EXHIBIT 10.9
RAM MOBILE DATA USA LIMITED PARTNERSHIP
VALUE ADDED RESELLER AGREEMENT
THIS AGREEMENT, is made and entered into as of the 21 day of February,
1997, by and between RAM Mobile Data USA Limited Partnership ("RAM"), having an
address at 00 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, and Palm
Computing, Inc., a wholly-owned subsidiary of U.S. Robotics Corporation
("Palm"), having an address at 0000 Xxxxxxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx
00000.
WHEREAS, RAM provides certain intra-LATA two-way wireless data
communications services (the "RAM Services") using radio base stations and
switching facilities implemented and operated by RAM, from time to time (the
"RAM Facilities");
WHEREAS, Palm is developing and intends to market certain messaging and
internet forms-based software and related products and services, including but
not limited to a palmtop computing device to be marketed by Palm under the
tradename "PalmPilot" or other similar name (collectively, the "Palm Products");
WHEREAS, Palm desires to resell the RAM Services for use in connection with
the Palm Products (the combination of the RAM Services and the Palm Products
being hereinafter referred to as the "Palm/RAM Services"), and effect the
interconnection between the RAM facilities and host computer system operated by
Palm for use by subscribers to the Palm/RAM Services ("Subscriber Facilities")
in connection therewith on the terms and conditions hereinafter set forth; and
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter set forth, RAM and Palm hereby agree as follows:
1. Solicitation of Subscribers and Value Added Requirement.
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a. Palm shall use commercially reasonable efforts to solicit subscribers
to the RAM Services to be received in connection with the Palm/RAM
Services.
b. Palm's resale of the RAM Services shall only be in connection with the
sale of the Palm/RAM Services and incidental to the Palm Products,
which shall constitute the principal value to subscribers of the
Palm/RAM Services. The RAM Services shall be integrated with the Palm
Products such that the RAM Services form an integral portion of the
Palm/RAM Services. Palm shall not have the right to offer, resell or
otherwise make available the RAM Services, including, but not limited
to, the transmission of packets included therein, as a separate
service or product.
c. Palm may, at its own expense and solely in connection with the
Palm/RAM Services, market, promote, and advertise the RAM Services.
Palm shall be under no obligation to identify RAM in any of Palm's
promotional material or advertising as a service provider of RAM
Services, except as provided in Schedule 1.c attached with respect
------------------------
[*] = information redacted pursuant to a confidential treatment request
throughout this exhibit. Such omitted information has been filed separately with
the Securities and Exchange Commission.
to the use of RAM's Logo (as defined in Schedule 1.c). Palm will not
in any manner use, display, broadcast or disseminate any advertising
or promotional material which contains any (i) material
misrepresentations, or omits to state a material fact, with regard to
RAM and/or the RAM Services, or (ii) statement in derogation of RAM,
and/or the RAM Services.
d. The rights granted to Palm hereunder are not exclusive. RAM is free
(i) to increase or decrease the number of parties it authorizes to
solicit subscribers to the RAM Services and (ii) to solicit
subscribers to the RAM Services in its own behalf at any time without
notice to Palm.
2. The RAM Services.
----------------
a. RAM shall provide the RAM Services to subscribers to the Palm/RAM
Services as Palm shall notify RAM during the term of this Agreement.
RAM agrees to register on the RAM Facilities subscribers to the
Palm/RAM Services and the equipment utilized by such subscribers
(each, a "Subscriber Unit") and to provide the RAM Services to such
Subscriber Units thereafter, unless notified by Palm to cease the
provision of the RAM Services to such Subscriber Units as specified in
such notice. The date on which the first Subscriber Unit is registered
on the RAM Facilities is hereinafter referred to as the "Initial
Service Date."
b. Palm shall pay RAM for the provision of the RAM Services to Subscriber
Units in accordance with the Schedule of Charges annexed hereto as
Schedule 2.b. Notwithstanding anything to the contrary contained in
this Agreement, Palm shall bear full responsibility for, and shall pay
RAM in accordance with the Schedule of Charges for the provision of,
all RAM Services used by Subscriber Units activated by RAM pursuant to
Section 2.a. including, but not limited to, use of the RAM Services in
connection with Mobile-to-Mobile message transmissions by a Subscriber
Unit.
c. On approximately the fifteenth (15th) day of each month following the
Initial Service Date, RAM shall invoice Palm for the aggregate amount
of RAM Services used in connection with Subscriber Units calculated in
accordance with the applicable rates specified in the Schedule of
Charges. Upon reasonable notice during normal business hours, Palm
shall have the right to audit RAM's traffic and billing records
pertaining to the use of the RAM Services by Palm hereunder, solely to
verify that RAM's invoicing and charges for the RAM Services conform
to those charges set forth in the Schedule of Charges attached as
Schedule 2.B. The cost of such audit shall be paid by Palm.
d. Palm shall make payment in full, by Federal wire transfer or by good
check for immediately available funds, of each of RAM's invoices not
later than thirty (30) days after each invoice is rendered. RAM shall
provide such wire transfer instructions to Palm with RAM's first
invoice due pursuant to Section 2.c. above.
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e. Palm will receive all payments from subscribers to the Palm/RAM
Services and shall be responsible for all billing, collection and bad
debt recovery with respect to subscribers to the Palm/RAM Services.
f. Palm shall be responsible for assuring that the use of the RAM
Services by subscribers to the Palm/RAM Services, and the Palm
Products and all Subscriber Units in connection therewith, comply with
and have been approved by RAM for use on the RAM Facilities in
accordance with procedures and technical specifications established by
RAM, during the term of this Agreement, and comply with all applicable
laws, rules, and regulations, including without limitation the rules
and regulations of the Federal Communications Commission ("FCC")
concerning the licensing of end users of Specialized Mobile Radio
Service facilities and the type approval of end user equipment.
3. Application Software Development and Connectivity.
-------------------------------------------------
a. Palm shall undertake and be responsible for, at its own expense, the
development and implementation of any and all new, modified, or
enhanced application, interface, middleware, or communications
software necessary to enable present and future subscribers to the
Palm Products to receive the Palm/RAM Services and to achieve
connectivity between and among Subscriber Units, the RAM Facilities,
and the Subscriber Facilities. Palm hereby acknowledges and agrees
that prior to each and every such modification or enhancement to the
Palm Products, Palm will submit in writing to RAM (i) the name of the
middleware product to be used in connection with the applicable
software and/or service, (ii) the middleware options that the
application software and/or service is using (where multiple
communications options are supported in such middleware), (iii) the
projected average message size (uplink and downlink) submitted to the
middleware by the application software and/or service, (iv) on a per
user basis, the projected average number of messages, uplink and
downlink, submitted to the middleware by the application software
and/or service per peak user hour, and (v) the application software's
retry algorithm for addressing situations where transmission of
messages has been aborted by the middleware or for which an
application software level response time, uplink or downlink, has been
exceeded. In the event that RAM should determine, as a result of the
information provided by Palm, that such middleware application
software and/or service is detrimental or has the potential to be
detrimental to the RAM Facilities, Palm shall modify the same as
reasonably required by RAM at Palm's expense.
b. RAM shall provide all reasonable assistance to Palm in the development
of a mutually agreeable, detailed plan (the "Technical Plan") which
shall address, but not be limited to, the matters set forth in
Schedule 3.b. annexed hereto. RAM and Palm shall each use all
reasonable efforts to complete the Technical Plan as soon as
practicable after execution of this Agreement. The Technical Plan
shall incorporate this Agreement by reference and, when adopted by
both parties in writing, shall
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become part of this Agreement. Palm and RAM acknowledge and agree that
the Palm/RAM Services shall not be available for use by subscribers
thereof and that RAM shall have no obligation to register subscribers
to the Palm/RAM Services on the RAM Facilities unless and until the
Technical Plan shall have been agreed upon and incorporated into this
Agreement.
c. Palm shall bear the cost of procuring, implementing, operating, and
maintaining the facilities necessary, as specified in the Technical
Plan, to interconnect the RAM Facilities and the Subscriber
Facilities, except for such digital service units ("DSUs") as may be
located on RAM's premises.
d. Palm shall be the sole owner of any and all intellectual property
rights in any software developed by Palm or on Palm's behalf pursuant
to this Agreement. This Agreement does not convey to RAM any license,
by implication, estoppel or otherwise, to any proprietary copyright or
patent right which Palm has or may have in any software or hardware
developed by Palm or on Palm's behalf pursuant to this Agreement, nor
does this Agreement grant any rights to RAM to use or modify such
software or hardware or any part thereof, or to combine such software
or any part thereof with any other software or hardware, product or
parts, except as may be expressly provided herein or in any subsequent
agreement between Palm and RAM.
4. Beta Test and Initiation of the Palm/RAM Services.
-------------------------------------------------
a. Palm and RAM acknowledge and agree that the application software
development activities to be undertaken by Palm in connection with the
Palm/RAM Services as contemplated by this Agreement cannot be deemed
to be completed and the Palm/RAM Services cannot be initiated prior to
the completion of a satisfactory testing program in relation to each
such application software program and its related service to be
included in the Palm/RAM Services (the "Beta Test").
b. RAM shall provide all reasonable assistance to Palm in the development
of a mutually agreeable, detailed plan (the "Beta Test Plan") which
shall address, but not be limited to, the matters set forth in
Schedule 4.b. annexed hereto. RAM and Palm shall each use all
reasonable efforts to complete the Beta Test Plan as soon as
practicable after the date hereof. The Beta Test Plan shall
incorporate this Agreement by reference and, when adopted by both
parties in writing, shall become part of this Agreement.
c. RAM shall provide all reasonable assistance to Palm in the development
of a mutually agreeable, detailed plan (the "Operations Plan") which
shall address, but not be limited to, the matters set forth in
Schedule 4.c. annexed hereto. RAM and Palm shall each use all
reasonable efforts to complete the Operations Plan as soon as
practicable after execution of this Agreement. The Operations Plan
shall incorporate this Agreement by reference and, when adopted by
both parties in writing, shall become part of this Agreement. Palm and
RAM acknowledge and agree that the
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Palm/RAM Services shall not be available for use by subscribers
thereof and that RAM shall have no obligation to register subscribers
to the Palm/RAM Services on the RAM Facilities unless and until the
Operations Plan shall have been agreed upon and incorporated into this
Agreement.
5. Joint Marketing Activities.
--------------------------
a. RAM and Palm shall jointly develop a mutually agreeable plan (the
"Marketing Plan") which shall address, but not be limited to, the
matters set forth in Schedule 5.a. annexed hereto. RAM and Palm shall
each use all reasonable efforts to complete the Marketing Plan as soon
as practicable after the date hereof. The Marketing Plan shall
incorporate this Agreement by reference and, when adopted by both
parties in writing, shall become part of this Agreement.
b. Except as provided in Section 2.c and Schedule 1.c annexed, neither
party shall distribute to any third parties any materials, information
or writings describing the products or services of the other party, or
use any logos, trademarks, service marks, trade names, or the
corporate names of the other party without the prior written consent
of such party, which consent shall not be unreasonably withheld or
delayed.
6. Non-Exclusivity.
---------------
a. Nothing herein shall be construed so as to restrict the activities of
RAM or Palm, acting alone or in concert with others, in connection
with the development, implementation, operation, or provision of any
services or facilities whatsoever, whether similar to or competitive
with the Palm Products, the Subscriber Facilities, the RAM Services,
the RAM Facilities, or the Palm/RAM Services.
b. Notwithstanding anything to the contrary in this Agreement, the
Palm/RAM Services shall not include and Palm shall have no right
whatsoever to offer the RAM Services in connection with any software
applications products or services providing outdoor billboards
(including, but not limited to, structures that remotely convey
advertising, changeable traffic or other Intelligent Traffic System
Information) with fixed data application software or services for
remote illumination control and/or data collection.
7. Confidentiality and Non-Disclosure.
----------------------------------
a. RAM and Palm each acknowledge that, as parties to this Agreement and
in connection with the activities contemplated hereby, they may have
access to Confidential Information of each other and of their
respective facilities. As used herein, the term "Confidential
Information" shall include, without limitation: technical, financial
and commercial data; forms of provision and computation; names,
addresses, telephone and telefax numbers, contact persons and other
identifying or valuable information relating to actual or potential
customers, shareholders, partners,
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independent contractors and suppliers; reports; market studies;
design, price and cost information with respect to the RAM Facilities,
the Subscriber Facilities, the RAM Services, the Palm Products, and
the Palm/RAM Services; and lists, compilations and archives of any and
all of the foregoing. Notwithstanding the foregoing, the term
"Confidential Information" shall not include any information that: (a)
the receiving party can demonstrate, by prior existing records, was
within its legitimate possession prior to the time of disclosure by
the furnishing party; (b) was within the public domain prior to such
disclosure; or (c) after disclosure, comes into the public domain, as
evidenced by documents that are generally published, through no fault
of the receiving party.
b. RAM and Palm each will afford confidential treatment to the
Confidential Information it receives in connection with this Agreement
and the activities contemplated hereby and shall not use such
information or any other Confidential Information for any purpose
other than those legitimate purposes contemplated in this Agreement,
nor shall the receiving party disclose any or all Confidential
Information to anyone other than its affiliates, partners or potential
partners, advisors, agents, and employees who need to know such
Confidential Information in connection with the legitimate purposes
contemplated by this Agreement. The receiving party shall maintain
adequate procedures to ensure that all of the persons to whom it
discloses or provides access to Confidential Information comply with
the restrictions set forth herein.
c. Neither party to this Agreement shall without the written consent of
the other party (i) make any news releases, public announcements, or
denials or confirmations of the same, concerning all or any part of
the discussions or negotiations between the parties, (ii) in any
manner advertise or publish the fact that the parties have entered
into discussions or negotiations, or (iii) disclose any details of
such discussions or negotiations (whether or not Confidential
Information) to any third parties.
d. RAM and Palm acknowledge and agree that each of them reserves the
right to take any legal action to which it may be entitled in the
event of breach, in full or in part, of the confidentiality and non-
disclosure provisions of this Agreement.
8. Term.
----
a. The initial term of this Agreement shall commence as of the date
hereof and shall continue, unless sooner terminated pursuant to the
provisions hereof, until the date which shall be three (3) years after
the Initial Service Date (the "Initial Term").
b. Upon expiration of the Initial Term, this Agreement shall be
automatically renewed for additional periods of one (1) year (each a
"Renewal Term") unless either party gives written notice to the other
party that such renewal shall not occur, such notice to be given not
less than sixty (60) days prior to the end of the Initial Term or the
then current Renewal Term.
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c. Nothing in this Agreement will be deemed to create any express or
implied obligation on either party to renew or extend this Agreement
or to create any right to continue this Agreement on the same terms
and conditions contained herein. Palm understands that RAM intends to
review its Value Added Reseller strategy and the terms and conditions
of this Agreement on an ongoing basis and may require execution of an
amended form of this Agreement as a condition of renewal.
9. Termination.
-----------
a. This Agreement shall terminate automatically, and without liability or
further obligation of either party to the other in the event
termination is required by:
1. the FCC or in the event RAM loses its authority to operate the
RAM Facilities or if such authority is suspended or if required
licenses are not renewed, provided, however, that in the event
RAM loses its authority to operate fewer than all of the RAM
Facilities or if the suspension of any authority or non-renewal
of any license relates to fewer than all of the RAM Facilities,
then this Agreement shall terminate only as to the RAM Facilities
affected by such loss of authority, suspension, or non-renewal
(but nothing herein shall be construed so as to diminish RAM's
responsibility to use all reasonable efforts to maintain all
required authority and licenses in full force and effect for the
duration of this Agreement); or
2. any law, rule, regulation, or valid order of a court of competent
jurisdiction (including, without limitation, the application of
any restrictions which may be applicable to RAM or its affiliates
pursuant to the Telecommunications Act of 1996 and the rules and
regulations of the FCC promulgated, from time to time, in
connection therewith, as subsequently modified and interpreted
from time to time) (and nothing herein shall be construed to
require RAM to seek waiver of any law, rule, regulation, or
restriction, or seek judicial review or appeal of any court
order).
b. Upon any Event of Default (as hereinafter defined), either party may,
upon written notice to the defaulting party (the "Defaulting Party"),
terminate this Agreement without liability to the Defaulting Party.
Each of the following constitutes an Event of Default:
1. an admission by the Defaulting Party of an inability to pay its
debts, the entering into by the Defaulting Party of a composition
or arrangement with its creditors, the appointment of a trustee
or receiver, with or without consent, for the Defaulting Party or
all or any substantial part of its property, or the filing of a
petition for relief by or against the Defaulting Party under the
Bankruptcy Code or any similar federal or state statute now or
hereafter in effect; and
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2. failure by the Defaulting Party to perform any material
obligation imposed upon it by or pursuant to this Agreement, or
any other material breach of this Agreement, provided that such
breach is not corrected within thirty (30) days after written
notice to the Defaulting Party specifying the nature of such
breach (or such longer period as may be required to correct such
breach, if, within said thirty (30) days, the Defaulting Party
shall commence the correction of such breach and thereafter
diligently pursue the correction thereof).
c. 1. In the event that this Agreement should not be renewed for any
Renewal Term as the result of written notice by RAM to Palm
pursuant to the provisions of Section 8.b. herein, then in such
event RAM shall for a period in no event to exceed nine (9)
months, at Palm's option, continue to provide the RAM Services to
subscribers secured by Palm to the Palm/RAM Services up to the
date of termination for so long as Palm continues to make timely
payment of fees due to RAM pursuant to Section 2.b. herein. If
Palm fails to continue to make such timely payments of fees to
RAM, RAM shall have the right, at its sole option, to terminate
the RAM Services to subscribers secured by Palm to the Palm/RAM
Services.
2. In the event that this Agreement should not be renewed for any
Renewal Term as the result of written notice by Palm to RAM
pursuant to the provisions of Section 8.b. herein, then in such
event, RAM may, at its option, continue to provide the RAM
Services to subscribers secured by Palm to the Palm/RAM Services
up to the date of termination for so long as Palm continues to
make timely payment of fees due to RAM pursuant to Section 2.b.
herein. If Palm fails to continue to make such timely payments of
fees to RAM, then, in order to assure continuity of service to
all subscribers, Palm shall, within five days demand therefor by
RAM, provide RAM with a complete list of subscribers, utilizing
the RAM Services which have been obtained by Palm to the Palm/RAM
Services, including the name, address, and telephone number
thereof. The possession of that list shall not relieve Palm of
the obligation to pay all sums to RAM and shall not obligate RAM
to make any payments therefor to Palm.
10. Independent Contractors.
-----------------------
a. Palm and RAM shall at all times be, and represent themselves to be,
solely independent contractors each acting on their own account in all
transactions involving the RAM Services, the Palm Products, and the
Palm/RAM Services. Nothing in this Agreement shall be construed to
make either party (or any person employed by either party) an employee
of the other party. Neither party shall have the authority to bind or
commit the other party in any respect or to accept legal process on
behalf of the other party. Without limiting the generality of the
foregoing, neither party shall be
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liable to any agent, Palm, subcontractor, supplier, employee, or
customer of the other party for any commission, compensation,
remuneration, benefit, damage, or claim of any nature whatsoever.
b. Palm shall not, in any manner whatsoever, represent itself as the
operator of the RAM Facilities or the provider of the RAM Services,
but shall identify RAM as the entity authorized to operate the RAM
Facilities and provide the RAM Services and represent itself only as
an authorized user of the RAM Services.
11. Remedies; Limitation of Remedies.
--------------------------------
a. Palm's sole remedies for loss or damage caused by partial or total
failure of the RAM Facilities or for delay or nonperformance of any of
the RAM Services under this Agreement, regardless of the form of
action, whether in contract, tort (including negligence), strict
liability or otherwise,[*].
b. AS A MATERIAL PART OF THE CONSIDERATION PAID BY Palm FOR THE RAM
SERVICES PROVIDED BY RAM UNDER THIS AGREEMENT, THE PARTIES AGREE THAT,
EXCEPT FOR A BREACH BY RAM OF SECTION 7, RAM SHALL IN NO EVENT BE
LIABLE FOR, AND Palm, FOR ITSELF AND THE SUBSCRIBERS TO THE Palm/RAM
SERVICES, HEREBY WAIVES THE RIGHT TO CLAIM ANY INDIRECT, SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) DIRECTLY
OR INDIRECTLY RELATING TO OR ARISING OUT OF PALM'S OR ITS SUBSCRIBERS'
INABILITY TO USE THE RAM FACILITIES OR ANY PART THEREOF, EITHER
SEPARATELY OR IN COMBINATION WITH ANY OTHER FACILITIES OR SERVICES,
PERFORMED OR NOT PERFORMED BY RAM UNDER THIS AGREEMENT, OR FOR ANY OR
ALL LOSS OR DAMAGE DIRECTLY OR INDIRECTLY RELATING TO OR ARISING OUT
OF A THIRD PARTY'S UNAUTHORIZED ACCESS TO PALM'S OR ITS SUBSCRIBERS'
DATA TRANSMITTED OVER THE RAM FACILITIES, REGARDLESS OF THE FORM OF
ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT
LIABILITY, OR OTHERWISE, AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEN
OR UNFORESEEN.
c. Palm shall use a form of agreement with subscribers to the Palm/RAM
Services that contains a provision substantially consistent with the
following language and no language inconsistent therewith: "Neither
Palm, as reseller of wireless data communications services provided
through the facilities of RAM Mobile Data USA Limited Partnership
("RAM"), nor RAM, as the provider of such services, shall have any
liability of any kind, direct or indirect, to [subscriber of Palm] for
any damages
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other than actual damages directly and proximately resulting from the
failure, delay, or nonperformance of the services and the maximum
collective liability of Palm and RAM for such damages shall be limited
solely to the amount paid by [subscriber] to Palm for the services
during such period of failure, delay or nonperformance. Neither Palm
nor RAM shall have any liability, direct or indirect, whatsoever for
any damages other than for such directly and proximately caused
damage, and, in particular, without limitation, neither Palm nor RAM
shall have any liability, direct or indirect, for any special,
incidental, or consequential damages (including lost profits) directly
or indirectly relating to or arising out of [subscriber's] inability
to use the services or related facilities, equipment or software,
either separately or in combination with any other services,
facilities, equipment, or software, whether or not performed or
provided under this Agreement, or for any loss or damage directly or
indirectly relating to or arising out of any third party's
unauthorized access to [subscriber's] data transmitted over the RAM
Facilities, regardless of the form of action, whether in contract,
tort (including negligence), strict liability, or otherwise, and
whether or not such damages were foreseen or unforeseen."
d. AS A MATERIAL PART OF THE CONSIDERATION RECEIVED BY RAM UNDER THIS
AGREEMENT, THE PARTIES AGREE THAT, EXCEPT FOR A BREACH BY Palm OF
SECTION 7, Palm SHALL IN NO EVENT BE LIABLE FOR, AND RAM, FOR ITSELF
AND THE SUBSCRIBERS TO THE Palm/RAM SERVICES, HEREBY WAIVES THE RIGHT
TO CLAIM ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES
(INCLUDING LOST PROFITS) DIRECTLY OR INDIRECTLY RELATING TO OR ARISING
OUT OF PALM'S BREACH OF THIS AGREEMENT, REGARDLESS OF THE FORM OF
ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT
LIABILITY, OR OTHERWISE, AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEN
OR UNFORESEEN.
12. Representations and Warranties.
------------------------------
a. Palm represents and warrants to RAM as follows:
1. it is a corporation duly organized, validly existing, and in good
standing under the laws of the state in which it is incorporated
and has all requisite corporate power and authority to own,
operate, and lease its properties and carry on its business as
now being conducted, and to enter into this Agreement and perform
its obligations hereunder;
2. the execution and delivery of this Agreement has been duly and
validly authorized and approved by all necessary Palm corporate
action and this Agreement is valid and binding upon it in
accordance with its terms;
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3. the execution and carrying out of this Agreement and compliance
with the provisions hereof by it will not violate any provision
of law, will not, with or without the giving of notice and/or the
passage of time, conflict with or result in the breach of any of
the terms or conditions of, or constitute a default under, any
indenture, mortgage, agreement, or other instrument to which it
is a party or by which it is bound;
4. the resale of the RAM Services shall only be in connection with
the sale of the Palm/RAM Services and incidental to the Palm
Products, which shall constitute the principal value to
subscribers of the Palm/RAM Services.
b. RAM represents and warrants to Palm as follows:
1. it is a limited partnership duly organized, validly existing, and
in good standing under the laws of the State of Delaware, and has
all requisite power and authority to own, operate, and lease its
properties and carry on its business as now being conducted, and
to enter into this Agreement and perform its obligations
hereunder;
2. the execution and delivery of this Agreement has been duly and
validly authorized and approved by all necessary RAM partnership
action and this Agreement is valid and binding upon it in
accordance with its terms;
3. the execution and carrying out of this Agreement and compliance
with the provisions hereof by it will not violate any provision
of law, will not, with or without the giving of notice and/or the
passage of time, conflict with or result in the breach of any of
the terms or conditions of, or constitute a default under, any
indenture, mortgage, agreement, or other instrument by which it
is a party or by which it is bound.
13. Force Majeure.
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In no event shall either party have any liability for failure to comply
with this Agreement, if such failure results from the occurrence of any
contingency beyond the reasonable control of the party, including, without
limitation, strike or other labor disturbance, riot, theft, flood,
lightning, storm, any act of God, power failure, war, national emergency,
interference by any government or governmental agency, embargo, seizure, or
enactment of any law, statute, ordinance, rule, or regulation.
14. Notices.
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a. All notices and other communications provided for herein shall be in
writing and sent by certified or registered mail, postage prepaid,
return receipt requested, or delivered personally to the intended
recipient, at the street address set forth below:
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1. if to RAM:
RAM Mobile Data USA Limited Partnership
00 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx Xxxxxx, Executive Vice President - Operations
with a copy (which shall not constitute notice) to:
RAM Mobile Data USA Limited Partnership
00 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxxx Swiss, Senior Vice President and General
Counsel
2. if to Palm:
Palm Computing Inc., subsidiary of
U.S. Robotics Corporation
0000 Xxxxxxxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx, Vice President - Engineering
with a copy (which shall not constitute notice) to:
U.S. Robotics Corporation
0000 X. XxXxxxxxx
Xxxxxx, XX 00000
Xxxxxxx Xxxxxxx, Esq.
or, as to either party, at such other address as shall have been
designated by such party in a notice to the other party delivered in
accordance with the provisions hereof.
b. Except as may otherwise by provided in this Agreement, all notices and
other communications hereunder shall be deemed to have been given when
actually received by the intended recipient.
c. Notices may be given by telephone, provided that such notices are
promptly confirmed by the sender in writing and delivered as provided
herein.
15. Waivers.
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a. The parties may at any time waive any of the provisions of this
Agreement, but any such waivers shall be reduced to writing and duly
executed and delivered by duly authorized representatives of the
parties hereto.
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b. The failure of either party to enforce at any time any of the
provisions of this Agreement shall not constitute or be construed to
be a waiver of such provisions or of the right of such party
thereafter to enforce any such provisions .
16. Entire Agreement; Severability.
------------------------------
a. This instrument contains the entire agreement between the parties and
there are merged hereinto all prior and collateral representations,
promises, and conditions in connection with the subject matter hereof.
Any representation, promise, or condition not incorporated herein
shall not be binding upon either party and this Agreement supersedes
and is in lieu of all existing agreements or arrangements between the
parties with respect to the subject matter hereof. ANY MODIFICATION OF
ANY PROVISION OF THIS AGREEMENT MUST BE IN WRITING AND SIGNED BY
AUTHORIZED REPRESENTATIVES OF BOTH PARTIES.
b. If any provision of this Agreement shall be invalid or unenforceable,
such invalidity or unenforceability shall not invalidate or render
unenforceable the entirety of this Agreement, but rather (unless a
failure of consideration would result therefrom), the entirety of this
Agreement shall be construed as if not containing the particular
invalid or unenforceable provision, and the rights and obligations of
the parties shall be construed and enforced accordingly.
17. Assignments and Delegation of Rights and Duties.
-----------------------------------------------
a. Neither party may assign any of its rights or delegate any of its
duties under this Agreement without the prior written consent of the
other party, which consent shall not be unreasonably withheld or
delayed; provided, however, that if a party has not responded to a
request from the party to any such assignment or delegation within
seven (7) days after receipt of written notice, such consent shall be
deemed to have been given for all purposes hereof. Any attempted
assignment or delegation in violation of this Agreement shall be void
and of no force and effect.
18. Miscellaneous.
-------------
a. Except as may be otherwise specifically provided in this Agreement,
this Agreement is not intended to and shall not confer upon any other
person or business entity, other than the parties hereto, any rights
or remedies with respect to the subject matter hereof.
b. This Agreement may be executed in any number of counterpart copies,
each of which shall be deemed an original, but which taken together
shall constitute a single instrument.
c. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York pertaining to contracts entered into
and to be performed
-13-
entirely within the State of New York, regardless of the place of
making or performance.
d. All paragraph headings and captions used herein and in the schedules
hereto are for the convenience of the parties only and shall not be
part of the text hereof, or affect the meaning of this Agreement.
IN WITNESS WHEREOF, Palm and RAM have caused this Agreement to be duly
executed by their respective duly authorized representatives as of the day and
year first above written.
RAM MOBILE DATA USA PALM COMPUTING, INC.
LIMITED PARTNERSHIP
/s/ RAM MOBILE DATA USA
LIMITED PARTNERSHIP /s/ PALM COMPUTING, INC.
----------------------------- -----------------------------
Signature Signature
----------------------------- -----------------------------
Name (Print) Name (Print)
----------------------------- -----------------------------
Title Title
-14-
SCHEDULE 2.b
SCHEDULE OF CHARGES
The following fees and charges will remain fixed during the Initial Term, and
are solely applicable to Palm's resale of the RAM Services in connection with
the use of the Palm/RAM Services by Subscribers to the Palm/RAM Services.
I. One Time Charges
----------------
Registration Fee (per Subscriber Unit)....................................... $ [*]
Host/Server Installation Fee................................................. $ [*]
(Per Fixed Connection to the RAM Facilities)
Reactivation Fee............................................................. $ [*]
(For any Subscriber Unit that was previously deactivated at Palm's request)
II. Host Connectivity Charges
-------------------------
Fixed Host Connection (per X.25 @ 9.6 kbps Port Connection) $ [*]
In addition to RAM's Monthly Fixed Terminal Charges, Palm or its
Subscribers shall have the sole obligation of obtaining and paying for the
installation and ongoing charges attributable to [*]. RAM shall provide
Palm with the use, associated maintenance and administration of RAM's
digital service units at no charge. Other rates apply to higher speed
connections.
III. Monthly Subscriber Unit Charges
-------------------------------
Subscriber Unit Charges............................... $ [*]
For all characters used by Subscriber Units activated hereunder. A message
transmitted between two mobile units requires two transmissions and the
number of bytes contained in each of the two transmissions will be billed
to each Subscriber Unit at the rate indicated above. Palm will not be
charged for header information associated with guaranteeing how the
characters are transferred.
Billing Administration Fee............................... $ [*]
Includes monthly Palm Traffic Detail Report and Host Detail Report in RAM's
standard electronic format and/or hard copy
IV. Troubleshooting Services
------------------------
Hourly Rate............................................... $ [*]
(Minimum Charge - Two (2) hours
Daily Rate................................................ $ [*]
(These rates apply only when RAM is requested to address technical problems
that are NOT caused by a problem occurring in the RAM Facilities. Rates do
not include expenses incurred for travel, lodging, meals and costs of
materials and equipment, which will be charged separately.)
-2-
Schedule 1.c
Use of RAM Logo
1. Palm agrees that the label on the outside of every package containing any
Palm Product (including but not limited to the Palm "Pilot" palm-top
device) that is intended by Palm for sale or distribution in connection
with the use of the Palm/RAM Services shall display the RAM Logo in a size
and location to be mutually agreed by RAM and Palm as to each such Palm
Product. Each such use of the RAM Logo by Palm shall conform to the
guidelines set forth in Attachment 1.c-1 incorporated herein by reference
and shall be accompanied by a brief explanatory note to be agreed upon by
RAM and Palm. From time to time when requested to do so by RAM, Palm shall
provide RAM with specimens of all packaging on which the RAM Logo appears.
2. For purposes of this Schedule 1.c, the "RAM Logo" shall mean the RAM Mobile
Data logo described in Attachment 1.c-1 or such replacement logo as RAM may
provide to Palm from time to time under this Agreement.
3. RAM hereby grants Palm a nonexclusive, personal, royalty-free and
nontransferable license to use the RAM Logo during the Initial Term or a
Renewal Term (if any) of this Agreement, only in the United States of
America and solely in conjunction with the sale and distribution of Palm
Products intended by Palm for sale or distribution in connection with the
use of the Palm/RAM Services as provided in Section 1 of this Schedule 1.c.
4. Palm agrees that its use of the RAM Logo shall be subject to the terms and
conditions of this Agreement, including but not limited to the requirements
set forth in Section 2.f concerning compliance by the Palm Products with
technical specifications and procedures established by RAM for use of the
RAM Facilities. Use of the RAM Logo by Palm is not intended to authorize
Palm to act for any purpose on RAM's behalf, and such use shall not be
construed in any manner contrary to Section 10 of the Agreement entitled
"Independent Contractors".
Attachment 1.c-1
Guidelines for Using the RAM Mobile Data Logo
Introduction
The RAM Mobile Data logo is the official symbol of RAM Mobile Data. It is
designed for use in all forms of visual communication. The prime communicative
objectives of the RAM Mobile Data logo are in identify the corporation quickly
and distinctly, and to reflect its relationship to all RAM Mobile Data strategic
partners, business partners, dealers, resellers, etc.
The Graphic Element
The RAM Mobile Data logo consists of the words "RAM," "Mobile," "Data" in
conjunction with the "icon". All upper case italicized letters are used to form
the logotype, and the words "RAM", "Mobile", "Data" are always stacked and flush
left to the "icon" used in the logo. None of the words appearing in the logo
may be abbreviated, translated or transliterated as done in non-English
documentation. You may not substitute your own translation of the icon.
Logo Formats for Reproductive Purposes
For logo reproductive purposes, RAM Mobile Data can provide you with either:
. A reproduction proof (a high-quality printed copy of the logo) with
the logo in several sizes
. An electronic version of the logo in multiple file formats.
PLEASE NOTE: These are the only sources from which the logo may be reproduced.
You MAY NOT alter the provided artwork in any way or replace the words in the
logo with any others.
Size: The logo may be enlarged or reduced. However, minimum size for the RAM
Mobile Data logo is 5/8" horizontally.
Staging: The logo must be surrounded by a clear margin equal to the height of
the logo so that no typographic or design element appears within that boundary.
Color: When reproducing the logo in color, the color treatment is PMS 301.
Four color process reproduction is acceptable whenever PMS match color
reproduction is not available. The RAM Mobile Data logo can also be presented
in all black on a light background providing there is sufficient contrast
between the background and the black logo. The logo can also be reversed out of
a color background that is dark enough to provide a sufficient contrast between
the background and the white logo.
The logo may not be shown in any other colors unless previously approved by the
Director of Corporate Communications of RAM Mobile Data.
Quality Control
RAM Mobile Data reserves the right to review your use of the RAM Mobile Data
logo, conduct spot checks on all affected materials and may periodically send
out requests for samples. Refusal to submit samples, or noncompliance with the
guidelines outlined above, could result in revocation of the privilege to use
the RAM Mobile Data logo.
-2-
Attachment 1.c-1
Guidelines for Using the RAM Mobile Data Logo
-3-
Schedule 3.b
ELEMENTS TO BE ADDRESSED IN THE TECHNICAL PLAN
1. Method, protocol, and facilities to be used to interconnect the Subscriber
Facilities and the RAM Facilities, it being expected that the parties will
utilize X.25 or any other standard interface supported by the RAM
Facilities from time to time;
2. Specification and implementation of MOBITEX protocol stack and transport
layer protocol for Subscriber Facilities and Subscriber Units;
3. RAM support to be provided to Palm and software development agents on
matters relating to MOBITEX operation and protocols such support to include
and cover MOBITEX interface specifications and remote access to the RAM
Facilities for development test purposes; and
4. Detailed procedures for the testing and certification of the Palm Products
to be included in the Palm/RAM Services.
Schedule 4.b
ELEMENTS TO BE ADDRESSED IN THE BETA TEST PLAN
1. The time period, duration, location, scope, participants, subscriber
equipment, subscriber equipment supplier for the Beta Test, it being
tentatively agreed that the initial application software Beta Test shall be
conducted during the 4th calendar quarter of 1997 and include participants
from both within Palm and/or RAM and independent third parties likely to
subscribe to the Palm/RAM Services.
2. Specification of features of the Palm/RAM Services to be tested and the
development of objective test criteria and procedures; and
3. Specification of the Palm and RAM personnel to participate in the Beta Test
and the allocation of expenses to be incurred in connection with the Beta
Test.
Schedule 4.c
ELEMENTS TO BE ADDRESSED IN THE OPERATIONS PLAN
Policies and procedures with respect to:
1. service provisioning;
2. registration of Subscriber Units on the RAM Facilities and obtaining
any required FCC licenses;
3. billing (including form and content of bills from RAM to Palm and the
medium by which they are rendered);
4. service/support facilities to be provided by RAM and Palm to each
other and to subscribers to the Palm/RAM Services;
5. network management facilities and functions to be supplied and
supported by RAM and Palm; and
6. documentation with respect to the RAM Facilities, the RAM Services,
the Subscriber Facilities, the Palm Products, and the Palm/RAM
Services.
Schedule 5.a
ELEMENTS TO BE ADDRESSED IN THE MARKETING PLAN
1. The exchange of information between RAM and Palm concerning the present and
future market demand in the US for the Palm/RAM Services and the worldwide
market demand for such services;
2. Joint participation in trade shows, it being expected that each party will,
in approximately equal measure, provide personnel and materials in support
of the others' activities;
3. Joint development of collateral marketing materials, including brochures
describing the Palm/RAM Services; and
4. Cross training of each other's sales, marketing, and customer service
personnel in the features and benefits of the Palm Products and the RAM
Services.
