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Exhibit 10.4
3COM DESIGNED FOR PALM COMPUTING PLATFORM LOGO LICENSE
AGREEMENT YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE
USING THIS SOFTWARE, THE USE OF WHICH IS LICENSED BY PALM COMPUTING, INC., A
SUBSIDIARY OF 3COM CORPORATION (COLLECTIVELY, "3COM"), TO ITS CUSTOMERS FOR
THEIR USE ONLY AS SET FORTH BELOW. IF YOU DO NOT AGREE TO THE TERMS AND
CONDITIONS OF THIS AGREEMENT, DO NOT USE THE SOFTWARE. USING ANY PART OF THE
SOFTWARE INDICATES THAT YOU ACCEPT THESE TERMS.
RECITALS
WHEREAS, Palm owns good and valuable trademarks and logos; and
WHEREAS, You wish to license use of the Logo in accordance
with Palms terms and conditions described below, NOW THEREFORE: The parties
hereby agree as follows:
1. DEFINITIONS
For purposes of this Logo Agreement the following terms shall
have the following meanings:
(a) Logo shall mean the Designed for Palm Computing
platform logo depicted in the attached Exhibit A or
such additional or replacement Logos as Palm may
provide from time to time under this Logo Agreement.
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(b) Integer Release shall mean any product with a Version
Number of the form N.0, where N is any integer.
(c) Point Release shall mean any product with a Version
Number of the form X.XXX, where N is any integer, and
XXX is any combination of integers.
(d) Product shall mean your product or products described
in the attached Exhibit B which meet the applicable
Designed for Palm Computing platform compatibility
criteria set forth in Exhibit B. Product shall
automatically include any Point Releases of products
whose Integer Releases are described in Exhibit B.
2. LICENSE GRANT
(a) Subject to and expressly conditioned upon compliance
with the terms and conditions of this Logo Agreement,
Palm hereby grants to you a worldwide (except as
provided in Section 2(b)), nonexclusive,
nontransferable, royalty-free, right to use the Logo
solely in conjunction with Product in the manner
described in the guidelines set forth in the attached
Exhibit C and as may be prescribed by Palm from time
to time.
(b) The license right set forth in Section 2(a) shall not
extend to the Republic of China (Taiwan), South Korea
(Korea), or the Peoples Republic of China (PRC),
unless and until you provide Palm with
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written notice of your intent to distribute Product
in these countries. You agree not to use the Logo in
such countries and shall not be licensed pursuant to
this Logo Agreement to do so until you have provided
Palm with such written notice.
(c) You may not use or reproduce the Logo in any manner
whatsoever other than as expressly described in
Exhibit C.
(d) You agree and acknowledges that Palm retains all
right, title and interest in and to the Logo. Except
as expressly granted in this Logo Agreement, you
shall have no rights in the Logo. Under no
circumstances will any term, event or condition in
this Logo Agreement be construed as granting, by
implication, estoppel or otherwise, a license to any
Palm technology or proprietary right other than the
permitted use of the Logo pursuant to Section2(a).
(e) You represent and warrant that you will use the Logo
solely as provided in this Logo Agreement and will
not use the Logo for promotional goods or for
products which, in Palms reasonable judgment, will
diminish or otherwise damage Palms goodwill in the
Logo, including but not limited to uses which could
be deemed to be obscene, pornographic, scandalous,
violent or otherwise in poor taste or unlawful, or
which purpose or objective is to encourage unlawful
activities.
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3. NO FURTHER CONVEYANCES
The license grant in Section 2(a) is personal to you, and you
shall not assign, transfer or sublicense this Logo Agreement (or any right
granted herein) in any manner without the prior written consent of Palm.
4. QUALITY, INSPECTION, AND APPROVAL
(a) You agree to maintain the quality of Product used in
conjunction with the Logo at a level that meets or
exceeds industry standards and at least commensurate
with the quality of Product previously distributed by
you.
(b) You shall supply Palm with suitable specimens of
Product and your use of the Logo in connection with
Product at the times and in the manner described in
Exhibit C, or at any time upon reasonable notice from
Palm. You shall cooperate fully with Palm to
facilitate periodic review of your use of the Logo
and of your compliance with the quality standards
described in this Logo Agreement.
(c) You shall fully correct and remedy any deficiencies
in your use of the Logo, conformance to the Designed
for Palm Computing platform compatibility criteria,
and/or the quality of Product used in conjunction
with the Logo, upon reasonable notice from Palm.
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(d) You represent and warrant that each Product release
meets the applicable Designed for Palm Computing
platform compatibility criteria set forth in Exhibit
B. You shall provide Palm with copies or summaries of
the results of applicable compatibility tests
following the completion of such tests, for each
product release.
(e) You warrant and represent that you will comply with
all applicable laws, rules, and regulations and will
not violate or infringe any right of any third party.
(f) You agrees to indemnify, hold Palm harmless, and
defend Palm, at Palms request, from and against any
and all claims, damages, costs, and expenses
(including reasonable attorneys fees) arising out of
or related to the Product in any manner, including
user claims regarding Products incompatibility with
the Palm Computing platform; provided you are
notified promptly in writing of any claim, you have
sole control over your defense or settlement, and
Palm provides reasonable assistance in the defense of
the same.
5. IDENTIFICATION AND USE
(a) You shall xxxx every use of the Logo with the
trademark designation set forth in Exhibit A and as
described in Exhibit C and shall comply with Palms
trademark use guidelines as amended from time to
time.
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(b) You acknowledge Palms ownership of the Logo and the
Designed for Palm Computing platform logo trademark.
You shall employ your best efforts to use the Logo in
a manner that does not derogate from Palms rights in
the Logo and will take no action that will interfere
with or diminish Palms rights in the Logo, either
during the term of this Logo Agreement or afterwards.
You agree not to adopt, use or register any corporate
name, trade name, trademark, service xxxx or
certification xxxx, or other designation similar to,
or containing in whole or in part, the Logo. You
agree that all use of the Logo by you will inure to
the benefit of Palm. You may not use the Logo in any
way as an endorsement or sponsorship of Product by
Palm.
6. DEFENSE OF INFRINGEMENT CLAIM
(a) Subject to Section 7, Palm agrees to defend you
against, and pay the amount of any adverse final
judgment (or settlement to which Palm consents)
resulting from, third party claim(s) (hereinafter
Indemnified Claims) that the Logo infringes any
registered trademark rights enforceable in the United
States, Canada, Australia, Japan, Switzerland, the
European Union; provided Palm is notified promptly in
writing of the Indemnified Claim and has
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sole control over its defense or settlement, and you
provide reasonable assistance in the defense of the
same.
(b) In the event Palm receives information concerning an
intellectual property infringement claim (including
an Indemnified Claim) related to the Logo, Palm may
at its expense, without obligation to do so, either
(i)procure for you the right to continue to
distribute the alleged infringing Logo, or
(ii)replace or modify the Logo to make it
non-infringing, and in which case, you shall
thereupon cease distribution of the alleged
infringing Logo.
(c) Palm shall have no liability for any intellectual
property infringement claim (including an Indemnified
Claim) based on your (i)manufacture, distribution, or
use of the Logo after Palms notice that you should
cease use of such Logo due to such a claim. For all
claims described in this Section 6(c), you agree to
indemnify and defend Palm from and against all
damages, costs and expenses, including reasonable
attorneys fees.
(d) Palm shall have no obligation to you for any
Indemnified Claims which arise outside the
geographical boundaries of the United States, Canada,
Australia, Japan, Switzerland, the European Union
(Included Jurisdictions).
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(e) PALM MAKES NO WARRANTIES. THE DEFENSE PURSUANT TO
SECTION 6(a) IS EXCLUSIVE AND IS IN LIEU OF ALL
WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE
WITH RESPECT TO THE LOGO, INCLUDING ANY WARRANTY OF
NON-INFRINGEMENT, IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. CONSEQUENTIAL ET AL. DAMAGES
IN NO EVENT SHALL PALM BE LIABLE FOR ANY CONSEQUENTIAL,
INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING LOSS OF BUSINESS
PROFITS) ARISING FROM OR RELATED TO YOUR MARKETING, DISTRIBUTION OR ANY USE OF
THE LOGO, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT,
TORT, STRICT LIABILITY, BREACH OF WARRANTIES, INFRINGEMENT OF INTELLECTUAL
PROPERTY, FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL PALM BE LIABLE FOR ANY DAMAGES
FOR YOUR USE OF THE LOGO IN VIOLATION OF THE TERMS AND CONDITIONS OF THIS LOGO
AGREEMENT.
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8. INFRINGEMENT
You shall promptly notify Palm of any suspected infringement
of or challenge to the Logo or any of its constituent elements.
9. TERM OF LOGO AGREEMENT
(a) This Logo Agreement shall terminate at the earliest
of the following dates: (a) Two (2) years from the
Effective Date; or (b) 90 days after the date of
release of a new version of the Palm Operating
System; provided however, that Palm shall have the
right to terminate this Logo Agreement with or
without cause upon thirty (30) days prior written
notice.
(b) From and after termination or expiration of this Logo
Agreement, you shall cease and desist from all use of
the Logo. However, unless the Logo Agreement is
terminated for breach, you may distribute
then-existing units of Product and advertising
materials containing the Logo for a period of ninety
(90) days from the termination date provided use of
the Logo in connection with such inventory is in
compliance with the terms and conditions of this Logo
Agreement.
10. NOTICES
All notices and other communications under this Logo Agreement
shall be in writing and shall be deemed given if delivered personally, mailed by
registered
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or certified mail, return receipt requested, or sent by telecopy with a receipt
confirmed by telephone, to the parties at the following addresses or to such
other addresses as a party may from time to time notify the other parties.
11. ENTIRE LOGO AGREEMENT; AMENDMENT
Palms providing this Logo Agreement to you does not constitute
an offer by Palm. Upon execution by both Palm and you, this Logo Agreement,
including all Exhibits, contains the entire agreement of the parties with
respect to the subject matter hereof, and shall supersede and merge all prior
and contemporaneous communications. It shall not be amended except by a written
agreement signed on behalf of the parties by their respective authorized
representatives.
12. GOVERNING LAW; ATTORNEYS FEES; EQUITABLE RELIEF
(a) This Logo Agreement shall be governed by and
construed in accordance with the laws of the State of
California. You hereby consent to jurisdiction and
venue in the state and federal courts sitting in the
State of California. The parties agree to accept
service of process by U.S. certified or registered
mail, return receipt requested, or by any other
method authorized by California law.
(b) If either party employs attorneys to enforce any
rights arising out of or related to this Logo
Agreement, the prevailing party shall be entitled to
recover its reasonable attorneys fees, costs, and
other expenses.
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(c) You acknowledge that a breach by you of this Logo
Agreement may cause Palm irreparable damage which
cannot be remedied in monetary damages in an action
at law, and may also constitute infringement of the
Logo. In event of any breach that could cause
irreparable harm to Palm, or cause some impairment or
dilution of its reputation or Logo, Palm shall be
entitled to an immediate injunction, in addition to
any other legal or equitable remedies.
13. HEADINGS
Section headings are used in this Logo Agreement for
convenience of reference only and shall not affect the meaning of any provision
of this Logo Agreement.
14. NO WAIVER
No waiver of any breach of any provision of this Logo
Agreement shall constitute a waiver of any prior, concurrent or subsequent
breach of the same or any other provision hereof, and no waiver shall be
effective unless made in writing and signed by an authorized representative of
the waiving party.
15. SEVERABILITY
If any provision of this Logo Agreement (or any other
agreements incorporated herein) shall be held by a court of competent
jurisdiction to be illegal, invalid or unenforceable, the remaining provisions
shall remain in full force and effect.
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16. RELATIONSHIP
Neither this Logo Agreement, nor any terms and conditions
contained herein, shall be construed as creating a partnership, joint venture or
agency relationship or as granting a franchise.
17. SURVIVAL
The provisions of Sections 2(d), 4(e), 5(b), and 7 shall
survive expiration or termination of this Logo Agreement.
18. EXHIBITS
This Logo Agreement includes Exhibits A, B and C which are
hereby incorporated by reference.
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EXHIBIT A
DESIGNED FOR PALM COMPUTING PLATFORM LOGO
Do not reproduce this example. You will be able to download
appropriate artwork after agreeing to this license.
EXHIBIT B
YOUR PRODUCT(S) AND DESIGNED FOR PALM COMPUTING LATFORM LOGO
CRITERIA
KeySync Keyboard version 1.1
KeyLink Software version .94
Designed for Palm Computing platform Compatibility Criteria
Application(s) uphold the following criteria:
- Only makes use of PalmOS and Licensee publicly documented APIs and
structures
- Has successfully run 500,000 gremlin events using the latest released
version of the Palm OS Emulator with no failures on both Debug and
non-Debug ROMs
- Notwithstanding the 500,000 events above, the application has also
tested out of memory conditions by running 100,000 gremlin events in
the latest version of the Palm OS Emulator after the out of memory
dialog has appeared in after adding data in any area of the
application that can accept and create new data.
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- Has the back-up bit set
- Does not crash during installation
- Does not crash during a synchronization that occurs after data has
been changed
- Does not crash during a System Find. The find must be initiated when
the application is closed.
- All of the databases have the same creator ID as the application
- Has been tested in all presently shipping Palm Computing platform
devices, or if it is designed for set of devices it should be tested
on those devices and the product literature should indicate this.
EXHIBIT C
GUIDELINES FOR USING THE DESIGNED FOR PALM COMPUTING PLATFORM
LOGO
Palm Computing has established the following set of Guidelines
to assist you in proper use of the logo:
1. The following attribution footnote should accompany each use
of the logo. Palm Computing is a registered trademark and the
Palm Computing platform Platinum logo is a trademark of Palm
Computing, Inc., 3Com or its subsidiaries. If other 3Com
trademarks are referenced in the context of the document, they
should also be included in the attribution footnote.
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2. You may only use the logo as a symbol that your product is
designed for the Palm Computing platform and those products
based upon it. You may not imply that Palm Computing in any
way endorses your product.
3. The Designed for Palm Computing platform logo program is not
intended to be a certification program, i.e., the logo does
not represent that Palm Computing certifies your product in
any way.
4. Usage of the Designed for Palm Computing platform logo
requires that the product pass Compatibility Testing set forth
in Exhibit B. Other than maintenance or bug-fix releases, new
releases of the product must be re-tested for compatibility.
5. You must sign and return the Palm Computing Platform Logo
License Agreement before artwork will be provided.
6. You may not display the logo on any materials including, but
not limited to, packaging, collateral and documentation, in a
manner which suggests that the Product is a Palm Computing
product or in a manner which suggests that Palm Computing is a
part of your products name.
7. You may not alter or animate the logo in any way.
Sizing, Placement and Color Requirements:
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1. Palm Computing will provide camera-ready artwork of the logo
in electronic format.
2. You may not display the logo on packaging, documentation,
collateral, or advertising in a manner which suggests that
your Product is a Palm Computing product or in a manner which
suggests that the xxxx, Palm Computing, is a part of your
product name.
3. The logo cannot be larger than or more prominent than your
Product name, trademark, logo, or trade name.
4. You may not combine the logo with any other feature including,
but not limited to, other logos, words, graphics, photos,
slogans, headlines, numbers, design features, or symbols.
5. The Designed for Palm Computing platform logo must stand
alone. A minimum amount of empty space has been established
around the logo to ensure that it appears in a clear visual
field. No other object such as type, photography, borders,
edges, etc. may appear in the empty space. The preferred
distance between the logo border and any other type, images or
graphic elements, on any side is equal to the height of the
logo block. The minimum required border (margin) of empty
space around the logo must be x, where x equals the width of
the logo block.
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6. The minimum size requirements for the Designed for Palm
Computing platform logo is 15 mm in height and the maximum is
37 mm in height. For odd-sized materials, the maximum size
logo height should not exceed 5% of largest dimension.
7. The right to use this logo is at the discretion of Palm
Computing and Palm Computing reserves the right to revoke that
right or change its program at any time.
8. You may use the Designed for Palm Computing platform logo in
the about box of your application as long as you obey all the
above sizing, placement and color requirements.
9. Quality Control
Palm reserves the right to review your use of the Logo. Upon
signing the logo license agreement, you are required to provide Palm with any
Products, documentation or marketing materials bearing the Logo, so that Palm
can review usage to determine whether the Usage Guidelines have been followed.
Send these items to:
Palm Computing, Inc.
a subsidiary of 3Com Corporation
0000 Xxxxxxxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000-0000
Attention: Development Programs Department
OR TO
XxxxxXxxxXX@xxxx.xxx
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Palm reserves the right to conduct spot checks on all
Products, product packaging, marketing materials, and documentation and may
periodically send out requests for samples. Palm may also conduct spot checks in
retail outlets and other product sources to monitor your compliance with the
License Logo Agreement and the Logo Use Guidelines. Refusal to submit samples,
or non-compliance with your License Logo Agreement and with these Guidelines,
could result in revocation of the license to use the Logo.
You must correct any deficiencies in your use of the Logo
and/or in the quality of the Product used in conjunction with the Logo upon
reasonable notice from Palm. Refusal to correct such deficiencies could result
in revocation of your license to use the Logo.
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