Exhibit 10.1
Palm, Inc. OEM Partner Agreement
Territory: United States*
(*United States shall be the 50 states only, not including any U.S. territories)
This Palm, Inc. OEM Partner Agreement ("Agreement"), effective as of the 30th
day of May 2001, by and between Palm, Inc. ("Palm"), a Delaware corporation,
having a place of business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and PTN Media, Inc., licensee of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ("OEM
Partner"), a Delaware corporation having a place of business at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, #▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
1. Distribution Rights. During the term of the Agreement, OEM Partner shall have
a non-transferable right to sell, license, lease, rent and otherwise distribute
the Palm products purchased under this Agreement ("Products") only through those
channels of distribution listed in Exhibit A, and only for sale to end-users
within the Territory. Should OEM Partner wish to add other channels of
distribution to those listed in Exhibit A, OEM Partner must obtain Palm's prior
written approval.
2. Representations and Conditions.
2.1 OEM has represented to Palm that it owns the exclusive right to
distribute handheld products running the Palm OS together with the ▇▇▇▇▇▇▇
▇▇▇▇▇▇ name, likeness, logo and other intellectual property related to ▇▇▇▇▇▇▇
▇▇▇▇▇▇. OEM acknowledges that Palm is entering into this Agreement in reliance
upon such representations. Should OEM cease to have such rights or should any
such rights be limited, OEM shall immediately notify Palm. Palm reserves the
right to seek assurances from either OEM or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ that such
relationship exists, and continues to exist, and throughout the term of this
Agreement. Should Palm learn that such authority no longer exists, Palm may
immediately cease performance hereunder.
2.2 OEM Partner Facilities. Should Palm reasonably believe, in its sole
discretion, that OEM may not have the capability of perform its obligations
hereunder, Palm may suspend performance until such time as it is satisfied that
such performance will occur. Palm may only assert this right in good faith and
for material matters. Actions Palm may take to satisfy itself of OEM Partner's
ability to perform include, but are not limited to, touring OEM Partner's
facilities to determine whether or not it has the personnel and processes in
place to resell Products. Should OEM Partner not correct any deficiencies noted
by Palm within a reasonable period of time, Palm may terminate this Agreement
pursuant to Paragraph 20.1.
2.3 OEM Marketing Plan. OEM Partner shall submit for Palm's approval a
marketing plan showing OEM Partner's outline for reselling the Products. Such
Marketing Plan must be approved by Palm in writing no later than April 30, 2001.
Any delay in meeting this date shall result in Palm delaying shipment and/or
processing of OEM Partner's orders.
3. Term. This Agreement shall commence on the Effective Date and shall continue
for a period of one (1) year. The Agreement may be extended for an additional
one (1) year period, provided it is agreed upon in writing by both parties least
sixty (60) days prior to the expiration of the Agreement.
4. Prices and Price Changes. Products shall be sold to OEM Partner at the prices
established in Exhibit B - Product Description and Pricing Schedule. All prices
are in U.S. dollars. OEM Partner is free to set its own prices for resale. Palm
may unilaterally change its prices from time-to-time by providing advance
written notice to OEM Partner.
5. Purchase Orders. OEM Partner agrees to submit a non-cancelable, binding
purchase order with a specified twelve (12) week lead time. Orders shall be
subject to written acceptance by Palm and delivery schedules established in
accordance with Product availability and OEM Partner's credit status. OEM
Partner may place orders for Products by faxing or sending by electronic mail
(e-mail) purchase orders to the appropriate order entry location as specified by
Palm from time to time in writing or by electronic data interchange ("EDI")
transmission referencing this Agreement (if an EDI agreement has been executed
by the parties) and stating the Palm Product number, quantity, applicable price,
requested delivery date, ▇▇▇▇ to and ship to addresses, special shipping
instructions (if any), partial/no partials allowed, and any special order
handling instructions. Although OEM Partner may use its standard purchase order
and other forms, and Palm may use its standard order acknowledgement and invoice
and other forms, the terms and conditions of this Agreement will prevail over
OEM Partner's and Palm's forms and any inconsistent, conflicting, different or
1
additional terms in such forms will be of no effect. Palm may decline to make
shipments to OEM Partner if OEM Partner is delinquent in making payments to Palm
or is otherwise in breach of this Agreement.
6. Delivery. Palm will use commercially reasonable efforts to ship in accordance
with OEM Partner's scheduling requests, but shall not be liable for any delay in
shipment. Palm Products shall be shipped F.O.B. Origin OEM Partner's location
within the United States. Palm selects the carrier and pays freight and
insurance charges. Insurance is purchased based upon the value of the Products
being shipped. Title and risk of loss shall pass to OEM Partner upon delivery to
the first common carrier at Palm's shipping docks. Palm will place tracers and
file claims relating to any lost or damaged goods on OEM Partner's behalf.
6.1 Shipping Dates. Palm may ship before the scheduled shipment date, but
not to arrive earlier than OEM Partner's requested delivery date. Palm will
promptly notify OEM Partner if any order or part of an order cannot be filled or
if there will be any delays in delivery. Palm will use all reasonable efforts to
ship on indicated dates but will not be liable for failure to do so. If Palm
fails to ship on the scheduled ship date, OEM Partner may reschedule without
charge.
7. Payment. Until such time as OEM Partner's credit is approved by the Palm
Credit Department, payment of all purchase orders will be only by irrevocable
letter of credit payable against documents confirmed by Palm's bank, or by cash
with order. The terms of payment will be determined by the Palm Credit
Department, in its sole discretion.
In the event OEM receives credit, the following payment terms will apply.
Standard payment terms are net thirty (30) days from the date of invoice, which
is the date of shipment. OEM Partner must give Palm written notice of any
discrepancies among the purchase order, the invoice, and the Products received,
within thirty (30) days after receipt of the Products or the invoice, whichever
occurs later. Payment is not conditioned upon the Products meeting any
acceptance testing procedures OEM Partner may have. If there is any dispute as
to a part of a shipment, OEM Partner will pay for the undisputed part of that
shipment. OEM Partner may not deduct any debit memos from payment(s) made to
Palm on outstanding invoice(s), without prior written approval from the Palm
Credit and Collections Department. Payments should be submitted to the
appropriate address as stated on the invoice.
8. Credit. Credit limits and payment terms decisions are made, at Palm's sole
discretion, by an analysis of OEM Partner's current and historical financial
information, bank references, trade references, payment practices, OEM Partner's
business plan, etc. To facilitate Palm's determination of credit limits and
payment terms, OEM Partner may be required to provide current financial
information to Palm if so requested, unless such information is readily
available from public sources. Palm may withdraw credit upon notice to OEM
Partner in the event Palm determines, in its sole discretion, that such credit
would create an unreasonable credit risk.
9. Interest. Palm reserves the right to charge OEM Partner interest on any
delinquent balance. This interest is computed on a daily basis for each day that
the payment is delinquent, at the lesser of (i) eighteen percent (18%) per annum
or (ii) the maximum rate permitted by law.
10. Taxes and Duties. OEM Partner is responsible for all taxes imposed in
connection with the sale to OEM Partner of Palm Products or services or which
Palm may incur in respect of this Agreement (except taxes imposed on Palm's
income) including all sales, use, value added, gross receipts or other taxes of
any nature and any penalties, interest and collection or withholding costs
associated with any of the foregoing items. All such amounts are in addition to
other amounts payable hereunder and this obligation shall survive termination or
expiration of this Agreement. OEM Partner may provide Palm with a tax exemption
certificate acceptable to the taxing authorities in lieu of paying such taxes;
however, OEM Partner shall reimburse Palm for any fines, penalties, taxes, and
other charges, including expenses incurred by Palm, due to OEM Partner's
submission of invalid information.
11. OEM Partner Requested Changes. If OEM Partner requests a change in a Product
specification, including any aspect of the Product packaging, Palm reserves the
right to assess a charge equal to the actual cost incurred as a result of such
change in order for the OEM Partner-requested change to be implemented. Approval
of such a change request shall be within the sole discretion of Palm. Palm has
agreed to make those OEM Partner requested changes as stated in Exhibit D
attached hereto and incorporated herein by reference. Payments of the assessed
charge shall be made pursuant to Section 7 - Payment of this Agreement.
2
12. Minimum Advertised Price (MAP). OEM Partner must comply with Palm's
Unilateral Minimum Advertised Price (MAP) policy for the underlying Palm
product, as described in Palm's ResellerPro program. OEM Partner's obligations
in this regard include implementing such a program within the channels of
distribution authorized in Section 1- Distribution Rights above.
13. Dead-or Defective-on-Arrival (DOA) Returns. In the event a Product
completely fails to function or exhibits a defect in materials or workmanship
within the first forty-eight (48) hours of use but no later than thirty (30)
days after the end user's purchase from OEM Partner, it will be considered dead-
or defective-on-arrival (DOA) and may be returned for credit. All DOA returns
must be pre-approved by Palm and must be accompanied by a Return Material
Authorization (RMA) number, obtained in accordance with the procedures stated in
the current Palm Policies and Business Practices document. OEM Partner will pay
freight on all Products returned to Palm.
14. Warranty. Palm does not provide any warranty to OEM Partner. THE WARRANTIES
OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY
QUALITY, CORRESPONDENCE WITH DESCRIPTION, AND NON-INFRINGEMENT, ARE EXPRESSLY
DISCLAIMED. Palm warrants the Product directly to the end user via Palm's
standard warranty which will be included with the Product. This End User Limited
Warranty is subject to change without notice, and the warranty that applies to a
particular Product is the one packaged with that Product.
Should OEM Partner receive a request for service and/or support related to the
Palm handheld and Palm operating system and desktop software from an End User,
OEM Partner shall refer such end user directly to Palm's Technical Support
organization. In addition, OEM Partner's website shall also contain information
referring end users directly to Palm's Customer Service Organization for any
service and/or support issues related to the Product.
Any requests for service and/or support in connection with the applications on
the CD ROM included with the Product shall not be referred to Palm, pursuant to
Exhibit C - Service and Support.
15. Intellectual Property Protection.
15.1 OEM Partner acknowledges Palm's representation that all Intellectual
Property Rights throughout the world are vested in Palm absolutely, and
acknowledges that OEM Partner has no right, title or interest in any
Intellectual Property Rights. "Intellectual Property Rights" means any of Palm's
patents, trademarks, trade names, inventions, copyrights, design rights,
know-how or trade secrets and any other intellectual property rights existing in
the Territory or elsewhere, relating to the origin, design, manufacture,
programming, operation or service of Products. Palm acknowledges that it owns no
rights in any ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Intellectual Property Rights. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Intellectual Property Rights include ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Trademarks as defined in
Section 19.6 as well as any other intellectual property rights owned or
controlled by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
15.2 Palm shall, at its own expense, defend or settle any suit or
proceeding that is instituted against OEM partner to the extent such suit or
proceeding alleges that any Product sold by Palm hereunder infringes any duly
issued patent or copyright of the United States and shall pay all damages
awarded therein against OEM Partner or agreed upon in settlement by Palm;
provided that OEM Partner (i) gives Palm immediate notice in writing of any such
suit, proceeding or threat thereof, (ii) permits Palm sole control, through
counsel of Pam's choice, to defend and/or settle such suit and (iii) gives Palm
all the needed information, assistance and authority, at Palm's expense, to
enable Palm to defend or settle such suit. Likewise, OEM partner will provide
such defense and payment to Palm for any claim of infringement arising out of or
related to (1) any ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Intellectual Property Rights, (2) any claim by
anyone claiming by or through ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ that any Palm action hereunder
violated any ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Intellectual Property Rights or (3) any of the
software contained on the CD described in Exhibit B - Product Description and
Pricing Schedule.
15.3 The above provision shall not apply to and Palm shall have no
liability or obligation for any infringement arising from: (i) any modification,
servicing or addition made to the Product by anyone other than Palm, (ii) the
use of such Product as a part of or in combination with any devices, parts or
software not provided by Palm, (iii) compliance with OEM Partner's design
requirements or specifications, (iv) the use of other than the then current
unaltered release of the software Product available from Palm or (v) the use of
such Product to practice any method or process which does not occur wholly
within the Product, or (vi) use by Palm of any ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Trademarks as
authorized herein in section 19.6. The above exclusions apply to the extent that
the infringement would have been avoided but for such modifications,
combinations, compliance with specifications, use of other than the current
release or practice of such method or process.
3
15.4 In the event the use or sale of any Product purchased from Palm is
enjoined, or in the event Palm wishes to minimize its potential liability
hereunder, Palm may, at its sole option and expense: (i) procure for OEM Partner
the right to use or sell such Product; (ii) substitute a functionally
equivalent, non-infringing unit of the Product; (iii) modify such Product so
that it no longer infringes but is substantially equivalent in functionality; or
(iv) if none of the foregoing are commercially feasible, take back such Product
and refund the purchase price paid by OEM Partner for such Product depreciated
over a five (5) year period using the straight line method. Palm shall in no
event be obligated to accept new orders for Products which are subject to a
claim of infringement covered under this section.
15.5 THIS SECTION STATES PALM'S TOTAL RESPONSIBILITY AND LIABILITY, AND OEM
PARTNER'S SOLE REMEDY, FOR ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY
INTELLECTUAL PROPERTY RIGHT FOR ANY PRODUCTS DELIVERED HEREUNDER OR ANY PART
THEREOF AND IS IN LIEU OF AND REPLACES ANY AND ALL OTHER EXPRESS, IMPLIED OR
STATUTORY WARRANTIES OR CONDITIONS REGARDING INFRINGEMENT.
16. Mutual General Indemnity. Each party shall indemnify and defend the other
party against all claims, suits, losses, expenses, and liabilities (including
the indemnified party's reasonable attorney's fees) for personal injury, death,
and tangible property damage made against the indemnified party as a result of
the negligence, intentional wrongful acts, omissions where there is a duty to
act, or misrepresentations of the indemnitor or any person for whose actions the
indemnitor is legally liable. This indemnity is conditioned upon the indemnified
party (i) giving the indemnitor prompt notice in writing of such claim, suit,
proceeding or threat thereof, (ii) giving the indemnitor sole control, through
counsel of its choice, to defend and/or settle such suit and (iii) giving the
indemnitor all the needed information, assistance and authority, at the
indemnitor's expense, to enable the indemnitor to defend or settle such suit.
OEM Partner shall be solely responsible for any claims, warranties or
representations made by OEM Partner or employees, agents of either OEM Partner
or within the channels of distribution listed in Section 1 - Distribution Rights
which differ from the warranty provided by Palm in the limited warranty included
in the packaging of each Product sold or licensed hereunder, or which differ
from written documentation provided by Palm.
17. Limitation of Liability. IN NO EVENT, REGARDLESS OF THEORY, SHALL EITHER
PARTY BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE
DAMAGES OF ANY KIND, OR FOR LOSS OF REVENUE, LOSS OF BUSINESS, LOSS OF DATA OR
OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THE SALE,
INSTALLATION, USE, PERFORMANCE, FAILURE OR INTERRUPTION OF THE PRODUCTS OR
SERVICES PROVIDED HEREUNDER. NOTWITHSTANDING ANY OTHER PROVISION OF THIS
AGREEMENT, EACH PARTY'S MAXIMUM LIABILITY TO THE OTHER PARTY HEREUNDER SHALL NOT
EXCEED THE PURCHASE PRICE OF THE PRODUCTS OR SERVICES PURCHASED OR LICENSED
DURING THE TERM OF THIS AGREEMENT. IN THE CASE OF DAMAGES DUE BY OEM PARTNER TO
PALM, THE FOREGOING AMOUNT SHALL BE IN ADDITION TO THE PAYMENTS DUE BY OEM
PARTNER TO PALM UNDER SECTION 7 - PAYMENT. THIS DISCLAIMER OF LIABILITY WILL NOT
BE AFFECTED IF ANY REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
18. Confidentiality. During the course of this Agreement, each party may
disclose to the other certain proprietary or confidential information, which
shall be received in confidence and not revealed to third parties or applied to
uses other than recipient's performance of its obligations hereunder, as
specified in greater detail in the current Palm, Inc. Mutual Nondisclosure
Agreement in place between Palm and OEM Partner, the term of which is hereby
extended to be co-terminous with this Agreement.
Neither party shall disclose, advertise or publish the terms or conditions of
this Agreement without the prior written consent of the other party.
4
19. Trademarks.
19.1 "Palm Trademarks" means those trademarks, trade names, service marks,
slogans, designs, distinctive advertising, labels, logos, and other
trade-identifying symbols as are or have been developed and used by Palm or any
of its subsidiaries or affiliate companies anywhere in the world.
19.2 OEM Partner acknowledges that all Palm Trademarks are vested in Palm
absolutely. Palm authorizes OEM Partner to use the Palm name or Palm Trademarks
associated with the Products and services which OEM Partner is authorized to
sell or license within the Territory in the normal course of business during the
term of this Agreement for the sole purpose of the sale and distribution of
Products and services hereunder. OEM Partner shall comply with Palm's then
current trademark usage and style guidelines when using the Palm Trademarks. OEM
Partner shall not use Palm Trademarks for any other purpose and only in such
manner as to preserve all rights of Palm. When using Palm Trademarks, OEM
Partner must indicate that Palm is the owner of the Palm Trademark(s) by using
an attribution block in the following format (depending upon the Palm Trademarks
used): "Palm OS, Graffiti and HotSync are registered trademarks and Palm, the
Palm logo and Palm Powered are trademarks of Palm, Inc. . OEM Partner acquires
no right to Palm Trademarks by its use. OEM Partner agrees to submit to Palm for
its approval Product packaging, user manuals, website copy and marketing
materials for the Product prior to the public release of any such items. OEM
Partner shall comply with all requests from Palm to correct such items.
19.3 OEM Partner shall not remove, alter or modify the serial or
identification numbers, labels, Palm Trademarks or other trade-identifying
symbols from Products sold or licensed by Palm under this Agreement. OEM Partner
shall provide all reasonable assistance, including execution of documents as
requested by Palm to protect its trademark rights in the Territory.
19.4 Palm shall have the sole and exclusive right to bring legal action in
the Territory for infringement with respect to Palm Trademarks. OEM Partner
shall assist Palm in such legal proceedings. OEM Partner shall notify Palm
promptly of any known infringements of Palm Trademarks.
19.5 Some of the Products may contain patent markings. OEM Partner will not
remove, alter, obfuscate or otherwise cause any such markings to become
ineffective under applicable patent laws.
19.6 "▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Trademarks" means those trademarks, trade names,
service marks, slogans, designs, distinctive advertising, labels, logos, and
other trade-identifying symbols as are or have been developed and used by
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or any of its subsidiaries or affiliate companies anywhere in the
world. Palm acknowledges that all ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Trademarks are vested in
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ absolutely. OEM represents that it has the right to authorize
Palm to manufacture products and related packaging and advertising materials
incorporating the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Trademark and OEM hereby authorizes Palm to do
so.
20. Termination.
20.1 Termination for Cause. Either party may terminate this Agreement at
any time upon written notice if the other party (i) is in material breach of its
obligations hereunder and fails to cure such breach within thirty (30) days
following written notice of such breach, or (ii) becomes insolvent or files or
has filed against it a petition under bankruptcy or insolvency law which remains
undismissed after one hundred twenty days (120), makes an assignment for the
benefit of creditors or takes any similar action under applicable bankruptcy or
insolvency law.
20.1.1 Cancellation of Orders. Should Palm terminate this Agreement
pursuant to Section 20.1 - Termination for Cause and subsequently cancel any or
all unfulfilled orders, OEM Partner shall pay to Palm any and all costs
associated with Palm purchasing special parts for the Product on order, as well
as any rework costs associated with Palm converting such Products for sale to
other Palm customers (if possible). Should OEM Partner have paid in advance for
an order canceled by Palm under this Section 20, Palm shall refund such amount
to OEM Partner, less any cancellation fees as outlined previously.
20.1.2 Relationship with ▇▇▇▇▇▇▇ ▇▇▇▇▇▇. Should Palm terminate this
Agreement for cause as set forth herein, Palm may, in its sole discretion and
without liability or obligation to OEM Partner, enter into an agreement directly
5
with ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, or parties acting on behalf of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, to market
and sell the Palm products described herein, or other such products as the
parties may decide to develop.
20.2 Termination for Convenience. Either party may terminate this
Agreement, without cause, on ninety (90) days' written notice.
20.3. Obligations upon Expiration or Termination. On expiration or
termination of this Agreement, Palm may cancel any or all unfilled orders. Any
orders which are not canceled will be fulfilled per the terms of the Agreement.
Upon expiration or termination, each party shall return to the other any
materials of the other, including without limitation all Confidential
Information. Termination or expiration shall not relieve either party of the
obligation to pay any sums due hereunder. Other obligations which shall survive
for a period of five (5) years from the termination of expiration of this
Agreement include: indemnities and limitation of liability. Obligations
regarding export control regulations and U.S. government end users shall survive
indefinitely. The warranty and confidentiality provisions shall remain in effect
for their stated durations. Neither party shall be liable to the other for any
damages, expenditures, loss of profits or prospective profits or goodwill on
account of the termination or expiration of this Agreement pursuant to its
terms. OEM Partner expressly waives any and all rights provided by law or
statute for any indemnity or compensation from Palm by reason of termination or
non-renewal of this Agreement.
21. Export Law Regulations: OEM Partner will not export or re-export the
Products purchased under this Agreement or their accompanying documentation (or
any copies thereof) in violation of any applicable laws or regulations of the
United States or in the country in which OEM Partner obtained them. OEM Partner
agrees to comply with the U.S. Export/Re-Export Requirements. The purchase will
be allowed only if it is in full compliance with U.S. law.
22. General.
22.1 Assignment. This Agreement shall not be assigned by either party
without the prior written consent of the other, except that Palm may assign its
rights and obligations hereunder to any subsidiary or affiliate or in connection
with a merger or other business combination in which it is not the surviving
entity. Any attempted assignment in violation of this provision shall be null
and void.
22.2 Notices. Notices shall be given in writing to the address stated at
the beginning of this Agreement, or to such other address as shall be given by
either party to the other in writing. Notices regarding price changes, discount
category changes, product discontinuance, product changes, and logistics center
changes may be made via e-mail or fax to the person(s) specified by OEM Partner
from time to time. Any notice involving non-performance, termination, or renewal
shall be sent by recognized overnight courier or by certified mail, return
receipt requested. All other notices may be sent by (i) recognized overnight
courier or (ii) by fax or e-mail and confirmed by first class mail. All notices
shall be deemed to have been given and received on the earlier of actual
delivery or three (3) days from the date of postmark.
22.3 Entire Agreement. This Agreement is intended to as the complete, final
and exclusive statement of the terms of the agreement between the parties
relating to the subject matter hereof and supersedes all prior understandings,
writings, proposals, representations or communications, oral or written,
relating to the subject matter hereof. This Agreement may not be modified except
in a writing executed by both parties.
22.4 Force Majeure. Neither party shall be liable to the other for any
alleged loss or damage resulting from any delay of performance caused by acts of
the other, acts of civil or military authority, governmental priorities,
earthquake, fire, flood, epidemic, quarantine, energy crisis, strike, labor
trouble, war, riot, accident, shortage, delay in transportation, or any other
causes beyond the reasonable control of the delayed party.
22.5 Waiver; Severability. Any waiver of a default in performance hereunder
shall be deemed a waiver of the particular instance only and shall not be deemed
a consent to any continuing default. The exercise of any right or remedy
provided in the Agreement shall be without prejudice to the right to exercise
any other right or remedy provided by law or equity. If any provision of this
Agreement is found to be invalid, illegal or unenforceable, a modified provision
shall be substituted which carries out as nearly as possible the original intent
of the parties and the remaining provisions shall in no way be affected thereby.
6
22.6 Attorney's Fees. In any action to enforce this Agreement the
prevailing party shall be awarded all court costs and reasonable legal fees
incurred. Additionally, attorney's fees incurred in enforcing any judgment are
recoverable as a separate item, and this paragraph regarding post-judgment
attorney's fees shall be severable from the other provisions of this Agreement,
shall survive any judgment, and shall not be deemed merged into any judgment.
22.7 Relationship of Parties. The parties hereto are independent
contractors and shall not be deemed to be partners, joint venturers or agents of
the other.
22.8 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
AND ALL DISPUTES HEREUNDER SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
CALIFORNIA, EXCLUDING ITS CONFLICT OF LAW RULES. The Superior Court of Santa
▇▇▇▇▇ County and/or the United States District Court for the Northern District
of California shall have jurisdiction and venue over all disputes between the
parties.
7
23. OEM Partner Obligations.
23.1 OEM Partner Facilities. Palm shall have the ability to tour OEM
Partner's facilities to determine whether or not it has the personnel and
processes in place to resell Products. Should Palm determine that is not the
case, Palm shall have the right either to stop accepting OEM Partner's orders
until Palm changes its determination, or to terminate this Agreement immediately
and cancel any and all orders on backlog.
23.2 OEM Marketing Plan. OEM Partner shall submit for Palm's approval a
marketing plan showing OEM Partner's outline for reselling the Products. Such
Marketing Plan must be approved by Palm in writing no later than April 30, 2001.
Any delay in meeting this date shall result in Palm delaying shipment and/or
processing of OEM Partner's orders.
23.3 Sales-Out and Inventory Reports. In order for OEM Partner to receive
price protection and to assist in the overall product forecasting process, OEM
partner shall provide both Sales-out and ending inventory reports of Products
for the previous month, by Product code and by number of units no later than the
seventh (7th) day of each month. Failure to submit either of these reports will
permit Palm, in addition to whatever other remedies it may have hereunder, to
terminate OEM Partner's right to participate in price protection until such time
as OEM Partner submits such reports on a timely basis. OEM Partner will be
provided with written notice of Palm's intention to exercise such termination
rights if OEM Partner fails to cure such breach within thirty (30) days
following receipt of such notice.
24. List of Exhibits.
Exhibit A - Channels of Distribution
Exhibit B - Product Description and Pricing Schedule
Exhibit C - Service and Support
Exhibit D - Non-Recurring Engineering Costs
The parties hereto have caused this Agreement to be executed by their duly
authorized representatives on the date(s) shown below.
Palm, Inc. OEM Partner: PTN Media, Inc.
----------------------
Signature /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Signature /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------- --------------------------
Printed ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Printed ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------- ---------------------------
Title VP Worldwide Sales & Service Title President
----------------------------- -----------------------------
Date 6/08/01 Date 6/04/01
----------------------------- -----------------------------
8
Palm, Inc. OEM Partner Agreement
OEM Partner Information
OEM Partner Name: PTN Media, Inc.
--------------------------------------------
Address: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------
#15
--------------------------------------------
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------
Type of entity: corporation
--------------------------------------------
(e.g., corporation, limited partnership,
general partnership, sole proprietorship, etc.)
State of Incorporation: Delaware
--------------------------------------------
Contact Name: ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------
Telephone Number: ▇▇▇-▇▇▇-▇▇▇▇
--------------------------------------------
Fax Number: ▇▇▇-▇▇▇-▇▇▇▇
--------------------------------------------
Contact Email Address
--------------------------------------------
Palm, Inc.
Sales Contracts Administration
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Main Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Main Fax: (▇▇▇) ▇▇▇-▇▇▇▇
9