SOFTWARE LICENSE AGREEMENT
This Software License Agreement is entered into by and between Palm
Computing, Inc., a subsidiary of 3Com Corporation (collectively, "3Com"), a
California corporation with a place of business at 1565 Charleston Road,
Mountain View, California 94043, and JD Technology, Inc. ("JD"), a California
corporation with a place of business at P.O. Box 7066, Menlo Park, California.
The effective date of this Agreement shall be the date last executed below
("Effective Date").
RECITALS
A. 3Com or its suppliers are the owners of software and other technology
related to the 3Com Palm Computing platform.
B. JD is a developer, manufacturer and marketer of handheld computing
products.
C. JD desires to obtain a license to certain 3Com software and
technology, as more particularly described in Exhibit A (Palm Software), in
order to develop, manufacture and market handheld computing products
incorporating such 3Com software and technology. 3Com is willing to grant JD
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 mark 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 a Receiving Party or a Disclosing Party
shall also include all present and future subsidiary and parent companies of
such party, subject to the restrictions contained in this Agreement.
1.2 "JD Products" means any handheld computing products developed by JD,
or for JD by a third party, which contain Palm Software, in whole or part,
combined with JD's added value.
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1.3 "JD Software" means any software developed or acquired by JD, or for
JD by a third party, for the JD Products.
1.4 "Net Revenue" means monies received or receivable by JD in
connection with the sale, permitted licensing, distribution or other
exploitation of the JD Products, but shall exclude taxes, returns, rebates, and
separately stated shipping and handling costs or maintenance, support, and
engineering fees.
1.5 [*]
1.6 "Palm Device Applications" means the applications files described in
Exhibit A (Palm Software).
1.7 "Palm Device Applications SDK" means 3Com's commercially available
software development kit for applications for the Palm Computing platform as
described in Exhibit A (Palm Software).
1.8 "Palm Desktop Software" means the 3Com desktop software related to
the 3Com Product described in Exhibit A (Palm Software).
1.9 "Palm Development Environment" means the development and debugging
tools relating to the Palm OS described in Exhibit A (Palm Software), including
a list of certain third-party development tools that are commercially available
relating to the Palm OS, provided that JD shall be responsible for obtaining any
necessary rights for such third-party development tools.
1.10 "Palm End-User Documentation" means the end-user documentation
related to the Palm Software as described in Exhibit A (Palm Software).
1.11 "Palm GUI" means the graphical user interface files for the Palm
Computing platform as described in Exhibit A (Palm Software).
1.12 "Palm Installation CD Files" means the artwork, guided tour files,
and other files and related elements of the Palm installation CD as described in
Exhibit A (Palm Software).
1.13 "Palm Materials" shall mean: (a) the Palm End-User Documentation,
Palm Technical Documentation, and any 3Com end user materials provided under
Section 7.3 below; and (b) all current and future foreign language versions
thereof, to the extent that 3Com has the right to grant JD rights to such
versions.
1.14 "Palm OS" means the Palm operating system software files and build
tools described in Exhibit A (Palm Software), including: (a) software and
documentation provided by 3Com to JD pursuant to Section 6.1; and (b) the Palm
OS Drivers. All Palm OS software shall be provided in object code form only,
except as may be agreed by the parties pursuant to Section 6.2(b).
* Confidential treatment has been requested for certain portions of this
document pursuant to an application for confidential treatment sent to the
Securities and Exchange Commission. Such portions are omitted from this filing
and filed separately with the Securities and Exchange Commission.
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1.15 "Palm OS Drivers" means the software drivers and sample extensions
for the Palm OS as described in Exhibit A (Palm Software).
1.16 "Palm Software" shall mean: (a) the Palm Device Applications, Palm
Device Applications SDK, Palm Desktop Software, Palm GUI, Palm Installation CD
Files, Palm OS, Palm OS Drivers, and Palm Test Code; and (b) all current and
future foreign language versions thereof, to the extent that 3Com has the right
to grant JD rights to such versions.
1.17 "Palm Technical Documentation" means the technical documentation,
repair manuals, service manual, engineering schematics, and other materials
relating to the Palm OS as described in Exhibit A (Palm Software).
1.18 "Palm Test Code" means the software quality assurance and hardware
and production test code described in Exhibit A (Palm Software).
2. LICENSES
2.1 Development and Documentation License.
(a) 3Com Deliverables. Subject to the terms and conditions of this
Agreement, 3Com hereby grants to JD a limited, non-exclusive, non-transferable
(except as provided in Section 17.9), fully-paid license to use and reproduce
the Palm Development Environment, the Palm Software in object code form, and the
Palm Materials solely to develop, manufacture, test and support the JD Products.
Such license shall include the right to use any 3Com intellectual property
rights associated with or related to use of the Palm Development Environment,
Palm Software and/or Palm Materials, in connection with the development,
manufacturing, testing or support of such items solely within JD Products.
(b) Derivative Works. Subject to the terms and conditions of this
Agreement, 3Com hereby grants to JD a limited, non-exclusive, non-transferable
(except as provided in Section 17.9), fully-paid license to create derivative
works based upon the Palm Materials and, to the extent permitted under Section
6.2 (OS Enhancements), the Palm OS (collectively, "Derivative Works") solely for
use within JD Products.
2.2 Distribution License. Subject to the terms and conditions of this
Agreement, 3Com hereby grants to JD a limited, non-exclusive, non-transferable
(except as provided in Section 17.9), worldwide, royalty-bearing license to use,
reproduce, and distribute (directly and through third parties) solely for use
within JD Products: (i) the Palm Software in object code form only; (ii) the
Palm Materials (subject to Section 13); and (iii) Derivative Works. Such license
shall include the right to use any 3Com intellectual property rights associated
with or related to use of the Palm Development Environment, Palm Software and/or
Palm Materials, in connection with the distribution of such items within JD
Products. Such license shall also include the right to grant end user
sublicenses subject to the provisions of Section 10.4 below.
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2.3 Compatibility and Trademark License.
(a) Compatibility Testing. 3Com will finalize and provide to JD
compatibility test criteria for ensuring interoperability of third party add-on
software for the Palm OS and the JD Products ("Test Criteria") within ninety
(90) days of the Effective Date. JD and 3Com will agree on a reasonable time
period for compatibility testing of the JD Products by any of 3Com's independent
testing labs ("Test Period") which shall be incorporated into the Test Criteria.
When finalized, such Test Criteria shall be attached as Exhibit B (Test
Criteria) to this Agreement. 3Com shall use its reasonable discretion in
determining the contents of the Test Criteria; provided that, in the event JD
does not approve of the Test Criteria, as its sole and exclusive remedy JD may
terminate this Agreement immediately without liability within thirty (30) days
of its first receipt of the Test Criteria from 3Com. Prior to the release of any
and all JD Products, or any upgrade or new version thereof, JD shall submit the
JD Products at its expense to any of 3Com's approved independent compatibility
testing labs ("Approved Testing Lab") for compatibility testing in accordance
with the Test Criteria. If the Approved Testing Lab rejects the JD Products
because of a nonconformance with the Test Criteria, then such testing lab will
provide JD and 3Com a detailed written statement of the reasons for such
rejection. ("Statement of Errors"). Upon receipt of the Statement of Errors, JD
shall use reasonable efforts to modify the JD Products 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 if major new functionality is added to the
Palm Software. 3Com shall use its reasonable discretion in determining new Test
Criteria for such Palm Software with such new functionality and will apply such
new Test Criteria to its internal customers and to JD and its other licensees.
(b) Compatibility Certification Requirement. JD agrees that it
shall not release or distribute any JD Products which have not received
compatibility certification from an Approved Testing Lab in accordance with the
Test Criteria. Each version of a JD Product shall be required to pass the Test
Criteria only once, regardless of 3Com's subsequent modifications to the Palm
Software. However, in order to obtain compatibility certification for Palm
Software with new functionality and new Test Criteria as described in the last
paragraph of Section 2.3(a), JD may submit JD Products for compatibility testing
against such new Test Criteria in accordance with Section 2.3(a). JD may
indicate compatibility certification for JD Products only with respect to the
version(s) of the Test Criteria which the JD Products have passed.
(c) Trademark License. Subject to subsections (a) and (b) above and
the other terms and conditions of this Agreement, 3Com hereby grants to JD a
limited, non-exclusive, nontransferable (except as provided in Section 17.9),
fully-paid license to use, subject to the guidelines set forth in 3Com's
Trademark Policy Guidelines attached hereto as Exhibit C, the "Palm Computing
Platform Compatible" trademark and such other 3Com trademarks and the respective
stylistic marks as may be mutually agreeable and the artwork for which has been
provided by 3Com to JD (collectively, the "3Com Trademarks") in connection with
the marketing and sale of JD Products that have received compatibility
certification in accordance with subsection (a) above. JD shall use such
trademarks in conjunction with the distribution, promotion, and marketing of any
JD Products that have received compatibility certification, consistent with the
guidelines set forth in Exhibit C. 3Com shall have the right to receive free
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samples of all advertising and promotional materials and reasonable numbers of
sample production units of the JD Products and related JD documentation on which
such trademarks are used to ensure that 3Com's quality standards are maintained.
The foregoing license shall be limited to use of the 3Com Trademarks for the
purposes of Section 8.3. JD shall have the right to permit its [*] for the JD
Products to use the 3Com Trademarks as set forth herein, provided that JD
contractually obligates such [*] to comply with the terms of Section 7.3 and
this Section 2.3, and provided further that 3Com reserves the right to enforce
and protect its trademark rights directly in the event of any failure to comply
with such terms.
2.4 Right to Sublicense.
(a) [*] Within thirty (30) days of the execution of each [*], JD
shall notify 3Com in writing of such execution and the identity of the [*]. Each
such [*] will contain provisions that protect 3Com's proprietary rights to no
less of an extent than such rights are protected by Sections 2.3 (Compatibility
and Trademark License), 2.5 (No Reverse Engineering), 2.6 (Inspection Rights),
8.3 (Branding), 10 (Proprietary Rights), 13 (Confidentiality), and 15 (Export
Regulations) of this Agreement. In the event of any failure by any [*] to comply
with the foregoing terms of their [*], JD shall use its reasonable efforts to
enforce and protect 3Com's intellectual property rights against such [*],
provided that 3Com reserves the right to enforce and protect its intellectual
property rights directly against such [*] with the cooperation of JD.
(b) Subject to the requirements of Sections 2.5 and 13, JD shall
have the right to sublicense its rights under Section 2.1 to consultants and
contractors solely for the purpose of developing, manufacturing, testing, and
supporting JD Products for JD.
(c) Except as specified in this Section 2.4, JD shall not have
the right to sublicense any of its rights under this Agreement.
2.5 No Reverse Engineering. JD shall not reverse engineer, reverse
compile or disassemble any Palm Software, or otherwise attempt to derive the
source code to any Palm Software. The foregoing shall not apply to such
activities conducted in the ordinary course of technical support of JD Products
such as may occur through the use of debugging tools.
2.6 Inspection Rights. 3Com shall have the right, upon reasonable
advance notice, to inspect JD's records and facilities, and its [*], with
respect to the manufacture of the JD Products hereunder and to receive sample
units thereof in order to verify that such manufacturing is within the scope of
this Agreement, and that there are appropriate security procedures to protect
3Com's Confidential Information. JD shall have similar rights with respect to
its contract manufacturers sublicensed under Section 2.4(b).
2.7 No Other Licenses. The licenses granted under this Agreement are
specifically set forth herein, and no licenses are granted by 3Com to JD by
implication or estoppel.
* Confidential treatment has been requested for certain portions of this
document pursuant to an application for confidential treatment sent to the
Securities and Exchange Commission. Such portions are omitted from this filing
and filed separately with the Securities and Exchange Commission.
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2.8 Limitations on Scope of Agreement. Notwithstanding the other terms
and conditions of this Agreement, the rights granted to JD under this Agreement
do not, and will not, include:
(a) [*]
(b) [*]
(c) any right or license to sublicense any of the foregoing rights
to any OEMs, consultants, contractors, or other third parties.
3. DELIVERY AND SOURCING
3.1 Delivery of Licensed Materials. Within forty-five (45) days
following the Effective Date, 3Com will deliver to JD a complete and current set
of the Palm Software, Palm Development Environment and Palm Materials.
3.2 Third Party Sourcing. Exhibit D contains a list of custom components
("Components") that JD may wish to purchase from 3Com's third party component
suppliers and/or manufacturers ("Sources") for incorporation in JD Products.
3Com hereby grants JD the right to use such suppliers and procure such
Components during the term of this Agreement, and will notify such Sources of
the same. In the event that such Sources are unable to promptly fill all
Component orders from 3Com due to market demand, manufacturing delays, or other
factors, JD acknowledges and agrees that such Sources shall fulfill all orders
from 3Com before fulfilling orders from JD or JD's [*].
4 ROYALTIES, FEES, AND REPORTS
4.1 Royalties. JD shall pay to 3Com royalties on its Net Revenues
("Royalties") as specified in Exhibit E (Royalties and Fees). Such royalties
shall be due and payable to 3Com regardless of whether JD collects payments for
the JD Products from JD's customers.
4.2 Maintenance and Support Fees. JD shall pay to 3Com fees as specified
in Exhibit E (Royalties and Fees) for maintenance, support, updates, and
upgrades provided by 3Com to JD pursuant to Sections 6.1 and 7. Such fees shall
be due and payable to 3Com in advance beginning one year after the Effective
Date, regardless of whether JD collects payments for the JD Products or their
maintenance and support from JD's customers.
4.3 Reports. JD shall keep adequate records to verify all reports and
payments to be made to 3Com pursuant to this Agreement for a period of two (2)
years following the date of
* Confidential treatment has been requested for certain portions of this
document pursuant to an application for confidential treatment sent to the
Securities and Exchange Commission. Such portions are omitted from this filing
and filed separately with the Securities and Exchange Commission.
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such reports and payments. 3Com shall have the right to select an independent
certified public accountant mutually agreeable to the parties to inspect no more
frequently than annually the records of JD on reasonable notice and during
regular business hours to verify the reports and payments required hereunder. If
such inspection should disclose any underreporting, JD shall pay 3Com such
amount within thirty (30) days of the conclusion of such inspection. The entire
cost of such inspection shall be borne by 3Com; provided, however, that if JD 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 JD.
5. PAYMENT TERMS
5.1 Payment. Royalties shall accrue upon shipment to a customer of JD
Products by JD and shall be payable within [*] after the end of each calendar
[*]. Each Royalty payment shall be accompanied by a statement setting forth in
sufficient detail the basis upon which royalties were calculated. Payments and
statements shall be sent to 3Com at the address set forth at the beginning of
this Agreement or such other address as 3Com may designate in writing.
5.2 Royalty-Free Units of JD Products. JD shall have the right to
manufacture and distribute a commercially reasonable number of JD Products,
provided that it does not receive any revenue therefrom, for the following
purposes without incurring a Royalty obligation to 3Com: units for testing,
units with limited functionality for reseller point of purchase and
demonstration, units provided to 3Com, Palm, or other Palm licensees, units used
internally by employees or contractors of JD, and units given to press and
analysts.
5.3 [*]. [*] Such option will be JD's sole and exclusive remedy for
3Com's breach of this Section 5.3. The parties acknowledge that 3Com's current
license agreements with [*] and [*] are exempt from the requirements of this
provision.
5.4 Taxes. In addition to any other payments due under this Agreement,
JD agrees to reimburse and hold 3Com harmless from any sales, use, excise,
import or export, value added or similar tax or duty, any other tax not based on
3Com'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 3Com may incur in respect of this Agreement.
6. UPDATE RESPONSIBILITIES AND OS ENHANCEMENTS
6.1 Updates and Additions to Palm Software and Palm Materials. During
the term of this Agreement and subject to Section 9.4 (3Com Update and Support
Obligations), 3Com shall
* Confidential treatment has been requested for certain portions of this
document pursuant to an application for confidential treatment sent to the
Securities and Exchange Commission. Such portions are omitted from this filing
and filed separately with the Securities and Exchange Commission.
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deliver to JD all upgrades, bug fixes, modifications, enhancements and new
versions of the Palm Software and Palm Materials within ten (10) business days
after 3Com's internal beta releases or production releases. Upon such delivery,
the licenses granted to JD pursuant to Section 2 above shall be deemed to
include the items delivered pursuant to this Section 6.1. JD acknowledges that
during the term of this Agreement, in addition to delivering to JD the upgrades,
bug fixes, modifications, enhancements and new versions referred to above, 3Com.
expects to release separate modules and components for the Palm Computing
platform for which 3Com 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.
6.2 OS Enhancements.
(a) Approved OS Enhancements. In the event that JD requests in
writing that 3Com add new functionality to the Palm OS requiring enhancements to
the Palm OS source code, 3Com will consider such request in good faith and will
respond to JD 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 3Com intends to implement such request and, if so, with a proposed
schedule for implementation. In the event 3Com approves such request under a
proposed schedule reasonably acceptable to JD ("Approved OS Enhancements"), 3Com
will use its reasonable commercial efforts to implement such enhancements within
the proposed schedule, whereupon such Approved OS Enhancements will be deemed
additional Palm OS software for all purposes of this Agreement. Upon delivery to
JD, the licenses granted to JD pursuant to Section 2 above shall be deemed to
include such Approved OS Enhancements. JD shall execute all assignments and
other documents as may be requested by 3Com to evidence and perfect 3Com's
ownership of the Approved OS Enhancements and the intellectual property rights
therein.
(b) Implementation by JD. To the extent that 3Com rejects JD's
request for Palm OS enhancements, or if 3Com's proposed schedule is not
reasonably acceptable to JD, then JD may notify 3Com in writing that JD wishes
to implement such enhancements itself, whereupon the parties will negotiate in
good faith the terms under which JD will develop the enhancements, including:
(i) which Palm OS source code and tools JD will require; (ii) the limitations
that will be placed on JD's (and any contractors') use of such source code and
tools; (iii) the parties respective intellectual property rights in such
enhancements; (iv) 3Com's responsibility, if any, for support and maintenance of
such enhancement; and (v) JD's responsibility for any costs and expenses that
3Com may incur in connection with such implementation, support, and maintenance.
7. SUPPORT
Subject to Section 9.4 (3Com Update and Support Obligation), 3Com shall
provide JD with the following support during the term of this Agreement in
accordance with the 3Com Support terms set forth in Exhibit F (3Com Support
Services).
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7.1 Development Support. 3Com will provide JD with a reasonable level of
support by telephone, e-mail, fax or, if requested by JD, in person at 3Com's
Mountain View and/or Santa Clara, California site, during 3Com's normal business
hours (8:00 am - 5:00 pm California time, excluding holidays) in connection with
JD's use of the Palm Software to develop and support the JD Products, including
the use of reasonable commercial efforts: (i) to answer JD'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. JD shall designate up to two qualified individuals per
Designated Site to act as primary technical liaisons for communications with
3Com's technical support staff. 3Com shall designate two qualified individuals
to act as primary and secondary technical liaisons for communications with JD's
technical support staff.
7.2 Customer Support Training. During the term of this Agreement, 3Com
shall, at its expense, provide JD 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) JD employees engaged in the technical support of the JD Product. 3Com
shall further provide to JD, at 3Com's expense, similar training for
modifications or other revisions to the Palm Software, as it relates to customer
support. Training will be conducted at 3Com's facilities in Mountain View and/or
Santa Clara, California or such other 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. JD shall provide a reasonable quantity of appropriate JD Product units
as training aids. 3Com shall provide copies of the student training guides, and
all other necessary materials to each trainee and to JD. All other training
requested by JD and provided by 3Com shall be billed at 3Com's standard rates.
7.3 Customer Support. JD shall be solely responsible for First Level
Support and Second Level Support of the JD Products. 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 JD Product. In addition, 3Com will provide JD with Third Level Support
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, 3Com shall permit JD to create hyperlinks to the 3Com Web site
and to display certain 3Com end user materials on JD's Web site for customer
support purposes, subject to 3Com's prior approval of each proposed use. During
the term of this Agreement, JD shall permit 3Com to create hyperlinks to the JD
Web site and to display certain JD end-user materials on 3Com's Web site for
customer support purposes, subject to JD'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 JD Products.
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 JD
Products, performs JD Product 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
3Com.
(iii) "Third Level Support" means backup technical support to
two representatives of JD's Second Level Support team (the "Authorized
Callers"). 3Com will identify to JD 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 3Com's and
JD's technical support and/or escalation centers. JD will provide a list of
Authorized Callers including names, address, phone numbers, and Internet e-mail
address. 3Com will provide a similar list of Designated Support Personnel. These
lists will be reviewed quarterly and updated as required.
(b) Support Timing. 3Com shall make Third Level Support available
via telephone, FAX or E-Mail solely to JD's Authorized Callers during 3Com's
normal business hours (8:00 am -- 5:00 pm California time, excluding holidays).
3Com. shall use reasonable commercial efforts to answer support questions within
the timeframes specified in Exhibit F (3Com Support Services). So long as 3Com
is using reasonable commercial efforts to answer such questions, 3Com's
inability to resolve answer such question shall not be deemed a material breach
of the Agreement.
(c) Direct Customer Support. 3Com will not be obligated to provide
direct support of any kind to JD's customers or end users pursuant to this
Agreement. JD will provide sufficient information and/or training regarding the
JD Products to 3Com's Designated Support Personnel to enable 3Com to properly
assist JD in resolving problems.
8. MARKETING AND PUBLICITY
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 and current or
potential Non-Corporate Investors, 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
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Agreement will promptly notify the other party and permit the other party to
review and participate in the application process seeking confidential
treatment. "Non-Corporate Investors" shall mean venture capital investors/funds
and investment banking investors/funds.
8.3 Branding. JD and its [*] will use the 3Com Trademarks in
conjunction with the distribution of the JD Products and in their advertising,
promotional and printed materials for the JD Products and on the JD Products.
8.4 Nonsolicitation. JD agrees that during the first year of the term of
this Agreement JD will not directly or indirectly, either for itself or any
other person or entity, solicit any individual who is engaged as an employee,
agent or independent contractor, by 3Com or 3Com's subsidiaries (including but
not limited to the Palm Computing subsidiary of 3Com) to terminate his or her
employment or engagement with 3Com or such subsidiary and/or to become an
employee, agent or independent contractor of JD or such other person or entity;
provided, however, that the foregoing limitation will not apply to any
solicitation that occurs after such individual either: (i) initiates contact
with JD regarding terminating his or her employment or engagement with 3Com or
such subsidiary and/or becoming an employee, agent or independent contractor of
JD or such other person or entity; or (ii) responds to advertisements of general
circulation (including general postings on Websites) placed by, or on behalf of,
JD or such other person or entity regarding terminating his or her employment or
engagement with 3Com or such subsidiary and/or becoming an employee, agent or
independent contractor of JD or such other person or entity. JD further agrees
that during the first year of the term of this Agreement it will not directly
solicit, either for itself, or any other person or entity, any strategic partner
of the Palm Computing subsidiary of 3Com to cease doing business with 3Com.
9. [*]
9.1 [*]. Within thirty (30) days of the execution of this Agreement [*],
3Com agrees to [*] with a reputable, financially responsible,
industry-recognized party consented to by both parties to [*]. A fully executed
copy of the [*], together with a receipt [*], shall be delivered to JD within
five (5) days after the execution of the [*]. In addition, [*] such materials
shall become [*]. The [*] shall be borne by JD. The [*] will be authorized to
deliver the [*] to JD [*]
* Confidential treatment has been requested for certain portions of this
document pursuant to an application for confidential treatment sent to the
Securities and Exchange Commission. Such portions are omitted from this filing
and filed separately with the Securities and Exchange Commission.
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[*]. JD acknowledges and agrees that the [*] do not, and will not, contain any
[*] owned by third parties.
9.2 Use. In the event JD [*] under this Section 9, JD shall have a
limited, nonexclusive, nontransferable (except as provided in Section 17.9)
license to use and modify the [*] at the Designated Sites solely to continue
developing, manufacturing, testing and supporting JD Products. The foregoing
license shall survive termination of this Agreement for a period of [*] from
such termination, subject to earlier termination if JD breaches its
confidentiality obligations with respect to the [*]. Upon termination of the
foregoing license, JD shall promptly: (i) return all [*], including but not
limited to all copies thereof in whole and in part, to 3Com; and (ii) destroy
all copies thereof, in whole and in part, residing within any computers in JD's
control. Except to consultants consistent with Section 13 (Confidentiality), JD
may not disclose any of the [*] to third parties under any circumstances. JD
shall own all proprietary rights in modifications made pursuant hereto, subject
to 3Com's underlying rights to the unmodified [*].
9.3 [*] Dispute Resolution. In the event of a dispute regarding whether
3Com has materially breached Sections 6.1 or 7.1 of this Agreement and failed to
cure such breach within the applicable cure period, the parties shall submit the
matter for resolution pursuant to the arbitration procedure set forth in the
[*], in which case the [*] shall not be released to JD unless and until the
arbitrator finds that there has been such breach. Upon a finding of such breach
by the arbitrator, the [*] shall be released to JD immediately.
9.4 3Com Update and Support Obligations. The parties agree that in the
event the [*], 3Com's obligations pursuant to Sections 6.1 (Updates and
Additions to 3Com Software and Materials) shall terminate upon the earlier to
occur of: (a) 3Com delivering to JD the next major version of the 3Com Software
and Palm Materials subsequent to the version contained in the [*]; or (b) [*]
following the date of such release. In addition, in the event of such release,
3Com's obligations pursuant to Section 7 (Support) shall terminate [*] following
the date of such release.
10. PROPRIETARY RIGHTS
10.1 Title. JD acknowledges that the Palm Software and Palm Materials
are the valuable trade secrets of 3Com. 3Com shall be the sole and exclusive
owner of the Palm Software. Subject always to 3Com's ownership of the Palm
Software, JD shall be the sole and exclusive owner of the JD Products and JD
Software. Applications for the JD Products shall belong solely and exclusively
to the party developing such applications.
10.2 Proprietary Rights Notices. JD agrees that it will not remove,
alter or otherwise obscure any proprietary rights notices appearing in the Palm
Software and Palm Materials. Further, JD agrees that it will cause to appear on
the container or label for each unit of the JD
* Confidential treatment has been requested for certain portions of this
document pursuant to an application for confidential treatment sent to the
Securities and Exchange Commission. Such portions are omitted from this filing
and filed separately with the Securities and Exchange Commission.
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Products manufactured hereunder appropriate patent and copyright notices and
proprietary data legends as contained in the Palm Software delivered by 3Com or
as otherwise reasonably required by 3Com.
10.3 U.S. Government Restricted Rights Legend. All 3Com 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 3Com'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. JD will: (a) identify and
license the software developed by JD hereunder in all proposals and agreements
with the United States Government or any contractor therefor; and (b) legend or
mark such software provided pursuant to any agreement with the United States
Government or any contractor therefor in a form sufficient to obtain for 3Com
and its suppliers the protection intended by this Section 10.3 (U.S. Government
Restricted Rights Legend). JD agrees not to remove or deface any portion of any
legend on any software or documentation delivered to it under this Agreement.
10.4 End-User Licensing. JD agrees that each copy of the software
distributed by JD hereunder will be accompanied by a copy of JD's standard end
user software license; provided, however, that the terms of such license will be
drafted so as to apply to the Palm Software and shall be at least as protective
of the Palm Software as: (i) the terms and conditions JD uses for its own
software products; (ii) the minimum terms and conditions set forth in Exhibit G
(Minimum Terms and Conditions of End User License); and (iii) the terms and
conditions governing this Agreement. JD agrees to enforce the terms and
conditions applicable to the Palm Software contained in such license.
11. WARRANTY
11.1 3Com Warranty. 3Com warrants that for a period of ninety (90) days
after receipt by JD of the Palm Software and Palm Materials (the "Warranty
Period") the media on which 3Com delivers the Palm Software and Palm Materials
to JD shall be free of defects in material and workmanship, and the Palm
Software will perform substantially in accordance with the Palm End-User
Documentation. As JD's sole and exclusive remedy for any breach of such
warranty, 3Com shall replace any such defective media and/or correct any such
performances problems in accordance with Sections 6.1 and 7 promptly following
receipt of written notice from JD of such defects during the Warranty Period.
EXCEPT FOR THE LIMITED WAS SET FORTH IN THIS SECTION 11, 3COM MAKES NO
WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, AS TO ANY MATTER WHATSOEVER. IN
PARTICULAR, ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED.
11.2 JD Product Warranty. JD shall be solely responsible for customer
warranty of any and all products manufactured by JD pursuant to this Agreement.
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11.3 Year 2000 Warranty.
(a) 3Com warrants to JD that the Palm Software will continue
performing properly with regard to date-data on and after January 1, 2000,
provided that all other products used by JD in connection or combination with
the Palm Software accurately exchange date-data with the Palm Software. 3Com
makes no certification regarding the performance of any other 3Com 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 JD notifies 3Com
thereof before April 1, 2000, 3Com shall, at its option and expense, provide JD
with a software update which would effect the proper performance of the Palm
Software or deliver to JD 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.
12. INDEMNIFICATION
12.1 By 3Com. 3Com shall, at its own expense, defend and indemnify JD
for damages and reasonable costs incurred in any suit, claim or proceeding
brought against JD alleging that the Palm Software, Palm Materials or 3Com
Trademarks licensed pursuant to this Agreement infringe (i) any patents in the
U.S., Canada, Japan, or the European Community, (ii) any copyrights worldwide,
or (iii) any trademarks in any countries in which 3Com markets products in
connection with the 3Com Trademarks, or misappropriate any trade secrets,
provided that 3Com is promptly notified, rendered reasonable assistance by JD as
required, and permitted to direct the defense or settlement negotiations. 3Com
shall have no liability for any infringement arising from: (a) the integration
or combination of the Palm Software, Palm Materials or Com, Trademarks together
with other software, materials or products not integrated or combined by 3Com,
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 3Com, if the infringement would have been avoided by the
use of the then-current release, and if 3Com has provided such current release
to JD; or (c) modifications to the Palm Software or Palm Materials requested by
JD.
12.2 Remedies. In the event 3Com reasonably believes that the use or
distribution of any Palm Software, Palm Materials or 3Com Trademarks is likely
to be enjoined, 3Com may, at its option, either: (i) substitute functionally
equivalent non-infringing Palm Software or Palm Materials, as the case may be;
(ii) modify the infringing item so that it no longer infringes but remains
functionally equivalent; (iii) obtain for JD, at 3Com's expense, the right to
continue use of such item; or (iv) if none of the foregoing is feasible, 3Com
may take back such infringing item or items and terminate only that portion of
the license associated with respect to such item or items, subject to a mutually
satisfactory equitable reduction in the Royalty and fees payable under this
Agreement. Should the use or distribution of any Palm Software, Palm Materials
or 3Com Trademarks be enjoined, 3Com shall, at its option, either: (i)
substitute functionally equivalent non-infringing Palm Software or Palm
Materials, as the case may be; (ii) modify the infringing item so that it no
longer infringes but remains functionally equivalent; (iii) obtain for
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JD, at 3Com's expense, the right to continue use of such item; or (iv) if none
of the foregoing is feasible, 3Com may take back such infringing item or items
and terminate only that portion of the license associated with respect to such
item or items, subject to a mutually satisfactory equitable reduction in the
Royalty and fees payable under this Agreement. Notwithstanding the foregoing, JD
acknowledges that 3Com may undertake to obtain patent licenses from third
parties relating to the Palm Software, and in such event the royalty obligation
for the JD Products arising from such patent licenses shall be passed through
to, and paid at the direction of 3Com by JD; provided, however, that the
per-unit royalty obligation payable by JD shall not exceed the per-unit or
percentage royalty obligation (whichever is less) payable by 3Com for products
similar to the JD Products, and shall not in any event exceed [*]. SECTIONS 12.1
and 12.2 STATE JD'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.
12.3 By JD. JD shall, at its own expense, defend and indemnify 3Com for
damages and reasonable costs incurred in any suit, claim or proceeding brought
against Palm Computing Inc., 3Com Corporation or its and their subsidiaries
alleging that the JD Products, JD Software and/or related materials infringe (i)
any patents in the U.S., Canada, Japan, or the European Community, (ii) any
copyrights worldwide, or (iii) any trademarks in any countries in which JD
markets products in connection with the 3Com Trademarks, or misappropriate any
trade secrets, provided that JD is promptly notified, rendered reasonable
assistance by 3Com as required, and permitted to direct the defense or
settlement negotiations. JD shall have no liability for any infringement arising
from: (a) the integration or combination of the JD Products or JD Software
together with other software, materials or products not integrated or combined
by JD, if the infringement would have been avoided in the absence of such
integration or combination; or (b) use or distribution of Palm Software or Palm
Materials. SECTION 12.3 STATES 3COM'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO
CLAIMS OF INFRINGEMENT OF PROPRIETARY RIGHTS OF ANY KIND, AND ALL WARRANTIES OF
NONINFRINGEMENT, EXPRESS OR IMPLIED, ARE SPECIFICALLY DISCLAIMED AND EXCLUDED.
12.4 Other Indemnity. Each party shall indemnify and defend the other
against all claims, suits, losses, expenses and liabilities (including
reasonable attorneys' fees) for bodily injury, personal injury, death and
tangible property damage as a result of the negligence, intentional wrongful
acts or omissions, or misrepresentations of the indemnifying party or any person
for whose actions it is legally liable, provided that the indemnifying party is
promptly notified, rendered reasonable assistance by the indemnified party as
required, and permitted to direct the defense or settlement negotiations.
13. CONFIDENTIALITY
13.1 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. The Receiving Party (as defined in Section 1.1
(Confidential Information)) shall, at all times,
* Confidential treatment has been requested for certain portions of this
document pursuant to an application for confidential treatment sent to the
Securities and Exchange Commission. Such portions are omitted from this filing
and filed separately with the Securities and Exchange Commission.
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both during the term of this Agreement and thereafter for a period of three (3)
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 source code, which shall be kept in confidence and trust in
perpetuity). 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 13.1 (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.
13.2 Exceptions to Confidential Information. The obligations set forth
in Section 13.1 (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 restriction on disclosure; or (e) independently developed by the
Receiving 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.
13.3 Other Palm Software Source Code Restrictions. Except as permitted
in this Agreement, JD shall not use, make, have made, distribute or disclose any
copies of the source code of the Palm Software, in whole or in part, or the
information contained therein without the prior written authorization of 3Com.
JD shall inform its employees having access to such source code of JD'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. JD shall maintain records of its
employees having access to such source code, and upon reasonable notice 3Com may
audit such records.
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14. LIMITATION OF LIABILITY
EXCEPT FOR LIABILITY FOR BREACH OF SECTION 13 (CONFIDENTIALITY) AND
EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 12 (INDEMNIFICATION): (A) NEITHER
PARTY SHALL HAVE ANY LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL
OR PUNITIVE DAMAGES OF ANY KIND OR FOR LOSS OF REVENUE OR LOSS OF BUSINESS
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; AND (B) IN NO EVENT SHALL 3COM'S
LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS PAID BY JD TO 3COM UNDER THIS
AGREEMENT.
15. 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.
16. TERM AND TERMINATION
16.1 Term. This Agreement shall be effective from the Effective Date for
a period of five (5) years ("Specified Term"), unless earlier terminated in
accordance with its terms. Thereafter, this Agreement may be renewed on its
anniversary dates for successive one (1) year terms if each party agrees to do
so by written notice to the other party no later than sixty (60) days prior to
any such anniversary date.
16.2 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.
16.3 Right to Terminate; [*] Termination.
(a) 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
* Confidential treatment has been requested for certain portions of this
document pursuant to an application for confidential treatment sent to the
Securities and Exchange Commission. Such portions are omitted from this filing
and filed separately with the Securities and Exchange Commission.
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breach within thirty (30) days after receipt of written notice of such breach
given by the nonbreaching party.
(b) 3Com's obligations and JD's rights under Section 9 [*] shall
terminate if there is a material change in the ownership or control of JD such
that more than twenty percent (20%) or more of the voting equity stock of JD is
owned and/or controlled (directly or indirectly) by one or more Competitors.
"Competitor" means any entity or entities that develops, manufactures, markets,
and/or distributes handheld operating systems software that is licensed to third
parties on a stand-alone basis.
16.4 Effect of Termination. Upon the termination or expiration of this
Agreement: (i) the licenses and other provisions of this Agreement shall be
terminated and JD shall discontinue the use, manufacture, reproduction,
distribution and sublicensing of the JD Products, Palm Software, Palm Materials
and 3Com trademarks, except as specified in this Section 16; (ii) JD'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. In addition, upon any expiration or
termination (other than for JD's breach), JD may elect to retain the licenses
specified in Section 2 for two (2) years following such expiration or
termination for the versions of the Palm Software and the Palm Materials that
have been delivered to JD prior to such expiration or termination, on the
following terms: (a) the Royalty rates specified in Exhibit E will be [*]; (b)
3Com's obligations under Sections 6, 7 and 9, and JD's obligations under Section
4.2, will [*]; and (c) the remaining provisions of this Agreement will remain in
effect with regard to the JD Products for such two-year period.
16.5 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, Fees and Reports), 5.4 (Taxes), 8.2
(Publicity), 10 (Proprietary Rights), 11 (Warranty), 12 (Indemnification), 13
(Confidentiality), 14 (Limitation of Liability), 15 (Export Regulations), 16
(Term and Termination) and 17 (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 and
remain in effect for a period of three (3) years thereafter or the period
specified in this Agreement, if longer.
17. MISCELLANEOUS
17.1 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)
* Confidential treatment has been requested for certain portions of this
document pursuant to an application for confidential treatment sent to the
Securities and Exchange Commission. Such portions are omitted from this filing
and filed separately with the Securities and Exchange Commission.
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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 17.1 (Notices).
If to 3Com: Palm Computing, Inc.,
a subsidiary of 3Com Corporation
1565 Charleston Road
Mountain View, CA 94043
Attention: Vice President Strategic Alliances and Platform
Development
Fax: (650) 968-9791
with copies to: 3Com Corporation
5400 Bayfront Plaza
Santa Clara, CA 95052
Attention: General Counsel
Fax: (408) 326-6434
If to JD: JD Technology, Inc.
P.O. Box 7066
Menlo Park, CA 94026
Attention: Donna Dubinsky
Fax: (650) 470-0943
Such notice will be treated as having been received upon the earlier of actual
receipt or five (5) days after posting.
17.2 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.
17.3 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.
17.4 Governing Law. 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
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United Nations Convention on Contracts for the International Sale of Goods is
specifically excluded from application to this Agreement.
17.5 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 Jose Branch and the Superior and Municipal
Courts of the State of California, Santa Clara County, in any litigation arising
out of the Agreement.
17.6 Injunctive Relief. The copying, disclosure, or use of the Palm
Software in a manner inconsistent with any provision of this Agreement may cause
irreparable injury to 3Com for which 3Com may not have an adequate remedy at
law. 3Com may be entitled to equitable relief in court, including but not
limited to temporary restraining orders, preliminary injunctions and permanent
injunctions.
17.7 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.
17.8 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, riot, 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.
17.9 Assignment. 3Com may assign this Agreement without restriction,
provided the assignee agrees in writing to be bound by the terms of this
Agreement. JD may not assign this Agreement, whether by operation of law or
otherwise, without the prior written consent of 3Com, except after one year from
the Effective Date to a purchaser of substantially all the stock or assets of JD
who: (i) agrees in writing to be bound by the terms of this Agreement; (ii) is
not a Competitor (as defined in Section 16.3(b)); and (iii) uses the Palm
Software under this Agreement solely in the JD Products of JD Technology, Inc.
or its successor operations within such purchaser; and any attempt to do so
without such consent will be void. This Agreement will bind and inure to the
benefit of the parties and their respective successors and permitted assigns.
17.10 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.
17.11 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.
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17.12 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.
17.13 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.
17.14 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.
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. JD TECHNOLOGY, INC.
a subsidiary of 3Com Corporation
By: /s/ Janice M. Roberts By: /s/ Donna L. Dubinsky
-------------------------------- --------------------------------
Name: Janice M. Roberts Name: Donna L. Dubinsky
------------------------------ ------------------------------
Title: SV President Title: CEO
----------------------------- -----------------------------
Date: 9/24/98 Date: 9/18/98
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Software License Agreement - Palm Computing Inc., 3Com Corp. and JD Technology Inc.
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