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Exhibit 10.7
PALM CONFIDENTIAL
SOFTWARE LICENSE AGREEMENT
This Software License Agreement is entered into by and between Palm
Computing, Inc. ("Palm"), a California corporation with a place of business at
0000 Xxxxxxxx Xxxxx, Xxxxx Xxxxx, XX 00000-0000, and OmniSky Corporation
("Licensee"), a Delaware corporation with a place of business at 000 Xxxxxxxxxx
Xxxxxx, Xxxx Xxxx, XX 00000. The effective date of this Agreement shall be the
date last executed below ("Effective Date"), provided that this Agreement shall
not be effective in the absence of any and all required governmental approvals.
RECITALS
A. Palm or its suppliers are the owners of software and other technology
related to the Palm Computing platform and the Xxxx.xxx server technology
(defined below as the "Xxxxxx Software").
B. Licensee is a wireless internet service provider.
C. Licensee desires to obtain a license to certain Palm software and
technology in order to develop and market wireless Internet access using
handheld devices and to distribute certain Palm software to users of Palm
handheld devices in connection with providing such Internet access. Palm is
willing to grant Licensee such a license upon the terms and conditions set forth
below.
AGREEMENT
NOW, THEREFORE, the parties agree as follows:
1 DEFINITIONS
1.1 "Confidential Information" means that information of either party
("Disclosing Party") which is disclosed to the other party ("Receiving Party")
pursuant to this Agreement, in written form and marked "Confidential,"
"Proprietary" or similar designation, or if disclosed orally, the Disclosing
Party shall indicate that such information is confidential at the time of
disclosure and send a written summary of such information to the Receiving Party
within thirty (30) days of disclosure and xxxx such summary "Confidential,"
"Proprietary" or similar designation. Confidential Information shall include,
but not be limited to, trade secrets, know-how, inventions, techniques,
processes, algorithms, software programs, schematics, designs, contracts,
customer lists, financial information, product plans, sales and marketing plans
and business information. References to Palm as a Receiving Party or a
Disclosing Party shall also include all of Palm's present and future subsidiary
and parent companies, subject to the restrictions contained in this Agreement.
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1.2 "Documentation" means the Xxxxxx Documentation and all other
documentation for the Palm Software described in Exhibit A or otherwise
delivered to Licensee hereunder.
1.3 "Xxxxxx Documentation" means the operator manual for the Xxxxxx
Software described in Exhibit A.
1.4 "Xxxxxx Software" shall mean the computer software programs
specified in Exhibit A (Palm Software), including all Updates provided by Palm
to Licensee pursuant to Section 6.2.
1.5 "Licensee Client Software" means the client software developed by
Licensee which supports the client functionality of web clipping.
1.6 "Licensee Services" means providing access to information,
transactions and e-services available or hosted on the Internet and corporate
intranets, including but not limited to web clipping services.
1.7 "Licensee Software" means any software developed, acquired, or
licensed by Licensee, or for Licensee by a third party, which is used by
Licensee in connection with the Xxxxxx Software or the Licensee Services, other
than Palm Software.
1.8 "Palm OS" means the Palm client operating system software files and
build tools described in Exhibit A (Palm Software), including (a) all Updates
provided by Palm to Licensee pursuant to Section 6.1, (b) the Palm Device
Applications, (c) the Palm Device Applications SDK, and (d) the Palm OS Software
Development Kit.
1.9 "Palm Device Applications" means the applications files described in
Exhibit A.
1.10 "Palm Device Applications SDK" means Palm's commercially available
software development kit for applications for the Palm Computing platform as
described in Exhibit A.
1.11 "Palm OS Software Development Kit" means Palm's commercially
available software development kit for the Palm OS as described in Exhibit A.
1.12 "Palm Source Code" means the source code modules of the Palm OS
described on Exhibit A hereto and all other source code of the Palm Software
delivered to Licensee pursuant to Section 3 and Section 6.6.
1.13 "Palm Software" means the Xxxxxx Software and the Palm OS.
1.14 "Update" means (a) a bug fix, workaround, or patch to correct any
reproducible error in the Palm Software, (b) a new release of the Xxxxxx
Software, (c) a new release of the Web Clipping Software, or (d) a general
release of any of the Palm
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Software in each case as generally released and made available by Palm to
licensees of the Palm Software.
1.15 "web clipping" means making Internet content available through use of
software having functionality similar to the modules referred to as "web
clipping source code files" on Exhibit A.
1.16 "Web Clipping Software" means the web clipping application included
as part of the Palm OS and any separate Web Clipping Application delivered to
Licensee pursuant to Section 6.2.
2. LICENSES
2.1 Palm OS
(a) Subject to the terms and conditions of this Agreement Palm hereby
grants to Licensee a personal, irrevocable (except pursuant to Section 15.4),
limited, non-exclusive, non-transferable (except as set forth in Section 16.9)
fully-paid (subject to Section 4), worldwide license to use, reproduce and
distribute the Palm OS, as modified by Licensee pursuant to the terms hereof, in
object code form, solely for use with Palm products and, when technically
feasible, third party products utilizing the Palm OS.
(b) Subject to the terms and conditions of this Agreement, Palm hereby
grants to Licensee a personal, irrevocable (except pursuant to Section 15.4),
limited, non-exclusive, non-transferable (except as set forth in Section 16.9),
fully-paid (subject to Section 4) worldwide license to (i) modify, use and
reproduce the Palm Source Code for the sole purpose of development of Licensee
Client Software and (ii) compile the Palm Source Code into object code for
distribution pursuant to Section 2.1(a).
(c) Except as otherwise expressly set forth in this Section 2.1 and
Section 2.6, no rights to modify, distribute or sublicense the Palm OS are
granted.
2.2 Xxxxxx Software Documentation. Subject to the terms and conditions
of this Agreement, Palm hereby grants to Licensee a personal, perpetual,
irrevocable (except pursuant to Section 15.4), limited, non-exclusive,
non-transferable (except as provided in Section 16.9), fully-paid (subject to
Section 4) worldwide license (a) to use the Xxxxxx Software, in object code form
only, for the sole purpose of providing the Licensee Services, (b) to make
sufficient copies of the Xxxxxx Software, in object code only, as necessary for
such use, and (c) to use the Documentation and reproduce the Documentation for
Licensee's internal use.
2.3 Compatibility.
(a) Compatibility test criteria and procedures ("Test Criteria")
for ensuring the interoperability of standard Palm tools and APIs with the
Licensee Client
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Software are attached as Exhibit B (Test Criteria) to this Agreement. Subject to
Section 2.3(c), prior to Licensee's distribution of any Licensee Client
Software, Licensee shall submit such Licensee Client Software at its expense to
any of Palm's approved independent compatibility testing labs ("Approved Testing
Lab") for compatibility testing in accordance with the Test Criteria. If the
Approved Testing Lab determines that the Licensee Client Software does not
successfully meet the Test Criteria, then such testing lab will provide Licensee
and Palm a detailed written statement of the reasons for such rejection
("Statement of Errors"). Upon receipt of the Statement of Errors, Licensee shall
use reasonable efforts to modify the Licensee Client Software to conform to the
Test Criteria. The parties acknowledge that the contents of the Test Criteria
may need to be changed from time to time. Palm shall use its reasonable
discretion in determining new Test Criteria for Palm tools and APIs and will
apply such new Test Criteria to Licensee, Palm's internal customers and to
Palm's other licensees of the Palm OS, if any.
(b) Compatibility Certification Requirement. Subject to Section
2.3(c), Licensee agrees that it shall not release or distribute any version of
the Licensee Client Software which has not received compatibility certification
from an Approved Testing Lab in accordance with the Test Criteria. Each version
of the Licensee Client Software developed by Licensee shall be required to pass
the Test Criteria only once, regardless of Palm's subsequent modifications to
the Test Criteria. However, in order to obtain compatibility certification for
Licensee Client Software with new Test Criteria as described in Section 2.3(a),
Licensee may submit any Licensee Client Software for compatibility testing
against such new Test Criteria in accordance with Section 2.3(a). Licensee may
indicate compatibility certification for Licensee Client Software only with
respect to the version(s) of the Test Criteria which such Licensee Client
Software has passed.
(c) Beta Period. Notwithstanding the foregoing, during the Beta
Period Licensee shall not be required to comply with the provisions of Section
2.3(a) or 2.3(b) and shall be entitled to release and distribute up to 5,000
copies of the Licensee Client Software during such period without obtaining
compatibility certification. For the purposes of this Section 2.3, "Beta Period"
means the period beginning as of the Effective Date and ending on the earlier of
March 15, 2000 or the date on which Licensee makes its services and Licensee
Client Software generally available in a non-beta format.
2.4 Trademark License. Subject to Section 2.3 and the other terms and
conditions of this Agreement, Palm hereby grants to Licensee a personal,
limited, non-exclusive, non-transferable, fully-paid license to use, subject to
the guidelines set forth in Palm's Trademark Policy Guidelines attached hereto
as Exhibit C, the trademarks and stylistic marks as may be provided by Palm to
Licensee (collectively, the "Palm Trademarks") in connection with the marketing
and sale of Licensee Services. Licensee shall use such trademarks in conjunction
with the distribution, promotion, and marketing of any Licensee Services as
provided in Section 8.3, consistent with the guidelines set forth in Exhibit C.
Palm shall have the right to receive free samples of all advertising and
promotional materials and related Licensee documentation on which such
trademarks are used to ensure that Palm's quality standards are maintained. The
foregoing license shall be limited to use of the Palm Trademarks for the
purposes of Section 8.3. Nothing in this
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Agreement grants Licensee ownership or any rights in or to use the Palm
Trademarks, except in accordance with this license. The rights granted to
Licensee in this license will terminate upon any termination or expiration of
this Agreement. Upon such termination or expiration, Licensee will no longer
make any use of any Palm Trademarks. Palm will have the exclusive right to own,
use, hold, apply for registration for, and register the Palm Trademarks during
the term of, and after the expiration or termination of, this Agreement in any
country worldwide; Licensee will neither take nor authorize any activity
inconsistent with such exclusive right.
2.5 Copies. Licensee shall not copy the Palm Software or the
Documentation except as permitted by this Agreement. Licensee shall maintain
accurate and up-to-date records of (a) the number and location of all copies of
the Xxxxxx Software and inform Palm in writing of such location(s), and (b) the
number of copies of the Palm OS distributed by Licensee. All copies of the Palm
Software and Documentation will be subject to all terms and conditions of this
Agreement.
2.6 No Right to Distribute, Sublicense or Use Contract Manufacturers.
Except as otherwise permitted herein, Licensee shall have no right to, and shall
not, distribute any copy or portion of the Palm Software or the Documentation,
or sublicense any of its rights under this Agreement, to OEMs, consultants,
contractors, or any other third parties. Except as otherwise permitted herein,
Licensee shall have no right to, and shall not, use third parties to
manufacture, develop, test or support the Palm Software without Palm's prior
written approval, which shall not be unreasonably withheld. Notwithstanding the
foregoing, Licensee shall be entitled to cause Aether Technologies, LLC
("Aether") to reproduce, modify, develop, test and support the Palm Software for
the benefit of OmniSky in accordance with the terms hereof and subject to all
restrictions contained herein which are applicable to Licensee and the Palm
Software, provided that Aether first enters into an agreement with Palm for the
protection of Palm's rights in the Palm Software. If Aether for any reason
ceases to perform such services for Licensee or Licensee or any of its approved
sublicensees desires to retain a different or additional party to perform such
services, then Licensee may propose to Palm one or more alternative contractors
to perform such services on behalf of Licensee and Palm will not unreasonably
withhold approval of any such substitute contractor, provided that such
contractor first enters into an agreement with Palm for the reasonable
protection of Palm's rights in the Palm Software.
2.7 No Reverse Engineering. Except as provided in Section 2.1, Licensee
shall not reverse engineer, reverse compile or disassemble the Palm Software, or
otherwise attempt to derive the source code to the Palm Software.
2.8 Inspection Rights. Palm shall have the right, upon reasonable
advance notice, to inspect Licensee's books, records and facilities with respect
to the reproduction of the Palm Software and the Documentation hereunder and the
provision of the Licensee Services in order to verify that such activities are
within the scope of this Agreement, that there are appropriate security
procedures to protect Palm's Confidential Information, and that Licensee is in
compliance with its other obligations under this Agreement.
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2.9 No Other Licenses. Except as specifically set forth in this
Agreement, no other licenses are granted by Palm to Licensee.
3 DELIVERY
Palm will deliver to Licensee, as soon as practicable, (a) a complete
and current set of the Xxxxxx Software and the object code of the Palm OS, and
(b) the Palm Source Code listed on Exhibit A hereto; provided, however, that in
no event will Palm be required to deliver any such items to Licensee before
Licensee has obtained any and all necessary governmental approvals for this
Agreement. If Licensee desires to obtain access to Palm OS source code which is
not described in Exhibit A, then Licensee shall notify Palm and the parties
shall discuss in good faith whether Licensee requires such access to perform the
Licensee Services or to modify the Palm OS to integrate web clipping
functionality in or with Licensee Client Software. If the parties determine that
Licensee requires such access, Palm will provide the relevant source code to
Licensee. Palm will not unreasonably deny Licensee such access and any
additional source code provided hereunder shall be deemed "Palm Source Code" for
all purposes hereunder.
4 ROYALTIES, FEES AND REPORTS
4.1 Maintenance and Support Fees. Licensee shall pay to Palm fees as
specified in Exhibit D (Maintenance and Support Fees) for maintenance, support,
and Updates made available by Palm to Licensee pursuant to Sections 6.1 and 7.
Such fees shall be due and payable by Licensee to Palm in advance for each
quarter during the term of this Agreement, regardless of whether Licensee
collects payments for the Licensee Client Software or related maintenance and
support from Licensee's customers.
4.2 Certicom Royalty Pass-Through.
(a) Licensee acknowledges that Palm has informed Licensee that
the Palm Software contains encryption software licensed to Palm by Certicom,
Corp. ("Certicom Software"). Licensee further acknowledges that the Certicom
Software is subject to export compliance restrictions imposed by the United
States and other governments, and that Palm owes certain royalties to Certicom
for the Palm Software. The parties agree that (i) Licensee shall reimburse to
Palm fifty cents ($0.50) for each copy of the Licensee Client Software made by
or on behalf of Licensee if such copy includes the Web-Clipping Software, and
(ii) one dollar ($1.00) for each copy of the Xxxxxx Software made by or on
behalf of Licensee. Such reimbursement shall be due and payable to Palm
regardless of whether Licensee derives any revenue from such copies of the Palm
Software.
(b) The provisions of Section 4.2(a) shall cease to apply to
copies of the Licensee Client Software and/or the Xxxxxx Software if Licensee
enters into an agreement with Certicom Corp. for the payment of royalties for
the Licensee Client Software and/or the Xxxxxx Software, respectively. Upon
entering into any such
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agreement, Licensee shall provide to Palm reasonable proof of the existence of
such agreement and the licenses granted by Palm to Licensee in this Agreement
with respect to the Certicom Software shall be of no further force or effect.
4.3 Reports. Licensee shall keep adequate records to verify all reports
and payments to be made to Palm pursuant to this Agreement for a period of five
(5) years following the date of such reports and payments. Palm shall have the
right to select an independent certified public accountant mutually agreeable to
the parties to inspect no more frequently than semiannually the records of
Licensee on reasonable notice and during regular business hours to verify the
reports and payments required hereunder. If such inspection should disclose any
underreporting, Licensee shall pay Palm such amount within thirty (30) days of
the conclusion of such inspection. The entire cost of such inspection shall be
borne by Palm; provided, however, that if Licensee is determined by such
inspection to have underpaid royalties by five percent (5%) or more, then the
cost of such audit shall be borne by Licensee.
5 PAYMENT TERMS
5.1 Payment. Payment of the amounts set forth in Section 4.2 shall
accrue upon the making of any copy of the relevant software. Payments shall be
payable in United States Dollars within thirty (30) days after the end of each
calendar quarter for all payments which accrue during such quarter. Each payment
shall be accompanied by a statement of all copies of the Licensee Client
Software containing Web-Clipping Software, and the Xxxxxx Software made during
the relevant period signed by an authorized representative of Licensee. Payments
and statements shall be sent to Palm or its designee at the address set forth at
the beginning of this Agreement or such other address as Palm may designate in
writing.
5.2 Taxes.
(a) In addition to any other payments due under this Agreement,
Licensee agrees to pay, indemnify, and hold Palm harmless from any sales, use,
excise, import or export, value added or similar tax or duty, any other tax not
based on Palm's net income, and any governmental permit and license fees,
customs fees and similar fees levied upon delivery of the deliverables and/or
services hereunder which Palm may incur in respect of this Agreement.
(b) If applicable law requires Licensee to withhold any income
taxes levied on payments to be made pursuant to this Agreement ("Withholding
Tax"), Licensee shall be entitled to deduct such Withholding Tax from the
payments due to Palm hereunder. Licensee shall promptly effect payment of the
Withholding Tax to the appropriate tax authorities and shall transmit to Palm
within ten (10) business days of such payment official tax receipts or other
evidence issued by the appropriate tax authorities sufficient to enable Palm to
support a claim for income tax credits in the United States. Licensee further
agrees to assist Palm, upon request, if Palm contests, by appropriate legal or
administrative proceedings, the validity or amount of the
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Withholding Tax. In the event Palm does not receive official tax receipts or
such other evidence within thirty (30) days of payment, Palm shall have the
right to invoice Licensee for such Withholding Tax.
6 UPDATE RESPONSIBILITIES
6.1 Updates and Additions to Palm OS. Provided that Licensee has paid
Palm the maintenance and support fees due under Section 4.1, during the term of
this Agreement Palm shall deliver to Licensee: (a) all Updates to the Palm OS as
soon as reasonably possible after completion of such Updates, but not later than
thirty (30) business days after Palm's general releases thereof, and (b) all
updates to the Documentation (other than Xxxxxx Documentation) as soon as
reasonably possible after completion of such updates. Upon delivery of such
Updates to Licensee, the licenses granted to Licensee pursuant to Section 2
above shall be deemed to include such Updates. Notwithstanding the foregoing but
subject to Section 6.2, Palm's obligation to provide Updates of the Palm OS to
Licensee shall terminate upon delivery to Licensee of the Web Clipping
Application and the last Palm OS Update required for use with the Web Clipping
Application.
6.2 Updates and Additions to Web Clipping Software. Provided that
Licensee has paid Palm the maintenance and support fees due under Section 4.1,
during the term of this Agreement Palm shall deliver to Licensee any Web
Clipping Application and any Updates thereto as soon as reasonably possible
after completion, but not later than thirty (30) business days after Palm's
general releases thereof or Palm's release thereof to any other licensee. Upon
delivery of such Updates to Licensee, the licenses granted to Licensee pursuant
to Section 2 above shall be deemed to include such Updates. Any Web Clipping
Application delivered to Licensee hereunder shall be deemed part of the Palm OS
under this Agreement, and upon any such delivery the licenses granted to
Licensee pursuant to Section 2.1 above shall be deemed to include such Web
Clipping Application. For the purposes of this Agreement, "Web Clipping
Application" means a web clipping software application developed by Palm during
the term hereof that (i) is not embedded in the Palm OS, (ii) is not developed
on a custom or exclusive basis for any third party, and (iii) contains
functionality similar to the functionality of the Web Clipping Software included
in the Palm OS as of the Effective Date.
6.3 Updates and Additions to Xxxxxx Software. During the term of this
Agreement, Palm shall deliver to Licensee (a) all Updates to the Xxxxxx Software
as soon as reasonably possible after completion of such Updates, but not later
than thirty (30) business days after Palm's release thereof to any other
licensee of the Xxxxxx Software, provided that Palm shall not be required to
provide to Licensee any Update to the Xxxxxx Software prepared for any such
licensee on a custom basis, and (b) all updates to the Xxxxxx Documentation as
soon as reasonably possible after completion of such updates. Upon delivery of
such Updates to Licensee, the licenses granted to Licensee pursuant to Section 2
above shall be deemed to include such Updates.
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6.4 Enhancements and Additional Components. Licensee acknowledges that
during the term of this Agreement, in addition to delivering to Licensee the Web
Clipping Application and the Updates referred to above, Palm expects to release
enhancements and additional components for the Palm Software for which Palm may
elect to require that licensees pay separate consideration and enter into
separate agreements or amendments in order to have any rights to such modules or
components. Notwithstanding the foregoing, nothing herein shall obligate Palm to
make such enhancements or additional components available to Licensee.
6.5 Xxxxxx Software Enhancement Requests. In the event that Licensee
requests in writing that Palm add new features or functionality to the Xxxxxx
Software or the Palm OS requiring enhancements to the Xxxxxx Software or Palm
OS, Palm will consider such request in good faith and will respond to Licensee
in writing within thirty (30) days of its receipt of such request (or within
such longer time period as may be reasonably agreed by the parties) with whether
Palm intends to implement such request and, if so, with a proposed schedule for
implementation and the cost to be charged to Licensee, which shall be the
standard rate charged by Palm for such services. In the event the parties agree
on the terms for the development of such enhancements ("Approved Enhancements"),
Palm will use its reasonable commercial efforts to implement such enhancements
within the proposed schedule, whereupon such Approved Enhancements will be
deemed additional Xxxxxx Software or Palm OS, as applicable, for all purposes of
this Agreement. Upon delivery to Licensee, the licenses granted to Licensee
pursuant to Section 2 above shall be deemed to include such Approved
Enhancements. Licensee shall execute all assignments and other documents as may
be requested by Palm to evidence and perfect Palm's ownership of the Approved
Enhancements and the intellectual property rights therein.
6.6 Future Palm Source Code. Simultaneously with its delivery of any
Updates of the Palm OS to Licensee (including any Web Clipping Software or
Updates thereto pursuant to Section 6.2), Palm will deliver to Licensee the
source code for such Update that corresponds to the equivalent functionality of
the Palm Source Code previously provided to Licensee hereunder, which shall be
deemed part of the Palm Source Code for all purposes hereunder. Simultaneously
with its delivery of any Web Clipping Application or Updates thereto to Licensee
pursuant to Section 6.2, Palm will deliver to Licensee the source code for the
Web Clipping Application or the Update, as appropriate, which shall be deemed
part of the Palm Source Code for all purposes hereunder.
7 SUPPORT
Palm shall provide Licensee with the following maintenance and support
during the term of this Agreement in accordance with the Palm Support terms set
forth in Exhibit E (Palm Support Services):
7.1 Development Support. Palm will provide Licensee with a reasonable
level of support by telephone, e-mail, fax or, if requested by Licensee, in
person at Palm's
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Santa Clara, California site, during Palm's normal business hours (8:00 a.m. -
5:00 p.m. California time, excluding holidays) in connection with Licensee's use
and permitted distribution and modification of the Palm Software, including the
use of reasonable commercial efforts: (i) to answer Licensee's questions
regarding the proper utilization and optimization of the Palm Software; and (ii)
to provide solutions, workarounds and/or patches to correct any reproducible
error in the Palm Software. Licensee shall designate two qualified individuals
to act as primary technical liaisons for communications with Palm's technical
support staff. Palm shall designate two qualified individuals to act as primary
and secondary technical liaisons for communications with Licensee's technical
support staff.
7.2 Customer Support Training. During the term of this Agreement, Palm
shall, at its expense, provide Licensee with one (1) course per version of the
Palm Software of basic and advanced training as it relates to customer support
for up to six (6) Licensee employees or outsourced customer care representatives
engaged in the technical support of the Palm Software and/or the Licensee Client
Software. Palm shall further provide to Licensee, at Palm's expense, similar
training for modifications or other revisions to the Palm Software, as it
relates to customer support. Training will be conducted at Palm's facilities in
Santa Clara, California or another mutually agreeable facility. Each training
course shall commence on a mutually agreed upon date. Such training shall cover
in detail, the installation, configuration, operation, trouble-shooting,
adjustment, test and maintenance of the Palm Software, as it relates to customer
support. Palm shall provide copies of the student training guides, and all other
necessary materials to each trainee and to Licensee. All other training
requested by Licensee and provided by Palm shall be billed at Palm's standard
rates.
7.3 Customer Support. Licensee shall be solely responsible for First
Level Support and Second Level Support of the Palm Software. The parties agree
to work together to develop and facilitate the call handling processes to
provide seamless customer support and technical service to resellers and end
users of the Palm Software. In addition, Palm will provide Licensee with Third
Level Support for the Palm Software during the term of this Agreement. The
definitions of First, Second and Third Level Support shall be as set forth in
Section 7.4 below. During the term of this Agreement, Palm shall permit Licensee
to create hyperlinks to the Palm Web site and to display certain Palm end user
materials on Licensee's Web site for customer support purposes, subject to
Palm's prior approval of each proposed use. During the term of this Agreement,
Licensee shall permit Palm to create hyperlinks to the Licensee Web site and to
display certain Licensee end user materials on Palm's Web site for customer
support purposes, subject to Licensee's prior approval of each proposed use.
7.4 Technical Support.
(a) Technical Support Levels. For the purposes of Section 7.3
above, "Level" means a certain class of service provided for the Palm Software.
Definitions are as follows:
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(i) "First Level Support" means first call support on all
customer calls: technical support staff answers technical inquiries regarding
Palm Software, performs configuration support, if applicable, and provides broad
troubleshooting expertise.
(ii) "Second Level Support" means specialist level
technical support: technical support/escalation staff performs problem isolation
and replication, and implements a solution for a problem that is not the result
of a Palm Software program error. In the case of a Palm Software program error,
the technical staff is able to identify the source of the error, create a
reproducible test case, and document the details of the error for escalation to
Palm.
(iii) "Third Level Support" means backup technical support
to two representatives of Licensee's Second Level Support team (the "Authorized
Callers"). Palm will identify to Licensee its technical support personnel for
the Palm Software (the "Designated Support Personnel"). The Authorized Callers
and Designated Support Personnel will be the primary contacts between Palm's and
Licensee's technical support and/or escalation centers. Licensee will provide a
list of Authorized Callers including names, addresses, phone numbers, and
Internet e-mail address. Palm will provide a similar list of Designated Support
Personnel. These lists will be reviewed quarterly and updated as required.
(b) Support Timing. Palm shall make Third Level Support available
via telephone, FAX or E-Mail solely to Licensee's Authorized Callers during
Palm's normal business hours (8:00 a.m. - 5:00 p.m. California time, excluding
holidays). Palm shall use reasonable commercial efforts to answer support
questions within the timeframes specified in Exhibit E (Palm Support Services).
So long as Palm is using reasonable commercial efforts to answer such questions,
Palm's inability to resolve or answer any such question shall not be deemed a
material breach of the Agreement.
(c) Direct Customer Support. Palm will not be obligated to
provide direct support of any kind to Licensee's customers or end users pursuant
to this Agreement. Licensee will provide sufficient information and/or training
regarding the Licensee Client Software to Palm's Designated Support Personnel to
enable Palm to properly assist Licensee in resolving problems.
7.5 Additional Support. Except as provided in Sections 6 and 7, (i) Palm
shall not be obligated to provide any maintenance, support or other services
with respect to the Palm Software; and (ii) any other maintenance, support or
other services which may be provided by Palm with respect to the Palm Software
shall only be provided to Licensee upon mutually agreeable terms, including such
fees as may be mutually agreeable.
8. MARKETING AND PUBLICITY
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8.1 Marketing. The parties agree to work together to identify areas
where joint marketing efforts would benefit both parties, and upon mutual
agreement shall implement such efforts.
8.2 Publicity. Neither party shall disclose the terms of this Agreement
to any third party, other than its financial or legal advisors, or make any
announcements regarding the nature of the relationship between the parties
without the prior approval of the other party, except that a party may disclose
the terms of this Agreement where required by law, provided that such party uses
reasonable effort to obtain confidential treatment or similar protection to the
fullest extent available to avoid public disclosure of the terms of this
Agreement. A party required by law to make disclosure of the terms of this
Agreement will promptly notify the other party and permit the other party to
review and participate in the application process seeking confidential
treatment. The parties intend to issue a mutually agreeable press release
regarding the subject matter of this Agreement promptly following its execution.
8.3 Branding. In accordance with Section 2.4, at Palm's request Licensee
will use the Palm Trademarks as contained in the phrase "powered by Palm" or
"containing Palm web clipping technology," or as contained in a similar
trademark or phrase designated by Palm and required by Palm to be used by other
similarly situated Palm licensees, on all documentation for the Licensee
Services and all advertising, promotional and other collateral printed materials
for the Licensee Services. Licensee shall cease all use of the Palm Trademarks
within a reasonable period after Palm's written request.
9 PROPRIETARY RIGHTS
9.1 Title. Licensee acknowledges that the Palm Software and the
Documentation are the valuable trade secrets of Palm. Palm shall be the sole and
exclusive owner of the Palm Software and the Documentation. Subject always to
Palm's ownership of the Palm Software, as between Licensee and Palm, Licensee
shall be the sole and exclusive owner of the Licensee Software.
9.2 Proprietary Rights Notices. Licensee agrees that it will not remove,
alter or otherwise obscure any proprietary rights notices appearing in the Palm
Software or the Documentation, and will reproduce such notices on all copies of
the Palm Software and the Documentation made by Licensee.
9.3 U.S. Government Restricted Rights Legend. All Palm technical data
and computer software is commercial in nature and developed solely at private
expense. Software is delivered as Commercial Computer Software as defined in
DFARS 252.227-7014 (June 1995) or as a commercial item as defined in FAR
2.101(a) and as such is provided with only such rights as are provided in Palm's
standard commercial license for such software. Technical data is provided with
limited rights only as provided in DFARS 252.227-7015 (Nov. 1995) or FAR
52.227-14 (June 1987), whichever is applicable. Licensee agrees not to remove or
deface any portion of any legend on any software or documentation delivered to
it under this Agreement.
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9.4 End User Licensing. Licensee will distribute the Palm OS subject to
the terms set forth in Exhibit F.
9.5 Licensee Modifications. Notwithstanding the provisions of Section
9.1 or any other provision herein to the contrary, Licensee shall be the sole
and exclusive owner of all modifications of the Palm Source Code made by or on
behalf of Licensee hereunder (collectively, "Modifications"). Licensee agrees to
provide Palm, upon Palm's request, copies of all Modifications. Licensee hereby
grants to Palm a worldwide, nonexclusive, fully paid, royalty free, irrevocable
(except pursuant to Section 15.4) license to use, reproduce, modify, display and
distribute the Modifications in source code and/or executable form, including
the right to sublicense such rights through single or multiple tiers of
distribution. When providing Modifications to Palm, Licensee shall identify to
Palm in writing all third party software or other intellectual property in such
Modifications which Licensee has licensed and for which Palm needs to seek its
own license ("Third Party Software"), including a description of the Third Party
Software, the licensor and the price paid by Licensee to obtain such license.
Licensee shall not be required to disclose the price to Palm if Licensee is
restricted from doing so in its license with such licensor. Subject to receiving
such written identification at such time, Palm acknowledges and agrees that its
ability to use such Modifications may be subject to acquiring licenses for such
Third Party Software from third parties, that it shall be solely responsible for
obtaining all such licenses, and that Licensee shall not be obligated to provide
or procure such licenses. Except with respect to the Third Party Software which
Licensee has identified pursuant to this Section 9.5, the foregoing sentence is
not intended to limit Licensee's obligations pursuant to Section 11.3.
10 WARRANTY
10.1 Palm Warranty. Palm warrants that for a period of ninety (90) days
after receipt by Licensee of the Palm Software (the "Warranty Period") the media
on which Palm delivers the Palm Software to Licensee shall be free of defects in
material and workmanship. As Licensee's sole and exclusive remedy for any breach
of such warranty, Palm shall replace any such defective media promptly following
receipt of written notice from Licensee of such defects during the Warranty
Period. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 10, PALM
MAKES NO WARRANTIES, TERMS OR CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, AS TO
THE PALM SOFTWARE, WHICH IS PROVIDED "AS IS", OR THE DOCUMENTATION. IN
PARTICULAR, ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND SATISFACTORY QUALITY WITH RESPECT TO THE PALM SOFTWARE ARE
EXPRESSLY EXCLUDED.
10.2 Year 0000 Xxxxxxxx.
(a) Palm warrants to Licensee that the Palm Software will
continue performing properly with regard to date-data on and after January 1,
2000, provided that
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all other products used by Licensee in connection or combination with the Palm
Software accurately exchange date-data with the Palm Software. Palm makes no
certification regarding the performance of any other Palm products with regard
to date-data.
(b) If it appears that any Palm Software does not perform
properly with regard to date-data on and after January 1, 2000, and Licensee
notifies Palm thereof before April 1, 2000, Palm shall, at its option and
expense and as Licensee's sole and exclusive remedy for breach of the warranty
made in subsection (a) above, provide Licensee with a software Update which
would effect the proper performance of the Palm Software or deliver to Licensee
equivalent software to replace the Palm Software. Any such software Update or
equivalent software will be warranted pursuant to subsection (a) above for
ninety (90) days or until April 1, 2000, whichever is later.
11 INDEMNIFICATION
11.1 By Palm. Palm shall, at its own expense, defend and indemnify
Licensee for damages and reasonable costs incurred in any suit, claim or
proceeding brought against Licensee alleging that the Palm Software,
Documentation, or Palm Trademarks licensed pursuant to this Agreement infringe
any patents, copyrights, trademarks, trade secrets, proprietary information or
other third party intellectual property rights in any of the following
countries: United States, Japan, or any member country of the European Union,
provided that Palm is promptly notified, rendered reasonable assistance by
Licensee as required, and permitted to direct the defense or settlement
negotiations. Palm shall have no liability for any infringement arising from:
(a) the integration or combination of the Palm Software, Documentation or Palm
Trademarks together with other software, materials or products not integrated or
combined by Palm, if the infringement would have been avoided in the absence of
such integration or combination; (b) the use of other than a current unaltered
release of the software available from Palm, if the infringement would have been
avoided by the use of the then-current release, and if Palm has provided such
current release to Licensee; or (c) modifications to the Palm Software or
Documentation requested by Licensee or made by anyone other than Palm or at
Palm's direction.
11.2 Remedies. Should the use of any Palm Software, the Documentation or
Palm Trademarks be enjoined, or in the event Palm reasonably believes that any
Palm Software, Documentation, or Palm Trademarks may be subject to an
infringement claim, Palm may, at its option, either: (i) substitute
substantially functionally equivalent non-infringing Palm Software or
Documentation, as the case may be; (ii) modify the infringing item so that it no
longer infringes but remains substantially functionally equivalent; (iii) obtain
for Licensee, at Palm's expense, the right to continue use of such item; or (iv)
if none of the foregoing is feasible, Palm may terminate this Agreement, in
whole or in part. Notwithstanding the foregoing, Licensee acknowledges that Palm
may undertake to obtain licenses from third parties relating to the Palm
Software, and in such event the royalty obligation for the Licensee Products
arising from such licenses shall be passed through to, and paid at the direction
of Palm by, Licensee; provided, however, that the per-unit royalty obligation
payable by Licensee shall not exceed the per-unit or
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percentage royalty obligation (whichever is less) payable by Palm for products
similar to the Licensee Products, and shall not in any event exceed ($2.00) per
unit. SECTIONS 11.1 AND 11.2 STATE LICENSEE'S SOLE AND EXCLUSIVE REMEDY WITH
RESPECT TO CLAIMS OF INFRINGEMENT OF PROPRIETARY RIGHTS OF ANY KIND, AND ALL
WARRANTIES OF NON-INFRINGEMENT, EXPRESS OR IMPLIED, ARE SPECIFICALLY DISCLAIMED
AND EXCLUDED.
11.3 By Licensee. Licensee shall, at its own expense, defend and
indemnify Palm for damages and reasonable costs incurred in any suit, claim or
proceeding brought against Palm, its subsidiaries or 3Com Corporation alleging
that any Modification infringes any patents, copyrights or trademarks
trademarks, trade secrets, proprietary information or other third party
intellectual property rights in any of the following countries: United States,
Japan, or any member country of the European Union, provided that Licensee is
promptly notified, rendered reasonable assistance by Palm as required, and
permitted to direct the defense or settlement negotiations. Licensee shall have
no liability for any infringement arising from (a) the integration or
combination of the Modifications together with other any software, materials or
products if the infringement would have been avoided in the absence of such
integration or combination; or (b) the use of other than the most current
unaltered version of any Modification provided to Palm, if the infringement
would have been avoided by the use of the then-current version; or (c)
modifications to any Modification made by any third party other than Licensee or
at Licensee's direction.
11.4 Remedies. Should the use of any Modifications be enjoined, or in
the event Licensee reasonably believes that any Modifications may be subject to
an infringement claim, Licensee may, at its option, either: (i) substitute
substantially functionally equivalent non-infringing Modifications; (ii) modify
the infringing Modification so that it no longer infringes but remains
substantially functionally equivalent; (iii) obtain for Palm, at Licensee's
expense, the right to continue use of such item; or (iv) if none of the
foregoing is feasible, Licensee may terminate the license granted in Section
9.5. SECTIONS 11.3 AND 11.4 STATE PALM'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT
TO CLAIMS OF INFRINGEMENT OF PROPRIETARY RIGHTS OF ANY KIND, AND ALL WARRANTIES
OF NON-INFRINGEMENT, EXPRESS OR IMPLIED, ARE SPECIFICALLY DISCLAIMED AND
EXCLUDED.
11.5 Other Indemnity by Licensee. Except for any matter for which Palm
is liable pursuant to Section 11.1 or 11.2, Licensee shall indemnify and defend
Palm against all claims, suits, losses, expenses and liabilities (including
Palm's reasonable attorneys' fees) for bodily injury, personal injury, death and
tangible property damage made against Palm or its subsidiaries as a result of
the use by Licensee of the Palm Software or the negligence, intentional wrongful
acts or omissions, or misrepresentations of Licensee or any person for whose
actions Licensee is legally liable. Licensee shall be solely responsible for any
claims, warranties or representations made by Licensee or its employees or
agents which differ from the warranty provided by Palm hereunder.
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12 CONFIDENTIALITY
12.1 Confidential Information. Each party acknowledges that in the
course of the performance of this Agreement, it may obtain the Confidential
Information of the other party. Except as permitted in Section 2.6, the
Receiving Party (as defined in Section 1.1 (Confidential Information)) shall, at
all times, both during the term of this Agreement and thereafter for a period of
five (5) years keep in confidence and trust all of the Disclosing Party's (as
defined in Section 1.1 (Confidential Information)) Confidential Information
received by it (except for any source code, which shall be kept in confidence
and trust in perpetuity except as provided in Section 2.6). The Receiving Party
shall not use the Confidential Information of the Disclosing Party other than as
expressly permitted under the terms of this Agreement. The Receiving Party shall
take reasonable steps to prevent unauthorized disclosure or use of the
Disclosing Party's Confidential Information and to prevent it from falling into
the public domain or into the possession of unauthorized persons. The Receiving
Party shall not disclose Confidential Information of the Disclosing Party to any
person or entity other than its officers, employees, contractors, and
consultants who need access to such Confidential Information in order to effect
the intent of this Agreement and who have entered into confidentiality
agreements which protect the Confidential Information of the Disclosing Party
sufficient to enable the Receiving Party to comply with this Section 12.1
(Confidential Information). The Receiving Party shall immediately give notice to
the Disclosing Party of any unauthorized use or disclosure of Disclosing Party's
Confidential Information. The Receiving Party agrees to assist the Disclosing
Party to remedy such unauthorized use or disclosure of its Confidential
Information.
12.2 Exceptions to Confidential Information. The obligations set forth
in Section 12.1 (Confidential Information) shall not apply to the extent that
Confidential Information includes information which is: (a) now or hereafter,
through no unauthorized act or failure to act on the Receiving Party's part, in
the public domain; (b) known to the Receiving Party without an obligation of
confidentiality at the time the Receiving Party receives the same from the
Disclosing Party, as evidenced by written records: (c) hereafter furnished to
the Receiving Party by a third party as a matter of right and without
restriction on disclosure; (d) furnished to others by the Disclosing Party
without use of the Disclosing Party's Confidential Information. Nothing in this
Agreement shall prevent the Receiving Party from disclosing Confidential
Information to the extent the Receiving Party is legally compelled to do so by
any governmental investigative or judicial agency pursuant to proceedings over
which such agency has jurisdiction; provided, however, that prior to any such
disclosure, the Receiving Party shall: (i) assert the confidential nature of the
Confidential Information to the agency; (ii) immediately notify the Disclosing
Party in writing of the agency's order or request to disclose: and (iii)
cooperate fully with the Disclosing Party in protecting against any such
disclosure and/or obtaining a protective order narrowing the scope of the
compelled disclosure and protecting its confidentiality.
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12.3 Other Palm Software Source Code Restrictions Licensee shall inform
its employees having access to Palm Software source code of Licensee's
limitations, duties and obligations regarding nondisclosure and copying of such
source code and shall obtain or have obtained their written agreement to comply
with such limitations, duties and obligations. Licensee shall maintain records
of its employees having access to such source code, and upon reasonable notice
Palm may audit such records.
13 LIMITATION OF LIABILITY
13.1 EXCEPT FOR LICENSEE'S EXCEEDING THE SCOPE OF THE LICENSES IN
SECTION 2 (LICENSES) OR ANY LIABILITY OF EITHER PARTY ARISING UNDER SECTION 12
(CONFIDENTIALITY), NEITHER PARTY SHALL HAVE ANY LIABILITY FOR INCIDENTIAL,
CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OR LIABILITIES OF ANY KIND
OR FOR LOSS OF REVENUE, LOSS OF BUSINESS, OR OTHER FINANCIAL LOSS ARISING OUT OF
OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION,
WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR
OTHERWISE, EVEN IF ANY REPRESENTATIVE OF A PARTY HERETO HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
13.2 EXCEPT FOR LIABILITY ARISING UNDER SECTION 11.1 AND 12.1, AND ANY
LIABILITY FOR EXCEEDING THE SCOPE OF THE LICENSE IN SECTION 9.5, PALM'S TOTAL
LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE
AGGREGATE AMOUNTS PAID BY LICENSEE TO PALM HEREUNDER.
14 COMPLIANCE WITH LAW
14.1 Laws Generally. Licensee agrees to comply with all applicable laws,
rules, and regulations in connection with its activities under this Agreement.
14.2 Export Regulations. Neither party shall export, directly or
indirectly, any technical data or software acquired under this Agreement or the
direct product of any such technical data or software to any country for which
the United States Government or any agency thereof, at the time of export,
requires an export license or other government approval, without first obtaining
such license or approval. With respect to any export transactions under this
Agreement, both parties will cooperate in any reasonable manner to effect
compliance with all applicable export regulations.
15 TERM AND TERMINATION
15.1 Term. This Agreement shall be effective from the Effective Date for
a period of five (5) years, unless earlier terminated in accordance with its
terms. Thereafter, this Agreement will automatically renew on its anniversary
dates for successive one (1)
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year terms unless either party provides written notice to the other at least six
(6) months prior to any such anniversary.
15.2 Termination Due to Bankruptcy, etc. In the event a party: (i)
becomes insolvent: (ii) voluntarily files or has filed against it a petition
under applicable bankruptcy or insolvency laws which such party fails to have
released within thirty (30) days after filing; (iii) proposes any dissolution,
composition or financial reorganization with creditors or if a receiver,
trustee, custodian or similar agent is appointed or takes possession with
respect to all or substantially all property or business of such party; or (iv)
such party makes a general assignment for the benefit of creditors, the other
party may terminate this Agreement by giving a termination notice, which
termination shall become effective ten (10) days after mailing.
15.3 Right to Terminate. Either party shall have the right to terminate
this Agreement if the other party is in material breach of any term or condition
of this Agreement and fails to remedy such breach within thirty (30) days after
receipt of written notice of such breach given by the non-breaching party;
provided, however, that a breach of the obligations set forth in Section 12
(Confidentiality) shall be grounds for immediate termination of this Agreement
by the non-breaching party.
15.4 Effect of Termination. Upon the termination or expiration of this
Agreement: (i) the licenses and other provisions of this Agreement shall be
terminated, provided that neither the licenses granted in Section 2.2(a) or
2.2(c) nor the license granted in Section 9.5 shall terminate upon any
expiration or termination of this Agreement unless such termination results from
(A) a breach of the license granted in Section 2.2 or 9.5, respectively, or (B)
a breach of Section 12 which breach directly relates to the Xxxxxx Software or a
Modification, respectively, or (C) termination pursuant to Sections 11.2 or
11.4, respectively or pursuant to Section 15.2 or Section 15.3; (ii) Licensee's
obligation to pay all sums due hereunder shall be accelerated and all such sums
shall be due and payable within forty-five (45) days of the end of the calendar
quarter in which the date of termination or expiration occurred; and (iii) the
Receiving Party shall, within fifteen (15) days of receipt of a written request
by the Disclosing Party to do so, return to the Disclosing Party or destroy all
full or partial copies, in whatever media, of any and all confidential materials
in the Receiving Party's possession which had been furnished to the Receiving
Party by the Disclosing Party pursuant to this Agreement, and the Receiving
Party shall warrant in writing to the Disclosing Party within thirty (30) days
after termination or expiration that all such materials have been returned to
the Disclosing Party or destroyed. Notwithstanding the foregoing, Licensee's
right to reproduce the Xxxxxx Software pursuant to Section 2.2(b) shall
terminate upon any termination or expiration of this Agreement.
15.5 Survival. Neither the termination or expiration of this Agreement
shall relieve either party from its obligations to pay the other any sums
accrued hereunder. The parties agree that their respective rights, obligations
and duties under Sections 4 (Royalties and Fees), 5 (Taxes), 8.2 (Publicity),
8.3 (Branding), 9 (Proprietary Rights), 10 (Warranty), 11 (Indemnification), 12
(Confidentiality), 13 (Limitation of Liability), 14
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(Compliance with Law), 15 (Term and Termination) and 16 (Miscellaneous), as well
as any rights, obligations and duties which by their nature extend beyond the
termination or expiration of this Agreement shall survive any termination or
expiration. In addition, all licenses of Palm Software granted by Licensee
hereunder to end users shall survive any termination or expiration of this
Agreement.
15.6 No Damages For Termination or Expiration. PALM SHALL NOT BE LIABLE
TO LICENSEE FOR DAMAGES OF ANY KIND, INCLUDING INCIDENTAL OR CONSEQUENTIAL
DAMAGES, ON ACCOUNT OF THE TERMINATION OR EXPIRATION OF THIS AGREEMENT IN
ACCORDANCE WITH ITS TERMS. LICENSEE WAIVES ANY RIGHT IT MAY HAVE TO RECEIVE ANY
COMPENSATION OR REPARATIONS ON TERMINATION OR EXPIRATION OF THIS AGREEMENT UNDER
THE LAW OF ANY TERRITORY OR OTHERWISE. Palm will not be liable to Licensee on
account of termination or expiration of this Agreement for reimbursement or
damages for the loss of goodwill, prospective profits or anticipated income, or
on account of any expenditures, investments, leases or commitments made by
Licensee or for any other reason whatsoever based upon or growing out of such
termination or expiration. Licensee acknowledges that: (i) Licensee has no
expectation and has received no assurances that any investment by Licensee in
the promotion of Licensee Services will be recovered or recouped or that
Licensee will obtain any anticipated amount of profits by virtue of this
Agreement; and (ii) Licensee will not have or acquire by virtue of this
Agreement or otherwise any vested, proprietary or other right in the Palm
Trademarks or in "goodwill" thereunder.
16 MISCELLANEOUS
16.1 Notices. Any notice provided for or permitted under this Agreement
will be treated as having been given when (a) delivered personally, (b) sent by
confirmed telex or fax, (c) sent by commercial overnight courier with written
verification of receipt, or (d) mailed postage prepaid by certified or
registered mail, return receipt requested, to the party to be notified, at the
address set forth below, or at such other place of which the other party has
been notified in accordance with the provisions of this Section 16.1 (Notices).
If to Palm: Palm Computing, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Attention: Vice President Strategic
Alliances and Platform Development
Fax: (000) 000-0000
with copies to: Palm Computing, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Attention: General Counsel
Fax: (000) 000-0000
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If to Licensee: OmniSky Corporation
000 Xxxxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
Fax: _________________
Such notice will be treated as having been received upon the earlier of actual
receipt or five (5) days after posting.
16.2 Amendment; Waiver. This Agreement may be amended or supplemented
only by a writing that is signed by duly authorized representatives of both
parties. No term or provision hereof will be considered waived by either party,
and no breach excused by either party, unless such waiver or consent is in
writing signed on behalf of the party against whom the waiver is asserted. No
consent by either party to, or waiver of, a breach by either party, whether
express or implied, will constitute a consent to, waiver of, or excuse of any
other, different, or subsequent breach by either party.
16.3 Severability. If any provision of this Agreement is held invalid or
unenforceable for any reason, the remainder of the provision shall be amended to
achieve as closely as possible the economic effect of the original term and all
other provision shall continue in full force and effect.
16.4 Governing Law and Language. This Agreement shall be governed by and
construed under the laws of the United States and the State of California as
applied to agreements entered into and to be performed entirely within
California between California residents. The parties agree that the United
Nations Convention on Contracts for the International Sale of Goods is
specifically excluded from application to this Agreement. The English-language
version of this Agreement controls when interpreting this Agreement.
16.5 Choice of Forum. The parties hereby submit to the jurisdiction of,
and waive any venue objections against, the United States District Court for the
Northern District of California, San Xxxx Xxxxxx and the Superior and Municipal
Courts of the State of California, Santa Xxxxx County, in any litigation arising
out of the Agreement.
16.6 Injunctive Relief. The copying, disclosure, or use of the Palm
Software or the Documentation in a manner inconsistent with any provision of
this Agreement will cause irreparable injury to Palm for which Palm will not
have an adequate remedy at law. Palm shall be entitled to equitable relief in
court, including but not limited to temporary restraining orders, preliminary
injunctions and permanent injunctions.
16.7 Attorneys' Fees. In any action to enforce this Agreement, the
prevailing party shall be awarded all court costs and reasonable attorneys' fees
incurred, including such costs and attorneys' fees incurred in enforcing and
collecting any judgment.
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16.8 Force Majeure. Except for the payment of money, neither party will
be liable for any failure or delay in performance under this Agreement due to
fire, explosion, earthquake, storm, flood or other weather, unavailability of
necessary utilities or raw materials, war, insurrection, not, act of God or the
public enemy, law, act, order, proclamation, decree, regulation, ordinance, or
instructions of Government or other public authorities, or judgment or decree of
a court of competent jurisdiction (not arising out of breach by such party of
this Agreement) or any other event beyond the reasonable control of the party
whose performance is to be excused.
16.9 Assignment. Palm may assign this Agreement without restriction,
provided the assignee agrees in writing to be bound by the terms of this
Agreement. Licensee may not assign any rights or duties under this Agreement or
assign this Agreement in its entirety, whether by operation of law or otherwise,
without the prior written consent of Palm and any attempt to do so without such
consent will be void; provided, however, that Licensee shall have the right to
assign this Agreement, or any of its rights or obligations hereunder, to any
successor in interest to all or substantially all of Licensee's business or
assets related to this Agreement. This Agreement will bind and inure to the
benefit of the parties and their respective successors and permitted assigns.
16.10 Relationship of the Parties. The parties to this Agreement are
independent contractors. There is no relationship of agency, partnership, joint
venture, employment, or franchise between the parties. Neither party has the
authority to bind the other or to incur any obligation on its behalf.
16.11 Allocation of Risk. The sections on limitation of liability,
warranties and disclaimer of warranties allocate the risks in the Agreement
between the parties. This allocation is an essential element of the basis of the
bargain between the parties.
16.12 Construction of Agreement. This Agreement has been negotiated by
the respective parties hereto and their attorneys and the language hereof shall
not be construed for or against any party. The titles and headings herein are
for reference purposes only and shall not in any manner limit the construction
of this Agreement, which shall be considered as a whole.
16.13 Counterparts. This Agreement may be executed in two counterparts,
each of which shall be deemed an original, but both of which together shall
constitute one and the same instrument. If this Agreement is executed in
counterparts, no signatory hereto shall be bound until both the parties named
below have duly executed or caused to be duly executed a counterpart of this
Agreement.
16.14 Entire Agreement. This Agreement, including all Exhibits to this
Agreement, constitutes the entire agreement between the parties relating to this
subject matter and supersedes all prior or simultaneous representations,
discussions, negotiations, and agreements, whether written or oral.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the dates set forth below effective as of the Effective Date.
PALM COMPUTING, INC., OMNISKY CORPORATION
By: /s/ XXXX XXXXXX By: /s/ XXXXXXX X. XXXXXX
Name: XXXX XXXXXX Name: XXXXXXX X. XXXXXX
Title: Vice President Title: CFO, SVP BUSINESS DEVELOPMENT
Date: 1/5/00 Date: 1/6/00
List of Exhibits
----------------
A Palm Software
B Test Criteria
C Palm Trademark Policy Guidelines
D Maintenance and Support Fees
E Palm Support Services
F Minimum License Terms
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EXHIBIT A
PALM SOFTWARE
Palm OS Object Code
-------------------
1. Palm VII Rom (for use with Poser)
2. Xxxxxx executable (build 51) and build 66
3. Shark ROM (Palm OS 3.3 for Palm III w/ web clipping)
4. SharkEZROM (Palm OS 3.3 for Palm V, Palm Vx, or Palm IIIx w/ web
clipping)
Palm OS Source Code
-------------------
5. Web Clipping Source Code Files (all of which are source code modules of
the Palm OS):
NetMgr.h,INetMgr.h,
Wireless Panel src includes (all of which are source code modules of the
Palm OS):
Wireless.mcp
ResourceControl.c
ResourceControl.h
Wireless.r
WirelessPanel.c
WirelessPanel.h
WirelessRsc.c
Wireless.rsrc
Wireless_res.h
Loopback plugin includes:
SampleNetIF.c
NetInterface.h
Sample Extension includes:
SampleExtension.c
Palm Computing Platform Compatibility test cases
------------------------------------------------
Palm Desktop Software
---------------------
1. Palm Desktop 3.1
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Documentation
-------------
1. Operator manual for Xxxxxx
2. PalmOS NetLib for Mobitex document
Palm Development Environment
----------------------------
1. ROM Build SDK (EZ and non-EZ) includes following components:
system and application prcs
BigROM
PalmDebugger
MakeCard cmd and MakeCard application
Readme (ROM build instructions)
2. Security Key Generation Tools
3. Palm OS Development SDK plus necessary Palm OS 3.3 headers
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EXHIBIT B
TEST CRITERIA
[to be attached]
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EXHIBIT C
PALM TRADEMARK POLICY GUIDELINES
[to be attached]
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EXHIBIT D
MAINTENANCE AND SUPPORT FEES
Year one: $125,000. Payment due in full upon Licensee's completion of its second
round of financing, but not later than May 31, 2000. Payment will apply to
support provided from date of agreement through May 31, 2000.
Year two (beginning June 1, 2000): $100,000. Payments of $25,000 per quarter in
advance.
Each subsequent year: $75,000. Payments of $18,750 per quarter in advance.
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EXHIBIT E
PALM SUPPORT SERVICES
1. Definitions.
"Severity One" Support is defined as support required to address a fatal program
error in the Palm Software which has a critical business impact and precludes
significant useful work from being done or, significantly precludes developer
and/or end-user operations.
"Severity Two" Support is defined as support required to address a program error
in the Palm Software which has a significant business impact where important
features are unavailable with no acceptable workaround and development
operations are seriously impaired.
"Severity Three" Support is defined as support required to address a program
error in the Palm Software with some business impact, such as important features
unavailable but a workaround is available or less significant features are
unavailable with no reasonable workaround.
2. Support Response Times. The parties shall promptly agree in good
faith to share any information and/or documentation which may be required to
permit Palm to identify and resolve any development support requests. The
support response period begins after Palm (a) has enough information to profile
the reported error and (b) can recreate the reported error or has access to a
facility where the error can be recreated ("Start Date"). Palm agrees to use
commercially reasonable efforts to recreate the reported error and respond based
on the following timetable:
"Severity One" Support. Palm shall use reasonable commercial efforts to
resolve or reduce the severity via workaround and/or patch within two (2)
business days of the Start Date, or if unable to resolve such problem within
such timeframe, Palm shall provide its action plan within such timeframe and
provide regular status updates. A final resolution shall be identified in the
action plan. Palm and Licensee problem managers shall review incident after two
(2) business days and every two (2) business days thereafter until the error has
been resolved.
"Severity Two" Support. Palm shall use reasonable commercial efforts to
resolve or reduce the severity via workaround and/or patch within two (2)
business days of the Start Date, or if unable to resolve such problem within
such timeframe, Palm shall provide its action plan within such timeframe and
provide regular status updates. A final resolution problem managers shall review
incident after five (5) business days. A final engineering resolution shall be
identified in the action plan.
"Severity Three" Support. Palm shall use reasonable commercial efforts
to acknowledge the error within ten (10) business days of receipt of notice.
Palm shall
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provide a final engineering resolution within three (3) months or next scheduled
release, whichever is sooner.
So long as Palm is using reasonable commercial efforts to recreate
reported errors and resolve or reduce Severity One and Severity Two problems in
accordance with the action plan provided, Palm's inability to resolve such
problems within the timeframes stated herein or the action plan shall not be
deemed a material breach of Section 7.1 or any other provision of the Agreement.
The prescribed support response times above may be extended as mutually agreed,
such agreement not to be unreasonably withheld, e.g., if resolution of the
problem requires timely hardware certification or test, or if resolution
represents significant risk to the essential functions. Any support requests
that are attributable to any matters other than errors in the unmodified Palm
Software provided by Palm to Licensee hereunder are subject to billing at Palm's
standard time and materials rates.
3. Support Evaluation. The parties will attempt in good faith to
promptly resolve any controversy or claim relating to performance of the
technical support assistance provided by Palm under this Agreement. Each party
may request the other party to involve appropriate senior executives of such
other party who shall have the authority to resolve the matter.
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EXHIBIT F
MINIMUM LICENSE TERMS
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