Software License Agreement - Palm Computing Inc. and JD Technology Inc.
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.
12
<PAGE> 13
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.
13
<PAGE> 14
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
14
<PAGE> 15
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.
15
<PAGE> 16
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.
16
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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.
17
<PAGE> 18
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.
18
<PAGE> 19
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
19
<PAGE> 20
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.
20
<PAGE> 21
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
------------------------------ ------------------------------
<TABLE>
<CAPTION>
List of Exhibits
----------------
<S> <C>
A Palm Software
B Test Criteria
C 3Com Trademark Policy Guidelines
D Third Party Components
E Royalties and Fees
F 3Com Support Services
G Minimum Terms and Conditions of End User License
</TABLE>
21
<PAGE> 22
EXHIBIT A
PALM SOFTWARE
Palm OS
(in object code form)
Palm OS 3.0x
Palm Device Applications SDK
[*]
Palm Desktop Software
(in object code form)
Palm Desktop 3.0x
Palm End-User Documentation
3.0 Palm OS User's Handbook
Palm Technical Documentation
[*]
* 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.
22
<PAGE> 23
[*]
Palm Development Environment
[*]
Palm Installation CD Files
To be identified and described in an addendum to this Exhibit and attached
hereto.
Palm GUI
[*]
* 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.
<PAGE> 24
<TABLE>
------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
[*] [*]
[*] [*]
[*] Thu, Apr 8, 1999, 3:22 PM 32 K [*]
[*] Today, 1:46 PM -- [*]
[*] Today, 1:46 PM -- [*]
[*] Today, 1:46 PM -- [*]
[*] Today, 1:46 PM -- [*]
[*] Wed, Oct 14, 1998, 1:31 PM 32 K [*]
[*] Wed, Oct 14, 1998, 1:31 PM 32 K [*]
[*] Today, 1:46 PM -- [*]
[*] Wed, Oct 14, 1998, 1:31 PM 32 K [*]
[*] Thu, Apr 8, 1999, 3:11 PM 32 K [*]
[*] Thu, Apr 8, 1999, 3:11 PM 32 K [*]
[*] Thu, Apr 8, 1999, 3:10 PM 32 K [*]
[*] Thu, Apr 8, 1999, 3:10 PM 32 K [*]
[*] Thu, Apr 8, 1999, 3:10 PM 32 K [*]
[*] Thu, Apr 8, 1999, 3:10 PM 32 K [*]
[*] Thu, Apr 8, 1999, 3:10 PM 32 K [*]
[*] Thu, Apr 8, 1999, 3:09 PM 32 K [*]
[*] Thu, Apr 8, 1999, 3:09 PM 32 K [*]
[*] Thu, Apr 8, 1999, 3:09 PM 32 K [*]
[*] Thu, Apr 8, 1999, 3:09 PM 32 K [*]
[*] Thu, Apr 8, 1999, 3:09 PM 32 K [*]
[*] Thu, Apr 8, 1999, 3:09 PM 32 K [*]
[*] Thu, Apr 8, 1999, 3:09 PM 32 K [*]
[*] Wed, Oct 14, 1998, 1:31 PM 32 K [*]
[*] Today, 1:46 PM -- [*]
[*] Today, 1:46 PM -- [*]
[*] Wed, Oct 14, 1998, 1:31 PM 32 K [*]
[*] Today, 1:46 PM -- [*]
[*] Today, 1:46 PM -- [*]
[*] Today, 1:46 PM -- [*]
[*] Today, 1:46 PM -- [*]
[*] Today, 1:46 PM -- [*]
[*] Today, 1:46 PM -- [*]
------------------------------------------------------------------------------------
</TABLE>
* 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.
1
<PAGE> 25
<TABLE>
------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
[*] [*]
[*] [*]
[*] Today, 1:46 PM -- [*]
[*] Wed, Oct 14, 1998, 1:31 PM 32 K [*]
[*] Today, 1:46 PM -- [*]
[*] Today, 1:46 PM -- [*]
[*] Today, 1:46 PM -- [*]
[*] Today, 1:46 PM -- [*]
[*] Wed, Oct 14, 1998, 1:31 PM 32 K [*]
[*] Today, 1:46 PM -- [*]
[*] Fri, Oct 23, 1998, 2:47 PM 64 K [*]
[*] Wed, Oct 14, 1998, 1:31 PM 32 K [*]
[*] Wed, Oct 14, 1998, 1:31 PM 32 K [*]
[*] Wed, Oct 14, 1998, 1:31 PM 32 K [*]
[*] Wed, Oct 14, 1998, 1:31 PM 32 K [*]
[*] Mon, Oct 26, 1998, 9:42 AM 32 K [*]
[*] Mon, Oct 26, 1998, 9:42 AM 32 K [*]
[*] Wed, Oct 14, 1998, 1:31 PM 32 K [*]
[*] Wed, Oct 14, 1998, 1:31 PM 32 K [*]
[*] Wed, Oct 14, 1998, 1:31 PM 32 K [*]
[*] Wed, Oct 14, 1998, 1:31 PM 32 K [*]
[*] Wed, Oct 14, 1998, 1:31 PM 32 K [*]
[*] Wed, Oct 14, 1998, 1:31 PM 32 K [*]
[*] Thu, Apr 8, 1999, 2:56 PM 32 K [*]
[*] Wed, Oct 14, 1998, 1:31 PM 32 K [*]
[*] Wed, Oct 14, 1998, 1:31 PM 32 K [*]
[*] Wed, Oct 14, 1998, 1:31 PM 32 K [*]
[*] Wed, Oct 14, 1998, 1:31 PM 32 K [*]
[*] Wed, Oct 14, 1998, 1:31 PM 32 K [*]
[*] Wed, Oct 14, 1998, 1:31 PM 32 K [*]
[*] Fri, Oct 23, 1998, 8:35 AM 32 K [*]
[*] Wed, Oct 14, 1998, 1:31 PM 32 K [*]
[*] Wed, Oct 14, 1998, 1:31 PM 32 K [*]
[*] Mon, Nov 30, 1998, 9:22 AM 64 K [*]
[*] Fri, Mar 12, 1999, 9:02 AM 128 K [*]
------------------------------------------------------------------------------------
</TABLE>
* 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.
2
<PAGE> 26
<TABLE>
------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
[*] [*]
[*] [*]
[*] Fri, Mar 12, 1999, 9:02 AM 128 K [*]
[*] Fri, Mar 12, 1999, 9:02 AM 128 K [*]
[*] Mon, Nov 30, 1998, 923 AM 32 K [*]
[*] Wed, Oct 14, 1998, 1:31 PM 32 K [*]
[*] Today, 1:46 PM -- [*]
[*] Today, 1:46 PM -- [*]
[*] Today, 1:46 PM -- [*]
[*] Today, 1:46 PM -- [*]
[*] Wed, Oct 14, 1998, 1:31 PM 160 K [*]
[*] Wed, Oct 14, 1998, 1:31 PM 160 K [*]
[*] Wed, Oct 14, 1998, 1:31 PM 32 K [*]
[*] Wed, Oct 14, 1998, 1:31 PM 192 K [*]
[*] Wed, Oct 14, 1998, 1:31 PM 32 K [*]
[*] Today, 1:46 PM -- [*]
[*] Today, 1:46 PM -- [*]
[*] Wed, Oct 14, 1998, 1:31 PM 192 K [*]
[*] Wed, Oct 14, 1998, 1:31 PM 64 K [*]
[*] Wed, Oct 14, 1998, 1:31 PM 192 K [*]
[*] Wed, Oct 14, 1998, 1:31 PM 64 K [*]
[*] Today, 1:46 PM -- [*]
[*] Wed, Oct 14, 1998, 1:31 PM 32 K [*]
[*] Today, 1:46 PM -- [*]
[*] Today, 1:46 PM -- [*]
[*] Wed, Oct 14, 1998, 1:31 PM 32 K [*]
[*] Wed, Oct 14, 1998, 1:31 PM 32 K [*]
[*] Today, 1:46 PM -- [*]
[*] Wed, Oct 14, 1998, 1:31 PM 32 K [*]
[*] Wed, Oct 14, 1998, 1:31 PM 32 K [*]
[*] Today, 1:46 PM -- [*]
[*] Thu, Apr 8, 1999, 2:59 PM 32 K [*]
[*] Today, 1:46 PM -- [*]
[*] Today, 1:46 PM -- [*]
[*] Thu, Apr 8, 1999, 2:59 PM 32 K [*]
------------------------------------------------------------------------------------
</TABLE>
* 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.
3
<PAGE> 27
<TABLE>
------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
[*] [*]
[*] [*]
[*] Thu, Apr 8, 1999, 2:59 PM 32 K [*]
[*] Thu, Apr 8, 1999, 2:59 PM 32 K [*]
[*] Thu, Apr 8, 1999, 2:59 PM 32 K [*]
[*] Thu, Apr 8, 1999, 2:59 PM 32 K [*]
[*] Thu, Apr 8, 1999, 2:59 PM 32 K [*]
[*] Thu, Apr 8, 1999, 2:59 PM 32 K [*]
[*] Thu, Apr 8, 1999, 2:59 PM 32 K [*]
[*] Thu, Apr 8, 1999, 2:59 PM 32 K [*]
[*] Thu, Apr 8, 1999, 2:59 PM 32 K [*]
[*] Thu, Apr 8, 1999, 2:59 PM 64 K [*]
[*] Today, 1:46 PM -- [*]
[*] Thu, Apr 8, 1999, 3:02 PM 32 K [*]
[*] Thu, Apr 8, 1999, 3:02 PM 32 K [*]
[*] Thu, Apr 8, 1999, 3:02 PM 128 K [*]
[*] Thu, Apr 8, 1999, 3:02 PM 32 K [*]
[*] Thu, Apr 8, 1999, 3:02 PM 32 K [*]
[*] Thu, Apr 8, 1999, 3:02 PM 32 K [*]
[*] Thu, Apr 8, 1999, 3:02 PM 32 K [*]
[*] Thu, Apr 8, 1999, 3:02 PM 32 K [*]
[*] Thu, Apr 8, 1999, 3:02 PM 32 K [*]
[*] Wed, Sep 23, 1998, 1:34 PM 32 K [*]
------------------------------------------------------------------------------------
</TABLE>
* 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.
4
<PAGE> 28
<TABLE>
------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
[*] [*]
[*] [*]
[*] Today, 2:05 PM 32 K [*]
[*] Tue, Apr 27, 1999, 5:07 PM 64 K [*]
[*] Tue, Mar 23, 1999, 2:00 PM 32 K [*]
[*] Today, 2:05 PM zero K [*]
[*] Fri, Mar 19, 1999, 11:17 AM -- [*]
[*] Tue, Mar 23, 1999, 1:59 PM 96 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 32 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 32 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 512 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 64 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 32 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 32 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 32 K [*]
[*] Fri, Mar 19, 1999, 11:17 AM -- [*]
[*] Tue, Mar 23, 1999, 1:59 PM 192 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 96 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 256 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 96 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 160 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 64 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 96 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 32 K [*]t
[*] Tue, Mar 23, 1999, 1:59 PM 192 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 64 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 32 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 96 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 32 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 192 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 128 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 64 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 32 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 160 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 64 K [*]
------------------------------------------------------------------------------------
</TABLE>
* 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.
5
<PAGE> 29
<TABLE>
------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
[*] [*]
[*] [*]
[*] Tue, Mar 23, 1999, 1:59 PM 96 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 32 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 96 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 32 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 1 MB [*]
[*] Tue, Mar 23, 1999, 1:59 PM 64 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 384 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 160 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 64 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 32 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 32 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 32 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 128 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 64 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 64 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 64 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 32 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 96 K [*]
[*] Tue, Mar 23, 1999, 1:59 PM 64 K [*]
[*] Tue, Apr 27, 1999, 2:26 PM 6.9 MB [*]
------------------------------------------------------------------------------------
</TABLE>
* 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.
6
<PAGE> 30
EXHIBIT B
TEST CRITERIA
Following the Effective Date the Test Criteria will be finalized and
attached in accordance with Section 2.3(a)
24
<PAGE> 31
PALM COMPUTING(R) PLATFORM LOGO
COMPATIBILITY PROGRAM
<PAGE> 32
Palm Computing(R) Platform
TABLE OF CONTENTS
<TABLE>
<S> <C>
Welcome..................................................................... 3
Frequently Used Terms....................................................... 3
[*] 5
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Licensee Questionnaire...................................................... 18
[*] 19
[*] 21
[*] 22
</TABLE>
* 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.
3Com/Palm Confidential
2
<PAGE> 33
Palm Computing(R) Platform
WELCOME
Welcome to the Palm Computing(R) Platform Logo Compatibility Program (the
"Program") designed by Palm Computing, Inc., a subsidiary of 3Com Corporation
(collectively, "3Com"). The testing under the Program will be executed by one of
the independent test labs certified by 3Com ("Test Labs"). All Program specifics
including process, test design and Program design have been approved and are
enforced by 3Com.
The purpose of this document is to provide 3Com's licensees ("Licensees") with
detailed information about the compatibility certification process.
Comprehensive test plans for baseline features are available and a customized
test plan will be created for each Licensee's device by the Test Lab. Upon
successful completion of all parts of the Program, Licensees will receive the
right to use the Palm Computing platform logo from 3Com with respect to a
particular device.
3Com looks forward to contributing to its Licensees' success and working with
each Licensee as part of the Program.
FREQUENTLY USED TERMS
[*] (The current page and the following 14 pages contain portions omitted from
this filing and filed separately with the Securities and Exchange Commission.)
* 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.
3Com/Palm Confidential
3
<PAGE> 34
Palm Computing(R) Platform
LICENSEE QUESTIONNAIRE
Contact Information (completion is required)
Company Name____________________________________________________________________
Address_________________________________________________________________________
City, State, Zip________________________________________________________________
Main Phone #____________________________________________________________________
Fax #___________________________________________________________________________
Email Address___________________________________________________________________
Company Website URL_____________________________________________________________
Contact Person for Test Results_________________________________________________
Title and Direct Phone or extension #___________________________________________
Contact Person for Test/Product Questions_______________________________________
Direct Phone # and email________________________________________________________
Device Name_____________________________________________________________________
Version_________________________________________________________________________
Device Category and type________________________________________________________
Product Description_____________________________________________________________
Has the product been pre-tested? YES NO
How is the product currently being tested? Please provide detailed testing
information as necessary.
________________________________________________________________________________
________________________________________________________________________________
Will the device be localized for international sale? If so, for which languages?
________________________________________________________________________________
________________________________________________________________________________
3Com/Palm Confidential
4
<PAGE> 35
Palm Computing(R) Platform
[*]
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------
Not Included/ *Brief description
[*] Included Included Modified of modification
----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
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</TABLE>
* 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.
3Com/Palm Confidential
5
<PAGE> 36
Palm Computing(R) Platform
[*]
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------
Not Included/ *Brief description
[*] Included Included Modified of modification
----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
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</TABLE>
[*]
* 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.
3Com/Palm Confidential
6
<PAGE> 37
Palm Computing(R) Platform
[*]
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------------------------------
[*] Brief description of feature and/or function Risk assessment
--------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
[ ] Low [ ] Med [ ] High
[ ] Low [ ] Med [ ] High
[ ] Low [ ] Med [ ] High
[ ] Low [ ] Med [ ] High
[ ] Low [ ] Med [ ] High
[ ] Low [ ] Med [ ] High
[ ] Low [ ] Med [ ] High
[ ] Low [ ] Med [ ] High
[ ] Low [ ] Med [ ] High
[ ] Low [ ] Med [ ] High
--------------------------------------------------------------------------------------------------------
</TABLE>
* 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.
3Com/Palm Confidential
7
<PAGE> 38
Palm Computing(R) Platform
[*] (The current page and the following page contain portions omitted from this
filing and filed separately with the Securities and Exchange Commission.)
* 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.
3Com/Palm Confidential
8
<PAGE> 39
Palm Computing(R) Platform
Palm Computing Inc.
a subsidiary of 3Com Corporation
5400 Bayfront Plaza
Santa Clara, CA 95052
www.palm.com
PCPLCP 0399
Copyright (C)1998 3Com Corporation or its subsidiaries. All rights reserved.
3Com, the 3Com logo, Palm Computing, Graffiti and HotSync are registered
trademarks, and PalmPilot, Palm III, Palm OS, Palm, the Palm Computing platform
logo, the Palm Pilot logo and the Palm III logo are trademarks of Palm
Computing, Inc., 3Com Corporation or its subsidiaries. Other product and brand
names may be trademarks or registered trademarks of their respective owners.
This product is not manufactured by Pilot Corporation or Pilot Corporation of
America, manufacturers and distributors of writing instruments.
3Com/Palm Confidential
9
<PAGE> 40
EXHIBIT C
3COM TRADEMARK POLICY GUIDELINES
[to be attached]
25
<PAGE> 41
PALM COMPUTING(TM) PLATFORM SOLUTION PROVIDER
MARKETING COMMUNICATIONS GUIDELINES
MARKETING COMMUNICATIONS GUIDELINES
For products designed for the Palm Computing(TM) platform
INTRODUCTION
The Palm Computing platform, the foundation for the market-leading PalmPilot(TM)
and Palm III(TM) connected organizers, is the fastest growing handheld computing
platform in history. As a developer of products designed for the Palm Computing
platform, you have contributed immensely to its success. Your role will continue
to increase in importance as individuals and companies find new uses for
products from Palm Computing, a 3Com company, and for a growing number of
products from our market-leading original equipment manufacturer (OEM) and
licensing partners.
To help you and your products be successful and to protect the
investment in our own trademark and branding efforts, we are supplying you with
these marketing materials and style guidelines. The guidelines are designed to
ensure the protection and maintenance of our various brand identities on all of
your products and marketing vehicles.
Please take a few moments to review these materials and contact Palm
Computing Developer Services at devinfo@palm.com with any questions you may have
regarding your company's proposed use of trademarks and other marketing
elements.
To obtain a Solution Provider version of the Palm Computing Brand
Identity CD ROM featuring graphics, legal and products copy, please visit
http://www.palm.com/devzoneplatform_logo to place your order.
3Com applies brand names and trademarks to both products and services,
and supports these brand names with a wide range of advertising and promotional
activities. While trademarks are important for establishing and protecting
corporate and product identity, they are fragile rights that can be lost through
misuse. Trademarks must be used consistently and renewed regularly, otherwise
the trademarked name, phrase or element risks becoming unenforceable.
Many of our trademarks are registered with the U.S. Patent and Trademark
Office and its equivalent in Foreign countries. These trademarks should be
indicated with the (R) symbol. Other trademarks should be indicated with the
(TM) symbol.
WHAT CUSTOMERS ARE SAYING ABOUT PALM COMPUTING(TM) HANDHELDS
"In only two months my PalmPilot organizer has become an integral part of my
lifestyle."
"There is no way to overstate how much I value my PalmPilot. It gives me all of
the tools I need to keep organized in a package small enough that I actually
carry it with me, instead of leaving it on my desk."
"I appreciated it so much that now, I provide all members of my management team
with their own. All resources (contacts, to do lists, agendas) are shared
through our LAN. Thanks."
"The PalmPilot was one of the best things I ever bought for myself."
1
<PAGE> 42
PALM COMPUTING(TM) PLATFORM SOLUTION PROVIDER
MARKETING COMMUNICATIONS GUIDELINES
General Trademark Usage Rules
The following general trademark rules should be applied to all 3Com trademarks:
1. NEVER USE THE TRADEMARK IN A FASHION THAT RISKS MAKING THE TERM "GENERIC."
In order to protect a trademark, it is important to use it in a way such that it
does not become a generic term. An example of a case where using the trademark
inappropriately has put a product brand or trademark at risk of being
unprotected by law is "aspirin."
Using the trademark "aspirin" without the proper noun "pain reliever"
following it, has made "aspirin" the generic term for "pain reliever," rather
than a protected trademarked brand name of Bayer Corporation. Similarly, using
the term Xerox as a verb, as in "I will xerox a copy of that memo for you," has
contributed to making "xerox" a generic term; as a result, Xerox Corporation has
been forced to spend millions of dollars in corrective advertising.
Correct: The pocket-sized Palm III(TM) connected organizers give you
instant access to your most important data at your fingertips.
Incorrect: 1. The pocket-sized Palm III(TM) gives you instant access to your
most important data.
2. Palm III(TM) gives you instant access to your most important
data in the palm of your hand.
2. TRADEMARKS MUST ALWAYS APPEAR AS ADJECTIVES, FOLLOWED BY AN APPROPRIATE
DESCRIPTIVE NOUN.
Correct: Widgeteer software is compatible with the Palm III(TM) connected
organizer.
Incorrect: Widgeteer software is compatible with the Palm III(TM).
3. TRADEMARK SYMBOLS MUST OCCUR AT LEAST ONCE IN EACH PIECE.
All Palm Computing and 3Com logos, including the Designed For Palm Computing
platform logo, the Designed for Palm Computing platform Platinum logo, and the
3Com logo, must carry their respective trademark symbols each time they are
used. Because the Palm Computing platform logo is pending federal registration,
it should be used with a (TM) symbol. Because the 3Com logo is federally
registered, it should be used with a (R) symbol.
For other trademarks, the appropriate trademark symbol must appear on
the first prominent reference, typically in a headline, and again on the first
reference in body copy. It is not necessary to repeat the designation throughout
the rest of the document. However, trademark symbols should be properly
designated in all charts, tables, graphs, and slides, since these marketing
vehicles have greater potential to be used independently. Please reference the
section entitled "Using Brand Names in Copy" for correct usage. (Developers for
the Palm Computing platform are not authorized to use the 3Com logo except when
Palm Computing and the developer have made the agreement to co-brand a product.)
2
<PAGE> 43
PALM COMPUTING(TM) PLATFORM SOLUTION PROVIDER
MARKETING COMMUNICATIONS GUIDELINES
General Trademark Usage Rules
4. BE CONSISTENT. ALWAYS USE TRADEMARKS AND BRAND NAMES IN THE WAYS THEY WERE
INTENDED TO BE USED.
Never use trademarks as possessives.
Correct: The Palm III(TM) organizer's shirt pocket size is a great selling
feature.
Incorrect: The Palm III's(TM) shirt pocket size is a great selling feature.
Never use trademarks in a plural form.
Correct: Palm III(TM) connected organizers feature as infrared beaming
capability.
Incorrect: Palm III's(TM) feature an infrared beaming capability.
Never hyphenate a trademark.
Correct: Enhanced HotSync(TM) technology enables remote schnronization.
Incorrect: Enhanced HotSync(TM)-enabled systems can synchronize remotely.
Never abbreviate a product name in such a way that the full trademark name is
left out.
Correct: PalmPilot(TM) connected organizer.
Incorrect: Pilot
Never alter a trademark (i.e.: Never use the trademark as a verb)
Correct: Synchronization, using HotSync(TM) technology, refers to a
two-way data exchange-between your PC and the PalmPilot(TM)
connected organizer.
Incorrect: HotSynching your data assures a two-way data exchange-between
your PC and the PalmPilot(TM) connected organizer.
Always use the proper capitalization of a trademark.
Correct: HotSync(TM) technology.
Incorrect: Hotsync(TM) technology.
Avoid placing descriptors between a trademark and its noun.
Correct: PalmPilot(TM) connected organizer.
Incorrect: PalmPilot(TM) 2MB connected organizer.
Always attribute the (TM) or (R) correctly.
Correct: Palm(TM) Desktop organizer software.
Incorrect: Palm Desktop(TM) organizer software.
5. DIFFERENTIATE TRADEMARKS FROM TRADE NAMES.
A trade name is the name of a company and is used to identify that company
rather than its products. Palm Computing uses "Palm Computing" as either a
trademark or a trade name, depending on the context. For example, Palm
Computing(TM) platform (registered trademark) developed by Palm Computing, a
3Com company (trade name). Note: When using Palm Computing as a trade name, do
not use the (R) designation.
3
<PAGE> 44
PALM COMPUTING(TM) PLATFORM SOLUTION PROVIDER
MARKETING COMMUNICATIONS GUIDELINES
Naming Your Product or Company
CATEGORY DESCRIPTORS
When referencing the collective grouping of organizers supported by 3Com and
manufactured by Palm Computing, U.S. Robotics or 3Com, the preferred formal
pairing of trademark and descriptive noun is:
"Palm Computing(TM) connected organizers."
To avoid repetition within a document or to better address the needs of
an enterprise audience, "connected organizers" may be replaced with "handhelds",
"devices" or "organizers."
In informal usage or when repetition of the preferred phrase "Palm
Computing" connected organizers is cumbersome, the collective grouping of
organizers manufactured by Palm Computing, U.S. Robotics or 3Com may be
referenced as "Palm(TM) connected organizers". To avoid repetition within a
document or to better address the needs of an enterprise audience, "connected
organizers" may be replaced with "handhelds," "devices," "computers" or
"organizers."
A collective grouping of organizers including the Palm III(TM) connected
organizer and the PalmPilot(TM) organizer, may also be referenced as follows:
"Palm III(TM) and PalmPilot(TM) connected organizers". Again, depending on
audience, "connected organizers" may be replaced with "handhelds," "devices" or
"organizers".
Devices (such as the IBM WorkPad PC companions) that are manufactured by
licensed and OEM partners using Palm Computing technology, in addition to Palm
Computing(TM) connected organizers (such as the Palm III(TM) connected
organizer), may be referred to as: "Palm Computing(TM) platform devices" or
"Palm Computing(TM) platform handhelds".
When referencing peripherals and software designed for use with the Palm
Computing(TM) connected organizers and Palm Computing(TM) platform devices,
refer to them as "Palm Computing(TM) platform compatible products".
Never use Palm Computing trademarks, such as "Palm computers" to
describe handheld devices (such as Microsoft Windows CE products) that are not
compatible with the Palm Computing(TM) platform. Refer to such products by their
own trademarks or with a generic product category such as "handhelds" or
"handheld computers."
TRADE DRESS
3Com and Palm Computing logos, or any confusingly similar marks, may not
be used without the express, written authorization of Palm Computing. Please
contact the Palm Computing Marketing Communications department for express
written authorization prior to publishing.
Other distinctive elements of the Palm Computing brand identity,
including the color palette or other graphic elements, may not be used in a
manner that closely replicates Palm Computing or 3Com materials, so as to create
confusion as to whether the product, publication, or marketing vehicle is from
Palm Computing, 3Com, or your company.
4
<PAGE> 45
PALM COMPUTING(TM) PLATFORM SOLUTION PROVIDER
MARKETING COMMUNICATIONS GUIDELINES
Palm Computing Trademark and Usage Guidelines for Developers
USING BRAND NAMES IN COPY
Following is a partial list of our trademarks with hints on using them
correctly. Some are registered trademarks, others are not.
<TABLE>
<CAPTION>
Proper Usage Improper Usage Hints
------------ -------------- -----
<S> <C> <C>
PalmPilot(TM) connected organizer Palmpilot Use as an adjective followed by
Palm Pilot a proper noun, as in "The
PalmPilots PalmPilot(TM) connected
Pilot organizer is the market-leading
Pilots handheld solution."
Palm III(TM) connected organizer Palm 3 Related references that are okay:
Palm IIIs Palm III(TM) users
Palm III's Palm III(TM) power or
PalmIII functionality
Palm Computing(TM) connected organizers Palm Computing connected organizers Palm Computing(TM) connected
Palm Computing(TM) organizers Palm Computing organizers organizers is preferred over
Palm Computing(TM) handhelds Palm Computing handhelds Palm(TM) connected organizers.
Palm Computing(TM) devices Palm Computing handhelds
Palm(TM) connected organizers Palm connected organizers
Palm(TM) organizers Palm organizers
Palm(TM) computers Palm computers
Palm(TM) handhelds Palm handhelds
Palm(TM) devices Palm devices
HotSync(TM) Technology HotSync Use as an adjective followed by
Hot Sync a proper noun, as in "For remote
HotSyncing synchronization capability,
download enhanced HotSync(TM)
technology from www.palm.com."
Palm(TM) 2MB Upgrade 2MB Upgrade 2MB upgrade as a generic description
in body copy is okay.
PalmPilot(TM) Modem PalmPilot modem Use as an adjective followed by
a proper noun, as in
"PalmPilot(TM) Modem works with
Palm III(TM) and PalmPilot(TM)
organizers."
Graffiti(TM) power writing software graffiti Use as an adjective, followed by
a proper noun, as in "Graffiti
power writing software makes
it easy to input data."
</TABLE>
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PALM COMPUTING(TM) PLATFORM SOLUTION PROVIDER
MARKETING COMMUNICATIONS GUIDELINES
<TABLE>
<S> <C> <C>
Palm(TM) Desktop organizer software Palm Desktop(TM) Use as an adjective followed by a
PalmDesktop software proper noun, as in "load Palm(TM)
Desktop organizer software on your
PC to take full advantage of the
Palm III(TM) organizer's features."
Palm(TM) MacPac Palm Mac Pac
Palm Computing(TM) platform Palm(TM) Computing platform Use as an adjective followed by a
Palm(TM) platform proper noun, as in "The Palm
Computing(TM) platform is
supported by OEM partners who are
all leaders in their respective
categories."
Palm OS(TM) PalmOS Mail and/or expense as a generic
Palm(TM) Mail Palm Mail(TM) description in body copy is okay.
Palm(TM) Expense PalmExpense
Palm(TM) Date Book
Palm(TM) Address Book
Palm(TM) To Do List
Palm(TM) Memo Pad
Palm(TM) Card
</TABLE>
Following are trademarks associated with the Palm Computing platform which are
pending registration: Palm, Designed for Palm Computing platform logos, Palm
III, Palm OS, and Palm Computing platform logo [icon only]. From time to time
Palm Computing will advise its partners as new trademark registrations are
issued.
5
<PAGE> 47
PALM COMPUTING(TM) PLATFORM SOLUTION PROVIDER
MARKETING COMMUNICATIONS GUIDELINES
Naming Your Product or Company
The naming of your product, service, or company is an important decision
and we encourage you to seek marketing and legal counsel to ensure that you have
done the requisite trademark searches on the name(s) and that your choice(s) can
be protected. The following defines what you may or may not do with respect to
using Palm Computing trademarks in this context.
You may not use Palm, Pilot, Palm III, PalmPilot, Palm OS, HotSync
technology or any other 3Com or Palm Computing trademark as part of your own
company name, product name, or as part of the brand name of your company's
product. You may not create and use trademarks or logos that are confusingly
similar to the Palm Computing trademarks or logos.
Developers who have improperly incorporated the Palm mark (or any other
Palm Computing trademark) into their naming strategy are advised to develop and
communicate their transition plan to Palm Computing Developer Services.
Based on an agreement with Pilot Corporation, Palm Computing has agreed
to transition out of using the trademark Pilot in naming its products.
Developers may continue to use the standalone word Pilot in reference to the
original Pilot 1000 and Pilot 5000 connected organizers. Because the mark Pilot
will not be used by Palm Computing for future products, developers are advised
to discontinue using this mark for Palm Computing related products.
Developers who have already incorporated the Pilot mark into their
naming strategy are advised to transition away from it at their earliest
convenience.
Please also read the section entitled "Indicating Compatibility With
Products Based on the Palm Computing Platform" following this section. Example I
specifically addresses product naming.
Example: Assume your company's name is Acme.
The following product names are NOT permissible:
Acme(TM) Palmware software
Acme(TM) Palmlink software
Acme(TM) Palmlegal Widgeteer software for lawyers
Acme(TM) Palmpoker game software
Acme(TM) Palm Computing GolfMagic software
Acme(TM) HotSynched newsletter
Acme(TM) Pilotlink Software
Acme(TM) Widgeteer HotSynching software
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PALM COMPUTING(TM) PLATFORM SOLUTION PROVIDER
MARKETING COMMUNICATIONS GUIDELINES
Indicating Compatibility with Products Based on the Palm Computing Platform
There are several ways in which you can indicate your product's compatibility
with products based upon the Palm Computing platform.
Example: Assume your company name is Acme and your product name is
Widgeteer. Assume further that you have registered Acme with the
U.S. Patent and Trademark Office and have not filed for
registration of Widgeteer or have filed a still-pending
application.
1. Incorporate this information into the product name
Correct: The following are permissible:
Acme(TM) Widgeteer(TM) software for Palm Computing(TM) platform
handhelds
Acme(TM) Widgeteer(TM) software for the Palm Computing(TM)
platform
Acme(TM) Widgeteer(TM) deluxe stylus for Palm Computing(TM)
connected organizers
Acme(TM) Widgeteer(TM) deluxe stylus for Palm Computing(TM)
handhelds
Widgeteer(TM) upgrades designed for PalmPilot(TM) Personal
Edition organizers
Incorrect: The following are NOT permissible:
Acme(TM) Widgeteer(TM) Palm Computing(TM) software
Acme(TM) Widgeteer(TM) software for the PalmPilot
Acme(TM) Widgeteer(TM) deluxe PalmPilot stylus
Palm Computing(TM) leather cases from Acme
Widgeteer(TM) PalmPilot upgrades
Widgeteer(TM) Palm Computing Web Site
2. Incorporate this information elsewhere such as in the body copy,
system requirements section or as a tagline to your product logo.
When trademark usage guidelines are utilized appropriately, you may use the
terms PalmPilot(TM), Palm III(TM), Palm Computing(TM) organizers, handhelds, or
devices, Palm Computing(TM) platform, Palm OS(TM), and/or HotSync(TM) technology
to indicate that your products are compatible. In text, there are several ways
to indicate that your products are compatible with the Palm Computing(TM)
platform. For example, compatibility can be referenced in body copy, a tagline
to your product logo, or in the system requirements section. Assume your company
name is Acme and your product name is Widgeteer.
7
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PALM COMPUTING(TM) PLATFORM SOLUTION PROVIDER
MARKETING COMMUNICATIONS GUIDELINES
Assume further that you have registered Acme with the U.S. Patent and Trademark
Office and have not filed for registration of Widgeteer or have filed a
still-pending application.
Indicating compatibility with Palm Computing(TM) handhelds
Correct: Widgeteer(TM) upgrades are specifically designed for
PalmPilot(TM) Personal Edition organizers
Widgeteer(TM) software will not interfere with the HotSync(TM)
functions of Palm Computing(TM) organizers
Acme(TM) Widgeteer(TM) software designed for PalmPilot(TM) and
Palm III(TM) connected organizers
Acme(TM) Widgeteer(TM) software works with PalmPilot(TM) and Palm
III(TM) connected organizers
Acme(TM) Widgeteer(TM) software compatible with PalmPilot(TM) and
Palm III(TM) connected organizers
Acme(TM) Widgeteer(TM) deluxe stylus for Palm Computing(TM)
organizers
Acme(TM) Widgeteer(TM) deluxe stylus for Palm Computing(TM)
handhelds
Incorrect: All Acme(TM) products are Palm(TM)Pilot compatible
Widgeteer(TM) is Pilot compatible
Widgeteer(TM) is Palm-compatible
Indicating compatibility with Palm Computing(TM) platform handhelds
Correct: Acme(TM) Widgeteer(TM) software designed for handheld computing
solutions based on the Palm Computing(TM) platform
Acme(TM) Widgeteer(TM) software designed for Palm Computing(TM)
platform devices (handheld)
Acme(TM) Widgeteer(TM) software compatible with devices based on
the Palm Computing(TM) platform
Acme(TM) Widgeteer(TM) software for the Palm Computing(TM)
platform
Acme(TM) leather cases for Pilot 1000, Pilot 5000, PalmPilot(TM)
Personal and PalmPilot(TM) Professional Edition, Palm III(TM) and
Work Pad(TM) handheld computing products
All Acme(TM) products are compatible with the Palm Computing(TM)
platform
Visit Widgeteer.com for the best in Palm Computing(TM) platform
compatible products
Incorrect: Widgeteer(TM) is HotSync compatible
Widgeteer(TM) is Palm platform compatible
<PAGE> 50
PALM COMPUTING(TM) PLATFORM SOLUTION PROVIDER
MARKETING COMMUNICATIONS GUIDELINES
3. Utilize the "Designed for Palm Computing platform" logo, or the
special "Designed for Palm Computing platform Platinum" logo, on
components of your product packaging - the outer box and CD ROM
art - and the marketing vehicles for the product.
(The platinum version of this logo is only made available to products that have
passed independent compatibility testing.)
Stating that your product is designed for the Palm Computing platform
implies support for a larger product set than offered by 3Com, and therefore
increases your potential customer base. Products from Palm Computing platform
OEM and licensing partners include the IEM WorkPad PC companion , a handheld
computing device sold into the enterprise market, the Franklin Day Planner from
Franklin Covey, sold into the time management and training markets, and others.
Symbol Technologies and QUALCOMM, Inc. are also developing products based on the
platform. Visit our web site at www.palm.com for a complete list of OEM and
licensing partners.
8
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PALM COMPUTING(TM) PLATFORM SOLUTION PROVIDER
MARKETING COMMUNICATIONS GUIDELINES
Designed for Palm Computing Platform Logo Usage
THE DESIGNED FOR PALM COMPUTING PLATFORM LOGO
There is only one Palm Computing platform logo or mark approved for usage by
developers in general: the "Designed for Palm Computing platform" logo. Use of
this logo allows you to easily convey to customers that your products are
designed for Palm Computing(TM) handhelds and those handheld solutions developed
by Palm Computing platform OEM or licensing partners.
We encourage developers with products designed for the platform to
utilize the logo on product packaging and pre-sales marketing vehicles. Use of
this logo must be associated with a specific product, not a company or company
brand. Use of this logo does not imply product endorsement by Palm Computing,
nor does it imply quality standards for or compatibility with products based on
the Palm Computing platform.
Compliance with the Palm Computing Platform Logo License Agreement is a
prerequisite for usage and can be agreed to on-line. Please visit our web site
at http:www.palm.com.devzone/platform_logo to accept this agreement. The logo is
shown here for your reference:
[LOGO] [LOGO]
DESIGNED FOR PALM COMPUTING PLATFORM PLATINUM LOGO
Products that have passed independent compatibility testing are entitled to
carry the special "Designed for Palm Computing platform Platinum" logo. Use of
this logo allows you to easily convey to customers that your products are
designed for Palm Computing handhelds and those handheld solutions developed by
Palm Computing platform OEM or licensing partners - and that your product has
passed compatibility tests established by Palm Computing and administered by a
third party testing laboratory.
This logo may only be placed on marketing materials for the specific
product that has passed compatibility testing. Use of this logo must be
associated with a specific product, not a company or company brands. Use of this
logo does not imply product endorsement by Palm Computing.
To have your products tested for Palm Computing platform compatibility,
please contact Quality Partners, an independent testing lab, at (925) 484-2527
or devinfo@palm.com. Once you have passed testing and signed the Designed for
Palm Computing platform Platinum Logo License Agreement, Palm Computing
Developer Services will issue you the logo artwork.
[LOGO] [LOGO] [LOGO] [LOGO]
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PALM COMPUTING(TM) PLATFORM SOLUTION PROVIDER
MARKETING COMMUNICATIONS GUIDELINES
Designed for Palm Computing Platform Logo Usage
THE DESIGNED FOR PALM COMPUTING PLATFORM LOGO USAGE GUIDELINES
Palm Computing has established the following set of Guidelines to assist you in
proper use of the logo.
1. The following attribution footnote should accompany each use of
the logo. "Palm Computing is a registered trademark and the Palm
Computing platform logo is a trademark of Palm Computing, Inc.,
3Com or its subsidiaries." If other 3Com trademarks are
referenced in the context of the document, they should also be
included in the attribution footnote.
2. You may only use the logo as a symbol that your product is
designed for the Palm Computing(TM) platform and those products
based upon it. You may not imply that Palm Computing in any way
endorses your product.
3. The Designed for Palm Computing platform logo program is not
intended to be a "certification" program; i.e., the logo does not
represent that Palm Computing certifies your product in any way.
4. Usage of the Designed for Palm Computing platform Platinum logo
requires that the product pass Compatibility Testing through a
Palm Computing designated independent compatibility testing
center. Other than maintenance or bug-fix releases, new releases
of the product must be re-tested for compatibility.
5. You must sign and return the Palm Computing Platform Logo License
Agreement before artwork will be provided.
6. You may not display the logo on any materials including, but not
limited to, packaging, collateral and documentation, in a manner
which suggests that the product is a Palm Computing product or in
a manner which suggests that Palm Computing is a part of your
product's name.
7. You may not alter or animate the logo in any way.
SIZING, PLACEMENT AND COLOR REQUIREMENTS:
1. Palm Computing will provide camera-ready artwork of the logo in
electronic format.
2. You may not display the logo on packaging, documentation,
collateral or advertising in a manner which suggests that your
product is a Palm Computing product or in a manner which suggests
that the mark, Palm Computing, is a part of your product name.
3. The logo cannot be larger than or more prominent than your
product name, trademark, logo or trade name.
4. You may not combine the logo with any other feature, including,
but not limited to, other logos, words, graphics, photos,
slogans, headlines, numbers, design features, or symbols.
5. The Designed for Palm Computing platform logo and the Designed
for Palm Computing platform Platinum logo must stand alone. A
minimum amount of empty space has been established around the
logo to ensure that it appears in a clear visual field. No other
object such as type, photography, borders, edges, etc. may appear
in the empty space. The preferred distance between the logo
border and any other type images or graphic elements on any side
is equal to the height of the logo block. The minimum required
border (margin of empty space around the logo) must be "x" where
"x" equals the width of the logo block.
6. Minimum and maximum size requirements for the logos are displayed
below. For odd-sized materials, the maximum size logo height
should not exceed 5% of largest dimension.
7. The right to use this logo is at the discretion of Palm Computing
and Palm Computing reserves the right to revoke that right or
change its program at any time.
[LOGO] [LOGO] [LOGO] [LOGO]
10
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PALM COMPUTING(TM) PLATFORM SOLUTION PROVIDER
MARKETING COMMUNICATIONS GUIDELINES
Trademark Acknowledgment & Image Usage
ATTRIBUTION LINES AND LEGAL DISCLAIMERS
Legal copy, sometimes called "mousetype" or "the disclaimer" is commonly found
at the bottom of an ad, brochure, datasheet, direct mailer, or other marketing
vehicle.
To protect all involved, the mousetype for your marketing materials
referencing either Palm Computing or its trademarks should incorporate the
referenced trade name and trademarks.
Example:
Assume your company's name is Acme and the name of your product is Widgeteer and
that Acme is a registered trademark and Widgeteer is a trademark. Assume also
that you have included photos of the Palm III(TM) connected organizer,
referenced HotSync(TM) technology in the body copy of your marketing piece, and
used the Designed for Palm Computing(TM) platform logo. Your attribution line
should read as follows:
Copyright(C)1998 Acme Corporation. All rights reserved. Acme is a
registered trademark and the Acme logo and Widgeteer are trademarks of Acme
Corporation. 3Com, the 3Com logo, Palm Computing and HotSync are registered
trademarks, and Palm III, the Palm III logo and the Palm Computing platform
logo are trademarks of Palm Computing, Inc., 3Com Corporation or its
subsidiaries. All other brands and product names may be trademarks or
registered trademarks of the respective holders.
The following short-form legal copy is acceptable only where space
considerations will not allow for a full statement:
Copyright(C)1998 Acme Corporation, Acme is a registered trademark, and the
Acme logo and Widegeteer are trademarks of Acme Corporation. All other
trademarks are the property of their respective owners.
USING PICTURES OR IMAGES OF PALM COMPUTING PRODUCTS
Use any of the photos or images provided on the Palm Computing Brand Identity CD
ROM-Developer Version.
If you create your own photography incorporating Palm Computing
products, remember that size and form factor are key selling points, so we
recommend that you show scale by making sure there is another object in the
picture that gives an indication of its relative size.
- The focus of your marketing vehicle should be on your product, and
mentions or photography of Palm Computing products and trademarks should
be in support of that messaging.
- You may replace Palm Pilot(TM) or Palm III(TM) screens with your own
screens designed to promote your product.
- Creative concept, art and copy should reflect positively on both the
features of the Palm Computing product mentioned and the Palm Computing
brand in general.
11
<PAGE> 54
PALM COMPUTING(TM) PLATFORM SOLUTION PROVIDER
MARKETING COMMUNICATIONS GUIDELINES
Product Copy Samples
PALM III(TM) CONNECTED ORGANIZER
100 word-
Put important information at your fingertips with the pocket-sized Palm III(TM)
organizer. It lets you store thousands of names, addresses, appointments,
expense items, even e-mail*. Just tap on the backlit screen to access important
information fast. Use your stylus or PC keyboard to enter data easily.
Back-up and exchange information with your desktop PC and popular PIMs**
with the touch of a button on your docking cradle. Use infrared to "beam" files
and applications to other Palm III(TM) users.
Palm III isn't just small, smart and totally connected ... it's the #1
value in personal organization.
50 word-
Put important information at your fingertips with the pocket-sized Palm III(TM)
organizer. Store thousands of names, addresses, expense items, even e-mail.*
Back-up and exchange information with your desktop PC and popular PIMs** at the
touch of a button. "Beam" files and applications to other Palm III users. Palm
III organizer is the #1 way to stay connected and organized.
25 word-
Small, light and totally connected, Palm III(TM) organizer makes it easy to
store and access all your important information and exchange it with your
desktop PC. It's the #1 value in personal organization.
Bullet copy -
(primary)
- Instant access to your data, calendar, e-mail, address book, to do list,
memo pad, and expenses*
- Includes links to Microsoft Outlook and Symantec ACT (when BONUS PACK
from MacVision Digital Publishing is included).
- Exchange data with your PC at the touch of a button - no dual data entry
and your data is always backed up.
- Applications from thousands of developers make it even more powerful.
- Use infrared to "beam" files like your business card and applications to
other Palm III(TM) users.
Bullet copy -
(secondary)
- The perfect companion to your PC.
- 3 easy ways to input data - with the stylus, the onscreen keyboard, or
use your PC keyboard.
- The third generation of award-winning Palm Computing(TM) organizers.
- Internet-ready, includes TCP/IP software to enable remote
synchronization capabilities and Internet-based applications like live
Internet e-mail and web browsing.*
- The easy way to get your life organized.
- Portable e-mail* works with leading e-mail applications like QUALCOMM
Eudora, Lotus ccMail, Microsoft Exchange, Outlook, Outlook Express, and
Microsoft Windows Messaging.
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PALM COMPUTING(TM) PLATFORM SOLUTION PROVIDER
MARKETING COMMUNICATIONS GUIDELINES
- Shirt pocket size at just 4.7" tall and 6 oz. it's truly portable.
- 3 Easy-to-read fonts.
- Sleek, new industrial design.
- Backlit screen for easy viewing in dim light.
- Flexible memory stores up to 5000 addresses, 5 years of appointments,
1500 to do items, 1500 memos, and 22 e-mail messages.*
- Everything you need is included.
- Twice the memory of the popular PalmPilot(TM) Professional Edition
organizer.
- Priced at just $XXX.
- Software "flash upgradable" means you'll never have to replace the
memory card for future system software updates.
Disclaimer copy (use with all, including bullets, except 25 word copy)
* Palm(TM) Mail and Expense applications not supported on Macintosh. Mail
application may require optional modem and e-mail application, sold separately.
** Optional links to many popular PIMs (Personal Information Managers) sold
separately.
12
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PALM COMPUTING(TM) PLATFORM SOLUTION PROVIDER
MARKETING COMMUNICATIONS GUIDELINES
PALMPILOT PROFESSIONAL AND PERSONAL EDITION CONNECTED ORGANIZERS
100 word-
Now big organizing power comes in a pocket-sized package. The PalmPilot(TM)
Personal and PalmPilot Professional Edition organizers let you store thousands
of names, addresses, appointments, expense items, even e-mail.* Just tap on the
backlit screen to access important information fast. Use your stylus or PC
keyboard to enter data easily.
PalmPilot organizers even make it easy to back-up and exchange
information with your desktop PC and popular PIMs** at the touch of a button.
At just 4.7" tall and weighing in at just 6 oz. PalmPilot organizers
aren't just small, smart and totally connected ... they're the #1 value in
personal organization.
50 word-
Now big organizing power comes in two pocket-sized packages: PalmPilot(TM)
Personal and PalmPilot Professional Edition organizers. Store thousands of
names, addresses, expense items, even e-mail.* Back-up and exchange information
with your desktop PC and popular PIMs** at the touch of a button on the docking
cradle. PalmPilot organizers are the #1 way to stay connected and organized.
25 word-
Small, light and totally connected, PalmPilot(TM) organizer makes it easy to
store and access all your important information and exchange it with your
desktop PC. They're the #1 value in personal organization.
Bullet copy -
(primary)
- Instant access to your data, calendar, e-mail, address book, to do list,
memo pad, and expenses.*
- Applications from thousands of developers make it even more powerful
- Synchronize data with your PC at the touch of a button - no dual data
entry and your data is always backed up.
Bullet copy -
(secondary)
- The perfect companion to your PC
- Flexible memory stores up to 2500 addresses, 4 years of appointments,
500 to do items, and 500 memos (PalmPilot Personal Edition organizer
only).
- The easy way to get your life organized!
- Everything you need is included.
- Shirt pocket size - just 4.7" tall and 6 oz., makes it truly portable.
- Portable e-mail* with the PalmPilot(TM) Professional Edition organizer
only.
- 3 easy ways to input data - write directly with the stylus, tap entries
on the on-screen keyboard, or use your PC keyboard.
- Internet-ready, includes TCP/IP software for enabling remote
synchronization capabilities and Internet-based applications like live
Internet access and web browsing. (PalmPilot Professional Edition
organizer only).
- Backlit screen for easy viewing in dim light.
- Priced at just $XXXX.
<PAGE> 57
PALM COMPUTING(TM) PLATFORM SOLUTION PROVIDER
MARKETING COMMUNICATIONS GUIDELINES
- Twice the memory of the PalmPilot(TM) Personal Edition organizer
(PalmPilot(TM) Professional Edition organizer only).
- Flexible memory stores up to 4000 addresses, 4 years of appointments,
750 to do items, 750 memos and 100 e-mail messages. (PalmPilot(TM)
Professional Edition organizer only.)
Disclaimer copy (use with all, including bullet, except 25 word copy)
* Palm(TM) Mail application supported on Palm III(TM) and PalmPilot(TM)
Professional Edition only. Palm Mail and Expense applications not supported on
Macintosh. Mail application may require optional modem and e-mail application,
sold separately.
** Optional links to many popular PIMs (Personal Information Managers) sold
separately.
13
<PAGE> 58
PALM COMPUTING(TM) PLATFORM SOLUTION PROVIDER
MARKETING COMMUNICATIONS GUIDELINES
PALM(TM) 2MB UPGRADE
100 word-
Upgrade your PalmPilot(TM) organizer to twice the memory and get all the
functionality of the Palm III(TM) connected organizer. With the Palm(TM) 2MB
Upgrade, you can do it yourself, in minutes. Future system software updates will
be a snap, because it's "flash upgradeable".
With your upgrade, you'll be able to store up to 6000 addresses, 5 years
of appointments, 1500 to do items, 1500 memos, and 200 email messages.* You can
also "beam" files, like your business card, and applications to other Palm III
users. And 3 new fonts make reading your organizer even easier. Now you can get
even more of what you use your PalmPilot organizer for.
50 word-
Get the power of the Palm III(TM) organizer in minutes! With the Palm(TM) 2MB
Upgrade, you can get 2MB of storage and infrared beaming. Store up to 6000
addresses, 5 years of appointments, 1500 to do items, 1500 memos, and 200 e-mail
messages.* It's the easiest way to get more from you PalmPilot(TM) organizer.
25 word -
The Palm(TM) 2MB Upgrade gives you Palm III(TM) functionality and twice the
memory of the PalmPilot(TM) Professional Edition organizer, store even more
entries and applications designed for the Palm Computing(TM) platform.
Bullet copy -
(primary)
- Get all the functionality of the Palm III(TM) organizer, even infrared
beaming!*
- Software flash upgradeable, so you'll never replace your memory card
again!
- Upgrade your Pilot 1000, Pilot 5000, PalmPilot(TM) Personal or
Professional Edition organizer to Palm III(TM) power.*
- Easy installation, do it yourself in minutes.
Bullet copy -
(secondary)
- Upgrade to 2MB of memory, store even more entries and applications!
- Price at just $XXX.
- Get twice the memory of the PalmPilot(TM) Professional Edition
organizer.
- Portable e-mail* works with leading e-mail applications like: QUALCOMM
Eudora, Lotus cc:Mail, Microsoft Exchange, Outlook, Outlook Express, and
Microsoft Windows Messaging.
- Internet-ready, includes TCP/IP software for enabling remote
synchronization capabilities and Internet-based applications like live
Internet e-mail and web browsing.*
- Take advantage of 3 new easy-to-read fonts and other software
enhancements.
Disclaimer copy - (use with all, including bullets)-
* Backlit screen not included. Palm(TM) Mail and Expense applications not
supported on Macintosh. Optional modem and e-mail applications, sold separately.
14
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PALM COMPUTING(TM) PLATFORM SOLUTION PROVIDER
MARKETING COMMUNICATIONS GUIDELINES
PALMPILOT(TM) MODEM
100 word-
Now you're never more than a phone jack away from your important data. With the
PalmPilot(TM) Modem, you can connect to your desktop PC from almost anywhere.
It's easy! Just snap it on and press a button on the modem to backup and
exchange data with your PC in minutes. Your PalmPilot Modem dials in to your PC,
updates and exchanges data, address entries, appointments, notes, even e-mail*
with your PalmPilot(TM) or Palm III(TM) organizer. It's designed and built by
3Com, so you know it's reliable.
Now, when you're on the road, you don't have to be out of touch. With the
PalmPilot Modem, the small, smart and totally connected organizers are even more
connected.
50 word-
Now you're never more than a phone jack away from your important data. With the
PalmPilot(TM) Modem, it's easy to be more connected! Just snap it onto your
PalmPilot(TM) or Palm III(TM) organizer and press a button to backup and
exchange data with your PC in minutes
25 word-
The PalmPilot(TM) Modem is the easy way to make your PalmPilot(TM) or Palm
III(TM) organizer even more connected. It's small, light, and always reliable.
Bullet copy -
(primary)
- Small and lightweight for complete portability.
- Connect to your desktop computer from anywhere there's standard analog
phone line.
- Manage your e-mail* on the road.
Bullet copy -
(secondary)
- Works with organizers based on the Palm Computing(TM) platform.
- Works with PalmPilot(TM) and Palm III(TM) organizers.
- Includes a 10 ft. phone cord.
- Priced at just $XXX.
Disclaimer copy - (use with 100 word & bullet copy)
* Palm(TM) Mail application supported on Palm III(TM) and PalmPilot(TM)
Professional Edition organizers only. Palm Mail application not supported on
Macintosh. Mail may require optional modem and e-mail application, sold
separately.
15
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PALM COMPUTING(TM) PLATFORM SOLUTION PROVIDER
MARKETING COMMUNICATIONS GUIDELINES
PALM(TM) MACPAC
75 word -
Put your most important information at your fingertips - and on your Mac - with
the Palm(TM) MacPac. The Palm MacPac has everything you need to connect any Palm
Computing(TM) connected organizer to your Mac in minutes. Access and manage your
calendar, contacts, to do list, notes and more! Palm MacPac lets you take
advantage of the market-leading Palm III(TM) or PalmPilot(TM) connected
organizers and a host of software designed for the Palm Computing(TM) platform.*
50 word-
Put your most important information at your fingertips - and on your Mac - with
the Palm(TM) MacPac. The Palm MacPac has everything you need to connect your Mac
to award-winning Palm III(TM) and PalmPilot(TM) organizers. Access and manage
your calendar, contacts, to do list, notes and more!
25 word-
Keep important information at your fingertips - and on your Mac - with the
Palm(TM) MacPac. The Palm MacPac seamlessly connects your Mac with Palm
Computing(TM) connected organizers.
Bullet copy -
(primary)
- The ultimate Personal Information Manager for Palm Computing(TM)
connected organizers and the Mac.
- Exchange data between your Palm Computing(TM) connected organizer and
your Macintosh at the touch of a button.
- Links to your favorite desktop applications are available now and more
are on the way!*
- Includes CD-ROM with on-line documentation, cradle and serial adapter
cable.
Bullet copy -
(secondary)
- Intuitive drag & drop application installation.
- Customize lists, create formats, and retrieve them instantly.
- See today's schedule with just one click or touch of a button.
- Instant Links let you address letters, send e-mail or launch web sites
with one click.**
- Print labels, envelopes or calendar pages.
- Links to your favorite applications are available now, and more are on
the way!*
Disclaimer copy (use with 75 word & bullet copy as required)
* Conduit software (links to desktop application software) is optional and sold
separately.
** E-mail support requires optional third party software, sold separately.
16
<PAGE> 61
EXHIBIT D
THIRD PARTY COMPONENTS
[*] contained in the current [*] product and in 3Com's first shipped [*]
product.
* 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.
26
<PAGE> 62
EXHIBIT E
ROYALTIES AND FEES
[*]
* 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.
27
<PAGE> 63
EXHIBIT F
3COM 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 3Com
to identify and resolve any development support requests. The support response
period begins after 3Com (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"). 3Com agrees to use commercially
reasonable efforts to recreate the reported error and respond based on the
following timetable:
"Severity One" Support. 3Com 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, 3Com shall provide its action plan within such timeframe and
provide regular status updates. A final resolution shall be identified in the
action plan. 3Com and JD 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. 3Com shall use reasonable commercial efforts to
resolve or reduce the severity via workaround and/or patch within five (5)
business days of the Start Date, or if unable to resolve such problem within
such timeframe, 3Com shall provide its action plan within such timeframe and
provide regular status updates. 3Com and JD problem managers shall review
incident after five (5) business days. A final engineering resolution shall be
identified in the action plan.
"Severity Three" Support. 3Com shall use reasonable commercial efforts
to acknowledge the error within ten (10) business days of receipt of notice.
3Com shall provide a final engineering resolution within three (3) months or
next scheduled release, whichever is sooner.
So long as 3Com 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, 3Com's inability to resolve such
problems within the timeframes stated herein or the action plan shall not be
deemed a material breach of Section 6.1 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 3Com to JD
hereunder are subject to billing at 3Com'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 3Com 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.
28
<PAGE> 64
EXHIBIT G
MINIMUM TERMS AND CONDITIONS OF END USER LICENSE
1. JD Technology, Inc. ("JD") grants the end user ("End User") a
nonexclusive license to use the software accompanying the JD Product
("Software"). With respect to the JD Product Desktop Software, End User may
reproduce and provide one (1) copy of such Software for each personal computer
or JD Product on which such Software is used as permitted hereunder. With
respect to the JD Product Device Software, End User may use such Software only
on one (1) JD Product. End User may assign its right under the End User License
Agreement to an assignee of all of End User's rights and interest to the
Software only if End User transfers all copies of the Software subject to the
End User License Agreement to such assignee and such assignee agrees in writing
to be bound by all the terms and conditions of the End User License Agreement.
2. End User agrees not to reverse engineer, decompile or disassemble the
Software. End User will not copy the Software except as necessary to use it in
accordance with this End User License Agreement. End User agrees that any such
copies of the Software shall contain the same proprietary notices which appear
on and in the original copy of the Software.
3. Except as stated above, the End User License Agreement does not grant
End User any rights (whether by license, ownership or otherwise) in or to
intellectual property with respect to the Software.
4. End User will not export or re-export the Software without all
appropriate United States and other foreign government licenses.
5. Title to and ownership of the Software and any copy thereof shall
remain with JD and its suppliers.
6. If the Software is licensed for a proposal or agreement with the
United States Government or any contractor therefor, the Software must be
legended, marked and licensed as described in Section 10.3 of the Agreement.
29
<PAGE> 65
AMENDMENT NO. 1
TO
SOFTWARE LICENSE AGREEMENT
This Amendment No. 1 ("Amendment") 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 Handspring, Inc. ("Licensee"), a California
corporation with a place of business at 299 California Avenue, Palo Alto,
California 94306. The effective date of this Amendment shall be September 24,
1998 ("Effective Date").
RECITALS
A. Effective as of September 24, 1998, 3Com and Licensee entered into a
Software License Agreement ("License Agreement"; capitalized terms used herein
and not defined shall have the meanings set forth in the License Agreement) with
regard to Licensee's developing, manufacturing and marketing handheld computing
products incorporating specified 3Com software and technology related to the
3Com Palm Computing platform.
B. Following the effective date of the License Agreement, Licensee
changed its corporate name from "JD Technology, Inc." to "Handspring, Inc."
C. Licensee has received, and hopes to receive in the future, from 3Com
certain source code for the Palm Software so that Licensee may examine such
source code to assist Licensee in developing products within the scope of the
License Agreement.
D. 3Com is willing to provide such source code to Licensee as specified
in this Amendment pursuant to the terms and conditions of the License Agreement.
AGREEMENT
NOW, THEREFORE, the parties hereby amend the License Agreement as
follows:
1 SOURCE CODE DELIVERABLES. The following is added to Section 3 of the License
Agreement:
"3.3 Delivery of Palm Source Code. 3Com has provided, and may at its
sole option from time to time elect to provide, JD with certain source code for
certain Palm Software ("Palm Source Code".)"
"3.4 Delivery of Palm Source Code Documentation. 3Com may, at its
option, from time to time elect to provide JD with technical documentation
relating to the Palm Source Code ("Palm Source Code Documentation")."
1
<PAGE> 66
2. LICENSES. The following is added to Section 2 of the License Agreement:
"2.9 Source Code License.
(a) Right to Use. Subject to the terms and conditions of this
Agreement, 3Com hereby grants to JD a limited, non-exclusive, non-transferable,
fully-paid license to examine the Palm Source Code and the Palm Source Code
Documentation for the sole purpose of assisting JD in developing JD Products
within the scope of the License Agreement and to reproduce no more than three
(3) copies of the Palm Source Code and Palm Source Code Documentation.
(b) Limitations of License. JD shall not have the right to: (i)
sublicense any of its rights under this Section 2.9 to any third party; (ii)
incorporate any Palm Source Code or Palm Source Code Documentation in any
technology or products of JD or of any third party; (iii) disclose any Palm
Source Code or Palm Source Code Documentation to any third party; (iv) use or
reproduce any Palm Source Code or Palm Source Code Documentation other than as
permitted by subsection (a) above; or (iv) modify or distribute any Palm Source
Code or Palm Source Code Documentation in any manner.
(c) Inspection Rights. 3Com shall have the right, upon reasonable
advance notice, to inspect JD's records and facilities with respect to the use
of the Palm Source Code and Palm Source Code Documentation in order to verify
that such use is within the scope of this Agreement, and that there are
appropriate security procedures in place to protect the Palm Source Code and
Palm Source Code Documentation (including, but not limited to, the procedures
set forth in Section 13.3 below).
(d) No Other Licenses. The licenses granted under this Section 2.9
are specifically set forth herein, and no licenses are granted by 3Com to JD by
implication or estoppel to the Palm Source Code or Palm Source Code
Documentation."
3 SUPPORT. The following is added to Section 7 of the License Agreement:
"7.5 Source Code Support. 3Com shall have no obligation to provide JD
with any support or maintenance of any kind for the Palm Source Code or Palm
Source Code Documentation at any time."
4 PROPRIETARY RIGHTS. The following is added to Section 10 of the License
Agreement:
"10.5 Source Code. JD acknowledges that the Palm Source Code and Palm
Source Code Documentation are the valuable trade secrets and Confidential
Information of 3Com. 3Com shall be the sole and exclusive owner of the Palm
Source Code and Palm Source Code Documentation. JD agrees that it will not
remove, alter or otherwise obscure any proprietary rights notices appearing in
the Palm Source Code or Palm Source Code Documentation."
2
<PAGE> 67
5 WARRANTY. The following is added to Section 11 of the License Agreement:
"11.4 Source Code Warranty Disclaimer. 3COM MAKES NO WARRANTIES,
EXPRESS, IMPLIED OR STATUTORY, WHATSOEVER AS TO THE PALM SOURCE CODE OR PALM
SOURCE CODE DOCUMENTATION. IN PARTICULAR, ANY AND ALL WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND YEAR
2000 COMPLIANCE THEREFOR ARE EXPRESSLY EXCLUDED."
6 CONFIDENTIALITY. The following is added to the end of Section 13.3 of the
License Agreement after the period:
"In the event that 3Com provides JD with a copy of the [*] (the [*])
which contains all, substantially all or a significant portion of the Palm
Software in source code form, JD agrees to the following additional obligations
with respect to the [*] notwithstanding any other provision of this Agreement:
(i) JD shall only be entitled to use two (2) copies of the [*], (ii) JD shall
not make any additional copies of the [*], (iii) JD shall only use the [*] on
two (2) PC's at any one time, (iv) the following named individuals shall be the
only persons permitted to use or access the [*]: [*], and [*], (v) each copy of
the [*] shall be kept in a locked room or file cabinet when not in use, and (vi)
use of the [*] shall be password protected. JD shall have the right to change
the named individuals upon fifteen (15) days written notice to 3Com. Except as
otherwise set forth in this Section 13.3, the provisions of this Agreement that
apply to the Palm Source Code shall apply to the source code contained in the
[*]."
6 INJUNCTIVE RELIEF. The following is added to Section 17 of the License
Agreement:
"17.15 Injunctive Relief. The copying, disclosure, or use of the Palm
Source Code or Palm Source Code Documentation in a manner inconsistent with any
provision of this Agreement will cause irreparable injury to 3Com for which 3Com
will not have an adequate remedy at law. 3Com will be entitled to equitable
relief in court, including but not limited to temporary restraining orders,
preliminary injunctions and permanent injunctions."
7 ENTIRE AGREEMENT. The parties agree that this Amendment constitutes the entire
agreement between the parties relating to its subject matter and supersedes all
prior or simultaneous representations, discussions, negotiations, and
agreements, whether written or oral; provided, however, that the License
Agreement, except as modified by this Amendment, remains in full force and
effect. The parties acknowledge that the terms and conditions of the License
Agreement, including but not limited to Sections 2.8 (Limitations on Scope of
Agreement), 8.2 (Publicity), 13 (Confidentiality), 14 (Limitation of Liability),
15 (Export Regulations), and 16.5 (Survival) of the License Agreement, will
apply to the Palm Source Code or Palm Source Code Documentation.
* 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.
3
<PAGE> 68
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the dates
set forth below effective as of the Effective Date.
PALM COMPUTING, INC., HANDSPRING, INC.
a subsidiary of 3Com Corporation
By: /s/ Mark Bercow By: /s/ Donna Dubinsky
-------------------------------- ---------------------------------
Name: Mark Bercow Name: Donna Dubinsky
------------------------------ -------------------------------
Title: VP Title: CEO
----------------------------- ------------------------------
Date: 1/14/99 Date: 1/8/99
------------------------------ -------------------------------
4
<PAGE> 69
AMENDMENT NO. 2
TO
SOFTWARE LICENSE AGREEMENT
This Amendment No. 2 ("Amendment") 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 5400 Bayfront Plaza,
California 95052, and Handspring, Inc. ("Licensee"), a California corporation
with a place of business at 299 California Avenue, Palo Alto, California 94306.
The effective date of this Amendment shall be March 9, 1999 ("Effective Date").
RECITALS
A. Effective as of September 24, 1998, 3Com and Licensee entered into a
Software License Agreement, as amended ("License Agreement"; capitalized terms
used herein and not defined shall have the meanings set forth in the License
Agreement) with regard to Licensee's developing, manufacturing and marketing
handheld computing products incorporating specified 3Com software and technology
related to the 3Com Palm Computing platform.
B. Licensee has received, and hopes to receive in the future, from 3Com
certain source code for the Palm Software so that Licensee may modify certain
portions of such source code as specified in this Amendment pursuant to the
terms and conditions of the License Agreement.
AGREEMENT
NOW, THEREFORE, the parties hereby amend the License Agreement as
follows:
1 DEFINITION. Each reference in the License Agreement to "JD" shall be
deleted and replaced with the word "Licensee."
2 SOURCE CODE MODIFICATION. The following is added to Section 2 of the
License Agreement:
"2.10 Source Code Modification License. Subject to the terms and
conditions of this Agreement, 3Com hereby grants to Licensee a limited,
non-exclusive, non-transferable (subject to Section 17.9), fully-paid license to
(i) modify those portions of the Palm Source Code as identified in an Attachment
hereto (the "Modifiable Source Code") but only for the limited purpose(s) set
forth in such Attachment with respect to such Modifiable Code, and (ii) use,
reproduce and distribute such modifications (the "Modifications") in object code
form to the same extent as Licensee is permitted to do so with respect to
Derivative Works pursuant to Section 2.2 above. For each set of Modifiable Code,
the parties shall execute separate sequentially numbered Attachments (e.g.
Attachment No. 1, Attachment No. 2, etc.). Licensee shall have no right to (a)
sublicense the rights granted in subsection (i) above to any third party, (b)
modify any Palm Source Code other than the Modifiable Source Code, or (c) modify
the Modifiable Source Code for any purpose other than as expressly set forth in
the applicable
1
<PAGE> 70
Attachment. The licenses granted under this Section 2.10 are specifically set
forth herein, and no licenses are granted by 3Com to Licensee by implication or
estoppel to the Modifiable Source Code."
3 OWNERSHIP. The following is added to the end of Section 10.1 of the License
Agreement:
"Subject always to 3Com's ownership of the Palm Software and the
restrictions set forth in Section 2 above, Licensee shall be the sole and
exclusive owner of the Modifications and the Modifications shall be deemed
"Licensee Software" for purposes of this Agreement. Licensee agrees to provide
3Com, upon 3Com's request, copies of all Modifications. Licensee hereby grants
to 3Com a worldwide, nonexclusive, fully paid, royalty free, perpetual and
irrevocable 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."
4 TERMINATION. Except as expressly provided in this Section 4, this Amendment,
and all rights and obligations under this Amendment, shall terminate and be of
no further force or effect if there is a material change in the ownership or
control of Licensee such that more than twenty percent (20%) or more of the
voting equity stock of Licensee is owned and/or controlled (directly or
indirectly) by one or more Competitors. In the event of such termination,
Licensee shall promptly (i) cease all modification of the Palm Source Code, (ii)
return all Modifiable Source Code to the extent such source code has not
previously been provided to Licensee under Amendment No. l to the License
Agreement, including, but not limited to, all copies thereof in whole and in
part, to 3Com, and (iii) destroy all copies thereof, in whole and in part,
residing within any computers in Licensee's control. Notwithstanding the
foregoing, in the event of termination of this Amendment pursuant to this
Section 4, in no event shall such termination affect Licensee's rights to
reproduce and distribute in object code form Modifications existing as of the
effective date of such termination pursuant to Section 2.10(ii).
5 ENTIRE AGREEMENT. The parties agree that this Amendment and any Attachments
made effective pursuant to this Agreement constitute the entire agreement
between the parties relating to its subject matter and supersedes all prior or
simultaneous representations, discussions, negotiations, and agreements, whether
written or oral; provided, however, that the License Agreement, except as
modified by this Amendment, remains in full force and effect.
2
<PAGE> 71
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on
the dates set forth below effective as of the Effective Date.
PALM COMPUTING, INC., HANDSPRING, INC.
a subsidiary of 3Com Corporation
By: /s/ Mark Bercow By: /s/ Donna Dubinsky
-------------------------------- ---------------------------------
Name: Mark Bercow Name: Donna Dubinsky
------------------------------ -------------------------------
Title: VP Title: CEO
----------------------------- ------------------------------
3
<PAGE> 72
ATTACHMENT NO. 1
This Attachment No. 1 is an attachment to Amendment No.2 to the Software License
Agreement between Palm Computing, Inc., a subsidiary of 3Com Corporation and
Handspring, Inc.
[*]
[*]
PALM COMPUTING, INC., HANDSPRING, INC.
a subsidiary of 3Com Corporation
By: /s/ Gabriel Aroste-Lopez By: /s/ Donna Dubinsky
-------------------------------- ---------------------------------
Name: Gabriel Aroste-Lopez Name: Donna Dubinsky
------------------------------ -------------------------------
Title: Director Platform Development Title: CEO
Services
----------------------------- ------------------------------
Date: 3-16-99 Date: 3/9/99
------------------------------ -------------------------------
* 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.
4
<PAGE> 73
ATTACHMENT NO. 2
This Attachment No.2 is an attachment to Amendment No.2 to the Software License
Agreement between Palm Computing, Inc., a subsidiary of 3Com Corporation and
Handspring, Inc.
[*]
[*]
AMENDMENT TO AMENDMENT NO.2: For purposes of this Attachment No.2 only, the
following two sentences are deleted from Section 3 of Amendment No.2 with
respect to Modifications made by Licensee pursuant to this Attachment No.2:
"Licensee agrees to provide 3Com, upon 3Com's request, copies of all
Modifications. Licensee hereby grants to 3Com a worldwide, nonexclusive,
fully paid, royalty free, perpetual and irrevocable 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."
Except as modified by this Attachment No.2 with respect to this Attachment No.2,
Amendment No.2 shall remain in full force and effect.
PALM COMPUTING, INC., HANDSPRING, INC.
a subsidiary of 3Com Corporation
By: /s/ Mark Bercow By: /s/ Donna Dubinsky
-------------------------------- ----------------------------------
Name: Mark Bercow Name: Donna Dubinsky
------------------------------ --------------------------------
Title: VP Title: CEO
----------------------------- -------------------------------
Date: 3/9/99 Date: 3/9/99
------------------------------ --------------------------------
* 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.
5
<PAGE> 74
ATTACHMENT NO. 3
This Attachment No.3 is an attachment to Amendment No.2 to the Software License
Agreement between Palm Computing, Inc., a subsidiary of 3Com Corporation and
Handspring, Inc.
[*]
[*]
AMENDMENT TO AMENDMENT NO.2: For purposes of this Attachment No.3 only, the
following two sentences are deleted from Section 3 of Amendment No.2 with
respect to Modifications made by Licensee pursuant to this Attachment No.3:
"Licensee agrees to provide 3Com, upon 3Com's request, copies of all
Modifications. Licensee hereby grants to 3Com a worldwide, nonexclusive,
fully paid, royalty free, perpetual and irrevocable 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."
Except as modified by this Attachment No.3 with respect to this Attachment No.3,
Amendment No.2 shall remain in full force and effect.
PALM COMPUTING, INC., HANDSPRING, INC.
a subsidiary of 3Com Corporation
By: /s/ Mark Bercow By: /s/ Donna Dubinsky
-------------------------------- -----------------------------------
Name: Mark Bercow Name: Donna Dubinsky
------------------------------ ---------------------------------
Title: VP Title: CEO
----------------------------- --------------------------------
Date: 4/28/99 Date: 3/25/99
------------------------------ ---------------------------------
* 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.
<PAGE> 75
AMENDMENT NO. 3
TO
SOFTWARE LICENSE AGREEMENT
This Amendment No. 3 ("Amendment") 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 5400 Bayfront Plaza, Santa
Clara, California 95052, and Handspring, Inc. ("Licensee"), a California
corporation with a place of business at 299 California Avenue, Palo Alto,
California 94306. The effective date of this Amendment shall be 4/8, 1999
("Effective Date").
RECITALS
A. Effective as of September 24, 1998, 3Com and Licensee entered into a
Software License Agreement, as amended ("License Agreement"; capitalized terms
used herein and not defined shall have the meanings set forth in the License
Agreement) with regard to Licensee's developing, manufacturing and marketing
handheld computing products incorporating specified 3Com software and technology
related to the 3Com Palm Computing platform.
B. The parties desire to amend the License Agreement as set forth in
this Amendment.
The parties hereby amend the License Agreement as follows:
1 CONFIDENTIALITY. The following phrases are deleted from Section 13.3 of the
License Agreement:
"(iv) the following named individuals shall be the only persons
permitted to use or access the [*]: [*] and [*]"
"Licensee shall have the right to change the named individuals upon
fifteen (15) days written notice to 3Com."
2 ENTIRE AGREEMENT. The parties agree that this Amendment constitutes the entire
agreement between the parties relating to its subject matter and supersedes all
prior or simultaneous representations, discussions, negotiations, and
agreements, whether written or oral; provided, however, that the License
Agreement, except as modified by this Amendment, remains in full force and
effect.
* 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.
1
<PAGE> 76
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on
the dates set forth below effective as of the Effective Date.
PALM COMPUTING, INC., HANDSPRING, INC.
a subsidiary of 3Com Corporation
By: /s/ Mark Bercow By: /s/ Donna Dubinsky
-------------------------------- -----------------------------------
Name: Mark Bercow Name: Donna Dubinsky
------------------------------ ---------------------------------
Title: VP Title: CEO
----------------------------- --------------------------------
Date: 4/28/99 Date: 4/8/99
------------------------------ ---------------------------------
2
<PAGE> 77
AMENDMENT NO. 4
TO
SOFTWARE LICENSE AGREEMENT
This Amendment No. 4 ("Amendment") 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 5400 Bayfront Plaza, Santa
Clara, California 95052, and Handspring, Inc. ("Licensee"), a California
corporation with a place of business at 299 California Avenue, Palo Alto,
California 94306. The effective date of this Amendment shall be _______________,
1999 ("Effective Date").
RECITALS
A. Effective as of September 24, 1998, 3Com and Licensee entered into a
Software License Agreement, as amended ("License Agreement"; capitalized terms
used herein and not defined shall have the meanings set forth in the License
Agreement) with regard to Licensee's developing, manufacturing and marketing
handheld computing products incorporating specified 3Com software and technology
related to the 3Com Palm Computing platform.
B. The parties desire to amend the License Agreement as set forth in
this Amendment.
The parties hereby amend the License Agreement as follows:
1 CONFIDENTIALITY. The last two sentences of 13.3 of the License Agreement are
deleted in their entirety and restated as follows:
"In the event that 3Com, from time to time, provides Licensee with a
copy of one or more CDs which contain all, substantially all or a significant
portion of the Palm Software in source code form, including any updates,
upgrades or new versions thereof (the "Palm Software CD"), Licensee agrees to
the following additional obligations with respect to the Palm Software CD
notwithstanding any other provision of this Agreement: (i) Licensee shall only
be entitled to use two (2) copies of the Palm Software CD, (ii) Licensee shall
not make any additional copies of the Palm Software CD, (iii) Licensee shall
only use the Palm Software CD on two (2) PC's at any one time, (iv) each copy of
the Palm Software CD shall be kept in a locked room or file cabinet when not in
use, and (v) use of the Palm Software shall be password protected. Except as
otherwise set forth in this Section 13.3, the provisions of this Agreement that
apply to the Palm Source Code shall apply to the source code contained in the
Palm Software CD."
2 ENTIRE AGREEMENT. The parties agree that this Amendment constitutes the entire
agreement between the parties relating to its subject matter and supersedes all
prior or simultaneous representations, discussions, negotiations, and
agreements, whether written or oral; provided, however, that the License
Agreement, except as modified by this Amendment, remains in full, force and
effect.
1
<PAGE> 78
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on
the dates set forth below effective as of the Effective Date.
PALM COMPUTING, INC., HANDSPRING, INC.
a subsidiary of 3Com Corporation
By: /s/ Daniel S. Keller By: /s/ Donna Dubinsky
-------------------------------- ----------------------------------
Name: Daniel S. Keller Name: Donna Dubinsky
------------------------------ --------------------------------
Title: VP, Platform Engineering Title: CEO
----------------------------- -------------------------------
Date: 12/9/99 Date: 12/8/99
------------------------------ --------------------------------
2