PALM WEBOS APPLICATION DISTRIBUTION PROGRAM AGREEMENT
May 17, 2010
You have elected to join the Palm, Inc. ("Palm") Application Distribution Program (the “Program”). Participation in the Program will allow you to submit your Applications for possible distribution through a variety of different distribution channels offered by Palm. Before you (“You” or “Developer”) access and/or use any of the materials or services which Palm provides to you under this Program, please read the terms and conditions of use set forth below. Access to and use of the Developer Center for distribution of Applications is subject to the terms and conditions set forth in this Palm Distribution Program Agreement (the "Agreement"). The Agreement is effective as of the date You accept these terms (the “Effective Date”). If you accept the terms and conditions of this Agreement, please click on the "Accept" button. If you do not agree to the terms and conditions of this Agreement, you may not use or access the Developer Center or participate in the Program. SUBMITTING AN APPLICATION FOR DISTRIBUTION THROUGH THE PROGRAM INDICATES THAT YOU ACCEPT THESE TERMS.
If you are participating in the Program or accessing the Developer Center in connection with work you are doing for a company or corporate entity (“Company”), the term “Developer” includes both you as an individual as well as such Company. In addition, you represent and warrant that you have the authority to bind such Company, and that such Company has authorized you to accept the terms of this Agreement.
In an effort to provide better and more useful information to its developers, Palm may change or modify certain aspects of the Developer Center, or change or modify certain aspects of the Program. These modifications may require changes to the terms and conditions of this Agreement. As such, Palm reserves its right, at any time and from time to time, to change or modify the terms and conditions of the Program by posting new or revised terms and conditions to the Developer Center, or by providing such terms and conditions to you in writing, including via email. If you do not agree to the new or modified terms and conditions of this Agreement, you may not continue your participation in the Program. PARTICIPATING IN THE PROGRAM, OR SUBMITTING AN APPLICATION AFTER PALM POSTS OR INFORMS YOU OF NEW OR MODIFIED TERMS AND CONDITIONS, INDICATES THAT YOU ACCEPT ANY CHANGES TO THESE TERMS.
- "Application" or "App" means one or more software application programs that are developed by Developer for use with webOS Devices, including any modifications or Updates thereof.
- "Device Catalog" means one of the available Selected Distribution Methods which provides an electronic store accessible on webOS Devices, through which End Users can discover Developer's Applications, and through which Palm distributes both Paid Applications and Unpaid Applications to End Users.
- "Application Submission Process" or "App Submission Process" means the on-line process which Developer may use to submit and manage its Application(s).
- "Commercial Purposes" means (i) any purpose for which a fee or royalty is charged for an Application; or (ii) any purpose other than a royalty-free distribution of an Application to friends and family of Developer, or for Developer's own internal use, or for purposes of testing and conducting quality assurance procedures.
- "Developer's Marketing Materials" means the names, trademarks, service marks, icons and logos used or provided with any Application submitted by Developer, and any other materials such as application information, application screenshots, application descriptions, videos or URL's provided by Developer during the Application Submission Process and thereby approved for use by Palm.
- "Developer's Remittance" means the amount of monies Developer is due for sales of its Application(s) after Palm and/or its agents deduct the full amount of Palm's commission and any taxes collected by Palm.
- "Distribution" means the completion of the process whereby Palm, acting as Developer's agent, delivers an Application to an End User.
- "End User" means a purchaser or user of a webOS Device.
- "Existing End User" means an End User who purchases or receives a Distribution of an Application prior to a Takedown of such Application, or the expiration or termination of this Agreement.
- "Intellectual Property Rights" means all worldwide, current or future, copyright rights (including, without limitation, the exclusive right to use, reproduce, modify, create derivative works of, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks, and trade dress), patent rights (including, without limitation, the exclusive right to make, have made, use, sell and offer to sell, import and export), trade secrets, moral rights, right of publicity, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence, and all renewals, continuations, continuations in part and extensions thereof, regardless of whether such rights arise under the law of the United States or any other state, country or jurisdiction.
- "Open Source Software" means any software or software component, module or package that contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software or similar licensing or distribution models, including, without limitation, software licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (a) GNU's General Public License (GPL) or Lesser/Library GPL (LGPL); (b) the Artistic License (e.g., PERL); (c) the Mozilla Public License; (d) the Netscape Public License; (e) the Sun Community Source License (SCSL); (f) the Sun Industry Standards License (SISL); (g) the BSD License; and (h) the Apache License.
- "Paid Application" means an Application which is distributed through the App Catalog for a fee paid by the End User.
- "Palm Account" means a single unique account created by an End User which is linked with that individual End User, regardless of whether the End User switches to a new or different webOS Device.
- "Payment Processor" means any party authorized by Palm to provide payment processing services through which Palm collects payments from End Users for Paid Applications that End Users download from the App Catalog.
- "Personally Identifiable Information" means information which can be used to distinguish or trace an individual's identity, such as their name, social security number, biometric records, etc. alone, or when combined with other personal or identifying information which is linked or linkable to a specific individual, such as date and place of birth, mother's maiden name, etc.
- "Program Payment Account" means a financial account issued by a Program Processor to Developer from which Developer will pay the annual Program Fee and to which Palm will remit payments for fees collected on the Developer's behalf for Applications sold via the App Catalog.
- "Program Processor" means any party authorized by Palm to administer Program Payment Accounts in connection with the Program.
- "Publishing Options" are the distribution options which Developer elects during the App Submission Process, which determine the scope under which an Application may be distributed, such as Territories, the model of devices to which an Application may be distributed, devices running on particular carrier operator systems to which an Application may be distributed, etc., as such options are made available by Palm
- "Registration Process" means the series of questions and input of information through a series of input screens in preparation for Developer's ability to register to be eligible to submit Applications for distribution.
- "Sales Price" shall have the meaning set forth in Section 7(a).
- "SDK Agreement" or "Palm Software Development Kit License Agreement" means the agreement for receiving access to Palm's Software Development Kit.
- "Selected Distribution Method" or "SDM" means the type of distribution method Developer has selected during the App Submission Process for the distribution of a particular Application.
- "Takedown" means the removal of a single or multiple Applications from distribution through the Program and/or webOS Devices pursuant to Sections 9(a) or (b).
- "Territories" means the territories which Developer specifies during the Application Submission Process for which Developer authorizes distribution of its Application.
- "Unpaid Application" means an Application which is distributed through the App Catalog at no charge to the End User.
- "Update" means a new release of an Application consisting of a bug fix, workaround, or patch to correct any reproducible error in such software for which the number to the right of the second decimal point is increased; changes to solely metadata such as title, price, territories, description, contact info, or icons etc., shall not be considered Updates.
- "User Generated Content" means content created by end users of Applications or other third parties, which may be displayed or made available through use of an Application, where Developer does not exercise any material control over such content, and such Application is not specifically created or distributed by Developer for the purpose of eliciting User Generated Content in violation of the Application Content Criteria.
- "webOS Devices" means smartphone or handheld computer devices which operate on the Palm webOS operating system.
- Palm Acting as Agent and Commissionaire of Developer. Developer hereby appoints Palm and Palm’s subsidiaries as (i) for the countries identified in Exhibit A as Agent Territories, Developer’s agent to market and deliver Developer’s Applications to End Users pursuant to the Publishing Options, solely on behalf of Developer; and (ii) for the countries identified in Exhibit A as Commisionaire Territories, Developer’s commissionaire to market and deliver Developer’s Applications to End Users pursuant to the Publishing Options, solely on behalf of Developer. The parties acknowledge and agree that their relationship shall be that of principal and agent, or principal and commissionaire, in the country of distribution as set forth in Exhibit A. Developer hereby grants to Palm an exclusive (even as to Developer) right to distribute the Application for Commercial Purposes, in executable object code form only, in accordance with the Publishing Options, through any form of media, now or hereinafter developed or devised (including, but not limited to, distribution through the App Catalog) for use solely with Palm webOS Devices.
- Rights Granted to Palm from Developer.
- Marketing and Distribution Rights. Pursuant to Palm's appointment and rights granted under Section 2, Developer hereby authorizes and instructs Palm to:
- market, solicit and obtain orders on Developer's behalf for Applications from End Users in accordance with the Publishing Options;
- provide hosting services to Developer, in order to allow for the storage and access to the Applications;
- make copies of, format, and otherwise prepare Applications for download by End Users, including the creation and distribution of minor modifications to the Application intended solely for the purpose of facilitating distribution and signing of the Application with a digital certificate;
- allow End Users to access copies of the Applications, so that End Users may electronically download those Applications in accordance with the Publishing Options;
- allow Palm personnel to access copies of the Applications, so that Palm personnel may electronically download a reasonable number of copies of any Application for Palm's internal use;
- issue invoices for the purchase price payable by End Users for the Applications;
- use, reproduce, distribute and display the Application and Developer's Marketing Materials, through any form of media, now or hereinafter developed or devised, in order to advertise, market and promote the Application, including without limitation for use in business development, evaluation, testing, and to publicize and/or demonstrate the functionality of the Application;
- use Developer's Marketing Materials and depictions of the Application and its functionality to create additional marketing collateral such as compilations of screen shots, videos and animations, web pages, catalogs, and training materials (provided however, that the content in Developer's Marketing Materials shall not be altered substantively by Palm), in order to advertise, market and promote the Application, including without limitation for use in business development, evaluation, testing, and to publicize and/or demonstrate the functionality of the Application; and ;
- use Applications and associated metadata, and/or aggregated usage statistics as may be reasonably necessary in the marketing and delivery of the Applications hereunder, and to improve the App Catalog experience and functioning.
- Developer's Marketing Materials. All use and goodwill of Developer's Marketing Materials and derivative works thereof shall inure to the benefit of Developer, and all of Developer's Marketing Materials shall be owned solely and exclusively by Developer or its subsidiaries. Developer reserves the right from time to time, to change the appearance and/or style of Developer's Marketing Materials, in Developer's sole discretion. At Developer's request, Palm shall implement any such changes as soon as reasonably practicable.
- Exclusivity of Right to Distribute. For avoidance of doubt, Developer hereby acknowledges and agrees that pursuant to the exclusive right to distribute the Application granted to Palm under Section 2, Developer shall not (and shall not grant the right to any third party to) distribute the Application (or any application substantially similar to the Application for use on webOS Devices) for any Commercial Purpose, except under this Agreement, unless otherwise mutually agreed upon in writing by the parties.
- Non-Compete. Developer may not use the Program to distribute, facilitate the distribution of, or make available any Application which serves to facilitate distribution of Applications outside of the Program.
- Palm's Agents, Contractors and Distributors. The rights set forth in this Section 3 shall extend to Palm's agents, contractors and distribution partners, and any other third party assisting Palm in performing its obligations under this Agreement, solely to the extent necessary to market, promote and distribute the Application as set forth herein, provided that Palm will be responsible for the performance of such third parties under the terms of this Agreement. Developer reserves all rights not expressly granted hereunder to the Application and Developer's Marketing Material. Except as granted herein, Palm shall not reverse engineer, reverse compile or disassemble the Application, except to the extent such acts may not be prohibited by applicable law.
- Ownership of Applications. Developer shall retain all rights, title and interest in and to the Application(s), including all Intellectual Property Rights therein. Except for the rights set forth in this Section 3, Palm obtains no right, title or interest from Developer under this Agreement.
- Non-exclusivity. Notwithstanding any of the foregoing, nothing herein shall prohibit Palm from marketing, promoting, licensing, developing or distributing any application that is substantially similar to that of Developer's Application(s).
- Marketing and Distribution Rights. Pursuant to Palm's appointment and rights granted under Section 2, Developer hereby authorizes and instructs Palm to:
- Developer Registration.
- Requested Information. During the Registration Process, You will be asked for a variety of information, including Your contact information and financial and tax reporting information, including but not limited to Tax ID, business name, type of entity, address, and other relevant information.
- Annual Program Fee. Palm may require Developer to pay an annual fee (the "Program Fee") to join the Program and distribute Applications in the United States. Participation in the Program may be renewed on an annual basis with payment of the then-current Program Fee. Once each annual Program Fee is paid, and for so long as Developer maintains a current Payment Account in good standing, Developer shall be entitled to participate in the Program and submit Applications to the App Catalog for distribution in the United States. Palm may allow distribution in additional Territories free of any additional charge once the Program Fee is paid. Palm reserves the right to change, discontinue or alter the Program Fee. Palm reserves the right to waive or discount any such fees from time to time in its sole discretion. Palm shall charge applicable taxes, as determined by Palm, on Program Fees and Developer will pay such taxes.
- Open Source Developer Option. Palm may offer to waive certain fees for developers who distribute applications subject to an Open Source Software license. If You select the option of participating in this program, any Application you distribute must be distributed under an Open Source Software license.
- Program Payment Account. Developer must have a Program Payment Account with Palm's designated Program Processor and maintain such account in good standing for the Term of this Agreement. The Registration Process will prompt Developer to enter or create a Program Payment Account.
- Application Submission and Distribution Process.
- Selected Distribution Method. During the Application Submission Process, Palm may allow You to participate in one or more different programs for the distribution of Your Applications. You will select the SDM through which you would like that Application to be distributed. Palm reserves the right to change, discontinue or alter its SDMs at any time with or without notice to you.
- Selection of Publishing Options. During the Application Submission Process You will be asked questions regarding the scope of distribution for your Application, such as, in which countries you would like to distribute your Application, in which languages, the Sales Price you would like to charge for download of an Application, if anything, and other possible options, such as limiting distribution to a certain webOS device, as those options become available through the Program.
- Certification of Criteria Required for Distribution. During the Application Submission Process, You will be asked to confirm that You and Your Application meet certain marketing, content, technical and user interface criteria (the "Application Content Criteria"). These criteria and the answers you provide are hereby incorporated by reference under this Agreement. You may not distribute any Application that violates any of the criteria set forth in the Application Content Criteria. Any violation of the Application Content Criteria shall constitute a material breach of this Agreement.
- Prohibited Application Content. Developer acknowledges and agrees that the Application Content Criteria set forth certain categories of applications which do not meet the criteria for distribution, including, but not limited to Applications containing or pertaining to the following content: promotion or use of any firearms, tobacco products, alcoholic beverages, illegal acts or substances, or pornography or any other adult content. The full and complete list of all content restrictions and prohibitions shall be set forth in the Application Content Criteria presented during the Application Submission Process.
- Support. Developer shall be solely responsible to provide support to End Users of the Application, including addressing End User complaints, and shall reply to support requests in a timely manner, via email, telephone or website. Developer shall also provide support to Palm free of charge via telephone as required, and respond to any requests within one (1) business day. All inquiries from End Users received by Palm and concerning the Application shall be directed to Developer.
- Developer's End User License Agreement. Developer hereby acknowledges and agrees that Distribution of an Application to an End User will create a contractual relationship between Developer and End User, and that Palm is merely acting as Developer's agent for such Distribution. As such, the Application Submission Process provides an opportunity for Developer to upload its own End User License Agreement ("EULA") applicable to Developer's Application. Palm highly recommends that Developer include its own EULA to protect its interests. Developer agrees that Palm will be a third-party beneficiary to the EULA; Developer will include a provision in Developer's EULA to that effect.
- Developer's Ability to Open Source Applications. At no time shall Developer distribute any Palm Proprietary Software (as defined in the SDK Agreement) as Open Source Software, or do anything (including but not limited to the development of the Application) that in any way would cause such Palm Proprietary Software to be subject to any Open Source Software or similar license. Subject to the foregoing prohibition, (a) Developer shall not be prohibited from releasing its Application(s) under an Open Source Software license, and (b) the exclusivity provisions in Section 2 and Section 3(c) of this Agreement shall not be construed to preclude the Developer from complying with its obligations under the applicable Open Source Software License.
- Application Placement and Reviews. The Program allows End Users to rate and/or review Applications. Palm reserves the right to display Applications to End Users in a manner that will be determined at Palm's sole discretion. Your Application(s) may be subject to ratings or reviews with which you may not agree. Developer shall not engage (or encourage or facilitate third parties to engage) in any actions to artificially boost ratings of its Applications, e.g., downloading its own Apps to increase the App's popularity rating, posting favorable reviews of its own Apps; posting unfavorable, malicious, slanderous or libelous reviews of competing applications. Application ratings may be used to determine the placement of Applications in the Device Catalog, or be used to determine eligibility for certain marketing programs, all at Palm's sole discretion.
- Approval Required for Device Catalog Distribution.
- Approval for Distribution. Once Developer submits an Application, through the Application Submission Process for Device Catalog distribution, Palm will assess the Application against the Application Content Criteria, as well as for its quality and usability. If Palm finds the Application meets such standards, it will authorize the Application to be placed in the App Catalog (the "Application Authorization").
- Repeated Failures of Approval. If Developer or any of its Applications repeatedly fail to receive Application Authorization, Palm may require such Developer to obtain certification from a third-party testing facility before it may continue to submit such Application, or any other Applications, for distribution. Such certification shall be at Developer's sole cost.
- Pricing and Refunds.
- Pricing of Applications. Developer may set the sales price of each of its Applications (the "Sales Price") through the use of the Application Submission Process. Likewise, Developer may elect to distribute its Application(s) free of charge. Palm may provide a choice of different payment options, which shall be made available to Developer through the Application Submission Process. Developer is responsible for setting its own accurate pricing and Palm shall not be liable for errors or accuracy of currency rates or conversion.
- Pricing of Updates. Developer may elect to provide Updates of Applications to Existing End Users. Such an Update can be distributed via the Program, and if Developer elects to distribute an Update to Existing End Users, it may only distribute such Update via the Program. Developer may not charge any additional fee for any Update it elects to distribute.
- Refund Requirements and Process. While it is not Palm's policy to provide refunds to End Users, under certain circumstances, such as where an Application breaches the Application Content Criteria, or the Application is of such quality as to cause wide-spread customer complaints, Palm reserves the right to issue a refund to the End User(s) and charge back to Developer the full sales price paid by the End User, in addition to any payment processing fees.
- Reinstalls. End Users shall be allowed an unlimited number of reinstalls for a single Palm Account of each Application distributed through the Program.
- Payments and Taxes.
- Palm Commission. Developer hereby acknowledges and agrees that in consideration for its services as Developer's agent and/or commissionaire, Palm shall be entitled to a commission (the "Commission") equal to thirty percent (30%) of the Sales Price payable by each End User for sales of Developer's Application(s). If you elect to distribute Applications for free, you will not be charged a Commission. Commissions shall be calculated solely on the Sales Price less any Value Added Tax or other similar taxes included within the Sales Price. There shall be no reduction in Palm’s Commission for any other tax due to tax authorities.
- Transaction Taxes. In the event that Palm determines that the sale or delivery of any of the Applications to any End User is subject to any sales, use, goods and services, value added, or other similar tax or government levy ("Transaction Tax") under applicable law, responsibility for the collection and remittance of that tax for sales of Applications to End Users will be determined in accordance with Section 3 of Exhibit A. In the event that Palm does not collect any Transaction Tax which is due to a taxing authority, Developer shall be solely responsible for collecting and remitting such taxes to the applicable tax authority as required by law.
- U.S. State Sales Tax. Palm shall collect and remit to the relevant tax authorities the state sales tax from sales of Applications to End Users residing in states which charge sales tax for electronic downloads. Notwithstanding the foregoing, Developer shall remain ultimately responsible for determining the applicability of such state sales tax and remitting the applicable sales tax to the applicable tax authority.
- Withholding Tax. If applicable law requires Palm to withhold any taxes levied by any country on payments to be made pursuant to this Agreement ("Withholding Tax"), Palm shall be entitled to deduct such Withholding Tax from the payments due Developer hereunder. If Developer is eligible to take advantage of a reduced rate of withholding tax under any applicable income tax treaty, Palm will apply the reduced rate of withholding tax under the applicable income tax treaty, provided that Developer furnishes Palm with all appropriate forms, documents and paperwork required under the treaty and applicable US law to obtain such reduced Withholding Tax.
- Remittances. Upon collection of any amounts from End Users, Palm and/or its agents shall deduct that full amount of Palm’s commission and any taxes collected by Palm, and shall remit to Developer (or issue a credit in Developer’s favor, as applicable) the Developer’s Remittance, on a monthly basis, no later than sixty (60) days following the close of the month in which the amount was received by Palm. Each Developer’s Remittance shall be accompanied by an electronic sales report. Developer acknowledges and agrees that: (i) Palm shall be entitled to its Commission upon the delivery of any Application to any End User; and (ii) with respect to each currency for which Palm remits monies to Developer, Palm is under no obligation to issue any remittance until the total amount of Developer’s Remittance is at least one hundred dollars (US$100) or one hundred Euros (€100) as applicable, or has been credited but unpaid to Developer for more than six (6) months.
- Currency. Palm and/or its agents or subsidiaries will collect monies End Users for the purchase of an Application in the currencies specified in Section 4 of Exhibit A. To the extent Palm or its designated subsidiary converts payments received from End Users to another currency (as specified in Section 4 of Exhibit A), before remitting monies to Developer, Developer agrees that any resulting currency exchange differentials or fees charged by Palm’s bank may be deducted from such remittances. Developer remains responsible for any fees (e.g., wire transfer fees, transaction fees) charged by Developer’s bank or any intermediary banks between Developer’s bank and Palm’s bank.
- Legal Consequences. The relationship between Developer and Palm established by this Agreement may have important legal and/or tax consequences for Developer. Developer acknowledges that it is Developer's responsibility to consult with Developer's own legal and tax advisors with respect to Developer's legal and tax obligations hereunder. Developer shall indemnify and hold harmless Palm against any and all claims by any tax authority for any underpayment of any withholding, sales, use, goods and services, value added, or any other tax or government levy, including any penalties and/or interest thereon.
- Product Takedowns.
- Developer Takedowns. You may remove any Application(s) from distribution through the Program and prevent further distribution at any time, provided that You comply with this Agreement and the Program Payment Account terms of service for any Applications distributed through the Program, including but not limited to refund requirements. Your Takedown of Your Application from distribution through the Program shall not (i) affect the license rights of Existing End Users, (ii) remove Applications from webOS Devices or from any part of the Palm network where previously purchased or downloaded Applications are stored on behalf of Existing End Users, or (iii) change Your obligation to support Applications or services that have been previously purchased or downloaded by Existing End Users.
- Palm Takedowns. If Palm is notified or otherwise becomes aware and determines, in its sole discretion, that there is a reasonable likelihood that an Application or any portion thereof: (i) violates the Intellectual Property Rights or any other rights of any third party; (ii) violates any applicable law or governmental regulation; (iii) violates any of the Application Content Criteria; (iv) may create material liability for Palm or its authorized carriers and distributors, or cause harm to such parties; (v) is deemed by Palm to have a virus or is deemed to be malware, spyware or have an adverse impact on Palm's End Users, or Palm or its carriers' networks; (vi) facilitates or constitutes false or fraudulent conduct; or (vii) creates or constitutes a material breach of this Agreement; Palm may Takedown the Application from distribution through the Program. At Palm's discretion, such Takedown may result in: (1) a temporary or permanent suspension of Developer's right to distribute the particular Application, or any and all of Developer's Applications; (2) a temporary or permanent removal of the Application from webOS Devices for Existing End Users; and/or (3) a partial termination of this Agreement or a termination of the Agreement in its entirety.
- Effects of Palm Takedown. In the event that Developer's Application is involuntarily removed pursuant to Section 9(b), Palm may, at its sole discretion: (i) withhold from Developer's future sales all amounts collected for Applications in breach; (ii) extract all amounts paid to Developer for such breaching Applications from Developer's Program Payment Account in accordance with the Payment Processor's terms and conditions; (iii) charge Developer for all costs incurred to Takedown the Application(s), or remove Applications from webOS Devices, connected networks and support systems; and (iv) charge Developer for all costs incurred due to refunding of monies to End Users who lose access to or use of an Application they have already purchased. Palm reserves the right to suspend and/or bar any Developer from the Program at its sole discretion.
- Survival of Rights after a Takedown, Expiration or Termination. The rights granted to Palm in Section 3 shall survive any Takedown, expiration or termination of this Agreement for the purpose of supporting Existing End Users, including any reinstalls which may be requested by an Existing End User for its Palm Account. Palm shall have the right to maintain copies of the Application for such purposes. Developer shall provide reasonable commercial assistance to Palm in supporting Existing End Users after the Takedown, expiration or termination of this Agreement.
- Incorporation of SDK Agreement. Developer hereby agrees to be bound to the terms and conditions of the SDK Agreement, which is hereby incorporated by reference. In the event of any inconsistency or conflict between the SDK Agreement and this Agreement, the provisions of this Agreement shall control.
- Marketing and Publicity. The parties may agree to marketing activities and approved uses as set forth in the Registration Process or Application Submission Process, or upon mutual written agreement, which shall be set forth separately and incorporated by reference herein. Developer may issue press releases announcing the availability of its Applications through the Program after the receipt of Application Authorization, but otherwise, may not issue any other press releases, publicity or information relating to this Agreement without the prior written approval of Palm, unless otherwise required by law. Developer shall have no right to use any Palm trademarks, service marks or any logos, except as expressly set forth in writing by Palm.
- Term and Termination.
- Term. The term of this Agreement shall be from the Effective Date until the earlier of: (i) the termination or discontinuance by Palm of the Program, which Palm may terminate at any time in its sole discretion; (ii) termination by Palm (in whole or in part, with respect to any single Application or to Developer's participation in the Program), due to any breach by Developer of the Agreement or the SDK Agreement which cannot be remedied or which Developer fails to cure within thirty (30) days of written notice from Palm; (iii) the immediate termination of this Agreement by Palm for any material breach of the Application Content Criteria, or any knowingly malicious or harmful act committed by Developer or through use of the Application; (iv) termination by Palm (in whole or in part, with respect to any single Application or to Developer's participation in the Program), due to court or governmental order; or (v) termination by either party upon thirty (30) days written notice to the other party.
- Upon any termination or expiration of this Agreement any licenses granted to End Users for the Application shall survive. Upon termination, Palm shall cease distribution of Applications, but may retain reasonable copies of the Application for purposes of customer support, and to enable updates or maintenance releases, as applicable. Sections 1, 3(d), 3(g), 8, 9, 10, and 12 through and including 20 shall survive any termination or expiration of this Agreement for any reason.
- Definition. Each party agrees to hold the Confidential Information of the other party in confidence, and not to use or disclose such Confidential Information, except as permitted hereunder, or as required for performance under this Agreement, without the express written consent of the other party. For purposes herein, "Confidential Information" means any and all technical and non-technical information disclosed by one party ("Disclosing Party") to the other ("Receiving Party") in confidence under this Agreement and related to the past, present or future business or technology of the Disclosing Party. The Disclosing Party may mark Confidential Information "confidential" or "proprietary," but regardless of whether so marked or identified, any information that the Receiving Party knew or should have known was considered confidential or proprietary by the Disclosing Party will be considered Confidential Information of the Disclosing Party under this Agreement.
- Exclusions. Notwithstanding the foregoing, neither party shall have any obligation under this Section with respect to any information that it can prove is (i) now or hereafter, through no unauthorized act or failure to act on the Receiving Party's part, generally known to the public; (ii) known to the Receiving Party without an obligation of confidentiality effective at the time the Receiving Party received the same from the Disclosing Party, as evidenced by written records; (iii) hereafter furnished to the Receiving Party by a third party as a matter of right and without restriction on disclosure; or (iv) independently developed by the Receiving Party without use or access to the Confidential Information of the Disclosing Party.
- Required Disclosures. Nothing in this Agreement shall prevent the Receiving Party from disclosing 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.
- Developer's Representations and Warranties.
- Information Provided during Registration Process and Application Submission Process. Developer hereby represents and warrants that the information Developer provides during the Registration Process and Application Submission Process is accurate and correct to the best of Developer's knowledge. Providing false or fraudulent information during the Registration Process or Application Submission Process shall be a material breach of this Agreement.
- Developer Authorized to Contract. Developer represents and warrants that (i) Developer is at least eighteen years of age, or to the extent that Developer is not, that such Developer's parent or guardian has given permission for Developer to enter into this Agreement and such parent or guardian has agreed to assume the rights and obligations of Developer under this Agreement on behalf of Developer; and (ii) Developer is not a person or entity barred from creating or distributing the submitted Application(s) under the laws of the United States or other countries, including Developer's country of residence.
- Developer's Authority to License. Developer represents and warrants that it has the right and authority to enter into this Agreement, and that in its performance hereunder it shall obey all applicable laws, regulations and rules of any government body or agency or other competent authority, and shall not: (i) use any proprietary information of another party without appropriate authorization; or (ii) infringe or misappropriate the intellectual property rights (including, without limitation, patent, copyright, trademark or trade secret rights, or rights of publicity or privacy) of another party. Developer further represents and warrants that it has all right and authority to make available the Application and Developer's Marketing Materials as authorized in Sections 2 and 3 hereunder, including any services related to the Application, and any content which may be provided through such Application, Developer Marketing Materials, or services, including without limitation, proper payment of any royalties to authors, artists or performing societies. Palm shall have the right to terminate this Agreement immediately, without any liability to Developer, if Palm receives notice of any breach or threatened breach of this Section.
- Developer's Authority to Distribute Applications in the Territories. Developer represents and warrants that its Applications are authorized for export from the United States to each of the Territories in accordance with the requirements of the United States Export Administration Regulations, 15 C.F.R. Parts 730-774. Developer certifies that if an Application contains specific encryption technology restricted by the U.S. Commerce Department, that such Application has been qualified for export as a "mass market encryption item" in accordance with section 742.15(b)(2) of the Export Administration Regulations, and Developer will provide Palm with a copy of the mass market export classification ruling (CCATS) issued by the United States Commerce Department, Bureau of Industry and Security for that Application.
- Prohibited Activities. Developer hereby represents and warrants that it shall not (and shall not allow or enable any third party, including end users of its Application(s) to): (i) engage in any activity, including development and distribution of an Application, that interferes with, disrupts, damages or accesses in an unauthorized manner the servers, networks, or other properties or services of Palm or any third party including, but not limited to, any mobile communications carrier; (ii) use an Application or distribution of any Application through the Program for any fraudulent, unlawful or illegal activity, including developing an Application that would commit or facilitate the commission of a crime, or other tortious, unlawful, or illegal act; (iii) use an Application or the distribution of any Application through the Program to defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as intellectual property rights and rights of privacy and publicity) of others, including developing an Application that would facilitate any such activities; (iv) use an Application or distribution of any Application through the Program to use, display, transmit or otherwise make available content that promotes pyramid schemes, chain letters or disruptive commercial messages or advertisements, including developing an Application that would facilitate any such activities; (v) use an Application or distribution of any Application through the Program to exceed reasonable request volume, or constitute excessive or abusive usage of the servers, networks, or other properties or services of Palm or any third party including, but not limited to, any mobile communications carrier; including developing an Application for the purpose of facilitating any such activities or (vi) use an Application or distribution of any Application through the Program to provide or facilitate unauthorized access to data, resources, or accounts of any person, or provide or facilitate the circumvention of security restrictions or mechanisms (including digital rights management) of either an Application, the webOS operating system, or any content made available through use of any Application, including developing an Application that would facilitate any such activities. Developer makes no representations or warranties under this Section (f) with respect to User Generated Content which may be made available through use of its Application.
- Developer's Application Warranty. Developer warrants to Palm that the Application will be free from material defects or errors, and Developer shall use commercially reasonable efforts to correct any such material defect or errors. If Developer is unable to correct such defects or errors in a timely manner, Palm may terminate this Agreement with respect to such Application and immediately cease distribution of such Application. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT OR AS AGREED UPON DURING THE APPLICATION SUBMISSION PROCESS, THE APPLICATION IS PROVIDED ON AN "AS IS" BASIS, WITH NO OTHER WARRANTIES, EXPRESS OR IMPLIED.
- Palm's Warranty for App Catalog, Developer Portal and Related Services. DEVELOPER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF AND PARTICIPATION IN THE PROGRAM AND ALL RELATED SERVICES (THE "PALM SERVICES") IS AT DEVELOPER'S SOLE RISK. PALM DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT DEVELOPER'S USE OF THE PALM SERVICES WILL BE UNINTERRUPTED, ACCURATE, COMPLETE, SECURE, VIRUS FREE, ERROR FREE OR AVAILABLE AT ANY TIME OR THAT DATA PROVIDED BY DEVELOPER TO PALM WILL NOT BE LOST OR CORRUPTED, TO THE MAXIMUM EXTENT PERMITTED BY LAW. DEVELOPER AGREES THAT THE PALM SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" FOR DEVELOPER'S USE, WITHOUT WARRANTIES, OR TERMS AND CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OR TERMS AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY, QUIET ENJOYMENT, TITLE, AND NONINFRINGEMENT. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY PALM, OR ITS EMPLOYEES OR REPRESENTATIVES WILL CREATE A WARRANTY; NOR MAY DEVELOPER RELY ON ANY SUCH INFORMATION OR ADVICE.
- Limitation of Consequential Damages. EXCEPT WITH RESPECT TO A BREACH OF OR OBLIGATIONS ARISING UNDER SECTION 13 (CONFIDENTIALITY), SECTION 14 (DEVELOPERS REPRESENTATIONS AND WARRANTIES), SECTION 8 (TAXES) AND SECTION 18 (INDEMNIFICATION), NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR REVENUE, OR INTERRUPTION OF BUSINESS IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL PALM OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY DEVELOPER AS A RESULT OF: (I) ANY RELIANCE PLACED BY DEVELOPER ON THE COMPLETENESS, ACCURACY OF THE SERVICE OR CONTENT MADE AVAILABLE THROUGH THE DEVELOPER PORTAL AND ASSOCIATED SERVICES; (II) FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE DEVELOPER CENTER AND ASSOCIATED SERVICES (OR ANY FEATURES WITHIN THE SERVICES); (III) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH DEVELOPER'S USE OF THE DEVELOPER OR ASSOCIATED SERVICES; (IV) DEVELOPER'S FAILURE TO PROVIDE PALM WITH ACCURATE ACCOUNT INFORMATION; OR (V) DEVELOPER'S FAILURE TO KEEP DEVELOPER'S PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL. EXCEPT WITH RESPECT TO A BREACH OF OBLIGATIONS ARISING UNDER SECTION 13 (CONFIDENTIALITY) AND SECTION 18 (INDEMNIFICATION), TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL PALM'S, ITS SUBSIDIARIES', ITS AFFILIATES' OR ITS SUPPLIERS' TOTAL AGGREGATE LIABILITY EXCEED THE AMOUNTS PAID BY DEVELOPER TO PALM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
- By Developer. Developer shall, at its own expense, indemnify, defend and hold harmless Palm and its officers, directors, employees, representatives, agents and authorized wireless carriers and distribution partners, against any third party claim, suit, action, or proceeding based on or relating to: (i) a claim that Developer's Marketing Material, or Developer's Application, software or technology infringes or misappropriates the Intellectual Property Rights of any third party or violates any applicable law; (ii) the use of the Application by an End User; (iii) a claim by an End User of a breach of warranty by Developer; (iv) product liability claims relating to the Application; (v) a breach by Developer of Section 14, or (vi) any claim by any tax authority based on any underpayment of any sales, use, goods and services, value added, or other similar tax, including any associated penalties and interest. Palm's authorized wireless carriers shall be third party beneficiaries with respect to Developer's indemnification obligations set forth herein.
- By Palm. Subject to Section 18(a), Palm shall, at its own expense, indemnify, defend and hold harmless Developer and its officers, directors, employees, representatives, and agents against any third party claim, suit, action, or proceeding based on a claim that a webOS Device (excluding the Application) or trademarks of Palm, infringes or misappropriates any Intellectual Property Rights of any third party or violates any applicable law.
- Indemnification Procedure. Each party seeking indemnity ("Indemnified Party") agrees to promptly notify the other party ("Indemnifying Party") of, render reasonable assistance to (at the Indemnified Party's sole expense), and permit the Indemnifying Party to direct the defense or settlement of such action or claim, except that the Indemnifying Party shall not settle any such suit or claim without the Indemnified Party's prior written approval unless such settlement: (i) includes a complete release of the Indemnified Party and its officers, employees and agents (the "Indemnitees"); (ii) does not require any Indemnitee to pay any amount or deliver any other consideration; and (iii) places no restriction on the future conduct of any Indemnitee.
- Changes to Terms of this Agreement or Program. Palm reserves its right, at any time and from time to time, to change or modify the Program or the terms and conditions of this Agreement by conspicuously posting new or revised terms and conditions to the Program, or by providing such terms and conditions to Developer in writing, including via email.
- Miscellaneous Legal Provisions. This Agreement, together with all Exhibits hereto, contains the entire agreement of the parties, and supersedes any and all previous agreements with respect to the subject matter hereof, whether oral or written. Nothing in this Agreement excludes either party's liability for fraudulent misrepresentation. This Agreement shall be binding and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement may not be assigned by either party without the other party's prior written consent, such consent not to be unreasonably withheld, except that: (i) either party may assign this Agreement to any acquirer of all or of substantially all of such party's equity securities, assets or business related to the subject matter of this Agreement without the prior approval of the other party; and (ii) Palm may freely assign this Agreement to any subsidiary or affiliate of Palm without Developer's approval. Except as otherwise provided in this Agreement, each of the parties shall at all times during the term of this Agreement act as, and shall represent itself to be, an independent contractor, and not an agent or employee of the other. All notices and consents required or permitted to be given to Palm under this Agreement shall be in writing to: Palm, Inc., Attn: General Counsel, 950 W. Maude Ave., Sunnyvale, CA 94085 or to such other address as Palm may designate to Developer by written notice, and shall be effective upon receipt.. All notices and consents required or permitted to be given to Developer under this Agreement shall be in writing to the address provided during the Registration Process or to such other address as Developer may designate to Palm by written notice, and shall be effective upon receipt. Written notice shall be made by personal delivery or sent by nationally recognized overnight commercial courier service to the other party. A waiver of any default hereunder or of any of the terms and conditions of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but shall apply solely to the instance to which such waiver is directed. The exercise of any right or remedy provided in this Agreement shall be without prejudice to the right to exercise any other right or remedy provided by law or equity, except as expressly limited by this Agreement. In the event any provision of this Agreement is found to be invalid, illegal or unenforceable, the validity, legality and enforceability of any of the remaining provisions shall not in any way be affected or impaired. This Agreement shall be governed by and construed under the laws of the State of California and the United States without regard to conflicts of laws provisions thereof. Unless waived by Palm in writing for the particular instance, the sole and exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the state and federal courts located in Santa Clara County, California. Both parties consent to the exclusive jurisdiction of such courts and agree that process may be served in the manner provided herein for giving of notices or otherwise as allowed by California or federal law. Neither party shall export, directly or indirectly, any information acquired under this Agreement or any products utilizing any such information to any country or to any individual or entity for which the U.S. 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. The headings in this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning hereof. A person who is not a party to this Agreement (other than a subsidiary or affiliate of Palm) shall not have any rights under applicable law to enforce any term of this Agreement. The consent of any third party (including any subsidiary or affiliate of Palm) shall not be required for the variation or termination of this Agreement.
- Agent Territories
Developer hereby appoints Palm, Inc. as agent for the marketing and End User download of the applications in the following countries (the "Agent Territories"):
- United States
- Commissionaire Territories
Developer hereby appoints Palm Global Operations Limited (a subsidiary of Palm, Inc.) as commissionaire for the marketing and End User download of the applications in the following countries (the "Commissionaire Territories"):
- All countries in the European Union
- Collection of Taxes.
In accordance with Section 8(b) of the Agreement, the collection and remittance of taxes by Palm and its subsidiaries shall be as set forth below.
Palm or its designated subsidiary shall collect and remit to the relevant tax authorities the sales, use, and value added taxes for sales of the Applications to End Users located in the following countries:
- United States
- All countries in the European Union
Prices to End Users located in the European Union will be inclusive of taxes. When required, Palm Global Operations Limited will create self-billing invoices, an example of which is attached as Exhibit B, on behalf of Developers registered for value added tax in the European Union. The format of such invoices is subject to change.
Neither Palm nor any Palm subsidiary shall collect or remit sales, use, and value added taxes for sales of the Applications to End Users located in the following countries:
- Currency Conversions.
Palm or its designated subsidiary will charge End Users in the currency as determined by the country of the End User's carrier network as set forth in the table below. In addition, Palm or its designated subsidiary will remit to the Developer in currency as determined by the country of the End User's carrier network as set forth in the table below:
Country of End User's Carrier Network Currency of Collection from End Users Currency of Remittances to Developer United States USD USD Canada CAD USD Mexico Pesos USD UK GBP Euro Rest of EU Euro Euro
Self-Billing Invoice Sample
(Format Subject to Change)
Even if the above amounts do not include VAT you may still be required to account for VAT under the reverse charge procedure according to the local VAT rules in your country.