers and the servers at Company.
5. If Palm reasonably believes that Company is out of compliance with the
applicable requirements for the Company Services as defined on this Exhibit E,
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Palm may request a monthly report from Company (no more than once per calendar
quarter) directed specifically to the parameter believed to have been violated.
If Palm reasonably determines that Company has failed to meet the applicable
requirement, Palm may provide a written notice to Company identifying the
failure. If Company has not cured such failure within fifteen (15) days after
receipt of such written notice, Palm shall have the right to terminate this
Agreement, or any and all of its marketing obligations as set forth on Exhibit
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G, immediately upon written notice to Company.
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6. The provisions of this Exhibit E shall not be construed to limit the
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liability of the breaching party in any way or limit the non-breaching party
from pursuing any remedies at law or in equity.
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EXHIBIT F
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Advertising Guidelines
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The purpose of these advertising guidelines is to ensure the End Users that all
advertising accessible to the End Users is delivered in a manner to provide the
best possible user experience.
1. Company shall not display any advertising on the Company Site:
(a) advertises or promotes adult or pornographic products, services,
web sites, or web clipping applications:
(b) contains content which is unlawful, harmful, abusive, hateful,
offensive, obscene, threatening, libelous or defamatory;
(c) advertises or promotes any illegal; products, firearms or tobacco
products.
2. If Palm reasonably determines that an advertisement displayed on the
Company Site violates the terms of Paragraph 1 above, Company shall remove the
End User's access to such advertisement displayed on the Company Site within
twenty-four (24) hours of the earlier of (a) Company first becoming aware of
such advertisement, or (b) receipt by Company of written notice from Palm of the
existence of such advertisement.
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EXHIBIT G
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Co-Marketing Obligations
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A. Co-Marketing Fees.
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Co-Marketing Fees for Initial Term: Twenty Thousand Dollars ($20,000).
For the Initial Term, Palm will invoice XX.xxx $20,000 upon execution of
the Agreement and payment will be due within thirty (30) days. For terms
following the Initial Term, the Co-Marketing Fees shall be payable to Palm
and Palm will invoice XX.xxx for payment on the anniversary of the term.
Payment will be due thirty (30) days following receipt of the invoice.
Palm Obligations.
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1. Placement on the Product: Palm will put the test for the Company Link
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(and if Palm decides in its sole discretion to include a graphic icons, a
graphic icon of Company's will be displayed) on the Product in any position from
1 to 5 on the palm portal page, or compatible, at Palm's sole discretion.
2. Palm Endorsements on the Company Site:
Company may use the Palm Xxxx on the Company Site to promote the
Product or the Company Services, subject to the trademark license set forth in
Section 6 of this Agreement.
C. Company Obligations.
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1. Internet Promotion: XX.Xxx will place a graphical link to Palm's
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website on its xxx.xx.xxx Homepage for the Term of this Agreement. The
graphic will be no more than 50 pixels by 50 pixels and appear upon
first load in the browser when the xx.xxx Homepage is launched. The
graphic and url link will be provided by Palm.
2. Banner Ad: XX.Xxx will feature a 280 x 80 Palm Banner Ad in rotation
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throughout the xxx.xx.xxx site. The banner ad will part of a rotating group of
no more than 9 other ads. The Xxx Banner Ad will appear above the fold upon
first load in the browser without scrolling when the xx.xxx page is launched and
viewed at an 800x600 pixel resolution. XX.xxx will serve at least twenty-two
(22) million impressions of the Palm Banner Ad during each year of the Term of
this Agreement. The Palm Banner Ad and url ink will be provided by Palm. In
the event of any deficiency in impressions, Company shall pay to Palm 50 cents
for each thousand ads not served. XX.xxx shall provide Palm with a report within
thirty (30) days of each year of the Term showing ad impressions served, any
deficiency therein, and of there is a deficiency, shall remit payment to Palm
within 30 days of the report.
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