Palm, Inc. OEM Partner Agreement
Territory: Worldwide
This Palm, Inc. OEM Partner Agreement ("Agreement"), effective as of the 5th
day of October 2000, by and between Palm, Inc. ("Palm"), a Delaware corporation,
having a place of business at 0000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx Xxxxx,
Xxxxxxxxxx 00000 and PTN Media, Inc., licensee of Cloudy Productions f/s/o
Xxxxxxx Xxxxxxxx("OEM Partner"), a Delaware corporation having a place of
business at 000 Xxxx Xxxxxxxxxx Xxxxx, #00, Xxx Xxxxx, Xxxxxxxx, 00000.
1. Distribution Rights. During the term of the Agreement, OEM Partner shall have
a non-transferable right to sell, license, lease, rent and otherwise distribute
the Palm products purchased under this Agreement ("Products") only through OEM
Partner's web site, only to end users, and only in the Territory.
1.2 Branding. OEM Partner will ensure that all-branding requirements
for the Products specified in Exhibit A are complied with. Exhibit A shall
specify which Products will be (1) branded with OEM Partner's name alone, (2)
branded with Palm's name alone or (3) co-branded. All Products shall bear OEM
Partner's name unless otherwise specified in the Schedule.
1.3 Transshipping. Transshipping is the sale of product from one OEM
Partner to another for the purpose of resale by the purchaser. OEM Partner is
expressly prohibited from transshipping the products to another reseller unless
written permission to do so is obtained from a Palm Sales Director level or
above.
2. No License. No rights to manufacture, duplicate or otherwise copy or
reproduce any Products are granted by this Agreement.
3. Term. This Agreement shall commence on the Effective Date and shall continue
for a period of one (1) year. The Agreement may be extended for an additional
one (1) year period, provided it is agreed upon in writing by both parties least
sixty (60) days prior to the expiration of the Agreement.
4. Prices and Price Changes. Products shall be sold to OEM Partner at the prices
established in Exhibit A -- Product Description and Pricing Schedule. All prices
are in U.S. dollars. OEM Partner is free to set its own prices for resale. Palm
may unilaterally change its prices from time-to-time by providing advance
written notice to OEM Partner.
5. Purchase Orders. OEM Partner agrees to submit a non-cancelable, binding
purchase order with a specified twelve (12) week lead time. Orders shall be
subject to written acceptance by Palm and delivery schedules established in
accordance with Product availability and OEM Partner's credit status. OEM
Partner may place orders for Products by faxing or sending by electronic mail
(e-mail) purchase orders to the appropriate order entry location as specified by
Palm from time to time in writing or by electronic data interchange ("EDI")
transmission referencing this Agreement (if an EDI agreement has been executed
by the parties) and stating the Palm Product number, quantity, applicable price,
requested delivery date, xxxx to and ship to addresses, special shipping
instructions (if any), partial/no partials allowed, and any special order
handling instructions. Although OEM Partner may use its standard purchase order
and other forms, and Palm may use its standard order acknowledgement and invoice
and other forms, the terms and conditions of this Agreement will prevail over
OEM Partner's and Palm's forms and any inconsistent, conflicting or different
terms in such forms will be of no effect. Palm may decline to make shipments to
OEM Partner if OEM Partner is delinquent in making payments to Palm or is
otherwise in breach of this Agreement.
6. Delivery. Palm will use commercially reasonable efforts to ship in accordance
with OEM Partner's scheduling requests, but shall not be liable for any delay in
shipment. Palm Products shall be shipped F.O.B: Origin OEM Partner's location
within the United States. Palm selects the carrier and pays freight and
insurance charges. Insurance is purchased based upon the value of the Products
being shipped. Title and risk of loss shall pass to OEM Partner upon delivery to
the first common carrier at Palm's shipping docks. Palm will place tracers and
file claims relating to any lost or damaged goods on OEM Partner's behalf.
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6.1 Shipping Dates. Palm may ship before the scheduled shipment date,
but not to arrive earlier than OEM Partner's requested delivery date. Palm will
promptly notify OEM Partner if any order or part of an order cannot be filled or
if there will be any delays in delivery. Palm will use all reasonable efforts to
ship on indicated dates but will not be liable for failure to do so. If Palm
fails to ship on the scheduled ship date, OEM Partner may reschedule without
charge.
7. Payment. Payment terms are net thirty (30) days from the date of invoice,
which is the date of shipment. OEM Partner must give Palm written notice of any
discrepancies among the purchase order, the invoice, and the Products received,
within thirty (30) days after receipt of the Products or the invoice, whichever
occurs later. Payment is not conditioned upon the Products meeting any
acceptance testing procedures OEM Partner may have. If there is any dispute as
to a part of a shipment, OEM Partner will pay for the undisputed part of that
shipment. OEM Partner may not deduct any debit memos from payment(s) made to
Palm on outstanding invoice(s), without prior written approval from the Palm
Credit and Collections Department. Payments should be submitted to the
appropriate address as stated on the invoice.
8. Credit. Credit limits and payment terms decisions are made, at Palm's sole
discretion, by an analysis of OEM Partner's current and historical financial
information, bank references, trade references, payment practices, OEM Partner's
business plan, etc. To facilitate Palm's determination of credit limits and
payment terms, OEM Partner may be required to provide current financial
information to Palm if so requested, unless such information is readily
available from public sources. Palm may withdraw credit upon notice to OEM
Partner in the event Palm determines, in its sole discretion, that such credit
would create an unreasonable credit risk.
9. Interest. Palm reserves the right to charge OEM Partner interest on any
delinquent balance. This interest is computed on a daily basis for each day that
the payment is delinquent, at the lesser of (i) eighteen percent (18%) per annum
or (ii) the maximum rate permitted by law.
10. Taxes and Duties.
OEM Partner is responsible for all taxes imposed in connection with the sale to
OEM Partner of Palm Products or services or which Palm may incur in respect of
this Agreement (except taxes imposed on Palm's income) including all sales, use,
value added, gross receipts or other taxes of any nature and any penalties,
interest and collection or withholding costs associated with any of the
foregoing items. All such amounts are in addition to other amounts payable
hereunder and this obligation shall survive termination or expiration of this
Agreement. OEM Partner may provide Palm with a tax exemption certificate
acceptable to the taxing authorities in lieu of paying such taxes; however, OEM
Partner shall reimburse Palm for any fines, penalties, taxes, and other charges,
including expenses incurred by Palm, due to OEM Partner's submission of invalid
information.
11. OEM Partner Requested Changes. If OEM Partner requests a change in a Product
specification, including any aspect of the Product packaging, Palm reserves the
right to assess a charge equal to the actual cost incurred as a result of such
change in order for the OEM Partner-requested change to be implemented. Approval
of such a change request shall be within the sole discretion of Palm. Palm has
agreed to make those OEM Partner requested changes as stated in Exhibit B
attached hereto and incorporated herein by reference. Payments of the assessed
charge shall be made pursuant to Section 7 of this Agreement.
12. Minimum Advertised Price (MAP). OEM Partner must comply with Palm's
Unilateral Minimum Advertised Price (MAP) policy for the underlying Palm
product, as described in Palm's ResellerPro program.
13. Dead- or Defective-on-Arrival (DOA) Returns. In the event a Product
completely fails to function or exhibits a defect in materials or workmanship
within the first forty-eight (48) hours of use but no later than thirty (30)
days after the end user's purchase from OEM Partner, it will be considered
dead- or defective-on-arrival (DOA) and may be returned for credit. All DOA
returns must be pre-approved by Palm and must be accompanied by a Return
Material Authorization (RMA) number, obtained in accordance with the procedures
stated in the current Palm Policies and Business Practices document. OEM Partner
will pay freight on all Products returned to Palm.
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14. Warranty. Palm does not provide any warranty to OEM Partner. THE WARRANTIES
OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY
QUALITY, CORRESPONDENCE WITH DESCRIPTION, AND NON-INFRINGEMENT, ARE EXPRESSLY
DISCLAIMED. The current standard Palm End User Limited Warranty is incorporated
herein by reference. This End User Limited Warranty is subject to change without
notice, and the warranty that applies to a particular Product is the one
packaged with that Product.
15. Patent and Copyright Indemnity.
15.1 OEM Partner acknowledges Palm's representation that all
Intellectual Property Rights throughout the world are vested in Palm absolutely,
and acknowledges that OEM Partner has no right, title or interest in any
Intellectual Property Rights. "Intellectual Property Rights" means any of Palms
patents, trademarks, trade names, inventions, copyrights, design rights,
know-how or trade secrets and any other intellectual property rights existing in
the Territory or elsewhere, relating to the origin, design, manufacture,
programming, operation or service of Products.
15.2 Palm shall, at its own expense, defend or settle any suit or
proceeding that is instituted against OEM Partner to the extent such suit or
proceeding alleges that any Product sold by Palm hereunder infringes any duly
issued patent or copyright of the United States and shall pay all damages
awarded therein against OEM Partner or agreed upon in settlement by Palm;
Provided that OEM Partner (i) gives Palm immediate notice in writing of any such
suit, proceeding or threat thereof, (ii) permits Palm sole control, through
counsel of Palm's choice, to defend and/or settle such suit and (iii) gives Palm
all the needed information, assistance and authority, at Palm's expense, to
enable Palm to defend or settle such suit.
15.3 The above provision shall not apply to and Palm shall have no
liability or obligation for any infringement arising from: (i) any modification,
servicing or addition made to the Product by anyone other than Palm, (ii) the
use of such Product as a part of or in combination with any devices, parts or
software not provided by Palm, (iii) compliance with OEM Partner's design
requirements or specifications, (iv) the use of other than the then current
unaltered release of the software Product available from Palm or (v) the use of
such Product to practice any method or process which does not occur wholly
within the Product. The above exclusions apply to the extent that the
infringement would have been avoided but for such modifications, combinations,
compliance with specifications, use of other than the current release or
practice of such method or process.
15.4 In the event the use or sale of any Product purchased from Palm is
enjoined, or in the event Palm wishes to minimize its potential liability
hereunder, Palm may, at its sole option and expense: (i) procure for OEM Partner
the right to use or sell such Product; (ii) substitute a functionally
equivalent, non-infringing unit of the Product; (iii) modify such Product so
that it no longer infringes but is substantially equivalent in functionality, or
(iv) if none of the foregoing are commercially feasible, take back such Product
and refund the purchase price paid by OEM Partner for such Product depreciated
over a five (5) year period using the straight line method. Palm shall in no
event be obligated to accept new orders for Products which are subject to a
claim of infringement coveted under this section.
15.5 THIS SECTION STATES PALM COMPUTING'S TOTAL RESPONSIBILITY AND
LIABILITY, AND OEM PARTNER'S SOLE REMEDY, FOR ANY ACTUAL OR ALLEGED INFRINGEMENT
OF ANY INTELLECTUAL PROPERTY RIGHT FOR ANY PRODUCTS DELIVERED HEREUNDER OR ANY
PART THEREOF AND IS IN LIEU OF AND REPLACES ANY AND ALL OTHER EXPRESS, IMPLIED
OR STATUTORY WARRANTIES OR CONDITIONS REGARDING INFR1NGEMENT.
16. Mutual General Indemnity. Each party shall indemnify and defend the other
party against all claims, suits, losses, expenses, and liabilities (including
the indemnified party's reasonable attorney's fees) for personal injury, death,
and tangible property damage made against the indemnified party as a result of
the negligence, intentional wrongful acts, omissions where there is a duty to
act, or misrepresentations of the indemnitor or any person for whose actions the
indemnitor is legally liable. This indemnity is conditioned upon the indemnified
party (i) giving the indemnitor prompt notice in writing of such claim, suit,
proceeding or threat thereof, (ii) giving the indemnitor sole control, through
counsel of its choice, to defend and/or settle such suit and (iii) giving the
indemnitor all the needed information, assistance and authority, at the
indemnitor's expense, to enable the indemmitor to defend or settle such suit.
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OEM Partner shall be solely responsible for any claims, warranties or
representations made by OEM Partner or its employees or agents which differ from
the warranty provided by Palm in the limited warranty included in the packaging
of each Product sold or licensed hereunder, or which differ from written
documentation provided by Palm.
17. Limitation of Liability. IN NO EVENT, REGARDLESS OF THEORY, SHALL EITHER
PARTY BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE
DAMAGES OF ANY KIND, OR FOR LOSS OF REVENUE, LOSS OF BUSINESS, LOSS OF DATA OR
OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THE SALE,
INSTALLATION, USE, PERFORMANCE, FAILURE OR INTERRUPTION OF THE PRODUCTS OR
SERVICES PROVIDED HEREUNDER. NOTWITHSTANDING ANY OTHER PROVISION OF THIS
AGREEMENT, EACH PARTY'S MAXIMUM LIABILITY TO THE OTHER PARTY HEREUNDER SHALL NOT
EXCEED THE PURCHASE PRICE OF THE PRODUCTS OR SERVICES PURCHASED OR LICENSED
DURING THE TERM OF THIS AGREEMENT. IN THE CASE OF DAMAGES DUE BY OEM PARTNER TO
PALM, THE FOREGOING AMOUNT SHALL BE IN ADDITION TO THE PAYMENTS DUE BY OEM
PARTNER TO PALM UNDER SECTION 7-PAYMENT. THIS DISCLAIMER OF LIABILITY WILL NOT
BE AFFECTED 1F ANY REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
18. Confidentiality. During the course of this Agreement, each party may
disclose to the other certain proprietary or confidential information, which
shall be received in confidence and not revealed to third parties or applied to
uses other than recipient's performance of its obligations hereunder, as
specified in greater detail in the current Palm, Inc. Mutual Nondisclosure
Agreement in place between Palm and OEM Partner, the term of which is hereby
extended to be co-terminous with this Agreement.
Neither party shall disclose, advertise or publish the terms or conditions of
this Agreement without the prior written consent of the other party.
19. Trademarks.
19.1 "Palm Trademarks" means those trademarks, trade names, service
marks, slogans, designs, distinctive advertising, labels, logos, and other
trade-identifying symbols as are or have been developed and used by Palm or any
of its subsidiaries or affiliate companies anywhere in the world.
19.2 OEM Partner acknowledges that all Palm Trademarks are vested in
Palm absolutely. Palm authorizes OEM Partner to use the Palm name or Palm
Trademarks associated with the Products and services which OEM Partner is
authorized to sell or license within the Territory in the normal course of
business during the term of this Agreement for the sole purpose of the sale and
distribution of Products and services hereunder. OEM Partner shall comply with
Palm's then current trademark usage and style guidelines when using the Palm
Trademarks. OEM Partner shall not use Palm Trademarks for any other purpose and
only in such manner as to preserve all rights of Palm. When using Palm
Trademarks, OEM Partner must indicate that Palm is the owner of the Palm
Trademark(s) and that OEM Partner is using the Palm Trademarks with permission
from and on behalf of Palm. OEM Partner acquires no right to Palm Trademarks by
its use.
19.3 OEM Partner shall not remove, alter or modify the serial or
identification numbers, labels, Palm Trademarks or other trade-identifying
symbols from Products sold or licensed by Palm under this Agreement. OEM Partner
shall provide all reasonable assistance, including execution of documents as
requested by Palm to protect its trademark rights in the Territory.
19.4 Palm shall have the sole and exclusive right to bring legal action
in the Territory for infringement with respect to Palm Trademarks. OEM Partner
shall assist Palm in such legal proceedings. OEM Partner shall notify Palm
promptly of any known infringements of Palm Trademarks.
19.5 Some of the Products may contain patent markings. OEM Partner will
not remove, alter, obfuscate or otherwise cause any such markings to become
ineffective under applicable patent laws.
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20. Termination.
20.1 Termination for Cause. Either party may terminate this Agreement
at any time upon written notice if the other party (i) is in material breach of
its obligations hereunder and fails to cure such breach within thirty (30) days
following written notice of such breach, or (ii) becomes insolvent or files or
has filed against it a petition under bankruptcy or insolvency law which remains
undismissed after ninety (90) days, makes an assignment for the benefit of
creditors or takes any similar action under applicable bankruptcy or insolvency
law.
20.2 Termination for Convenience. Either party may terminate this
Agreement, without cause, on sixty (60) days' written notice.
20.3. Obligations upon Expiration or Termination. On expiration or
termination of this Agreement, Palm may cancel any or all unfilled orders. Any
orders which are not canceled will be fulfilled per the terms of the Agreement.
Upon expiration or termination, each party shall return to the other any
materials of the other, including without limitation all Confidential
Information. Termination or expiration shall not relieve either party of the
obligation to pay any sums due hereunder. Other obligations which shall survive
for a period of five (5) years from the termination of expiration of this
Agreement include: indemnities and limitation of liability. Obligation regarding
export control regulations and U.S. government end users shall survive
indefinitely. The warranty and confidentiality provisions shall remain in effect
for their stated durations. Neither party shall be liable to the other for any
damages, expenditures, loss of profits or prospective profits or goodwill on
account of the termination or expiration of this Agreement pursuant to its
terms. OEM Partner expressly waives any and all rights provided by law or
statute for any indemnity or compensation from Palm by reason of termination or
non-renewal of this Agreement.
21. Export Law Regulations: OEM Partner will not export or re-export the
Products purchased under this Agreement or their accompanying documentation (or
any copies thereof) in violation of any applicable laws or regulations of the
United States or in the country in which OEM Partner obtained them. OEM Partner
agrees to comply with the U.S. Export/Re-Export Requirements. The purchase will
be allowed only if it is in full compliance with U.S. law.
22. General.
22.1 Assignment. This Agreement shall not be assigned by either party
without the prior written consent of the other, except that Palm may assign its
rights and obligations hereunder to any subsidiary or affiliate or in connection
with a merger or other business combination in which it is not the surviving
entity. Any attempted assignment in violation of this provision shall be null
and void.
22.2 Notices. Notices shall be given in writing to the address stated
at the beginning of this Agreement, or to such other address as shall be given
by either party to the other in writing. Notices regarding price changes,
discount category changes, product discontinuance, product changes, and
logistics center changes may be made via e-mail or fax to the person(s)
specified by OEM Partner from time to time. Any notice involving
non-performance, termination, or renewal shall be sent by recognized overnight
courier or by certified mail, return receipt requested. All other notices may be
sent by (i) recognized overnight courier or (ii) by fax or e-mail and confirmed
by first class mail. All notices shall be deemed to have been given and received
on the earlier of actual delivery or three (3) days from the date of postmark.
22.3 Entire Agreement. This Agreement is intended to as the complete,
final and exclusive statement of the terms of the agreement between the parties
relating to the subject matter hereof and supersedes all prior understandings,
writings, proposals, representations or communications, oral or written,
relating to the subject matter hereof. This Agreement may not be modified except
in a writing executed by both parties.
22.4 Force Majeure. Neither party shall be liable to the other for any
alleged loss or damage resulting from any delay of performance caused by acts of
the other, acts of civil or military authority, governmental priorities,
earthquake, fire, flood, epidemic, quarantine, energy crisis, strike, labor
trouble, war, riot, accident, shortage, delay in transportation, or any other
causes beyond the reasonable control of the delayed party.
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22.5 Waiver; Severability. Any waiver of a default in performance
hereunder shall be deemed a waiver of the particular instance only and shall not
be deemed a consent to any continuing default. The exercise of any right or
remedy provided in the Agreement shall be without prejudice to the right to
exercise any other right or remedy provided by law or equity. If any provision
of this Agreement is found to be invalid, illegal or unenforceable, a modified
provision shall be substituted which carries out as nearly as possible the
original intent of the parties and the remaining provisions shall in no way be
affected thereby.
22.6 Attorney's Fees. In any action to enforce this Agreement the
prevailing party shall be awarded all court costs and reasonable legal fees
incurred. Additionally, attorney's fees incurred in enforcing any judgment are
recoverable as a separate item, and this paragraph regarding post-judgment
attorney's fees shall be severable from the other provisions of this Agreement,
shall survive any judgment, and shall not be deemed merged into any judgment.
22.7 Relationship of Parties. The parties hereto are independent
contractors and shall not be deemed to be partners, joint venturers or agents of
the other.
22.8 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND ALL DISPUTES HEREUNDER SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
CALIFORNIA, EXCLUDING ITS CONFLICT OF LAW RULES. The Superior Court of Santa
Xxxxx County and/or the United States District Court for the Northern District
of California shall have jurisdiction and venue over all disputes between the
parties.
23. List of Exhibits.
Exhibit A - Product Description and Pricing Schedule
Exhibit B - Non-Recurring Engineering Costs
The parties hereto have caused this Agreement to be executed by their duly
authorized representatives on the date(s) shown below.
Palm, Inc. OEM Partner: PTN Media, Inc.
--------------------------
Signature /s/ [illegible] Signature /s/ [illegible]
----------------------------- -----------------------------
Printed VP Sales & Service Printed [illegible]
----------------------------- -----------------------------
Title [illegible] Title President
----------------------------- -----------------------------
Date October 5, 2000 Date October 2, 2000
----------------------------- -----------------------------
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Palm, Inc. OEM Partner Agreement
OEM Partner Information
OEM Partner Name: PTN Media. Inc,
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Address: 00 Xxxx Xxxxxxxxxx Xxxxx
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#15
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Xxx Xxxxx, Xxxxxxxx 00000
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Type of entity: corporation
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(e.g. corporation, limited partnership, general
partnership, sole proprietorship, etc)
State of Incorporation: Delaware
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Contact Name: Xxxxx Xxxxxx
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Telephone Number: 000-000-0000
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Fax Number: 000-000-0000
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Contact Email Address xxxxxx@xxxxxxxxxxxxxxx.xxx
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Palm, Inc.
Sales Contacts Administration
0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Main Telephone: (000) 000-0000
Main Fax: (000) 000-0000
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Exhibit A to Palm OEM Partner Agreement
Product Description and Pricing
DESCRIPTION:
International English Palm Vx units, customized for OEM Partner pursuant to
Exhibit B - Non-Recurring Engineering Costs.
COST:
$319.20 per unit
PACKAGING:
Standard Palm Vx box with standard Palm collateral. OEM Partner to design and
produce, with Palm's approval, a custom sleeve for the box. OEM Partner will
also produce and provide the following items for inclusion in the box:
o Certificate of authenticity reflecting Xxxxxxx Xxxxxxxx'x approval of
the device.
o Software CD described below. OEM Partner will reproduce the CD
containing the software for inclusion in the box.
o Accessory brochure, to be provided by OEM Partner.
SOFTWARE CD:
OEM Partner will identify at least three (3) software programs to be offered
with the Product via a CD included in the product package. The exact developers
will be identified by OEM Partner and agreed to by Palm. The software programs
must be compatible with the Palm Vx product. OEM Partner will conclude
agreements with the software owners that will include the provision of customer
support for such software by the owners, or an identified third party (not
Palm). The package and CD will clearly indicate who will provide customer
support.
SERVICE & SUPPORT:
Palm will provide after-sales service and support for the Product, and shall
provide the warranty directly to the end user pursuant to Section 14 - Warranty.
Palm will not provide service and support for the software in-box CD containing
add-on software.
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Exhibit B to Palm OEM Partner Agreement
Non-Recurring Engineering Costs
The Non-Recurring Engineering (NRE) and Development Costs for this new SKU
(project) are estimated to be thirteen thousand five hundred dollars
($13,500.00). The total charges are inclusive of the following services:
1) Custom Color Housing
This includes changing housing to metallic aqua color.
2) Pad Printing
This includes Xxxxxxx Xxxxxxxx'x signature pad printed on the unit in the upper
right corner and Palm's logo in the upper left corner.
Total Estimate for NRE and One-Time Development Costs = $13,500.00
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