|
REFPOOL AGREEMENT
This REFPOOL Agreement ("Agreement") is made and
entered into by and between the Wireless Application Protocol Forum Ltd. ("the WAP Forum") and You.
Whereas, You have submitted Your Device for inclusion in
the REFPOOL; and
Whereas, Your Device may be included in the REFPOOL pursuant
to the terms and conditions of this Agreement.
Now therefore, in consideration of the covenants set forth
below, the parties agree as follows:
1. DEFINITIONS
For purposes of this Agreement, the following terms shall
have the following meanings:
(a) "WAP Certification Testing" means testing of
products with a standardized test suite against other Devices for conformance with the wireless application protocol
specifications. WAP Certification Testing does not mean testing of full compliance with the requirements of the
WAP specifications.
(b) "Device" means equipment, which has been manufactured
in accordance with one or more WAP specifications designed to conform to the requirements of the WAP Certification
Testing, whether or not the certification has been achieved.
(c) "REFPOOL" means the complete set of Devices
available for WAP Certification Testing.
(d) "REFPOOL Membership" means the inclusion of
Your Device in the REFPOOL.
(e) "Certification Authority(s)" means the organization(s)
chosen by the WAP Forum to run the day to day management of the certification process.
(f) "ICS" means Your declaration, known as the
implementation conformance statement, regarding the implementations of Your Device in testing with the WAP specifications.
(g) "REFSET" means a set of Devices used for WAP
Certification Testing. The REFSET will be selected from the REFPOOL by the Certification Authority.
(h) "You" and "Your" means both the individual
and the corporation (including all affiliates of the corporation), which agree to this Agreement as indicated below.
(i) "Class Conformance Requirements" means the
requirements established by the WAP Forum related to a standardized set of features, with which Your Device must
comply.
(j) "Third Party License Information" means the
information regarding the name of each WAP component part of Your Device and the name of each party from whom You
have licensed such component parts.
(k) "Static Conformance Requirements" means the
requirements related to the mandatory and optional features necessary to comply with each WAP specification.
2. OBLIGATIONS OF CERTIFICATION AUTHORITY
(a) The Certification Authority agrees that there will be
no charge to You for inclusion of Your Device in the REFPOOL.
(b) The Certification Authority will validate the ICS for
the Device to ensure that it represents a complete, consistent and valid conformance against the applicable Class
Conformance Requirements, the Static Conformance Requirements and the WAP specifications.
(c) Provided the Certification Authority receives information
from You which is complete, consistent and correct, it will use reasonable efforts to enter Your Device into the
REFPOOL as a provisional uncertified entry within three (3) working days of receipt of this Agreement. Pursuant
to the terms of Paragraph 4 of this Agreement, this entry will remain confidential.
(d) If the information received by the Certification Authority
from You is not complete and correct, the Certification Authority will notify You regarding the required corrective
actions.
(e) If Your Device is in the REFPOOL, and is blocked from
certification due to program issues unrelated to your device, then the Certification Authority will notify You
as soon as the issue is resolved, for continuation of Your WAP Certification Testing.
3. YOUR OBLIGATIONS
(a) You agree that if Your Device is included in a REFSET
that You will make it available for WAP Certification Testing.
(b) You agree to make the Device available for inclusion
in a REFSET without any limitations.
(c) You agree to provide to the Certification Authority the
Third Party License Information at the time that You submit Your Device for inclusion in the REFPOOL and You agree
to provide updated information immediately to the Certification Authority in the event of any additional Third
Party License Information.
(d) You agree to provide at least an acknowledgement response
within 2 working days to the Certification Authority for its support requests. You understand and agree that failure
to do so may result in the loss of Your REFPOOL Membership, as determined in the sole discretion of the Certification
Authority.
(e) You agree to make Your Device, which is in the REFPOOL,
available to applicants for WAP Certification Testing at a mutually agreed time and date, but in no event later
than 10 working days of an applicant's request to you for Your Device for use in WAP Certification Testing by the
applicant.
(f) You agree that if an applicant for WAP Certification
Testing requests services other than those offered (i.e. additional access methods not normally hosted or maintained
by You), You will, if reasonably possible, provide these services at the expense of the applicant.
(g) You agree that for any WAP Certification Testing, which
is performed outside of the offices of the Certification Authority, that You will provide, at Your own expense,
all that is necessary to perform the WAP Certification Testing.
(h) You agree to designate a single point of contact for
all support and logistics matters related to WAP Certification Testing.
(i) You agree that Your Devices in the REFSET may be accessed
by third parties for WAP Certification Testing on a fair, reasonable and non-discriminatory basis.
(j) You understand and agree that Your Device's inclusion
in the REFPOOL is not a substitution for WAP Certification Testing and that You may not make any statements regarding
WAP certification based solely upon inclusion of Your Device in the REFPOOL.
(k) You agree to provide additional information regarding
WAP Certification Testing to the Certification Authority, as requested from time to time by the Certification Authority.
(l) You understand and agree that Your Device may be removed
from the REFPOOL within ninety (90) days of Your submission to the REFPOOL in the event that Your Device has not
passed WAP Certification Testing.
(m) Maintaining WAP Certfication for the devices from Your
company requires you to participate in the REFPOOL. You must have at least one Device from Your company in the
REFPOOL for each WAP release and each type of device (client or server) for which you have or are seeking WAP certification.
Failure to meet this condition will result in loss of WAP certification for all Your Devices.
4. CONFIDENTIALITY
Your request for Your Device's inclusion in the REFPOOL,
as well as the fact of inclusion of Your Device in the REFPOOL is not confidential information. Information about
the Device itself may be confidential between the Certification Authority and You pursuant to the terms of any
agreement between the Certification Authority and You.
5. WARRANTIES; LIMITATION OF LIABILITY
(a) THE WAP FORUM MAKES NO WARRANTIES OF ANY KIND RESPECTING
YOUR REFPOOL MEMBERSHIP OR ANY OTHER ASPECTS OF THIS AGREEMENT. THE WAP FORUM DOES NOT GRANT ANY INDEMNITY AGAINST
ANY CLAIMS ARISING UNDER THIS AGREEMENT. YOU ENTER INTO THIS AGREEMENT AT YOUR OWN RISK. IF YOU DO NOT AGREE TO
THESE TERMS, DO NOT ENTER INTO THIS AGREEMENT.
(b) IN NO EVENT SHALL THE WAP FORUM, ANY AGENTS, DIRECTORS,
OFFICERS OR EMPLOYEES BE LIABLE FOR ANY DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, ECONOMIC DAMAGES AND
LOSS OF PROFITS) ARISING FROM OR RELATED THIS AGREEMENT, EVEN IF THE WAP FORUM HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
6. TERM AND TERMINATION
(a) You may remove Your Device at any time from the REFPOOL
with sixty (60) days' prior written notice to the WAP Forum. The WAP Forum or Certification Authority may remove
Your Device from the REFPOOL at any time and without notice to You. Upon removal of Your Device from the REFPOOL
this Agreement will terminate and any rights granted to You hereunder shall terminate completely. Paragraph 4 shall
survive any termination or expiration of this Agreement.
(b) Nothing in this Paragraph 6 shall limit the parties'
rights to pursue other legal remedies, including immediate court or judicial relief. Rights and obligations under
this Agreement which by their nature should survive will remain in effect after termination or expiration hereof.
(c) If you remove Your Device from the REFPOOL, You will
be required to support completion of any ongoing certification that Your Device is involved in. The Certification
Authority will stop including You in any newer REFSETs from the time you provide written notice of Your intent
to remove Your Device from the REFPOOL. You will also lose WAP certification for all Your Devices if you do not
meet the condition outlined in Section 3 (m) after You remove Your Device from the REFPOOL.
7. GENERAL
(a) This Agreement is not intended to and shall not create
a relationship such as a partnership, franchise, joint venture, agency, or employment relationship. Neither party
may act in a manner which expresses or implies any relationship other than that of licensor and licensee, nor bind
the other party.
(b) The WAP Forum may assign this Agreement or any of its
rights or obligations hereunder in any manner. You may not assign or otherwise transfer this Agreement or any of
its rights or obligations hereunder without the WAP Forum's written consent, which the WAP Forum may withhold in
its sole discretion. This Agreement shall be binding upon and inure to the benefit of the permitted successors
and assigns of the parties hereto.
(c) All notices or other communications permitted or required
under this Agreement, except as set forth in the last sentence of this section below, must be in writing and must
be delivered by personal delivery, or facsimile or e-mail transmission or by commercial express courier service
postage prepaid, and shall be deemed given upon personal delivery, or five (5) days after deposit in the mail,
or upon acknowledgment or receipt of facsimile or e-mail transmission. Notices shall be sent to the address set
forth below or to such other address as either party may change by notice as provided herein. Notice is hereby
given regarding revisions related to WAP Certification Testing by posting of such revisions on the WAP Forum Web
site.
(d) Any waiver of any term or provision of this Agreement,
or any delay by any party in the enforcement of any right hereunder, shall neither be construed as a continuing
waiver, nor create an expectation of non-enforcement, of that or any other term, provision or right.
(e) The headings used herein are for convenience only and
shall not be considered in the interpretation and construction of this Agreement.
(f) The English language shall control this Agreement in
all respects, and any version of this Agreement in any other language shall be for accommodation only and shall
not be binding on the parties to this Agreement. All communications and notices made or given pursuant to this
Agreement, and all documentation and support to be provided, shall be in the English language.
(g) This agreement shall be governed by the laws of England
and the State of California, U.S.A., depending upon where litigation may be brought as set forth in this Section.
The parties agree that in the event that the WAP Forum brings suit against You that the WAP Forum consents to the
venue of the courts of England and the courts of England shall have exclusive jurisdiction to determine any disputes
which may arise out of, under, or in connection with this Agreement, and that in the event that You bring suit
against the WAP Forum that You consent to the venue of the state and federal courts of the State of California
and the courts of the State of California, U.S.A. shall have exclusive jurisdiction to determine any disputes which
may arise out of, under, or in connection with this Agreement.
(h) If any action at law or in equity is necessary to enforce
the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs and expenses
in addition to any other relief to which such prevailing party may be entitled.
(i) The invalidity or unenforceability of any provision of
this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects
as if such invalid or unenforceable provision were replaced with a valid and enforceable provision as similar as
possible to the one replaced.
(j) The parties hereto acknowledge that they have read this
Agreement and understand it, and they agree to be bound by all its terms and conditions. They further agree that
this Agreement constitutes the full and complete understanding and agreement of the parties hereto and supersedes
all prior or contemporaneous oral or written communications, understandings and agreements. Any waiver, modification
or amendment of any provision of this Agreement shall be effective only if in writing and signed by the parties
thereto.
IN WITNESS WHEREOF, the parties hereby execute this Agreement
through their authorized representatives.
Agreed to by
Wireless Application Protocol Forum Ltd.
2570 West El Camino Real, Suite 304
Mountain View, California 94040-1313
U.S.A.
Facsimile Number: (650) 949-6765
E-mail: wap-feedback@mail.wapforum.org
and
|