Hardware Developer Agreement - PalmPilot Modem Casing
This Agreement is entered into as of April 7th, 1998 (the "Effective Date") by
and between 3Com Corporation, a California corporation, having its principal
place of business at 0000 Xxxxxxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000, and
World Cyberlinks, a New York corporation, having its principal place of business
at 000X X. Xxxxxxxx Xxx. Xxxxxxxxxxx, XX 00000 ("Developer").
R E C I T A L S
A. 3Com distributes and markets a family of personal information devices
known as the Pilot 1000, Pilot 5000, and the PalmPilot products (collectively,
the "PalmPilot Product");
B. In connection with the distribution of the PalmPilot Product, 3Com has
designed the PalmPilot Modem which allows the PalmPilot Product to be used with
personal computers. The PalmPilot Modem is a custom-designed assembly that
attaches to the serial port on the PalmPilot Product. A further description of
the Modem assembly is contained in the Modem drawings set forth in Exhibit B
attached hereto. As used in this Agreement, the Modem assembly components are
referred to as the "Modem Technology".
C. The Modem Technology is manufactured by various manufacturers. For a
list of these manufacturers reference Exhibit A attached hereto.
D. Developer desires access to the Modem Technology for the distribution
and sale of products utilizing Modem Technology to its customers for use with
the PalmPilot Product, and in exchange for such access, Developer agrees to
abide by the covenants set forth in this Agreement.
E. 3Com desires to allow Developer to distribute and sell products
containing Modem Technology for use with the PalmPilot Product in accordance
with the terms of this Agreement.
NOW THEREFORE, in consideration of the following mutual covenants and
promises, the parties agree as follows:
AGREEMENT
1. TERM AND TERMINATION.
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(a) Term. The term of this Agreement shall commence as of the
Effective Date and shall continue in full force and effect until terminated by
the parties in accordance with the terms of this Agreement.
(b) Termination. This Agreement may be terminated by either party for
any reason on 30 days prior written notice. Either Party may terminate this
Agreement if the other Party materially breaches or is in default of any
obligation hereunder and such default has not been cured within 10 business days
after receipt of written notice of such default. Each Party may terminate this
Agreement
upon the insolvency, bankruptcy, reorganization, or assignment for the benefit
of creditors of the other party.
2. OWNERSHIP RIGHTS TO THE MODEM TECHNOLOGY.
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The parties acknowledge and agree that 3Com is the sole and exclusive
owner of all rights, title and interest in and to the design of all of the Modem
Technology, including, without limitation, all intellectual property rights
therein.
3. NON-EXCLUSIVITY.
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This Agreement is non-exclusive. 3Com has the right on its sole and
absolute discretion to enter into one or more contracts with other vendors for
the distribution, sale and modification of the Modem Technology.
4. NON-TRANSFERABILITY.
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The rights granted to Developer hereunder shall enure to the benefit
of Developer and Developer only and may not be assigned or transferred by
Developer without the express written consent of 3Com.
5. DISTRIBUTION PRIORITY.
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If Developer places orders for the manufacture of products containing
any Modem Technology with Manufacturer and Manufacturer is unable to promptly
fill all product orders from 3Com due to market demand, manufacturing delays, or
other factors, Developer acknowledges and agrees that Manufacturer shall fulfill
all orders by 3Com for products containing Modem Technology before fulfilling
orders to Developer or Developer's customers.
6. INDEMNIFICATION.
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Developer shall defend, indemnify and hold Palm Computing, Inc., 3Com
Corporation, and its and their parent and affiliated companies, and its and
their officers, directors, employees and agents, harmless from and against any
and all liability, costs, expenses, or damages of any kind or nature including,
but not limited to, reasonable fees of attorneys, accountants, and other
professionals, suffered or incurred by Palm Computing, Inc., 3Com Corporation,
and/or its and their parent and affiliated companies or its or their agents or
representatives, as a result of any action, suit, claims, arbitrations or
proceeding arising from or relating to any breach or claim of breach of any of
the Developer's covenants, warranties or representations hereunder, or by reason
of any claims in respect of the distribution or sale of products containing any
Modem Technology hereunder, and not due to any violation or breach by 3Com of
its covenants or representations hereunder.
7. WARRANTY DISCLAIMER.
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3COM MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER
WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE.
8. CONFIDENTIALITY.
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(a) Confidential Information. 3Com may, from time to time throughout
the term of this Agreement, deliver to Developer certain non-public information
regarding the transactions contemplated by this Agreement, including without
limitation technical information, data, source code, schematics, designs,
drawing, plans, formulas, flow charts, diagnostic routines, business
information, forecasts, financial plans and data, balance sheet information,
customer information, marketing plans, and unannounced product information
(collectively, "Confidential Information"). Such Confidential Information shall
be in writing, marked prominently with the legend "confidential", "proprietary",
or with a similar legend, or if disclosed orally shall be described as
Confidential Information at the time of oral disclosure and confirmed as such in
writing within thirty (30) days thereafter.
(b) Protection. Developer agrees that during the term of this
Agreement and for a period of three (3) years thereafter, Developer shall use
the same degree of care and means that it utilizes to protect its own
information of a similar nature, but in any event not less than reasonable care
and means, to prevent the unauthorized use or the disclosure of such
Confidential Information to third parties. The Confidential Information shall be
disclosed only to employees and contractors of Developer with a "need to know"
who are instructed and agree in writing not to disclose the Confidential
Information and not to use the Confidential Information for any purpose, except
as set forth herein. Developer shall make copies of such agreements reasonably
available to 3Com throughout the term of this Agreement and thereafter, upon
reasonable written request from Palm. Upon the expiration or termination of this
Agreement, Developer shall promptly return to 3Com all of the Confidential
Information of Palm, which Confidential Information is in tangible form and
shall promptly confirm in writing to 3Com that it has done so.
(c) Limitation. The foregoing paragraph shall impose no obligation of
confidentiality upon Developer with respect to any portion of the Confidential
Information received hereunder which is: (i) now or hereafter, through no
unauthorized act or failure to act on Developer's part, becomes generally known
or available; (ii) known to Developer without an obligation of confidentiality
at the time Developer receives the same from Palm, as evidenced by written
records; (iii) hereafter furnished to Developer by a third party as a matter of
right and without restriction on disclosure; or (iv) independently developed by
Developer without use of Palm's Confidential Information. Nothing in this
Agreement shall prevent Developer from disclosing Confidential Information to
the extent Developer is legally compelled to do so by any governmental
investigative or judicial agency pursuant to proceedings over which such agency
has jurisdictions; provided, however, that prior to any such disclosure,
Developer shall (a) assert the confidential nature of the Confidential
Information to the agency; (b) immediately notify 3Com in writing of the
agency's order or request to disclose; and (c) cooperate fully with 3Com in
protecting against any such disclosure and/or obtaining a protective order
narrowing the scope of the compelled disclosure and protecting its
confidentiality.
9. GENERAL MATTERS.
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9.1 Governing Law. This Agreement will be governed by and construed
and interpreted in accordance with the internal laws of the State of California,
excluding that body of law applicable to conflict of laws.
9.2 Waiver and Amendment. No waiver, amendment or modification of any
provision hereof or of any right or remedy hereunder will be effective unless
made in writing and signed by the party against whom such waiver, amendment or
modification is sought to be enforced and this
Agreement may only be amended by a writing signed by both parties. No failure by
any party to exercise, and no delay by any party in exercising, any right, power
or remedy with respect to the obligations secured hereby will operate as a
waiver of any such right, power or remedy.
9.3 Assignment. Except for assignments of this Agreement by Palm to
its parent or affiliated companies, neither this Agreement nor any right or
obligation hereunder may be assigned or delegated by either party without the
express prior written consent of the other party or its successors, which
consent will not be unreasonably withheld, and any assignment or delegation
without such consent will be void.
9.4 Successors and Assigns. This Agreement will be binding upon and
inure to the benefit of the successors and the permitted assigns of the
respective parties hereto.
9.5 Further Assurance. Developer agrees to execute and deliver any
such other further documents and perform any such actions, at Palm's request, as
Palm may reasonably request to further evidence or confirm the rights of Palm
under this Agreement.
9.6 Notices. All notices and communications hereunder shall be sent to
the address or telecopier number stated below (or such other address or
telecopier number as subsequently notified in writing to the other party): (i)
by facsimile with confirmation of transmission, (ii) personal, same or next day
delivery or (iii) sent by commercial overnight courier with written verification
of delivery. All notices so given shall be deemed given upon the earlier of
receipt or one (1) day after dispatch.
Send to: 3Com Corporation
0000 Xxxxxxxxxx Xxxx Xxxxxxxx Xxxx, XX 00000
Attn: Finance Department
(fax #) (000) 000-0000
with a copy to: General Counsel
3Com Corporation
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
(fax #) (000) 000-0000
Developer: World Cyberlinks
000X X. Xxxxxxxx Xxx
Xxxxxxxxxxx, X.X. 00000
Attn: Xxxx Xxxxxxx
(fax #) (000) 000-0000
with a copy to: (Developer's counsel & fax #)
9.7 Entire Agreement. This Agreement constitutes the entire
understanding and agreement of the parties hereto with respect to the subject
matter hereof and supersede all prior agreements or understandings, written or
oral, between the parties hereto with respect to the subject matter hereof.
9.8 Severability. If any provision of this Agreement is declared by a
court of competent jurisdiction to be invalid, void, or unenforceable, such
provision will be enforced to the maximum extent possible and the remaining
provisions of this Agreement will continue in full force and effect to the
maximum extent permissible without being impaired or invalidated in any way.
9.9 Attorneys' Fees. If any claim or controversy arises between the
parties hereto relating to this Agreement, or the breach of this Agreement and
action, including arbitration, by one party hereto taken against the other party
hereto, the prevailing party in such action will be entitled to recover from the
other costs and expenses, including reasonable fees of attorneys, accountants
and other professionals, incurred in taking or defending such action of such
prevailing party.
9.10 Limitation of Liability. EXCEPT FOR BREACHES OF SECTION 8
(CONFIDENTIALITY), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO
THIRD PARTIES FOR LOST PROFITS, CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES
ARISING OUT OF THIS AGREEMENT, REGARDLESS OF WHETHER BASED IN CONTRACT OR TORT,
EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.11 Paragraph Headings. The headings used in this Agreement are for
convenience only and shall not be considered part of the Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their duly authorized representatives effective as of the date first above
written.
Developer 3Com Corporation
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxx Xxxxxx
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Print Name: Xxxx X. Xxxxxxx Print Name: Xxxx Xxxxxx
Print Title: President Print Title: VP Stratic Alliance
Phone Number: 000-000-0000
Fax Number: 000-000-0000
Email Address: xxxxxxxx@xx.xxxxxx.xxx
Non-Confidential Product Description: Docking Station/Cradle
(optional)
