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					528                      CONVEYANCING, DRAFTING & DEEDS                       [PART I

      II. Cooperating Groups Agree as Follows:
      A. University agrees to:
   1. Provide computer equipment, supporting software, and install services to
District Community Extension Service staff and Partner for use at the local
program site to access electronic resources related to the (Program Name)..
   2. Provide technical support for the District Community Extension Service
Staff and one person from the Partner’s program who will serve as the site con-
tact and who has participated in University training.
    3. Provide training and support materials at the Partner’s site and/or on-cam-
pus in operation of the equipment, electronic communications, and use of the
Internet.
    4. Pay Partner’s electronic connectivity expenses (Internet service provider
fee and telephone line monthly charges and installation fee) up to a maximum
total of[Rs……]for the first twelve months of full connection to the Internet.
    5. Develop and provide “Acceptable Use Guidelines” to District Community
Extension Service Staff and Partner for use by all youth and adults who use the
Internet as part of this program. If the schools have already initiated an Accept-
able Use Policy and obtained the appropriate signatures for the students, these
forms will be acceptable.
   6. Assist District Community Extension Service Staff and Partner as needed
with selection of additional computer software to be purchased locally appropri-
ate to the local program’s needs.
   7. Provide District Community Extension Service Staff and Partner with
forms to log computer usage.
      B. District Community Extension Service Centre agrees to:
  1. Advise the Partner on appropriate security measures for the computer equip-
ment and software purchased for the Partner’s sites.
   2. Maintain an inventory of all equipment purchased for District Community
Extension Service Centre and Partner with the (Program Name). funds accord-
ing to University inventory procedure.
   3. Support District Community Service staff to attend with the Partner on-site
and off-site training opportunities provided by the University and assist the Part-
ner with the public computer instruction.
    4. Provide office space and necessary computer connections for use of the
Internet resources at the District Community Service Centre site.
   5. Purchase paper, printer cartridges and other supplies as needed to operate
the District Community Service Centre computer equipment.
    6. Help collect records of computer usage at Partner’s site and assist in com-
piling data needed for University reporting.
    7. Return the equipment to the University at such time as it is no longer usable
for the program as directed by University.
PART I]                      INTERNET AGREEMENTS—FORMS                           529

     C. Partner agrees to:
   1. Take all reasonable steps to secure from vandalism and theft the computer
equipment and software purchased for use at the Partner’s site .
    2. Return equipment to the District Community Service Centre at such time
as the equipment is no longer usable or desired at the local site or at such time as
the YAR Program no longer exists.
    3. Support staff or volunteers from the Partner’s site to attend on-site and off-
site training opportunities provided by the University, have a fully trained person
at the site during public use of equipment, and assist District Community Ser-
vice Centre with public instruction.
   4. Submit original invoices to University for connectivity expenses of the
Partner’s site up to a maximum of [Rs……] Invoices shall be mailed to:
   5. Pay electronic connectivity expenses for the Partner’s site the [Rs………]
covered by the University for full connection to the Internet.
   6. Purchase paper, printer cartridges and other supplies as needed to operate
the Partner’s computer equipment.
   7. Help maintain records of electronic connectivity use and assist in compiling
data needed for University reporting.
   8. Maintain records of Internet users’ agreements with the “Acceptable Use
Guidelines” provided by University.
   9. Pay for any repairs and transportation costs for repairs which occur after the
expiration of the manufacturer’s warranty and for any repairs and transportation
costs which are a result of neglect or misuse at the local site.
     III. Effective Period
    The effective period of this Agreement shall begin on (Date), and shall not
extend beyond (Date), unless agreed to in writing by both parties hereto. This
project may be continued for additional years. However, the extension of this Agree-
ment beyond (Date), is subject to continuation by the Prime Award with authoriza-
tion for specific funds for cooperating organizations.
   IN WITNESS WHEREOF the parties hereof have executed this MOU on the
day month and the year first above written.
SIGNED SEALED AND DELIVERED BY
THE PARTIES IN PRESENCE OF:
1.
2.
                                        45
              Internet Privacy Policy by Service Provider
     I. COMMITMENT TO YOUR PRIVACY
    This site is owned and operated by     Your Company     . Your privacy on the
Internet is of the utmost importance to us. At _____, we want to make your expe-
rience online satisfying and safe.

G : CDD (Vol. 4) – 34
530                      CONVEYANCING, DRAFTING & DEEDS                        [PART I

   Because we gather certain types of information about our users, we feel you
should fully understand the terms and conditions surrounding the capture and
use of that information. This privacy statement discloses what information we
gather and how we use it.
      INFORMATION __________ GATHERS AND TRACKS
      ________ gathers two types of information about users:
   Information that users provide through optional, voluntary submissions. These
are voluntary submissions to receive our electronic newsletters, to participate in
our message boards or forums, to email a friend, and from participation in polls
and surveys:
    Information _______ gathers through aggregated tracking information derived
mainly by tallying page views throughout our sites. This information allows us to
better tailor our content to readers’ needs and to help our advertisers and spon-
sors better understand the demographics of our audience. Because _____ de-
rives its revenue mainly from sponsorships and advertising, providing such ag-
gregated demographic data is essential to keeping our service free to users. Un-
der no circumstances does ______ divulge any information about an individual
user to a third party.
      __________ Gathers User Information In The Following Processes:
      Optional Voluntary Information
   We offer the following free services, which require some type of voluntary
submission of personal information by users:
      1. Electronic newsletters (Dispatches)
   We will offer a free electronic newsletter to users. __________ gathers the e-
mail addresses of users who voluntarily subscribe. Users may remove themselves
from this mailing list by following the link provided in every newsletter that points
users to the subscription management page. Users can also subscribe to the
newsletters at the time of registration.
      2. Message boards/forums
   Users of the site’s Message Boards and Forums must register separately for
these services (both are free of charge) in order to post messages, although they
needn’t register to visit the site. During registration the user is required to supply
a username, password, and e-mail address.
      3. “E-mail this to a friend” Service
   Our site users can choose to electronically forward a link, page, or docu-
ments to someone else by clicking “e-mail this to a friend”. The user must
provide their e-mail address, as well as that of the recipient. This information is
used only in the case of transmission errors and, of course, to let the recipient
know who sent the e-mail. The information is not used for any other purpose.
      4. Polling
   We may offer interactive polls to users so they can easily share their opinions
with other users and see what our audience thinks about important issues. Opin-
ions or other responses to polls are aggregated and are not identifiable to any
PART I]                   INTERNET AGREEMENTS—FORMS                              531

particular user. _________ may use a system to “tag” users after they have voted,
so they can vote only once on a particular question. This tag is not correlated with
information about individual users.
    5. Surveys
    _________ may occasionally conduct user surveys to better target our con-
tent to our audience. We sometimes share the aggregated demographic informa-
tion in these surveys with our sponsors, advertisers and partners. We never share
any of this information about specific individuals with any third party.
    6. Children
   Consistent with the Federal Children’s Online Privacy Protection Act of 1998
(COPPA), we will never knowingly request personally identifiable information from
anyone under the age of 13 without requesting parental consent.
    7. Usage tracking
    ________ tracks user traffic patterns throughout all of our sites. However, we
do not correlate this information with data about individual users. _______ does
break down overall usage statistics according to a user’s domain name, browser
type, and MIME type by reading this information from the browser string (informa-
tion contained in every user’s browser).
    _________ sometimes tracks and catalogs the search terms that users enter
in our Search function, but this tracking is never associated with individual users.
We use tracking information to determine which areas of our sites users like and
don’t like based on traffic to those areas. We do not track what individual users
read, but rather how well each page performs overall. This helps us continue to
build a better service for you.
    8. Cookies
    We may place a text file called a “cookie” in the browser files of your computer.
The cookie itself does not contain Personal Information although it will enable us
to relate your use of this site to information that you have specifically and know-
ingly provided. But the only personal information a cookie can contain is informa-
tion you supply yourself. A cookie can’t read data off your hard disk or read cookie
files created by other sites. ________ uses cookies to track user traffic patterns
(as described above). Our advertising system delivers a one-time cookie to better
track ad impressions and click rates.
    You can refuse cookies by turning them off in your browser. If you’ve set your
browser to warn you before accepting cookies, you will receive the warning mes-
sage with each cookie. You do not need to have cookies turned on to use this site.
However, you do need cookies to participate actively in message boards, forums,
polling and surveys.
    II. USE OF INFORMATION
    ___________ uses any information voluntarily given by our users to enhance
their experience in our network of sites, whether to provide interactive or person-
alized elements on the sites or to better prepare future content based on the
interests of our users.
    As stated above, we use information that users voluntarily provide in order to
532                       CONVEYANCING, DRAFTING & DEEDS                      [PART I

send out electronic newsletters and to enable users to participate in polls, sur-
veys, message boards, and forums. We send out newsletters to subscribers on a
regular schedule (depending on the newsletter), and occasionally send out spe-
cial editions when we think subscribers might be particularly interested in some-
thing we are doing. _________ never shares newsletter mailing lists with any
third parties, including advertisers, sponsors or partners.
    When we use tracking information to determine which areas of our sites users
like and don’t like based on traffic to those areas. We do not track what individual
users read, but rather how well each page performs overall. This helps us con-
tinue to build a better service for you. We track search terms entered in Search
function as one of many measures of what interests our users. But we don’t track
which terms a particular user enters.
    ___________ creates aggregate reports on user demographics and traffic
patterns for advertisers, sponsors and partners. This allows our advertisers to
advertise more effectively, and allows our users to receive advertisements that
are pertinent to their needs. Because we don’t track the usage patterns of indi-
vidual users, an advertiser or sponsor will never know that a specific user clicked
their ad. We will not disclose any information about any individual user except to
comply with applicable law or valid legal process or to protect the personal safety
of our users or the public.
      III. SHARING OF THE INFORMATION
    __________ uses the above-described information to tailor our content to suit
your needs and help our advertisers better understand our audience’s demo-
graphics. This is essential to keeping our service free. We will not share informa-
tion about individual users with any third party, except to comply with applicable
law or valid legal process or to protect the personal safety of our users or the
public.
      IV. SECURITY
    __________ operates secure data networks protected by industry standard
firewall and password protection systems. Our security and privacy policies are
periodically reviewed and enhanced as necessary and only authorized individu-
als have access to the information provided by our customers.
      V. OPT-OUT POLICY
   We give users options wherever necessary and practical. Such choices in-
clude:
      Opting not to register to receive our electronic newsletters.
   Opting not to participate in certain interactive areas, which completely allevi-
ates the need to gather any personally identifiable information from our users.
      VI. YOUR CONSENT
    By using this site, you consent to the collection and use of this information by
_______. If we decide to change our privacy policy, we will post those changes on
this page so that you are always aware of what information we collect, how we
use it, and under what circumstances we disclose it.
PART I]                     INTERNET AGREEMENTS—FORMS                             533

                                             46
      Internet Audio and Video Content Service Agreement
                                               Agreement
                                        [Proposal form]

    1. Encoding.com would like to validate our strong desire to have a strategic
and long-term relationship with Emusic.com by delivering what we believe to be a
very compelling proposal. The below proposal is intended to encompass all of E-
music’s encoding for a period of [*] and is designed with a full partnership in mind.
Please note that the pricing you are being offered here is confidential to E-music
and the terms herein should not be disclosed to any third party.
    2. The terms of this agreement are good until the last day of [Date].
   3. You will notice in the pricing section that we have given you [*] prices for the
encoding of [*] CDs initially and all ongoing volumes for a period of [*].
   Also pricing for Windows Media encoding has been added here as well at a
very reasonable rate.
    4. Encoding Requirements
   Please review this document carefully and let me know if there are sections
that are unclear or if we are missing some pressing details.
    The following are your requirements, as we understand them.
      [*] Support for the highest quality encoding from [*] format into [*] format
      [*] Encoding of [*] CDs into [*] formats,
      [*].Possible support for [*]. .
      [*] files will be encoded using the [*].
      [*] samples will be encoded into [*].
      [*] samples will be captured [*] seconds into a song unless otherwise
          requested. [*].
     [*] Scanning of cover art into at least [*] formats. [*] at a frame size to be
determined.
    [*] Receive media from labels and generate an electronic package slip for E-
music.com for rectification purposes.
      [*] Tracking of all media that is shipped to encoding.com without a packing
slip by our internal tracking number, UOC and album title.
      [*] Data entry for all [*] CDs to be used for meta data entry, naming, and
cross reference to web site.
      [*] Deliveries of media back to E-music.com [*].
      [*] Require dedicated capacity in the encoding.com lab in an ongoing capac-
ity for projects that can not yield the normal 2-4 week lead-time.
      [*] Confidential Treatment Request
    Quotation valid through [Date]
    Digitization & Encoding Services; Data Work, and Scanning
534                           CONVEYANCING, DRAFTING & DEEDS                        [PART I

      Encoding
   Encoding.com is in a phase in our company culture where the partnerships
we make are as important as anything. By this we are prepared to jump into this
partnership with both feet and offer you the same strategic pricing for your initial
encoding project as all ongoing encoding work.
      Please find below a brief description of the two opportunities available to you.
      Pricing Short: Please also see contingencies below.
      Straight customer/client relationship.
      Encoding- MP3 and RA                       Scanning          Data
           Initial [*]CDs          [*]           [*]               [*]
           1-year ongoing          [*]           [*]               [*]
    Earn out opportunity: with the below opportunity you can save upwards of [*]
off the initial encoding project for a [*] royalty on all online sales of media we
encoded for a period of [*].
                        Encoding- MP3 and RA           Scanning    Data
           Initial [*] CDs         [*]           [*]               [*]
           1-year ongoing          [*]           [*]               [*]
   We are not concerned with which option you choose, but we did want to give
you a way to defer your pricing even more if appropriate.
      Initial [*]CDs (material):
      The following are conditions of this very strategic pricing for your initial [*] CDs.
      Work order is executed and a PO generated for the initial amount by [Date].
      Jointly Sponsored press release announcing project and partnership.
   Minimum annual commitment of [*] CDs for a period of 1-year. This will be
dedicated capacity that will be priority access for E-Music.
      Link exchange where appropriate.
      Possible other promotional or marketing events.
      [*] downloads for all encoding.com employees for a period of 6-months.
      Specifics:
      Set-up per CD:                       [*]
      Database integration:                [*]
      Material Warehousing
      6 months from 1st shipment           [*]
      Encoding cost per track/song file [*]
      Total for [*] Tracks:          [*]
      *] tracks per CD on average
    We will work with you over the next week to put in place a delivery schedule for
this deployment.
PART I]                     INTERNET AGREEMENTS—FORMS                                535

    *If not executed by [Date] the price of [*] will apply for per track encoding.
    [*] Confidential Treatment Request
    Quotation valid through [Date].
    Data Entry
    Encoding.com has put in place a very robust data entry process and manage-
ment software. Over the past year we have created custom databases for a num-
ber of clients with similar needs as your own. The following is our understanding
of your data entry requirements and the pricing that we are able to offer to imple-
ment these. [*] The following are based on our ability to enter data for
    [*] CDs per hour per data entry employee.
    Please also note that we have looked in the past at the use of the [*] as a tool
for propagating meta fields in our clients databases. [*].
   Caveat: When encoding.com is given an electronic packing slip for the CDs
we are receiving the data entry costs associated with those CDs will be [*] per
CD.
    Fields to be captured:
    [*]
    Format for export:                  [*]
    Cost per CD:                        [*]
    Total Costs for [*] CDs:            [*]*
    * this number will be less if [*]
    Scans
   Encoding.com has the ability to scan cover art for E-Music.com as part of our
normal fulfillment process. For this project we will capture [*] formats as follows:
    [*]
    Costs per scan:        [*]
    Costs for [*] scans:    [*]
    List price is [*] and [*] additional format..
    Quotation valid through [Date]
     We will deliver the image files to you on CDR or DLT depending on your
requirements. Sometimes we have found that it is easier to manage the audio
files on CDR depending on your usage. We will work with you on this.
    Fulfillment and Delivery
   Fulfillment and delivery is how we return your media to you or to your hosting
provider. The options here are via DAT, CDR, or FTP. We don’t recommend FTP
because of timeliness for this amount of data.
  DLT delivery media for [*] CDs worth of compressed media and cover art.
Approximately [*] of data to be delivered
    [*] can fit on an individual DLT
536                          CONVEYANCING, DRAFTING & DEEDS                            [PART I

      [*] needed; @ [*] per DLT
      Delivery Costs:            [*]
      CDR Delivery:              [*]
    We will work with your operations teams to put in place a structure for how we
deliver, store and retrieve media to and for E-music.
      Summary:
    We are very interested in working with you on this project. We believe that we
are the only choice in the industry that can handle these volumes of audio encod-
ing. Please let me know what other information you need from me and I will work
to provide it. These prices are valid through [ Date].
      Initial [*] CD encoding project
              Item         Count                      Your Costs               Total
             Encoding            [*] Songs into [*]        [*]                   [*]
             [*]           Encoding                        [*]                   [*]
             [*]            Data Entry          [*] CDs    ([*]fields)   [*]     [*]
             [*]            Scans [*]                                            [*]
             [*]            Delivery           [*] DLT                           [*]
                           CDR ongoing                                           [*]
             [*]           Total Project Costs

      1 year volume commitment: Additional Volume.
            Item           Count                           Your Costs            Total
      [*] Encoding         [*] songs into                  [*]                   [*]
      [*]                  [*] encoding                                          [*]
      [*] Data Entry       [*] CDs ([*]fields)                                   [*]
      [*] Scans            [*]                                                   [*]
      [*] Delivery         [*] DLT                                               [*]
             CDR ongoing                                                         [*]
      [*]     Total Project Costs                                                [*]
      Quotation valid through [Date]
    * Contingent on this work-order being signed by [Date] Otherwise the ongoing
pricing schedules will be applied.
      On-going Work:
    Contingent on the signing of this work agreement we will work with Emusic.com
to put in place a structure and a process for handling all mass ongoing encoding
work for Emusic.com as well as how we will reserve dedicated lab time. In signing
this document Emusic.com asserts its willingness to enter into an agreement of
this nature.
PART I]                   INTERNET AGREEMENTS—FORMS                            537

   The following is the pricing that we are able to offer Emusic.com for this on-
going work as stated earlier.
          Data            Encoding- MP3, RA,                 Scanning
                          and Windows Media
           [*] on-going            [*]                        [*]
           [*] per CD
    On-going volumes are estimated at [*] tracks [*].
    Terms and Conditions
    The primary terms of our agreement require that you guarantee to have the
rights to the content and we agree not to use the content for other purposes
without your approval. We require a [*] deposit on all contracted work. The bal-
ance will be invoiced monthly against the past months work.
    1. CONTROLLING TERMS. Pricing is valid until June 31st 1999 and are valid
for a period of one year from the execution of this document. The terms and con-
ditions of sale contained herein shall apply to all provisions of encoding services
and related services by encoding.com, Inc. (“encoding.com”) and to all purchase
orders or other offers accepted by encoding.com related thereto (collectively, the
“Service”). These terms and conditions may in some instances conflict with or
add to some of the terms and conditions affixed to the purchase order or the
procurement document issued by the Customer. In such case, the terms and
conditions contained herein shall govern exclusively and ACCEPTANCE OF
CUSTOMER’S ORDER IS EXPRESSLY CONDITIONED UPON CUSTOMER’S AC-
CEPTANCE OF THE TERMS AND CONDITIONS CONTAINED HEREIN irrespective
of whether the Customer accepts these conditions by oral or written acknowledg-
ment, by implication or by acceptance of or payment for the provision of the Ser-
vice ordered hereunder based on the content, materials and/or elements (collec-
tively, the “Content”) provided to encoding.com by Customer.
    2. TERMS OF PAYMENT. Payment must be made in [Currency name] or
equivalent Foreign currency in US dollars and may be made in cash, cashier’s
check, money order, travelers cheques, cheque drawn on local bank or Visa /
MasterCard. All COD orders must be paid for and picked up Monday through
Friday between the hours of 9:00 AM and 5:00 PM. Credit terms are net 15 days.
Interest at the rate [%] will be charged on all accounts not paid within 30 days
unless previous arrangements have been made with the encoding.com. ANY
CLAIMS FOR ADJUSTMENT IN CONNECTION WITH AN INVOICE SHALL BE MADE
WITHIN 15 DAYS FROM THE INVOICE DATE. A Customer must guarantee pur-
chase of a minimum quantity of Service and if a Customer fails to purchase such
minimum quantity, encoding.com has the right to collect from Customer the differ-
ence between the price paid by Customer for the Service purchased and
encoding.com’s standard price for such Service in quantity actually purchased by
Customer. encoding.com shall have a lien and security interest on tapes, CDs,
files and other property delivered by Customer to encoding.com and/or made by
encoding.com therefrom for the balance of any account due us by the Customer,
including collection and attorney’s fees. Customer hereby authorizes encoding.com
to execute and file, on Customer’s behalf, a financing or other statement evidenc-
538                      CONVEYANCING, DRAFTING & DEEDS                        [PART I

ing this security interest. When necessary, Customer agrees to execute neces-
sary documentation for perfecting such security interest.
    3. SHIPPING. If encoding.com provides shipping and handling services for
Customer’s materials, surcharges will apply. Shipping and delivery dates are
approximate. In no event, for any reason whether or not beyond encoding.com’s
control, shall encoding.com be liable to Customer or any other party for any losses,
damages or liability for delay in delivery of shipped materials; nor shall any delay
in delivery of shipped materials constitute grounds for cancellation of Customer’s
work order.
    4. DELIVERY. The delivery dates set forth on this acknowledgment are ap-
proximate only, and encoding.com is not liable for any damages to Customer, nor
shall encoding.com be in breach of its obligations to the Customer, because of
any delivery made within a reasonable time after the stated delivery date.
Encoding.com may by written notice to Customer change any delivery date, and
such date shall become the agreed upon delivery date unless Customer objects
to such date in writing delivered to encoding.com within ten (10) days of receipt of
encoding.com’s notice. encoding.com shall not be liable for any late delivery
caused by the failure of the Customer to provide in a timely manner any neces-
sary information to affect such delivery.
    5. FORCE MAJEURE. Encoding.com is not liable for any failure to deliver, or
delay in the delivery of, any Service due to a cause beyond its control, including
but not limited to acts of God, fires, typhoons, earthquakes, labor disputes, gov-
ernmental actions or inability to obtain materials, components, energy, encoding
facilities, or transportation. In the event of any such delay, the data of delivery or
performance hereunder shall be extended by a period equal to the time lost by
reason of such delay. If encoding.com’s production is curtailed for any of the
above reasons, encoding.com may allocate its production among its various cus-
tomers. Such allocation shall be in a commercially fair and reasonable manner.
    6. STORAGE. It is the Customer’s responsibility to arrange for removal of
materials from encoding.com at the completion of each project. At the Customer’s
request, encoding.com will store tapes and Content for a maximum of 60 days.
Encoding.com reserves the right to ship tapes and/or Content to the Customer,
freight collect, at the conclusion of the 60 day period or to charge a storage fee or
to otherwise dispose of the materials.
   7. RIGHT TO REFUSE SERVICE. encoding.com reserves the right to refuse
service and/or process any Content which encoding.com, in its sole discretion,
deems unlawful, pornographic, degrading, likely to incite prejudice or passion or
otherwise inappropriate.
    8. CUSTOMER WARRANTIES. Customer represents and warrants that (a)
Customer has sufficient rights in the Content to use it in the manner contem-
plated by this acknowledgment, (b) the Content does not infringe upon or violate
any patent, copyright, trade secret, trademark or other intellectual property right
of any third party or any obscenity law or other applicable law, rule or regulation in
any jurisdiction in which the Content may be viewed or retrieved, (c) encoding.com’s
provision of the Service and/or hosting of the Content hereunder will not infringe
upon or violate any patent, copyright, trade secret, trademark or other intellectual
PART I]                  INTERNET AGREEMENTS—FORMS                             539

property right of any third party, including but not limited to any and all perfor-
mance licence rights, mechanical licence rights, synchronization licence rights
and rights under the Digital Performance Right in Sound Recordings under any
Act, rule or regulation in any jurisdiction in which the Content can be viewed or
retrieved, and (d) the Content and encoding.com’s provision of the Service on
behalf of Customer is not for any illegal, obscene, offensive or immoral purpose.
    9. ENCODING.COM LIMITED WARRANTY; LIMITED LIABILITY; EXCLUSION
OF CONSEQUENTIAL DAMAGES. It is understood and agreed that the Customer’s
materials are transported, received, processed, used and stored at Customer’s
risk. ENCODING.COM SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR
OTHER DAMAGES CAUSED BY THE LOSS, DAMAGE OR DESTRUCTION OF
MATERIALS BELONGING TO THE CUSTOMER OR ANY OTHER PERSON
WHILE IN TRANSIT OR POSSESSION OF ENCODING.COM UNLESS CAUSED
BY THE NEGLIGENCE OF ENCODING.COM IN WHICH EVENT, THE LIABILITY
OF ENCODING.COM SHALL BE LIMITED TO THE REPLACEMENT OF A SIMI-
LAR QUANTITY OF BLANK TAPE OR MAGNETIC OR OPTICAL MEDIA TO THE
MATERIALS WHICH WERE LOST, DAMAGED OR DESTROYED. EXCEPT FOR
SUCH REPLACEMENT, ENCODING.COM SHALL HAVE NO FURTHER LIABIL-
ITY REGARDING THE LOSS, DAMAGE OR DESTRUCTION OF SUCH MATE-
RIALS. ENCODING.COM SHALL NOT BE LIABLE TO CUSTOMER OR ANY
OTHER PERSON FOR ANY ACT OR OMISSION OF ANY PERSON SELECTED
BY ENCODING.COM TO PERFORM SERVICES OR FURNISH MATERIALS TO
CUSTOMER. IF MATERIALS FURNISHED BY ENCODING.COM ARE FOUND
TO BE DEFECTIVE IN MANUFACTURE, ENCODING.COM SHALL REPLACE
SUCH MATERIALS WITH A SIMILAR QUANTITY OF BLANK TAPE, OR MAG-
NETIC OR OPTICAL MEDIA, PROVIDED THE CUSTOMER NOTIFIES
ENCODING.COM IN WRITING WITHIN THIRTY DAYS AFTER SHIPMENT OF
SUCH DEFECT. EXCEPT FOR SUCH REPLACEMENT, ENCODING.COM SHALL
HAVE NO FURTHER LIABILITY IN CONNECTION WITH SUCH DEFECTIVE
MATERIALS. ENCODING.COM MAKES NO WARRANTY, EXPRESSED OR IM-
PLIED WITH RESPECT TO THE MATERIALS OR SERVICES PROVIDED IT
ASSUMES NO RESPONSIBILITY FOR THE CHARACTER OR QUALITY OF
MATERIALS OR SERVICES PROVIDED BY IT. ENCODING.COM EXPRESSLY
DISCLAIMS ALL WARRANTIES EXPRESSED OR IMPLIED, STATUTORY OR
OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OR MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE. ALL WARRANTIES WITH RE-
SPECT TO THE SERVICE ARE STRICTLY LIMITED TO THOSE SET FORTH IN
THIS ACKNOWLEDGMENT. IN NO EVENT WILL ENCODING.COM BE LIABLE
TO THE CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, OR
INCIDENTAL DAMAGES EVEN IF ENCODING.COM HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGO-
ING, ENCODING.COM MAKES NO REPRESENTATION OR WARRANTIES OF
ANY TYPE WHATSOEVER REGARDING THE HOSTING OF ANY CONTENT
ON ITS NETWORK OR ANY SUB-CONTRACTOR’S OR OTHER PARTY’S NET-
WORK OR THE PERFORMANCE OR RELIABILITY OF ANY SUCH NETWORK,
OR ANY CONNECTION TO, TRANSMISSION OVER, RESULTS OF OR USE OF
ANY NETWORK CONNECTION OR FACILITIES PROVIDED (OR FAILED TO
BE PROVIDED) UNDER THIS ACKNOWLEDGMENT AND ENCODING.COM
540                      CONVEYANCING, DRAFTING & DEEDS                          [PART I

MAKES NO WARRANTY WHATSOEVER FOR PRODUCTS OR SERVICES NOT
ACTUALLY PRODUCED OR PROVIDED BY ENCODING.COM.
    10. INDEMNIFICATION BY CUSTOMER. Customer agrees to defend, pro-
tect, indemnify and hold encoding.com harmless from and against all claims of
any kind, whether based in contract, in tort (including negligence or strict liability),
or resulting from (a) services provided by encoding.com on behalf of Customer
hereunder, except for any damages arising exclusively out of any material breach
of this acknowledgment by encoding.com, (b) any use by encoding.com of any
data or files provided by Customer to encoding.com under this acknowledgment,
(c) any breach by Customer of this acknowledgment, including without limitation
any failure by Customer to observe or satisfy any terms or conditions of this ac-
knowledgment, (d) any violation of any applicable Central, state or local laws with
regard to the transmission and use of information and content, including laws
related to privacy, publicity, decency arising out of the Customer Content, (e) any
infringement of any law in India or other patent, trademark, copyright, trade se-
cret or other intellectual property right, including but not limited to any and all
performance licence rights, mechanical licence rights, synchronization licence
rights and rights under the Digital Performance Right in Sound Recordings Act of
1995, relating to the Content supplied by Customer to encoding.com or the Ser-
vices provided hereunder, or (f) otherwise for any losses, expenses, damages
and liabilities, direct, indirect, special or consequential which may arise out of
Customer’s use, distribution or sale of goods or services covered hereby except
those caused solely by the sole gross negligence of encoding.com.
   11. ACKNOWLEDGMENT. Customer acknowledges that encoding.com, in its
sole discretion, may sub-contract all or part of the hosting services to be provided
hereunder. CUSTOMER FURTHER ACKNOWLEDGES THAT ENCODING.COM
WILL HAVE NO LIABILITY FOR THE FAILURE OF ANY NETWORK OR SERVER
IN CONNECTION WITH THE HOSTING OF ANY CONTENT.
   12. ORDER CANCELLATION. If an order for the Service is canceled, Cus-
tomer must pay for orders scheduled for delivery or performance within ninety
(90) days of encoding.com’s receipt of cancellation notice.
    13. MISCELLANEOUS. Any waiver by encoding.com of any default by the
Customer hereunder shall not be deemed to be a continuing waiver of such de-
fault or a waiver of any other default or of any of the terms and conditions of this
acknowledgment. The terms and conditions of this acknowledgment may not be
superseded, modified, or amended except in a writing stating that it is a modifica-
tion and signed by an authorized representative of each party hereto, provided,
however, that encoding.com may modify the specifications of the Service pro-
vided hereunder if the modification does not change the form, fit or function of the
Service. This acknowledgment (not including any of the terms and conditions of
the Customer’s purchase order or any similar document issued by Customer),
constitutes the entire agreement between the Customer and encoding.com with
regard to the Service listed on the face of this acknowledgment, and expressly
supersedes and replaces any prior or contemporaneous agreements, written or
oral, relating to such goods or services. This acknowledgment is governed by,
construed and enforced in accordance with the laws of India. Both parties agree
PART I]                   INTERNET AGREEMENTS—FORMS                             541

that any litigation or arbitration between the parties shall take place in [Country
name] and both parties waive any objection to personal jurisdiction or venue in
any forum located in that county.
   In any suit or action brought to enforce any term, condition or covenant of this
acknowledgment or to recover damages arising from any breach of the acknowl-
edgment, the losing party shall pay the prevailing party’s reasonable attorneys’
fees and all other costs and expenses which may be incurred by the prevailing
party in any suit, action or in any reviews or appeals therefrom.
    ACKNOWLEDGED AND AGREED:
    FOR E-music.com

    By: [Name]

    Chief Financial Officer
    E-Music.com
    Confidential Quotation                                    Dated, [Date]
    Rider to encoding.com Terms and Conditions
   The following changes will be applied to the attached encoding.com Terms
and Conditions.
    1. Payment terms:
   Insert: E-Music agrees to pay encoding.com [*] of the total project costs in
advance as called out by the contract. encoding.com will invoice E-Music for [*] of
the total amount of this project in the amount of [*] immediately net 0 and an
additional [*] on the last billing cycle of September.
   During the first [*] of the project, encoding.com will invoice E-Music normally
outside of this [*] down payment. E-Music will pay these invoices per the terms of
the agreement. During the second [*] of the project the down payment that was
made by E-Music will be applied to encoding.com invoices.
    2. Data Entry Rider:
   The attached form outlines in detail the fields that need to be captured by
encoding.com in the data entry portion of the encoding process. The fields that
are called out are also defined so each item is clear for all data entry people
across all CDs in the project.
   Also-The data fields that are called out in the attached sheet are different than
the ones that were called out in the original proposal. Some of these are different
because of differences in how we defined a parameter and others because new
requirements became available. As such the new pricing will be as follows but
WILL NOT affect the total value of the contract;
    Old Pricing per CD: [*] per CD for data entry.
    New Pricing per CD: [*] per CD for data entry.
    Pricing is based on an estimate of a [*] increase in the amount of time needed
to capture the meta information currently requested and a mark up of the old
price of [*].
542                        CONVEYANCING, DRAFTING & DEEDS                         [PART I

    Encoding.com and E-Music will review these prices and structure every [*] as
appropriate to ensure that significant costs are not being endured in either direc-
tion.
      Accepted by encoding.com
      [Name & Designation]

                                           47
            Services Agreement for delivering Audio and Video
                         Content on Internet

    THIS SERVICES AGREEMENT made on this [Date] BETWEEN
encoding.com, Corporation, a Corporation incorporated under the Companies
Act and having its registered office at [Address], hereinafter called “Encoding”
AND WEB VALLEY MEDIA LIMITED, a Company incorporated under the Com-
panies Act and having its registered office at [Address], hereinafter called (“Val-
ley”).
                                        RECITALS
    A. Encoding offers services and applications for encoding, optimizing and de-
livering audio and video content on the Internet.
      B. Valley is a distributor of music and video entertainment products.
    C. Valley desires to obtain certain services from Encoding that will allow Valley
to include a digital music sampling service as part of the consumer database it
offers to its retail customers.
                                      AGREEMENT
    IN CONSIDERATION of the foregoing and the mutual promises and cov-
enants contained herein, and for other good and valuable consideration the re-
ceipt and sufficiency of which are hereby acknowledged, Valley and Encoding
hereby agree as follows:
   1. Definitions. For purposes of this Agreement, the following definitions will
apply:
    1.1. The term “Confidential Information” means any information that one party
(the “Disclosing Party”) furnishes or makes available to the other party (the “Re-
ceiving Party”) and all information related to the business of one party (the “Dis-
closing Party”) which the other party (the “Receiving Party”) acquires in the course
of performing its obligations under this Agreement; provided, however, that the
term “Confidential Information” does not include any information that the Receiv-
ing Party can prove (a) is generally available to or known by the public, (b) was
available to or known by the Receiving Party on a non-confidential basis prior to
disclosure by the Disclosing Party, (c) was independently developed for the Re-
ceiving Party by persons who were not given access to the information disclosed
by the Disclosing Party, or (d) becomes generally known to the public after the
Effective Date through no act or omission of the Receiving Party.
      1.2. The term “Major Labels” means, collectively, [*], and (f) any affiliate, divi-
PART I]                   INTERNET AGREEMENTS—FORMS                                543

sion or subsidiary of any of the entities described in parts (a) through (e) of this
Section 1.2.
    2. Inventory Loan. Valley maintains an inventory of compact discs containing
prerecorded music (each, a “CD” and, collectively, the “CDs”). Valley will [*], one
copy of each stock-keeping unit maintained by Valley among its inventory of CDs
during the term of this Agreement, including the original artwork and packaging
for each such CD (each, a “Loaned CD” and, collectively, the “Loaned CDs”).
Valley will deliver the Loaned CDs to Encoding. Encoding will [*] in delivering the
Loaned CDs. In addition, Encoding will pay Valley a handling charge of [*] per
Loaned CD delivered to Encoding by Valley.
    3. Product Information File. Valley maintains an electronic data file contain-
ing [*] for each recording contained in a CD in its inventory (the “Product Informa-
tion File”). Valley will deliver to Encoding, at [*] charge, one electronic copy of the
Product Information File. In addition, during the term of this Agreement, Valley will
deliver to Encoding daily updates of the Product Information File (“PIF Updates”)
containing artist and UPC information for recordings contained in CDs that have
been added to Valley’s inventory since the original Product Information File or the
last PIF Update was delivered to Encoding by Valley, whichever was later. For
purposes of this Agreement, the term “Product Information File” means the Prod-
uct Information File as updated and/or amended by Encoding to incorporate any
and all PIF Updates. Valley will not be required to deliver updates of the Product
Information File to Encoding following the termination or expiration of this Agree-
ment unless the parties agree otherwise.
    4. Encoding of Loaned CDs.
    4.1. For each recording contained in a Loaned CD (each, a “Recording” and,
collectively, the “Recordings”), Encoding will create a storable electronic file con-
taining a copy of that Recording in digital form (each, a “Song File” and, collec-
tively, the “Song Files”). Encoding will create each Song File in a manner that will
allow that Song File to be encoded into each of the streaming and downloading
formats and at each of the data rates described in Exhibit A hereto, which is
incorporated herein by this reference. Valley may amend Exhibit A from time to
time to include additional streaming and/or downloading formats and/or additional
data rates, and Encoding will create Song Files and Song Clips (as defined be-
low) for each Recording in such additional formats and/or at such additional data
rates in accordance with a schedule agreed upon by both parties. Valley will [*] by
Encoding in encoding the Loaned CDs into such additional formats and/or at
such additional data rates pursuant to this Section 4.1.
    4.2. From each Song File, Encoding will create a sound clip (each, a “Song
Clip” and, collectively, the “Song Clips”) of a length, in each of the formats and at
each of the data rates described in Exhibit B hereto, which is incorporated herein
by this reference.
    4.3. Encoding will link each Song Clip to that portion of the Product Informa-
tion File containing product information for the Recording underlying the Song
Clip, so that users of the Product Information File [*] for a particular Recording will
be able to [*].
    4.4. Encoding will create a storable electronic file containing a copy of the
544                      CONVEYANCING, DRAFTING & DEEDS                         [PART I

cover art of each Loaned CD in digital form (each, a “Cover Art File” and, collec-
tively, the “Cover Art Files”. Encoding will incorporate the Cover Art Files into the
Product Information File so that a digital image of the cover art for a Loaned CD
will appear on each screen viewed by a user of the Product Information File that
contains information regarding a Recording contained in that Loaned CD.
    4.5. After Encoding has created Song Files and Song Clips for each Record-
ing contained in a Loaned CD, and created a Cover Art File for that Loaned CD,
Encoding will promptly return the Loaned CD to Valley. Valley will [*] in delivering
the returned Loaned CDs. Encoding may return Loaned CDs without shrink-wrap,
and Encoding will use [*] efforts to have each returned Loaned CD in a condition
that would allow Valley to return the Loaned CD to the vendor from which it was
purchased without any refurbishment on Valley’s part; provided, however, if En-
coding is not able to return a Loaned CDs in such returnable condition, Encoding
will pay [*] of Valley’s wholesale cost for any such Loaned CD.
    4.6. Encoding will update and/or amend the Product Information File on a
daily basis to incorporate the information contained in any and all PIF Updates.
   4.7. If, in carrying out its responsibilities under this Agreement, but without
any separate obligation to do so, Encoding becomes aware of a Recording that is
contained in a Loaned CD [*].
   4.8. Encoding will attempt to create a customized clip service that will allow
an artist or label to select the portion of a Recording by that artist or label that is
used to create a Song Clip for that Recording. The artist or label would be re-
quired to bear the cost related to the creation of any such customized Song Clip.
    5. Music Sampling Service. Valley and Encoding will use the Product Infor-
mation File and the Song Clips to create a music sampling service (the “Sampling
Service”) that will be sold or licensed to third parties. Encoding and Valley each
will have the right to sell or license the Sampling Service to third parties; provided,
however, that neither Encoding nor Valley may sell, license or otherwise transfer
the Sampling Service or any portion thereof to [*]. Encoding and Valley will each
be responsible for collecting sales revenue and/or license fees from their respec-
tive customers and/or licensees. During the term of this Agreement, Encoding
and Valley will each be entitled to [*] of any license fees received by the other
party for selling or licensing the Sampling Service, but only to the extent [*]. En-
coding will perform the following services to support the Sampling Service:
    5.1. Encoding will store the Song Clips on its business systems and use those
systems to stream the Song Clips to consumers using the Sampling Service. In
hosting and streaming the Sampling Service, Encoding will maintain interface
capabilities that are consistent with industry standards. Encoding’s right to host
and stream the Sampling Service on behalf of Valley under this Section 5.1. is
not exclusive, and Valley may retain other persons or entities to perform such
services in accordance with the following conditions. Valley will notify Encoding in
writing if it wishes to have hosting and streaming services for the Sampling Ser-
vice performed by a person or entity other than Encoding (the “Third Party Ser-
vice Provider”). For a period of sixty (60) days following Encoding’s receipt of
such notice, Valley and Encoding will negotiate in good faith regarding Encoding’s
provision of such services instead of the Third Party Service Provider. If, at the
PART I]                   INTERNET AGREEMENTS—FORMS                              545

conclusion of such sixty (60) day period, Valley and Encoding have not reached
an agreement for Encoding to perform such services after negotiating in good
faith, Valley will be permitted to retain the Third Party Service Provider to perform
such services.
   5.2. Encoding will collect the data described in Exhibit D hereto (the “Con-
sumer Data”), which is incorporated herein by this reference, regarding the usage
and purchasing habits of consumers that use the Sampling Service.
    6. Minimum Service Levels. In consideration of the capital expenditures that
will be incurred by Encoding in connection with this Agreement, which are de-
scribed in Section 7.1. below, Valley [*] that Encoding will receive revenues from
the Sampling Service of at least [*] during each three month period (an “Install-
ment Period”) during the first twelve (12) months after the Sampling Service be-
comes operational (the “Guaranteed Period”) for a total guaranteed payment of
at least [*]. If Encoding does not receive revenues from the Sampling Service of at
least [*] during each Installment Period during the Guaranteed Period, Valley will
make a payment to Encoding (each, a “Guaranteed Payment”) within thirty (30)
Days of the conclusion of applicable Installment Period equal to the difference
between [*] and the amount of revenues actually received by Encoding from the
Sampling Service during the applicable Installment Period (the “Sampling Ser-
vice Revenue”); provided, however, that Encoding will not be entitled to receive
the Guaranteed Payment if (a) the Sampling Service is not operational on or be-
fore [*] if Valley has provided the Priority CDs (as defined below) within 30 days of
the Effective Date,or [*], which is incorporated herein by this reference; provided,
further, that Valley shall not be obligated to make a Guaranteed Payment for a
particular Installment Period if Encoding has received an average of [*] from
Guaranteed Payments and Sampling Service Revenue and all Guaranteed Pay-
ments for the Installment Period in question and each preceding Installment Pe-
riod. For purposes of this Section 6, the Sampling Service will become “opera-
tional” when Encoding has created Song Files and Song Clips for the [*] Loaned
CDs designated as “Priority CDs” within 30 days of the Effective Date.
    7. Service Fees.
    7.1. Capital Expenses. Encoding will pay all the necessary upfront capital
equipment charges necessary for the creation of the Sampling Service which are
estimated to total [*] and to include:
    7.1.1. Facilities
    7.1.2. Ripping Stations
    7.1.3. Encoding Stations
    7.1.4. Raid Online Storage
    7.1.5. Nearline Storage System
    7.1.6. Computer servers and Equipment
    7.2. Shared Costs. In consideration of the services performed by Encoding
under this Agreement, Encoding and Valley will [*] the costs of creating the Song
Files and Song Clips. The costs will include [*]. Encoding estimates these direct
costs to total [*]. Therefore, Valley will pay Encoding a total of [*] on [*] for the

G : CDD (Vol. 4) – 35
546                           CONVEYANCING, DRAFTING & DEEDS                    [PART I

non-refundable expenses for setting up the Sampling Service. The above esti-
mates are fixed and in the event the actual costs for this service increase or
decrease, Valley will [*].
    7.3. Maintenance Costs. For the ongoing maintenance encoding of new in-
ventory for the Sampling Service, Valley and Encoding will [*] the actual direct
ongoing encoding costs estimated at the rate of [*] per CD used in the Sampling
Service. Therefore, Valley would pay Encoding a service fee of [*] per such CD.
These costs are fixed through September 2000. In the event, the costs for mainte-
nance are determined to increase or decrease by [*] or higher, the parties agree
to renegotiate this clause and its fee schedule in good faith. Encoding will invoice
Valley on a monthly basis that reflects the actual number of files added to the
Sampling Service inventory. Valley and Encoding will each pay [*] of all shipping
and handling charges to and from the Valley and Encoding.com facilities.
   7.4. Streaming Costs. Encoding will charge Valley [*] for the ongoing stream-
ing and hosting costs. [*] is defined as the [*] plus [*] of the [*] plus [*].
      8. Ownership and Rights upon Termination.
      8.1. Loaned CDs.
    8.1.1. The Loaned CDs are, and will at all times remain, Valley’s sole and
exclusive property, and Valley will have the right to demand the return of any or all
of the Loaned CDs, with Encoding and Valley to each pay [*] of the cost of such
return, including the original artwork and packaging for each Loaned CD, at any
time; provided, however, that, if at any time any or all of the Loaned CDs (other
than any Loaned CDs purchased by Encoding pursuant to Section 9.2 of this
Agreement) are determined to be Encoding’s property, Encoding hereby grants
Valley a security interest in such Loaned CDs.
    8.1.2. Upon the expiration or termination of this Agreement, Encoding will
promptly return all of the Loaned CDs, including the original artwork and packag-
ing for each Loaned CD, with Encoding and Valley to each pay [*] of the cost of
such return, to Valley (other than any Loaned CDs Encoding has already returned
to, or purchased from, Valley pursuant to Section 9.2 of this Agreement).
      8.2. Files and Clips.
    8.2.1. The Song Clips, the Song Files and the Cover Art Files will be, and will
at all times remain, the sole and exclusive property of Valley; provided, however,
that, if at any time any or all of the Song Files and/or the Song Clips and/or the
Cover Art Files are determined to be Encoding’s property, Encoding hereby grants
Valley a security interest in such Song Files and/or Song Clips and/or Cover Art
Files .
      8.2.2. The Product Information File and any and all PIF Updates will be, and
will at all times remain, the sole and exclusive property of Valley; provided, how-
ever, that, if at any time the Product Information File, any portion thereof, or any or
all of the PIF Updates are determined to be Encoding’s property, Encoding hereby
grants Valley a security interest in the Product Information File and/or such PIF
Updates.
   8.2.3. Valley hereby grants Encoding a worldwide, perpetual, irrevocable, non-
exclusive license to use, store, modify, copy and distribute the Product Informa-
PART I]                   INTERNET AGREEMENTS—FORMS                                547

tion File, the PIF Updates, the Song Clips, the Song Files and the cover Art Files.
This license will survive any termination or expiration of this Agreement. Encod-
ing will have the right to sub-license the Product Information File, the PIF Up-
dates, the Song Files, the Song Clips and the Cover Art Files to any entity other
than [*].
     8.2.4. Upon the expiration or termination of this Agreement, or at any earlier
time, upon demand by Valley, Encoding will promptly deliver to Valley, [*], copies
of all of the Song Files, Song Clips and Cover Art Files in the formats maintained
hereunder; provided, however, if Valley terminates this Agreement as a result of
a breach of this Agreement by Encoding pursuant to Section 18.2, Encoding shall
[*].
    8.3. Consumer Data. All of the Consumer Data will be, and will at all times
remain, the sole and exclusive property of Valley; provided, however, that Valley
will pay Encoding [*] all revenues received by Valley through the sale, licensing or
other commercial exploitation of all or any portion of the Consumer Data during
the term of this Agreement.
    9. Audiofile License and Deleted Product.
    9.1. At the same time the parties enter into this Agreement, they will enter into
an Audiofile License Agreement substantially in the form attached hereto as Ex-
hibit F (the “Audiofile License”), which is incorporated herein by this reference,
pursuant to which Valley will license its audiofile database (“Audiofile”) to Encod-
ing on a royalty free basis during the term of this Agreement. If Valley is notified by
any of its suppliers that the supplier is deleting one of the Loaned CDs from its
catalog, Valley will post a deletion notice regarding the Loaned CD on Audiofile,
and Encoding will return its copy of the Loaned CD to Valley on or before the Last
Customer Return Date stated in the deletion notice, with Encoding and Valley to
[*] of the cost of such return.
    9.2. If Valley posts a deletion notice regarding a Loaned CD on Audiofile and
Audiofile is fully operational and accessible by Encoding, and Encoding fails to
return its copy of the Loaned CD to Valley prior to the Last Customer Return Date
stated in the deletion notice, Encoding will purchase the Loaned CD from Valley
at Valley’s wholesale price for the Loaned CD.
     10. Initial Warrant Grant. Encoding will issue warrants for [*] shares of En-
coding common stock with a strike price of [*] per share and an exercise period of
[*] (the “Initial Warrants”). The Initial Warrants will be granted upon commence-
ment of this agreement.
     11. Rights Acquisition. Encoding will grant Valley an additional [*] on the
same terms and conditions as the Initial Warrants in consideration of Valley’s
certification attached hereto as Exhibit G (the “Certificate”), which is incorpo-
rated herein by this reference, regarding Valley’s attempts to [*]. The statements
contained in the Certificate will constitute representations and warranties of Val-
ley under this Agreement. If Valley enters into a definitive written agreement with
[*] regarding the matters set forth in the Certificate, Valley will provide a copy of
such agreement to Encoding.
    12. New Ventures:
    12.1. Valley and Encoding will explore the possibility of a variety of new offer-
548                      CONVEYANCING, DRAFTING & DEEDS                          [PART I

ings leveraging either the existing assets such as the Song Files, Song Clips and/
or the PIF for additional Internet Music services including digital downloading
services for Valley’s customers, Internet radio broadcasts, Internet or digital juke
boxes, “just-in-time” compact disc manufacturing; or offerings leveraging other
assets of Valley and Encoding.
    12.2. Valley and Encoding agree that both parties will mutually agree upon the
appropriate business model for all new jointly created new ventures. In such ven-
tures as may occur, Encoding and Valley will [*] but will attempt to structure the
ventures so [*].
    13. Representations and Warranties of Encoding. To induce Valley to enter
into this Agreement and to perform the transactions contemplated hereunder,
Encoding represents and warrants as follows:
   13.1. Organization. Encoding is a corporation duly organized, validly existing
and in good standing under the laws of India.
    13.2. Authority; Consents and Approvals; No Violations. Encoding has the full
corporate power and authority and legal right to execute and deliver this Agree-
ment, and otherwise to perform its obligations hereunder. This Agreement has
been validly executed and delivered by Encoding and will constitute a valid and
binding obligation of Encoding enforceable in accordance with its terms, except to
the extent such enforceability may be limited by the effects of bankruptcy, insol-
vency, reorganization, moratorium or other similar laws affecting creditors’ rights
generally, and by the effect of general principles of equitable law, regardless of
whether such enforceability is considered in a proceeding in equity or at law. The
execution and delivery of this Agreement and the consummation of the transac-
tions contemplated hereby do not and will not violate any provision of Encoding’s
Certificate of Incorporation or Bylaws, or violate, conflict with, result in a breach of
or constitute (with or without due notice, lapse of time or both) a default under
any agreement, license, contract, franchise, permit, indenture, lease, or other
instrument to which Encoding is a party, or by which it or any of its assets are
bound.
    13.3. Performance Standards. Encoding will perform the services described
in Sections 4 and 5 of this Agreement in a professional and workmanlike manner
that is consistent with the highest industry standards.
    14. Representations and Warranties of Valley. To induce Encoding to enter
into this Agreement and to perform the transactions contemplated hereunder,
Valley represents and warrants as follows:
    14.1. Organization. Valley is a corporation duly organized, validly existing and
in good standing under the laws of India.
    14.2. Authority; Consents and Approvals; No Violations. Valley has the full cor-
porate power and authority and legal right to execute and deliver this Agreement,
and otherwise to perform its obligations hereunder. This Agreement has been
validly executed and delivered by Valley and will constitute a valid and binding
obligation of Valley enforceable in accordance with its terms, except to the extent
such enforceability may be limited by the effects of bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors’ rights gener-
ally, and by the effect of general principles of equitable law, regardless of whether
PART I]                   INTERNET AGREEMENTS—FORMS                              549

such enforceability is considered in a proceeding in equity or at law. The execu-
tion and delivery of this Agreement and the consummation of the transactions
contemplated hereby do not and will not violate any provision of Valley’s Certifi-
cate of Incorporation or Bylaws or violate, conflict with, result in a breach of or
constitute (with or without due notice, lapse of time or both) a default under any
agreement, licence, contract, franchise, permit, indenture, lease, or other instru-
ment to which Valley is a party, or by which it or any of its assets are bound.
    15. Indemnification. Each party will, at all times, indemnify, defend and hold
the other party harmless from and against any and all third-party claims, dam-
ages, liabilities, costs and expenses (including reasonable attorney’s fees) aris-
ing out of any breach or alleged breach by the indemnifying party of any repre-
sentation, warranty or obligation of such party under this Agreement. In addition,
each party will, at all times, indemnify, defend and hold the other party harmless
from and against any and all third-party claims, damages, liabilities, costs and
expenses (including reasonable attorney’s fees) arising out of any infringement or
alleged infringement of the patents, copyrights, trademarks or other intellectual
property rights of any third party that results from the commercial use of the
Sampling Service by the indemnifying party, any of the indemnifying party’s lic-
ensees, or any person or entity that has purchased the Sampling Service, or any
portion thereof, from the indemnifying party.
  16. Limitation on Damages. IN NO EVENT SHALL EITHER PARTY BE LI-
ABLE TO THE OTHER FOR INDIRECT OR CONSEQUENTIAL DAMAGES, WHETHER
OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAM-
AGES AND REGARDLESS OF THE FORM OF ACTION.
    17. Confidential Information. Neither Encoding nor Valley may use any
Confidential Information of the other except as permitted under this Agreement.
In addition, neither Encoding nor Valley may disclose any Confidential Informa-
tion of the other unless (a) such disclosure is made to the Disclosing Party’s
employees or agents on a “need to know” basis or (b) such disclosure is required
by law or legal process and the party from whom such disclosure is required has
given the other party prior notice of such requirement and has cooperated with
the non-Disclosing Party to oppose disclosure. For purposes of this Agreement,
any unauthorized use or disclosure of Confidential Information by an employee or
agent of either party will be treated as an unauthorized disclosure by such party.
    18. Term and Termination.
    18.1. This Agreement will terminate on the [*]of the Effective Date (the “Initial
Termination Date”), unless both parties provide a written amendment at least
ninety (90) days prior to the Initial Termination Date, in which case this Agreement
will be extended for an additional [*] years and will terminate upon the [*] anniver-
sary of the Effective Date.
    18.2. Either party may terminate this Agreement if (i) the other party materi-
ally breaches any of its obligations under this Agreement, (ii) the non-breaching
party sends written notice to the breaching party describing the breach in reason-
able detail, and (iii) the breaching party does not cure the breach within thirty
(30) days following its receipt of such notice.
    18.3. Either party may terminate this Agreement if (i) the other party becomes
550                       CONVEYANCING, DRAFTING & DEEDS                      [PART I

insolvent, or (ii) a petition is filed by or against the other party under any bank-
ruptcy or insolvency laws and, in the event of any involuntary petition, the petition
is not dismissed within forty-five (45) days of the filing date.
   18.4. The parties may terminate this Agreement by mutual consent through a
signed writing.
    19. Press Release. Upon execution of this Agreement, Encoding and Valley
will issue a joint press release (the “Press Release”) announcing the execution of
this Agreement and briefly describing the transactions contemplated hereby.
Neither party will issue the Press Release, nor any      other release concerning
this Agreement or the transactions contemplated hereby, without the other party’s
prior consent.
      20. Miscellaneous
    20.1. Assignment. Neither party may assign any of its rights under this Agree-
ment without the other party’s prior written consent; provided, however, that either
party may assign its rights under this Agreement to any affiliate of such party, any
entity into which such party is merged or any entity that purchases substantially
all of the assets of such party.
    20.2. Further Assurances. In addition to the obligations required to be per-
formed by the parties hereto under the other provisions of this Agreement, the
parties agree to perform, without further consideration, such other acts and to
execute, file, acknowledge and deliver such other instruments and documents,
including without limitation UCC-1 financing statements covering the Loaned CDs,
the Song Files, the Song Clips, the Product Information File and the PIF Updates,
as may be reasonably required to carry out the provisions and purposes of this
Agreement and to fully and properly consummate the transactions contemplated
hereby.
    20.3. Amendment and Waiver. No amendment or modification of this Agree-
ment will be effective unless set forth in a writing signed by an authorized repre-
sentative of the party against which enforcement of such amendment is sought.
No waiver by a party of the other party’s obligation to comply with any provision of
this Agreement will be deemed or will constitute a waiver of the non-waiving
party’s obligation to comply with any other provision of this Agreement or with the
nonwaiving party’s obligation to comply with the waived provision on a subse-
quent occasion.
     20.4. Arbitration. Any dispute or controversy arising between Encoding and
Valley regarding this Agreement will be submitted to arbitration in the state of the
defending party in accordance with the rules then in effect of the American Arbi-
tration Association. Any award made by an arbitrator pursuant to this Section 20.4
will be binding upon both parties in the absence of fraud and may be entered in
any court of competent jurisdiction.
     20.5. Notices. Any notice to a party pursuant to this Agreement shall be given
by one of the following means: (a) certified or registered mail, postage prepaid,
(b) private courier or express service requesting evidence of receipt as a part of
its service, or (c) by telecopy, with a copy also to be given by first class mail,
postage prepaid, or by any means permitted under parts (a) or (b) of this Section
20.5. Notices shall be given to the parties at the last known addresses.
PART I]                  INTERNET AGREEMENTS—FORMS                             551

    20.6. Binding Effect. Upon execution of this Agreement by all parties hereto,
this Agreement shall inure to the benefit of, and be binding on and enforceable
against, the parties and their respective heirs, legal representatives, successors
and permitted assigns.
    20.7. Entire Agreement. This Agreement, including the exhibits and sched-
ules hereto, together with the Audiofile License and the Warrant, constitute the
entire agreement and understanding between the parties with respect to the sub-
ject matter hereof, and supersede any prior or contemporaneous agreements or
understandings relating to the subject matter hereof, whether written or oral.
    20.8. Counterparts. This Agreement may be executed in two or more coun-
terparts, each of which shall be deemed an original and all of which, taken to-
gether, will constitute one and the same instrument.
    20.9. Attorneys’ Fees. If any arbitration, legal action or other proceeding is
brought for the enforcement of this Agreement, or because of an alleged dispute,
breach, default or misrepresentation in connection with any of the provisions of
this Agreement, the successful or prevailing party will be entitled to recover rea-
sonable attorneys’ fees and other costs incurred in such action or proceeding, in
addition to any other relief to which it may be entitled.
   20.10. Survival. The provisions of Sections 1, 8.3, 15, 16, 17, and 20 will
survive any termination or expiration of this Agreement.
    20.11. Headings. The headings of the paragraphs and sections of this Agree-
ment are included for purposes of convenience only and shall not affect the con-
struction or interpretation of any provisions hereunder.
  20.12. Partial Invalidity. The invalidity of any part or provision of this Agree-
ment will not affect the enforceability of the remainder of this Agreement.
   20.13. Governing Law. This Agreement will be governed by and construed in
accordance with the laws of India applicable to contracts entered into and per-
formed entirely within India.
    IN WITNESS WHEREOF the parties hereto have executed this Services
Agreement on the day month and the year first above written.
SIGNED SEALED AND DELIVERED BY
THE PARTIES IN THE PRESENCE OF
WITNESSES:
1.
2.
                                       48
                     Internet Merchant Agreement
    1. This Agreement (“Agreement”) is entered into by and between you (“Mer-
chant”), the Member FDIC Insured Bank identified in the Internet Merchant Appli-
cation and Agreement (“Bank”), represented by its Registered Service Provider,
Creditcard Service International, Inc. (“Creditcard Service International”), an In-
dependent Sales Organization and Merchant Services Provider for Bank. The
552                     CONVEYANCING, DRAFTING & DEEDS                        [PART I

guarantor(s) to this Agreement is also a party as a continuing guarantor(s) pursu-
ant to paragraph 7.21. To the maximum degree permitted by law and by Gold
Card International, Inc. (“Gold Card”) and Visa, Inc. (“PLATINUM”) rules and regu-
lations, it is the intention of the parties that the rights of Bank set forth in this
Agreement or arising from this Agreement, may be exercised by Creditcard Ser-
vice International. Within the context of this Agreement and to the full extent per-
mitted by law and by Gold Card and PLATINUM rules and regulations, the rights
granted to Creditcard Service International shall also be for the benefit of any
company affiliated with Creditcard Service International to the extent such affili-
ate may have or may have had a prior relationship with Merchant concerning or
related to credit card processing. Merchant, Creditcard Service International and
Bank make this Agreement in consideration of the mutual covenants set forth
herein.
    2. This Agreement shall not be effective until the Internet Merchant Applica-
tion, which incorporates this Agreement by reference, is approved by Bank. If
Merchant reasonably anticipates that it will have sales volume in excess of $10,000
per month in combined Gold Card and PLATINUM transactions, Merchant, at the
request of Bank and Creditcard Service International, shall submit its current fi-
nancial statement with this Agreement. Merchant’s financial condition shall be
one of the factors on which acceptance of this Agreement shall be conditioned.
Merchant acknowledges that this Agreement is premised upon Merchant having
a floor limit of ZERO dollars. By entering into this Agreement, Merchant agrees to
comply with and be subject to, all Gold Card and PLATINUM rules and regula-
tions as they may exist from time to time, including, but not limited to, chargeback
procedures and the resolution of any disputes relating thereto. Merchant’s agree-
ment to be so bound is made without Merchant having seen or read the rules and
regulations. Merchant acknowledges that the sole responsibility for obtaining these
rules and regulations and their updates is with Merchant.
   Any violation of Gold Card or PLATINUM rules and regulations by Merchant
shall constitute a breach of this Agreement and may, at the option of Bank and
Creditcard Service International, be grounds for terminating this Agreement.
              ARTICLE 1 – GENERAL RULES AND REGULATIONS
      Definitions
    Account Number – A unique sequence of numbers assigned to a cardholder
account that identifies the issuer and type of financial transaction card.
    Association Bank – A licensed association member that acquires the data
relating to a transaction from the card acceptor or merchant and submits that
data into interchange, either directly or indirectly.
    Authorization – The process used by card issuers to approve or decline a
transaction request (this only validates this transaction, it does not guarantee the
sale).
    Automated Clearing House (ACH) – One of the groups of processing institu-
tions that have networked together to exchange (clear and settle) electronic debit
transactions.
   Average Ticket – A predetermined dollar amount that the merchant can pro-
cess on a per-sale basis.
PART I]                     INTERNET AGREEMENTS—FORMS                             553

   Batch – A set of records within the merchant’s closing transmission through
the e-commerce Web site.
    Card Issuer – The financial institution that issues a credit card.
   Cardholder – The customer to whom a card has been issued or the individual
authorized to use the card.
   Monthly Volume – A predetermined dollar amount that the merchant can pro-
cess through an e-commerce Web site.
                                 1.01 Honoring Cards
    Merchant shall honor, in accordance with the terms and conditions of this
Agreement and in accordance with all Gold Card and PLATINUM rules and regu-
lations in existence at the time of the transaction, without discrimination, all Gold
Card and PLATINUM credit cards (“Cards”) when properly presented as payment
by the Internet Merchant’s customers (“Cardholder”) in connection with bona fide,
legal transactions. If Merchant’s Web site does not transact business with the
general public, e.g., the Web site allows transactions only from registered mem-
bers, Merchant shall be deemed to have complied with this non-discrimination
rule if it honors all valid Cards of Cardholders who have purchasing privileges or
memberships with Merchant.
    Merchant shall not establish minimum or maximum transaction amounts.
                                   1.02 Advertising
   1. Merchant shall display any advertising or promotional messages provided
by Bank and Creditcard Service International on the Merchant’s Web site. This
material will be designed to inform online shoppers that Cards will be honored for
payment over the Internet.
   2. Merchant shall not display or use advertising or promotional materials which
suggest, implicitly or explicitly, that Merchant only honors Cards issued by Bank.
    Merchant shall have the right to use or display the proprietary names and
symbols associated with Cards on their Web site only while this Agreement is in
effect or until Merchant is notified by Bank, Creditcard Service International, Gold
Card or PLATINUM to stop such usage.
    3. Merchant shall only use the proprietary names and symbols associated
with Cards to indicate that Cards are accepted for payment online and shall not
indicate, directly or indirectly, that Bank and Creditcard Service International, Gold
Card or PLATINUM endorses Merchant’s products or services.
                  1.03 Transaction Examination and Card Recovery
    Before shipping any goods ordered, Merchant shall:
          (a) Review status reports to verify the positive authorization of all pay-
              ment types and appropriate response through AVS screening param-
              eters.
          (b) Recognize that obtaining authorization shall not, by itself, satisfy
              Merchant’s obligation to exercise due diligence. Neither shall authori-
              zation constitute a waiver by Bank of any other procedures required of
              Merchant by this Agreement or any Gold Card or PLATINUM rules or
554                        CONVEYANCING, DRAFTING & DEEDS                     [PART I

              regulation. Authorization shall not validate a transaction which would
              otherwise be invalid. Merchant shall remain fully liable for any
              chargeback and fees related to an invalid transaction, whether or not
              prior authorization was obtained.
                            1.04 Non-Imprint Transactions
    Internet transactions are non-imprint transactions. These transactions may
be conducted on the Internet by the customer or, in the case of Virtual LinkPoint,
by the Merchant.
    In any non-imprint transaction, as a material consideration for Bank and
Creditcard Service International entering into this Agreement, Merchant acts solely
at its own risk, and waives the right to dispute any chargeback arising from a
failure to produce an imprinted draft to Bank and Creditcard Service International.
Merchant further assumes all risks attendant to such non-imprint Internet trans-
actions.
                    1.05 Release of Cardholder Account Information
   Unless required by law, Merchant shall not, under any circumstances, sell,
purchase, provide, or otherwise disclose Cardholder’s account information or other
Cardholder personal information to anyone except Issuer or Bank and Creditcard
Service International.
                              1.06 Purged Transactions
    Merchant acknowledges that batches of transactions that are not closed and
transmitted within forty-five (45) days shall be automatically purged and erased
from the processing system, and are not recoverable. Merchant releases Bank
and Creditcard Service International from any loss they may sustain as a result of
such purging and erasure and agrees to indemnify each of them for any losses,
including attorneys’ fees and costs, that they may sustain from any source be-
cause of this.
                       1.07 Monthly Volume and Average Ticket
   Merchant represents that the estimated monthly Card sales volume and aver-
age ticket amount appearing on the Internet Merchant Application is a reason-
able estimate. Merchant acknowledges that any monthly volume in excess of that
estimated by Merchant will cause Creditcard Service International to review
Merchant’s file and that this review may result in delay in transmission of funds
and possible interruption or termination of service.
        ARTICLE 2 – REPRESENTMENT, PAYMENT AND CHARGEBACK
      Fees
      Chargeback, Credit or Debit, or Representment – $15.00 each
      Documentation Retrieval Request – $10.00 each
      Definitions
   Chargeback – A procedure in which a disputed transaction is returned to the
Merchant by the card-issuing bank (via the merchant’s bankcard processor) for
possible resolution.
PART I]                   INTERNET AGREEMENTS—FORMS                                555

   Credit Slip (Draft or Voucher) – A record of a return or refund of a transaction
presented by the Merchant to the Cardholder and Merchant’s bankcard proces-
sor.
   Representment – A procedure in which a disputed transaction is returned to
the card-issuing bank.
   Retrieval Request – A request made by a Card Issuer to a Merchant (via the
bankcard processor) for verification of the details of the transaction when there is
a question about it.
                             2.01 Transmission of Data
    Merchant shall transmit all sales data and credit data to Bank and Creditcard
Service International by means of magnetic tape or electronic data. “Sales data”
refers to information transmitted by Merchant which is combined in a sales draft
or the electronic or magnetic tape record that is the equivalent of such a sales
draft. “Credit data” refers to the information transmitted by Merchant combined in
a credit draft or the electronic or magnetic tape record that is the equivalent of
such a credit draft. All such data (“Transaction Records”) transmitted shall be in a
media form and format approved in advance by Bank and Creditcard Service
International and shall be pre-sorted and organized according to Bank and
Creditcard Service International’s instructions. It shall include all information which
appears on the sales or credit draft. All references in this Agreement to “sales
drafts,” “credit drafts,” “sales data,” or “credit data” shall include, as applicable,
Transaction Records transmitted electronically or on magnetic tape, or in original
format.
                          2.02 Acceptance and Discount
   Subject to Merchant not being in default of this Agreement and subject to
Bank’s chargeback rights, Bank agrees to accept valid Transaction Records from
Merchant during the term of this Agreement and to pay Merchant the total amount
represented by the Transaction Records, less any applicable discount fees and
other charges agreed to by the parties and all setoff rights Bank may have. Any
payment made by Bank to Merchant shall not be final but shall be subject to
subsequent review and verification by Bank. Upon thirty (30) days written notice
to Merchant, Bank and Creditcard Service International retain the right to change
the fees set forth in this Agreement.
                                 2.03 Endorsement
    Merchant shall endorse any Transaction Record it presents to Bank and
Creditcard Service International. If Merchant fails to do so, Merchant shall be
deemed to have endorsed any Transaction Record it presents to Bank and
Creditcard Service International in favor of Bank and Creditcard Service Interna-
tional and Merchant hereby appoints Bank and Creditcard Service International,
acting either jointly or alone, as its attorney in fact to supply such endorsement on
Merchant’s behalf.
                                 2.04 Chargeback
   After acceptance by Bank and Creditcard Service International, Merchant shall
nevertheless repay Bank the amount represented by the Transaction Record, plus
556                      CONVEYANCING, DRAFTING & DEEDS                        [PART I

any applicable chargeback or related fee, if Bank has been charged back by an-
other financial institution or if any one or more of the following circumstances
exist:
      (a) The Transaction Record or any material or information on a sales or
          credit draft (such as, by way of example only, the account number,
          expiration date of the Card, Merchant description, transaction descrip-
          tion or notation of prior authorization for the transaction amount or
          date) is illegible, incomplete or otherwise not discernible, is not en-
          dorsed or is not delivered to Bank and Creditcard Service Interna-
          tional within the required time limits;
      (b) The Cardholder account number was declined or was not authorized
          on the transaction date and Merchant failed to reject the transaction;
      (c) The Internet order does not contain information on the Card that was
          valid, effective and unexpired on the transaction date;
      (d) The transaction was one for which prior credit authorization was re-
          quired and prior credit authorization was not obtained or a valid au-
          thorization number is not correctly and legibly included on the Trans-
          action Record;
      (e) The Transaction Record is a duplicate of an item previously paid;
       (f) The Cardholder disputes the execution of the underlying data con-
           tained in the Transaction Record, the sale, delivery, quality or perfor-
           mance of the goods or services purchased, or alleges that a credit
           adjustment was requested and refused or that a credit adjustment
           was issued by Merchant but not posted to Cardholder’s account;
      (g) The price of the goods or service shown on the Transaction Record
          differs from the amount shown on the copy of the sales draft or the
          receipt delivered to the Cardholder at the time of the transaction;
      (h) Bank and Creditcard Service International reasonably determine that
          Merchant has violated any term, condition, covenant, warranty or other
          provision of this Agreement in connection with the Transaction Record
          or the transaction to which it relates;
      (i)   Bank and Creditcard Service International reasonably determine that
            the Transaction Record is fraudulent or that the related transaction is
            not a bona fide transaction in Merchant’s ordinary course of business,
            or is subject to any claim of illegality, cancellation, rescission, avoid-
            ance, or offset for any reason whatsoever, including without limitation,
            negligence, fraud or dishonesty on the part of Merchant or Merchant’s
            agents or employees;
       (j) The Transaction Record arises from a mail or telephone or Internet
           order transaction that the Cardholder disputes entering into or autho-
           rizing, or that involves an account number that never existed or that
           has expired and has not been renewed;
      (k) Merchant fails to provide Bank and Creditcard Service International
          with any sales draft or credit draft in accordance with this Agreement;
PART I]                      INTERNET AGREEMENTS—FORMS                           557

          (l)   Multiple authorization attempts were made by Merchant for a single
                transaction;
          (m) Merchant has divided a single transaction, in violation of Gold Card
              and PLATINUM regulations or of this Agreement; or
          (n)   The Transaction Record is otherwise subject to chargeback by the Card
                Issuer or Cardholder in accordance with the Associations’ Gold Card/
                VISA rules or applicable law.
                         2.05 Chargeback and Security Interest
    Merchant covenants, agrees and acknowledges that, simultaneously with each
purchase by Creditcard Service International, or Bank with respect to Bankcard
transactions hereunder of Debt, a contingent and unmatured claim for chargeback
accrues against Merchant in favor of Creditcard Service International and Bank
for the amount that Creditcard Service International and/or Bank is required, or
has the right, to pay to or repurchase for Gold Card or PLATINUM with respect to
any fees, discounts, customer credits and adjustments, charges, fines, assess-
ments, penalties or other items which may be charged back to Merchant by
Creditcard Service International and/or Bank, and that all settlements or credits
given or payment made by Creditcard Service International and/or Bank in con-
nection with such purchases are provisional, and subject to revocation, chargeback
or refund, subject to the other terms of this Agreement, the rules and regulations
of Gold Card or PLATINUM, and their Operating Procedures. The right of Mer-
chant to receive any amounts due or to become due to it from Creditcard Service
International and/or Bank is expressly subject and subordinate to the chargeback,
setoff, lien and security interest rights of Creditcard Service International and
Bank without regard to whether such chargeback, setoff, lien and security interest
rights are being applied to claims that are liquidated, unliquidated, fixed, contin-
gent, matured or unmatured.
                  2.06 Chargeback and Documentation Retrieval Fee
   Merchant shall pay Bank a $15.00 fee for each chargeback or credit. Such fee
shall be increased to $25.00 any time that chargebacks are classified as “exces-
sive” as defined in paragraph 2.09 of this Agreement. Merchant shall pay a $10.00
fee for each Documentation Retrieval Request. The amount of these fees are
subject to change by Bank and Creditcard Service International upon Bank and
Creditcard Service International giving Merchant thirty (30) days notice of any
change.
                                    2.07 Withholding
    If Bank reasonably believes that any of the circumstances listed in paragraph
2.04 exists or are likely to exist with respect to any Transaction Record which
Bank has accepted and forwarded to Cardholder’s issuing bank for payment, Bank
may withhold from payments due Merchant under this Agreement an amount equal
to the Transaction Record less any discount until such time that:
          (a) Bank is itself charged back by the issuing bank for the transaction. In
              such event Bank shall retain the funds pursuant to the chargeback
              procedure; or
558                     CONVEYANCING, DRAFTING & DEEDS                        [PART I


      (b) The period of time by which Cardholder must dispute the Transaction
          Record and the issuing bank exercise its chargeback rights against
          Bank has expired; or
       (c) Bank otherwise determines to their exclusive satisfaction that a
           chargeback on the Transaction Record will not occur. Upon termina-
           tion of this Agreement, Bank/Creditcard Service International may with-
           hold payment to Merchant for such period of time reasonably deter-
           mined by Bank and Creditcard Service International as necessary to
           establish a reserve to cover any chargebacks, credit drafts and uncol-
           lected discounts or fees, including, but not limited to, costs for ac-
           counting, investigation and account management, that may result from
           transactions previously processed and appearing after the termina-
           tion date.
                         2.08 Disputes with Cardholder
    All disputes between Merchant and any Cardholder relating to any Card trans-
action shall be settled between Merchant and such Cardholder. Merchant shall, in
accordance with paragraph 3.07, indemnify Bank, Creditcard Service Interna-
tional, Gold Card and PLATINUM from any claim or suit brought by Cardholder
relating to any transaction with Merchant.
             2.09 Excessive Chargebacks and Retrieval Requests
    Merchant agrees that if Bank and Creditcard Service International are pre-
sented, during any monthly period, with (a) chargebacks relating to Merchant’s
transactions processed by Bank in excess of one percent (1%) of the average
monthly dollar amount of such transactions; or (b) Documentation Retrieval Re-
quests in excess of three percent (3%) of the total number of transactions pro-
cessed, then such chargebacks or retrieval requests shall be conclusively deemed
to be excessive under applicable Gold Card and PLATINUM regulations. Bank
and Creditcard Service International may thereupon terminate this Agreement or
take such other action as may be authorized herein or by applicable Gold Card or
PLATINUM regulations. The percentage figure in this paragraph shall not be
deemed to be, nor shall be, a limitation of Bank’s rights to establish a reserve
pursuant to the terms of this Agreement. Merchant agrees that the amount or
extent of any such reserve shall be based on Bank and Creditcard Service
International’s reasonable estimation of the need for it, in light of circumstances
known to them at the time.
             ARTICLE 3 – TERMINATION, MODIFICATION AND
                       COMPLIANCE WITH LAW
                           3.01 Compliance with Law
    Merchant shall comply with all laws, ordinances and regulations applicable to
Merchant, Merchant’s business and any Card transaction, including without limi-
tation all state and federal consumer credit and consumer protection statutes and
regulations. Neither Bank nor Creditcard Service International shall have any ob-
ligation to notify or advise Merchant of the existence of such laws or changes in
such laws. Merchant warrants that it has the right to sell the products it sells and
to use the trade names it uses.
PART I]                      INTERNET AGREEMENTS—FORMS                             559

                           3.02 Modification Required by Law
    This Agreement is subject to such modifications, changes and/or additions as
may be required, or determined by Bank and Creditcard Service International, by
reason of any state or federal statute, judicial decision, Gold Card or PLATINUM
rules or regulations, or the regulation or ruling of any federal agency having juris-
diction over Bank and Creditcard Service International or Merchant. Such modifi-
cations, changes and additions may be made unilaterally by Bank and Creditcard
Service International, shall be in writing and shall be effective immediately upon
dispatch by Bank and Creditcard Service International.
          3.03 Refusal or Revocation of Credit and Repayment by Merchant
    Without derogating any of its other rights, Bank may refuse to accept any
online order or revoke its prior acceptance thereof in any one or more of the
following circumstances:
          (a) The transaction giving rise to the online order was not made in compli-
              ance with all terms and conditions of this Agreement, as well as all
              applicable laws, rules or regulations; or
          (b)    The Cardholder disputes his or her liability to Bank and Creditcard
                Service International or other issuer for any reason including, but not
                limited to, those chargeback rights enumerated in Gold Card and PLATI-
                NUM operating regulations in effect from time to time; or
          (c) The transaction giving rise to the online order was not a bona fide
              transaction directly between Merchant and Cardholder. Merchant shall
              not accept any transaction on behalf of any other person or persons,
              or any other business; or
          (d) Merchant has processed transactions accumulated prior to the issu-
              ance of a Merchant Number.
   If such refusal or revocation by Bank occurs, Merchant shall, in addition to any
penalties and fees, immediately repay Bank the full amount credited by Bank to
Merchant’s account on the basis of such transaction(s).
                                    3.04 Termination
    1. The term of this Agreement shall be six (6) months unless otherwise pro-
vided for herein. Notwithstanding this six (6) month term, and any renewals of that
term as provided for in paragraph 3.05 of this Agreement, Merchant may termi-
nate this Agreement by giving thirty (30) days written notice to Bank and Creditcard
Service International and concurrently with said notice, paying Creditcard Ser-
vice International $300.00 as an early cancellation fee. Furthermore, if this Agree-
ment is terminated because of Merchant’s breach of any of its obligations, such
termination shall also be deemed an early cancellation and will require the Mer-
chant to pay to Creditcard Service International the early cancellation fee of
$300.00. Merchant and Creditcard Service International mutually agree that said
$300.00 is a reasonable estimate of the costs and expenses Creditcard Service
International will incur as a result of any early cancellation of this Agreement by
Merchant.
    2. For a period of six (6) months from the effective date of this Agreement,
560                     CONVEYANCING, DRAFTING & DEEDS                        [PART I

Creditcard Service International will not increase the initial discount rate offered
to Merchant except as that rate is affected by any increased charges to Creditcard
Service International in Interchange, Assessments and Communication costs from
Gold Card, PLATINUM and communications suppliers, or any other fees beyond
Creditcard Service International’s control. This rate guarantee is void, if Merchant
has a higher than allowable percentage of keyed transactions, retrievals or
chargebacks or if this Agreement is in a renewal period.
    3. Notwithstanding the six (6) month term, Bank and Creditcard Service Inter-
national may terminate this Agreement, without cause, upon thirty (30) days prior
written notice to Merchant.
   4. Bank and Creditcard Service International may terminate this Agreement
immediately for cause if any of the following occur:
      (a) If Merchant is or becomes bankrupt or is otherwise unable to pay its
          debts as they become due; or
      (b) If Merchant violates any term, condition, covenant or warranty of this
          Agreement; or
       (c) If Merchant is identified on the MATCH File. MERCHANT ACKNOWL-
           EDGES THAT SUCH IDENTIFICATION IS GROUNDS FOR IMMEDI-
           ATE TERMINATION OF THIS AGREEMENT AND OF IMMEDIATE
           TERMINATION OF SERVICE.
    5. Upon the effective date of any termination, Merchant’s right to utilize
Creditcard Service International’s electronic commerce payment system shall ter-
minate along with Merchant’s rights to make Card transactions, to deposit trans-
actions with Bank and Creditcard Service International and to use sales draft
forms, credit draft forms, promotional material and/or any other items provided or
made available through Bank and Creditcard Service International. However,
Merchant’s obligations in connection with any Transaction Record accepted by
Bank and Creditcard Service International before or after termination shall sur-
vive such termination including, without limitation, Merchant’s chargeback obliga-
tions. Following the effective date of termination, Merchant shall maintain funds
on deposit on account available to Bank for a reasonable time. Based upon
Cardholder and Issuer chargeback rights, the amount of funds shall be reason-
ably adequate to cover all chargeback deposit charges, refunds, and fees, includ-
ing, but not limited to, costs for accounting, investigation and account manage-
ment, incurred by Bank and Creditcard Service International pursuant to this Agree-
ment, Gold Card or PLATINUM operating regulations, or the regulations of any
processing facility. Bank is hereby irrevocably authorized by Merchant to charge
such account or other accounts maintained by Merchant, for the amount of such
matters. Merchant shall pay Bank for all such matters upon demand by Bank,
together with all costs and expenses incurred by Bank and Creditcard Service
International, including reasonable attorneys’ fees.
                            3.05 Automatic Renewal
   This Agreement will be automatically renewed for successive periods of six (6)
months unless either party notifies the other, in writing, of its intention not to
renew no less than thirty (30) days and no more than ninety (90) days prior to the
end of each term.
PART I]                      INTERNET AGREEMENTS—FORMS                          561

                                    3.06 Match File
    MERCHANT EXPRESSLY ACKNOWLEDGES that Member Alert To Control
High-Risk (MATCH) or any successor thereto is maintained by Gold Card con-
taining the business name and names and identification of principals of Merchants
which have been terminated for one or more of the reasons specified in Gold
Card or PLATINUM operating regulations. Examples would be, but are not limited
to, fraud, counterfeit drafts, unauthorized transactions, excessive chargebacks
and retrieval requests, laundering or where a high security risk exists.
   MERCHANT ACKNOWLEDGES THAT BANK AND CARDSERVICE INTERNA-
TIONAL ARE REQUIRED TO REPORT THE BUSINESS NAME OF THE MERCHANT
AND THE NAMES AND IDENTIFICATION OF ITS PRINCIPALS TO MATCH WHEN A
MERCHANT IS TERMINATED FOR ONE OR MORE OF THE REASONS SPECIFIED
IN GOLDCARD OR PLATINUM OPERATING REGULATIONS. MERCHANT EX-
PRESSLY AGREES AND CONSENTS TO SUCH REPORTING BY BANK AND
CARDSERVICE INTERNATIONAL.
                        ARTICLE 4 – GATEWAY PROGRAMMING
                          4.01 Applicability to This Agreement
    In addition to all other provisions of this Merchant Agreement, the provisions
of this Article 4 shall apply if Merchant has elected to utilize the electronic com-
merce payment system offered by Creditcard Service International.
                           4.02 Electronic Payment System
    So long as Merchant is current in the obligations to Creditcard Service Inter-
national and is not otherwise in breach of this Merchant Agreement, Creditcard
Service International shall provide Merchant the use of its Internet-based elec-
tronic payment system.
                         4.03 Programming of Web Site
    While Creditcard Service International provides specific APIs or programming
scripts to Merchant or Merchant’s Web site programmer(s), Merchant acknowl-
edges that such sample programming scripts are insufficient to allow the Merchant’s
Web site to function with the LinkPoint Secure Payment Gateway. Programming
of the Merchant Web site and its functionality are the sole responsibility of Mer-
chant.
                     4.04 Merchant’s Programming Agent
   Merchant has the sole responsibility to select and employ any competent pro-
gramming agent to accomplish the programming required to make the Merchant’s
Web site function correctly with the LinkPoint Secure Payment Gateway.
                           4.05 Fees Subject to Fluctuation
    All fees for Gateway service are based on the number of monthly transactions
processed by Merchant. The amount of these fees will therefore fluctuate based
on Merchant’s volume. The Merchant Agreement provisions requiring notice prior
to a change in fees shall not apply to any transactions governed by this Article 4.
                                4.06 Technical Support
   Merchant shall be responsible for all technical support for Web site-related
issues.
G : CDD (Vol. 4) – 36
562                     CONVEYANCING, DRAFTING & DEEDS                        [PART I

                                4.07 Shut Downs
    Creditcard Service International reserves the right, from time to time, without
prior notice, to shut down and restart the LinkPoint Secure Payment Gateway
service for maintenance and/or software upgrades for time periods of at least one
(1) minute and generally not to exceed five (5) minutes.
                    ARTICLE 5 – LINK POINT VIRTUAL CHECK
      Definitions
     Link Point Virtual Check Discount Rate – Negotiated percentage rate set forth
in the Merchant Application section of this Agreement.
    Link Point Virtual Check Transaction Fee – A charge for each Link Point Vir-
tual Check transaction submitted to Creditcard Service for processing. This is in
addition to any transaction fee charged for bankcard transactions.
    Link Point Virtual Check Return Item Fee – A charge for each Link Point Vir-
tual Check item returned to Creditcard Service International.
    Link Point Virtual Check Transaction Cancellation Fee – A charge for cancel-
ing a Link Point Virtual Check transaction not yet submitted to the ACH system.
    Link Point Virtual Check Reversal Fee – A charge for canceling a Link Point
Virtual Check transaction that has already been submitted to the ACH system. A
second ACH transaction is submitted to reverse a prior ACH transaction. The Link
Point Virtual Check reversal fee is $15.00 per occurrence.
    Link Point Virtual Check Non-conforming Transaction Fee – A penalty charged
to the merchant for violations of the Rules and/or Regulations. The Link Point
Virtual Check non-conforming transaction fee is $100.00 per occurrence.
                                  5.01 Purpose
    Creditcard Service International will provide Merchant Automated Clearing
House (“ACH”) services up to $5,000 per check. These transactions will be placed
through a bank with whom Creditcard Service International has a relationship
and who will be acting as the Originating Depository Financial Institution (“ODFI”).
Creditcard Service International will debit money (“Debit Entry”) for purposes of
collecting Automatic Payments from the accounts of the Merchant’s customers
(“Customers”) and/or credit money (“Credit Entry”) for the purpose of paying
Merchant’s accounts payable. Creditcard Service International will provide these
services in accordance with the terms and conditions of this Agreement, the Op-
erating Rules (“Rules”) of the National Automated Clearing House Association
(“NACHA”) and the applicable Federal Regulations (“Regulations”) governing ACH
transactions as they exist at the time of your transactions. “Entry” shall mean
either a Credit Entry or a Debit Entry. All provisions of Merchant Agreement shall
remain in full force and effect and are reaffirmed, including but not limited to
Creditcard Service International’s right to establish reserve accounts, hold back
procedures and the granting of security interests.
                            5.02 Anticipated Volume
   Merchant acknowledges that if any of the anticipated monthly Link Point Vir-
tual Check volume amount, average Link Point Virtual Check ticket amount or
PART I]                     INTERNET AGREEMENTS—FORMS                           563

maximum Link Point Virtual Check transaction amount are exceeded, Creditcard
Service International has the right to terminate or suspend services or to impose
such other conditions as it, in its sole and absolute discretion, deems appropriate.
                         5.03 Representations by Merchant
    With respect to all Entries Merchant asks Creditcard Service International to
originate, Merchant covenants and represents that:
       (a) Each Customer has authorized the debiting and/or crediting of its ac-
            count;
          (b) Each Entry is for an amount the Customer has agreed to; and
          (c) Each Entry is in all other respects properly authorized.
                             5.04 Revocation of Authority
   Merchant shall cease initiating Entries immediately upon receipt of actual or
constructive notice of a Customer’s termination or revocation of Merchant’s au-
thority.
                              5.05 Identifying Numbers
    Merchant understands that Creditcard Service International may rely solely
on identifying numbers provided by Merchant or Customer to determine the bank
and account of a Customer even if the numbers identify a bank or account holder
different from the one identified by name.
                             5.06 Regulatory Compliance
   Merchant shall be responsible for conforming its policies and procedures with
the Rules and Regulations. Merchant is urged to consult Merchant’s counsel re-
garding such compliance.
                  5.07 Notice of Erroneous/Unauthorized Transfers
    Merchant shall regularly and promptly review all entries and other com-
munications sent to Merchant and to immediately notify Creditcard Service Inter-
national if any discrepancy exists between Merchant’s records and those pro-
vided by Creditcard Service International, the ODFI or Merchant’s bank or with
respect to any transfer that Merchant believes was not authorized by Merchant or
Customer. If Merchant fails to notify Creditcard Service International within four-
teen (14) calendar days after the date that Creditcard Service International mails
or otherwise provides a statement of account or other report of activity to Mer-
chant, Merchant will be responsible for all losses or other costs associated with
any erroneous or unauthorized transfer. The foregoing does not limit Merchant’s
liability for other breaches of this Agreement.
                               5.08 Processing Entries
   Creditcard Service International is only responsible for processing Entries that
have been transmitted by Merchant in a timely manner and in proper format. From
time to time, Creditcard Service International will notify Merchant of the accept-
able means of transmission, the proper format and of applicable cut-off times.
                            5.09 Originating Transactions
    Creditcard Service International will use the information provided by Merchant
564                      CONVEYANCING, DRAFTING & DEEDS                        [PART I

to originate Merchant’s entries to the ACH. Merchant acknowledges that Creditcard
Service International may reject Merchant’s entries for any reason permitted or
required by the Rules or Regulations. Merchant also acknowledges that Merchant’s
Entry may be rejected by Creditcard Service International or its origination may
be delayed if processing the Entry would cause Creditcard Service International
to violate any Federal Reserve or other regulatory risk control program or any
other law or regulation. At Merchant’s request, Creditcard Service International
may make such efforts as it deems reasonable to reverse or delete an entry, but it
shall not be required to do so. All requests shall be made in writing and faxed,
delivered, mailed or otherwise transmitted to Creditcard Service International.
                              5.10 Returned Entries
   Creditcard Service International shall apply returned entries to Merchant’s
account when they are received. Returned items reports will be available to Mer-
chant via the Link Point Secure Payment Gateway.
             5.11 Notice of Change Information and Retransmission
    Merchant shall not initiate entries until such time as the Notice of Change
(“NOC”) information has been received and records have been updated. Creditcard
Service International shall have no obligation to retransmit an entry if the original
transmission was not in compliance with these terms and conditions. If Merchant
requests that the return item be retransmitted, Creditcard Service International
may do so in accordance with the Rules. Merchant shall pay any costs associated
with the retransmission.
                             5.12 Method of Transfer
    Creditcard Service International will transfer all funds to a custodial account at
Creditcard Service International’s ODFI. Merchant shall not be entitled to interest
on such funds. Creditcard Service International will hold the funds until all prelimi-
nary returns have cleared. The funds will then be transferred to the financial insti-
tution and account of Merchant’s choice. The standard hold period is five (5) banking
days. Should questionable activity occur, or if the Merchant’s return rate increases
significantly, this hold period may be extended by Creditcard Service Interna-
tional at its absolute discretion.
                           5.13 Settlement and Finality
    After expiration of the hold period for debit entries, Creditcard Service Interna-
tional will conditionally credit Merchant’s account. However, this credit will not
become final until Creditcard Service International has been paid the full amount
of the entries in immediately available funds and all of Customer’s rights to dis-
pute the transaction have expired and the transaction has become irreversible in
all other ways. If any debit entry is returned to Creditcard Service International,
Merchant authorizes Creditcard Service International to debit Merchant’s account
for the amount of the returned item plus fees and costs incurred by Creditcard
Service International. If Merchant’s account has insufficient funds to cover
Merchant’s obligations, Merchant shall pay Creditcard Service International the
amount of any deficiency on demand in immediately available funds or Creditcard
Service International may, without further demand or authorization, debit any ac-
count maintained by Merchant. Any credit entries created by Merchant will be
PART I]                   INTERNET AGREEMENTS—FORMS                             565

debited from Merchant’s account in accordance with the hold period prior to the
credit being distributed to Merchant’s payees’ accounts. If the debit entry is re-
turned for any reason, the credit entry will be canceled.
                                  5.14 Reports
     Creditcard Service International shall make available to Merchant various ac-
tivity reports via the Link Point Secure Payment Gateway.
                              5.15 Limits of Liability
    Creditcard Service International will be responsible for its performance of the
ACH services as a Third Party Processor in accordance with the Rules and Regu-
lations. However, Merchant and Creditcard Service International agree that in
addition to the limitations of liability contained in the Merchant Agreement,
Creditcard Service International shall not be liable for errors, acts or failures to
act of others, including but not limited to banks, communications carriers and
clearing houses through which Entries may be originated or through which
Creditcard Service International receives or transmits information. No such per-
son or entity shall be deemed Creditcard Service International’s agent.
                            5.16 Pricing and Payment
    Creditcard Service International will notify Merchant in writing of, and Mer-
chant agrees to pay promptly, the fees and charges that Creditcard Service Inter-
national establishes from time to time. The current fees and charges are set forth
in the Application section of this Agreement. There are no additional fees for data
storage. Merchant authorizes Creditcard Service International to obtain payment
of these fees and any other amounts due it by debiting Merchant’s account and, in
consideration for Creditcard Service International entering into this Agreement,
and other good and valuable consideration, hereby irrevocably appoints Creditcard
Service International as its attorney in fact to so do.
                           5.17 Release of Information
    Unless required by law, or by the terms of this Agreement, Merchant shall not,
under any circumstances, sell, purchase, provide, or otherwise disclose any
Customer’s account information or other Customer personal information to any-
one. Merchant shall store all data securely. Creditcard Service International may
advise potential users of the services that Creditcard Service International has a
relationship with Merchant.
                                5.18 Termination
    Creditcard Service International or Merchant may terminate the Link Point
Virtual Check Services called for in this Agreement at any time by written notice
and without any cancellation fee. Any termination will not affect Merchant’s or
Creditcard Service International’s rights or obligations arising before the termina-
tion.
                      5.19 Non-sufficient Funds (NSF) Fee
   If Merchant has obtained Customer’s active prior consent to do so, Merchant
may elect to charge Customers a NSF item fee as authorized by law but not to
exceed $25.00. After receipt of instructions from Merchant and proof of Customer’s
566                     CONVEYANCING, DRAFTING & DEEDS                        [PART I

consent, Creditcard Service International will attempt to collect such fee on
Merchant’s behalf following a specified number of days after the principal is col-
lected. No NSF item fee will be collected until the principal has been collected.
“Active prior consent” means that if the notification occurred online, then the Cus-
tomer must have affirmatively indicated their consent prior to being able to pro-
ceed with the submission of the check for payment.
                          ARTICLE 6 – OTHER FEES
      Fees
      Monthly Minimum Charge                $25.00 minimum
      Customer Support Fee                  $10.00 per month
      Providing Any Documentation           $ 2.00 per page
      Checking Account Change               $25.00 per change
      Reject Fee                            $15.00 per Item, or
                                            $25.00 per daily batch
Discount Percentages
   Qualified – Negotiated percentage rate set forth in the Merchant Application
section of this Agreement.
    Mid-Qualified – Refer to the Merchant Application Section of this Agreement
for current pricing.
    Non-Qualified – Refer to the Merchant Application Section of this Agreement
for current pricing.
    As mandated by PLATINUM, all direct marketing merchants (businesses where
the credit card is not present at the time of the sale) and non-direct marketing
merchants who accept mail order and telephone order transactions and all Internet-
based merchants must utilize the Address Verification Service (AVS) or face addi-
tional Non-Qualifying fees as well as increased risk. All AVS inquiries will incur a
$0.05 AVS fee.
Batch Header Fee
   A Merchant is billed a batch header fee each time a batch is transmitted to the
Host for settlement. The batch header fee ranges from $0.20 cents to $0.30 cents.
This fee is negotiated and assigned by the agent or sales representative at the
time the Merchant applies for an account.
Transaction Fee
   A Merchant is billed a transaction fee each time an online order passes through
the Link Point Secure Payment Gateway. This fee is negotiated and assigned by
the agent or sales representative at the time the Merchant applied for an account.
                             6.01 Discount Percentage
    Merchant shall pay Bank discount percentages, batch header fees and trans-
action fees for processing the credit card drafts. The discount percentages shall
include consideration for Qualifying, Mid-Qualifying and Non-Qualifying transac-
tions. Merchant hereby authorizes Bank to debit any of the Merchant’s Accounts
PART I]                   INTERNET AGREEMENTS—FORMS                              567

for payment of any and all fees and the discount percentage which shall be paid
at the rate established as set forth on the Merchant Application portion of this
Agreement. Said discount percentage may be revised from time to time upon
thirty (30) days written notice to Merchant.
                              6.02 Monthly Minimum
   Merchant shall pay a monthly minimum charge of $25.00 or such other sum as
may be determined by Bank and Creditcard Service International from time to
time upon thirty (30) days notice to Merchant.
                           6.03 Customer Support Fee
   Merchant shall pay to Bank and Creditcard Service International a Customer
Support Fee as may be determined by Bank and Creditcard Service International
from time to time upon thirty (30) days notice to Merchant.
                                 6.04 Reject Fee
     Merchant acknowledges that failure by Merchant to maintain sufficient funds
in its checking account to execute its obligations under this Agreement will result
in the imposition of a Reject Fee per item or per daily batch as applicable. This fee
is subject to change as may be determined by Bank and Creditcard Service Inter-
national from time to time upon thirty (30) days notice to Merchant.
                             6.05 Documentation Fee
    If Bank and Creditcard Service International are required to provide documen-
tation, such as, by way of example only, statement copies, Merchant shall pay to
Creditcard Service International a fee per page provided to Merchant. This fee is
subject to change as may be determined by Bank and Creditcard Service Inter-
national from time to time upon thirty (30) days notice to Merchant.
                    ARTICLE 7 – GENERAL PROVISIONS
                                    7.01 Forms
    Merchant shall use only such forms or modes of transmission for sales data
as are provided or approved in advance by Bank and Creditcard Service Interna-
tional. Merchant shall not use forms or equipment available through Creditcard
Service International except in connection with Card transactions hereunder.
Creditcard Service International will make sales drafts and forms available by fee
and on order of Merchant.
                                   7.02 Records
    Merchant shall retain original transaction data or make legible microfilm cop-
ies of both sides of such actual paper Transaction Records, and store for a mini-
mum of three (3) years. Within three (3) calendar days of receipt of Bank and
Creditcard Service International’s request, Merchant shall provide to Bank and
Creditcard Service International, at Merchant’s cost, either the actual paper Trans-
action Record, if requested by Bank and Creditcard Service International, or a
legible microfilm thereof comparable in size to the actual paper Transaction
Records. In addition, Merchant shall, within three (3) calendar days of Bank and
Creditcard Service International’s request, provide any other documentary evi-
dence available to Merchant and reasonably requested by Bank and Creditcard
568                      CONVEYANCING, DRAFTING & DEEDS                        [PART I

Service International to meet its obligations under law, including, but not limited
to, its obligations under the Fair Credit Reporting Act, or its obligations to other-
wise respond to questions concerning Cardholder accounts. Following termina-
tion, for so long as Merchant is required to retain the same, Merchant shall promptly
provide Bank and Creditcard Service International with all original and microfilm
copies of records required to be retained at the time of termination.
       (a) Merchant assumes full and exclusive responsibility for the security of
           all data and records it obtains, whether received or in transit, or accu-
           mulates, as a result of entering into the Merchant Agreement with
           Creditcard Service International. Neither Bank nor Creditcard Service
           International or their agents, contractors, licensees, employees, offic-
           ers, directors or affiliates warrant the security of such data and records.
           Losses to Bank or to Creditcard Service International arising from any
           breach of such security shall give rise, inter alia, to charge back rights
           by Bank and Creditcard Service International.
                      7.03 Change in Transmission Method
    Merchant shall give Bank and Creditcard Service International at least thirty
(30) days prior written notice of its desire to alter in any material respect its me-
dium of transmission of sales data and credit data to Bank and Creditcard Ser-
vice International. Any change shall be subject to Bank’s and Creditcard Service
International’s prior approval.
                         7.04 Supplementary Documents
   References to “this Agreement” include any supplementary agreements, ad-
denda, appendixes and amendments and any other agreements, schedules, ap-
pendixes and amendments promulgated by Bank and Creditcard Service Inter-
national and furnished to Merchant from time to time.
                                 7.05 Amendment
    In addition to the modification rights contained in paragraph 3.02, Bank and
Creditcard Service International may amend this Agreement at any time by mail-
ing written notice to Merchant of any amendment at least thirty (30) days prior to
the effective date of the amendment. The amendment shall become effective on
the date specified by Bank and Creditcard Service International unless Bank and
Creditcard Service International receives Merchant’s notice of termination of this
Agreement before such effective date.
    Any modification of this Agreement must be in writing accepted by the Bank
and the corporate office of Creditcard Service International. No field representa-
tive of Bank or Creditcard Service International is authorized to make any modifi-
cation to this Agreement or to make any representation which is not set forth in
this Agreement.
                              7.06 Merchant Account
   In order to facilitate the transfer of payments between the parties hereto, or
any affiliate thereof, Merchant may maintain a commercial deposit account with
Bank. Said account shall be subject to such terms and conditions (including, with-
out limitation, the imposition of service charges and fees) as may be agreed to by
PART I]                   INTERNET AGREEMENTS—FORMS                               569

Bank and Merchant. In the absence of any express written agreement, the stan-
dard terms and conditions applicable to commercial deposit accounts offered by
Bank shall apply. As amounts become payable, whether or not under this Agree-
ment, to Bank and/or Creditcard Service International (including any company
affiliated with Creditcard Service International), or to Merchant under this Agree-
ment, Bank may, unless otherwise agreed in writing, make payments to or receive
payments from Merchant by crediting or debiting such account without prior no-
tice. If such a commercial deposit account is not maintained by Merchant, pay-
ment between the parties shall be made in a manner satisfactory to Bank and
Creditcard Service International.
                                  7.07 All Notices
    All notices, requests, demands and other communications under this Agree-
ment shall be in writing and shall be deemed to have been duly given on the date
of service if delivered personally. If Merchant transmits by U.S. Mail, first class,
postage pre-paid, notice shall be deemed served upon confirmed receipt by Bank
and Creditcard Service International. If Merchant uses facsimile transmission,
Merchant shall mail the original of the communication to the receiving party on
the date of transmission, by first class mail, postage pre-paid and it shall be deemed
served on the day of confirmed receipt by Bank and Creditcard Service Interna-
tional. If Bank and/or Creditcard Service International use facsimile transmission,
service is deemed to have been duly given on the day of transmission. If facsimile
transmission is not used, notice shall be given by, U.S. Mail, postage pre-paid and
it shall be deemed served on the day of mailing. Unless otherwise required by this
Agreement, all communications to Creditcard Service International must be
addressed as follows:
    Creditcard Service International, Inc [Address]
   Communications to Merchant shall be addressed to the address appearing on
the Merchant Application. Any party may change its address for purposes of this
paragraph by giving the other parties written notice of the new address in the
manner set forth above.
                              7.08 Effect of Headings
    The subject headings of the paragraphs and sub-paragraphs of this Agree-
ment are included for convenience only and shall not affect the construction or
interpretation of any of its provisions.
                                  7.09 Adherence
    Merchant agrees to be responsible and liable for adhering to all provisions of
this Agreement without exception and in full. Failure to abide by the provisions
herein constitute, among other remedies provided for herein, grounds for pos-
sible interruption or termination of service.
                       7.10 Change in Banking Information
   Merchant shall notify Creditcard Service International of any change in busi-
ness checking account, change of bank or any other banking information. Mer-
chant shall pay Creditcard Service International a fee in the amount of $25.00 for
each checking account change.
570                      CONVEYANCING, DRAFTING & DEEDS                        [PART I

        7.11 Time Limitation for Asserting Claims and Instituting Actions
    Despite any statute to the contrary, any claim arising from or relating to this
Agreement (whether contract, tort, or both) shall be brought within two (2) years
after it arises, provided that with respect to any claim or dispute concerning fees,
charges or other costs charged to Merchant, Merchant must have, within ninety
(90) days of the assessment of any disputed fee, charge or costs, appealed such
determination to cardservice International in writing by United States certified
mail, return receipt requested, and such appeal must have been denied.
                               7.12 Indemnification
    Merchant and Guarantor shall, jointly and severally, indemnify, defend, and
(c) Bank may enforce its security interest in the Reserve Account without notice
or demand. Bank’s right to sums owed it by Merchant pursuant to this Agreement
shall in no way be limited by the balance or existence of the Reserve Account.
Bank’s rights with respect to the Reserve Account, as well as the security interest
granted Bank under this Agreement, shall survive the termination of this Agree-
ment.
                                  7.16 Bankruptcy
   1. No assignee for the benefit of creditors, successor in interest, custodian,
receiver, trustee in bankruptcy, debtor in possession, sheriff or any other officer of
a court, or other person charged with taking custody of a party’s assets or busi-
ness, shall have any right to continue or to assume or to assign this Agreement.
      2. In the event any party becomes insolvent, makes an assignment for the
benefit of its creditors, files a petition or otherwise seeks relief under or pursuant
to any other bankruptcy, insolvency or reorganization statute or proceeding, or if
any party dissolves, discontinues or substantially discontinues its business or if a
receiver, trustee, or similar officer is appointed for Merchant or for a substantial
portion of Merchant’s business or assets, or if any judgment, writ of attachment
execution, levy or similar process against any party is served on the others or is
issued with respect to any substantial part (valued at twenty percent [20%] or
more of the total tangible assets) of the property of any party, the other parties
may, at their sole election, terminate this Agreement by written notice to the oth-
ers.
                               7.17 Law and Venue
    This Agreement shall be construed in accordance with, and governed by, Cali-
fornia law as applied to contracts that are executed and performed entirely in
[Country Name].. The parties agree that any suit, action, or proceeding arising
out of or relating to this Agreement, or the interpretation, performance or breach
of this Agreement, shall be instituted in any court of the [Country Name]. Each
party irrevocably submits to the jurisdiction of those courts and waives all objec-
tions to jurisdiction or venue that it may have under the laws of the [Country Name].
in any suit, action, or proceeding. The parties expressly stipulate, consent to and
agree that the specific geographic location as the place of performance of this
Agreement, in its entirety, shall be within the county of [Country Name] . By this
special contract, the exclusive venue for any action between them shall be within
the county of [Country Name].
PART I]                   INTERNET AGREEMENTS—FORMS                               571

                                 7.18 Assignability
   Merchant may not assign this Agreement, or any rights hereunder, directly or
by operation of law, without the prior written consent of Bank and Creditcard Ser-
vice International. For purpose of this Agreement, assignment shall include, but
not be limited to, transfer of control of Merchant and any ownership change which
results in a new majority owner. Without such written consent, Merchant shall
continue to be bound by this Agreement.
                         7.19 Attorneys’ Fees and Costs
    Merchant shall be liable for and shall indemnify and reimburse Bank and
Creditcard Service International for any and all attorneys’ fees and other costs
and expenses paid or incurred by Bank and Creditcard Service International in
the enforcement of this Agreement, or in collecting any amounts due from Mer-
chant to Bank and Creditcard Service International hereunder or resulting from
any breach of any of the terms or conditions of this Agreement. In addition, whether
legal action is contemplated or commenced against Merchant, Creditcard Ser-
vice International shall be entitled to recover from Merchant all of its investigative
and other costs related to searching for the whereabouts of Merchant or any
Guarantor. Merchant authorizes Creditcard Service International, at its sole op-
tion and without prior notice, to deduct such investigative and other costs from
any monies that Merchant may have on deposit with Creditcard Service Interna-
tional or which Merchant has previously authorized Creditcard Service Interna-
tional to access.
                                 7.20 Guarantors
     As a primary inducement to Bank and Creditcard Service International to en-
ter into this Agreement with Merchant, guarantor(s) of Merchant’s performance
under this Agreement, jointly and severally, unconditionally and irrevocably, guar-
antee the continuing full and faithful performance and payment by Merchant of
each of its duties and obligations to Bank and Creditcard Service International
pursuant to this Agreement, as it now exists or as it may be amended from time to
time, whether before or after termination or expiration and whether or not Guar-
antor has received notice of any amendment. If Merchant breaches this Agree-
ment, Bank and Creditcard Service International may proceed directly against
Guarantor or any other person or entity responsible for the performance of this
Agreement, without first exhausting its remedies against any other person or en-
tity responsible therefore to it, or any security held by Bank.
                                7.21 Force Majeure
     Bank and Creditcard Service International shall have no liability to Merchant
for delay or failure to perform any part of this Agreement on account of an act of
God or the public enemy, fire, explosion, flood, earthquake, riot, war, sabotage,
accident, embargo or any circumstances of like or different character beyond Bank’s
and Creditcard Service International’s reasonable control or by interruption or
delay in transportation, inadequacy or shortage or failure of supply of materials,
utilities, computer software, or equipment breakdown, labor trouble, or compli-
ance with any order, direction, action or request of any governmental officer, de-
partment or agency.
572                     CONVEYANCING, DRAFTING & DEEDS                        [PART I

                           7.22 Cumulative Remedies
    All remedies of Bank and Creditcard Service International hereunder are cu-
mulative and may be exercised concurrently or separately. The exercise of any
one remedy shall not be deemed to be an election of such remedy and shall not
preclude the exercise of any other remedy. No failure on the part of Bank and
Creditcard Service International to exercise, and no delay in exercising any right
or remedy hereunder, shall operate as a waiver of such right or remedy.
                       7.23 Breach of Other Agreements
    This Agreement is the principal agreement between Merchant and Bank and
Creditcard Service International. In order to further effectuate the subject matter
of this Agreement, the parties acknowledge that a number of additional agree-
ments may be entered into between them. Merchant hereby agrees that Merchant’s
breach of any of those additional agreements shall also constitute a breach of this
Agreement.
                           7.24 Fiduciary Relationship
    As provided in California Financial Code Section 952 as it now exists and as it
may be amended from time to time, whenever Merchant has a deposit held aris-
ing from or subject to this Agreement with any bank which, pursuant to this Agree-
ment, Merchant is not entitled to, Merchant’s entitlement to such deposit shall be
as a fiduciary of Bank and Creditcard Service International until any claim by
Bank and Creditcard Service International has been resolved. Merchant agrees
that its failure to repay, within twenty (20) calendar days of notification, to Bank
and Creditcard Service International funds Merchant is not entitled to, shall result
in a presumption that Merchant intends to misappropriate such funds.
        7.25 Security Interest and Merchant Performance Requirement
    To secure Merchant’s performance under this Agreement, including without
limitation, Merchant’s obligations arising out of chargebacks; Merchant hereby
grants to Bank and Creditcard Service International, a security interest in all
Transaction Records, sales drafts, credit drafts, and in all deposits, regardless of
source, made to Merchant’s account established or designated and maintained
pursuant to this Agreement, as well as in the proceeds of those deposits, and in
all other accounts maintained by Merchant. Bank may enforce this security inter-
est by one or more of the following:
      (a) Making an immediate debit (charge) to any account, without notice or
          demand of any kind; and/or interrupting the electronic transmission of
          funds to any account through the Automated Clearing House (ACH)
          system;
      (b) Freezing the entire account, without notice or demand of any kind,
          upon Bank and Creditcard Service International’s reasonable deter-
          mination that Merchant has breached any term of this Agreement;
       (c) Taking possession of any or all of Merchant’s Transaction records, sales
           drafts, verifications and confirmations of transactions.
   Merchant shall provide any statement or notice that Bank and Creditcard Ser-
vice International determines to be necessary to preserve and protect Bank’s
PART I]                    INTERNET AGREEMENTS—FORMS                                573

security interest. Merchant’s granting of this security interest in no way limits
Merchant’s liabilities to Bank and Creditcard Service International under this Agree-
ment.
                                  7.26 Severability
    If any provision of this Agreement is held invalid or unenforceable by any court
of final jurisdiction, it is the intent of the parties that all other provisions of this
Agreement be construed to remain fully valid, enforceable, and binding on the
parties.
                7.27 Change of Merchant Name or Business Type
    Changes of, by way of example only, business name, business telephone and/
or address, or any banking information shall be submitted, in writing, to Bank and
Creditcard Service International by Merchant under the terms provided in this
Agreement. Merchant represents that it is engaged in the business specified on
the Merchant Application portion of this Agreement. Merchant shall not process
payment transactions for any other type of business.

SIGNATURE OF MERCHANT

SIGNATURE OF BANK & CARD SERVICE INTERNATIONAL

DATE:

                                          49
                    Gold Card Acceptance Agreement

   1. By signing the Creditcard Service International Merchant Application and
Agreement, I represent that I have read this Agreement and that the business
entity indicated on the application above agrees to be bound by this Agreement.
This Agreement becomes effective upon approval of such business entity to ac-
cept the Gold Card by Gold Travel Related Services Company, Inc.
   2. The terms and conditions found below apply to your acceptance of Gold
Cards. The words, we, our and us, mean Gold Travel Related Services Company,
Inc. You and your mean the business entity accepting the Card hereunder. Gold
Card or Card shall mean any card or other account access device issued by Gold
Travel Related Services Company, Inc., or its subsidiaries or affiliates or its or
their licensees bearing the Gold name or an Gold trademark, service mark or
logo. Cardmember means the person whose name is embossed on the face of
the Card. Purchases made with the Card are Charges.
    3. You agree to accept the Card under the terms of this Agreement at all your
Establishments in the United States, Canada, the U.S. Virgin Islands and Puerto
Rico in payment for all goods and services sold (except as noted below). This
includes sales made in person, by telephone, by mail or by any other method.
Each location or method of conducting sales is an Establishment.
   4. By accepting Cards for the purchase of goods and/or services, you agree to
be bound by this Agreement. If you do not wish to accept the terms of this
574                     CONVEYANCING, DRAFTING & DEEDS                        [PART I

Agreement, you must not submit Charges and you must notify us immediately
and return all materials we provided to you.
   5. You further agree to comply with, and be bound by, our operating policies
and procedures, as such may be amended from time to time.
      6. HONORING CARDS
    When a customer asks what payment methods are accepted, you will mention
the Gold Card. You will honor the Card, and will not attempt to: (i) dissuade the
Cardmember from using the Card; (ii) criticize or mischaracterize the Card or any
services or programs offered in connection with the Card; (iii) persuade the
Cardmember to use any other credit, charge, debit card or other card or service;
or (iv) impose any restrictions or conditions on the use or acceptance of the Card
that are not imposed equally on the use or acceptance of other cards. You repre-
sent and warrant that your policy is not to prefer any card over the Gold Card. You
will not, directly or indirectly, state or publish or otherwise indicate a preference
for any charge, credit, debit card or other card or service over the Card or partici-
pate in a program with a third party which so states or publishes or otherwise
indicates a preference.
    7. You shall not promote the use of any other charge, credit, debit or other card
or service (except for your own card which is issued solely by you and is usable
only at your Establishments) more actively than you promote the use of the Card.
   8. You shall display Gold signs, decals or other identification prominently at
your Establishments, with at least equal prominence with signs, decals or other
identification that are displayed for other cards. You agree to display our “Take-
One” containers filled with Card application forms. You will receive a $3.00 com-
mission when we open a new Card account based upon a Card application from
your Establishment.
      9. DISCOUNT/MONTHLY FLAT FEE
     The amount we charge you for accepting the Card shall be either: (i) a per-
centage of the face amount of Charges you submit (Discount Rate); or (ii) a monthly
flat fee (Monthly Fee). The initial Discount Rate or Monthly Fee is indicated in this
Agreement or otherwise provided to you in writing by us. We have the right to
adjust the Discount Rate or Monthly Fee at any time. We also have the right to
stop charging you a Monthly Fee and to start charging you by using a Discount
Rate if the amount of Charges you submit exceeds a threshold amount deter-
mined by us.
      10. PAYMENT
    We will pay you in United States Dollars for the face amount of Charges you
submit, minus: (1) the amount calculated using the Discount Rate (Discount) or
the Monthly Fee (whichever is applicable); (2) any amounts you owe us; (3) any
amounts for which we have Full Recourse; and (4) any Credits you submit. We will
send payment to you in accordance with the payment plan you selected. If we
charge you a Monthly Fee, we may debit your Account for such Monthly Fee.
Establishments located in Canada must submit Charges in Canadian Dollars and
will be paid in Canadian Dollars. You may not receive payment on behalf of any
other entity.
PART I]                    INTERNET AGREEMENTS—FORMS                                575

    11. You may elect one of two other payment options. With the first such option,
the Discount will not be deducted from the face amount of the Charges you sub-
mit. Instead, after each month, we will debit your Account for the aggregate Dis-
count with respect to all of that month’s Charges. If you select this option, we have
the right to add an additional 0.03% to your Discount Rate if the amount of Charges
you submit exceeds a threshold amount determined by us. With the second op-
tion, at the time of each of our payments to you for Charges submitted, there will
be a separate debit to your Account for the Discount related to such Charges. In
both cases, when we pay you for the face amount of Charges you submit, we will
deduct any Credits you submit and we will debit your Account for: (1) any amounts
you owe us; and (2) any amounts for which we have Full Recourse. In order to be
eligible for either option, you must: (a) submit all Charges to us electronically; (b)
receive all payments electronically via ACH; and (c) be paid on the Basic Payment
Plan.
    12. Payment Method
    You must participate in our Electronic Pay Program (Electronic Pay) unless:
           • You do not have a bank account and cannot get one or
           • Your bank does not have access to the Federal Reserve System to
             receive Automated Clearing House transactions.
    Payments will be sent electronically via the Automated Clearing House of the
Federal Reserve System (ACH) to the demand deposit account you designate
(Account) at a domestic bank (Bank) that participates in ACH. Unless otherwise
mutually agreed, we will initiate payment via ACH within three (3) business days
of receiving and processing Charge Data. If your payment date falls on a day that
our bank is not open for processing ACH payments, we will initiate payment on
the next day our bank is open for processing ACH payments. You must provide us
information about your Account and your Bank, and you must notify your Bank
that we may have access to the Account for debiting and crediting the Account.
We will not be responsible for any obligations or liabilities, including but not limited
to incidental or consequential damages, over and above the amount of the appli-
cable debit, credit or adjustment to your Account in the event that any such debit,
credit or adjustment is not honored by your Bank or is improperly applied to your
Account. There is an additional fee of 0.15% of the face amount of Charges you
submit for participation in Electronic Pay. However, if you obtain Authorization for
Charges electronically and transmit Charge Data to us electronically, you will not
be charged the additional fee for participation in Electronic Pay. There are three
(3) payment alternatives as described below:
          (a) Basic Payment Plan: Payment is sent within three (3) business days
              after we receive and process Charges.
          (b) Economy Payment Plan: Payment is sent fifteen (15) calendar days
              after we receive and process Charges.
          (c) Extended Payment Plan: Payment is sent thirty (30) calendar days
              after we receive and process Charges.
   If you are paid by check, we will charge a processing fee of 95 cents per
check.
576                       CONVEYANCING, DRAFTING & DEEDS                      [PART I

      13. FULL RECOURSE
    Full Recourse means our right to payment from you for the full amount of each
Charge subject to such right. We may deduct, recoup and offset such amount
from payments to you or you shall pay us promptly upon receipt of our invoice. We
shall have Full Recourse with respect to a Charge if you do not comply with the
terms of this Agreement, even if we had notice when we paid you for that Charge
that you did not so comply and even if you obtained Authorization for the Charge
in question. We will also have Full Recourse as provided elsewhere in this Agree-
ment.
      14. DISPUTED CHARGES
   If we contact you regarding a claim, complaint, or question about any Charge
(Disputed Charge) you must respond to us in writing or electronically within twenty
(20) days after we contact you. We will have Full Recourse for the amount of the
Disputed Charge if, by the end of that time period, you have not provided us with
a written substantive response to our inquiry which enables us to resolve the
dispute. If a Cardmember, despite your reply, continues to withhold payment for
the Disputed Charge and the Cardmember has the right under applicable law to
withhold such payment, we will have Full Recourse for such Charge.
      15. CARD ACCEPTANCE PROCEDURES
   Procedures for Card acceptance are set forth below. You must comply with
any changes in these procedures of which we notify you.
      (a) In Person Charges. For Charges made in person, you must:
          • Verify that the Card is not visibly altered or mutilated;
          • Ensure that the Card is being used within the valid dates shown on the
            face of the Card;
          • Verify that the Card is signed in the same name as the name em-
            bossed on the front of the Card;
          •   Create a Charge Record as described below and verify that the
              Cardmember’s signature on the Charge Record matches the signa-
              ture on the back of the Card; and
          •   Obtain Authorization as described below.
    (b) Other Charges. For all other Charges, such as Charges made by mail,
telephone, via the Internet or at unattended Establishments, you must:
          •   Obtain Authorization as described below; and
          •   Create a Charge Record as described below, except with the words
              “Mail Order,” “Telephone Order,” “Internet” or “Signature on File,” as
              applicable, on the Cardmember signature line.
    (c) If the Cardmember denies making or authorizing such a Charge and you
have not obtained the Cardmember’s signature for the Charge, we will have Full
Recourse for such Charge. We will not have Full Recourse for such a Charge
based upon a claim that the goods were not received if you have: (1) verified with
us that the address to which the goods were shipped is the Cardmember’s billing
address; and (2) obtained a receipt signed by an authorized signer verifying the
delivery of the goods to such address.
PART I]                   INTERNET AGREEMENTS—FORMS                             577

   For Charges made via the Internet, you shall conform with any additional re-
quirements we may have. For purposes of this Agreement, the term Internet shall
also include online services, Worldwide Web and other similar networks.
    (d) Completing Charge Records. For every Charge you must create or com-
plete a record of Charge (Charge Record) containing: (1) the Card account num-
ber and expiration date via an imprinter or Card swipe device; (2) the date the
Charge was incurred; (3) the amount of the Charge, which must be the total pur-
chase price of the goods or services purchased plus applicable taxes; (4) the
Authorization approval code number; (5) an acceptable description of the goods
or services purchased; (6) an imprint or other registration of your name, address
and the Establishment Number we assigned; (7) the Cardmember’s signature;
and (8) the words “No Refunds” if you have a No Refund policy.
    (e) Authorization. You must obtain an authorization approval code number
from us (Authorization) for all Charges as described below, regardless of amount
and except as otherwise expressly provided herein. Each Authorization request
must be for the total purchase price of the goods or services purchased plus
applicable taxes. Authorization is not a guarantee that we will accept the Charge
without Full Recourse, nor is it a guarantee that the person making the Charge is
the Cardmember. You agree to obtain Authorization for every Charge regardless
of amount. If your electronic authorization terminal is unable to reach our com-
puter authorization system for Authorization, or you do not have such a terminal,
you agree to obtain Authorization for all Charges by calling us at our authorization
telephone number. You shall be charged 65 cents for each Charge for which you
request authorization by telephone. We retain the right to change the amount we
charge to you for requesting Authorization by telephone at any time.
    For Charges for goods or services which are shipped or provided more than
thirty (30) days after the order is made, you must obtain Authorization for each
such Charge at the time the order is made and again immediately before you ship
the goods or provide the services to the Cardmember. You may not obtain Autho-
rization on behalf of any other entity.
    (f) Credits. When you give a refund for a purchase made with a Card, you
must credit that Card account (Credit). You must create a record of Credit (Credit
Record) and submit the Credit Record to us within seven (7) calendar days of
determining the Credit is due. We will deduct the amount of the Credit, minus the
applicable Discount, from your payment. If we are unable to deduct such amount,
you must pay us promptly upon receipt of our invoice. You will issue Credits only
for Charges made with the Card. You must not give a cash refund for goods or
services purchased with the Card.
    (g) Submission and Acceptance of Charges and Credits. (1) You shall sub-
mit all Charges to us within seven (7) days of the date they are incurred; provided,
however, that you shall not submit any Charge until the goods or services pur-
chased have been delivered to the Cardmember. You must submit Credits as
described above in “Credits.” Charges and Credits will be deemed accepted on a
given business day if received and processed before our close of business for
that day at the location we designate.
    (2) You warrant that all indebtedness arising from Charges that you submit is

G : CDD (Vol. 4) – 37
578                       CONVEYANCING, DRAFTING & DEEDS                      [PART I

genuine and free of any liens, claims or encumbrances. You acknowledge that
you have no right to bill and/or collect from any Cardmember for any purchase
made with the Card.
   When you submit Charges and Credits electronically (Charge Data), you must
do so over communications lines or via magnetic tape in machine-readable for-
mat (Transmission). Even if you transmit Charge Data electronically, you must still
complete and retain Charge Records and Credit Records.
    (3) In the event you submit Charges and Credits on paper, you must submit
Charge Records and Credit Records approved by us in accordance with the in-
structions we provide.
    (4) Transmissions must comply with the specifications we provide and must
include a description of the goods or services purchased which is acceptable to
us. At our request you shall place additional, less or differently formatted informa-
tion on Transmissions. We are not obligated to accept any Transmission that does
not comply with our requirements.
      (5) You may not submit Charges on behalf of any other entity.
   (h) Processors. You may retain, at your expense, a third party approved by us
(Processor) for obtaining Authorizations and/or submitting Charges and Credits.
You, and not we, are responsible for any errors, omissions, delays or expenses
caused by your Processor. You must provide us with all information we request
about your Processor and you must notify us promptly in writing if you change
your Processor.
     (i) Recurrent Billing. If you offer automatic/recurrent billing for a series of
separate purchases, Cardmembers must sign a consent form (Consent Form)
authorizing you to charge their Card accounts for specific amounts at specific
times (Recurrent Billing Charges). You must obtain a Consent Form before sub-
mitting the first Recurrent Billing Charge. The Consent Form must include the
Cardmember’s name, Card account number and signature; the amount of each
Recurrent Billing Charge; the frequency of such Recurrent Billing Charges; the
dates the Recurrent Billing Charges will begin and end; and a statement that the
Cardmember may cancel the Consent Form at any time. You must retain Consent
Forms for twenty-four (24) months from the date you submit the last Recurrent
Billing Charge. Before submitting each Recurrent Billing Charge, you must obtain
Authorization and create a Charge Record except with the words “Signature on
File” on the Cardmember signature line.
   (j) Document Retention. You must retain the original Charge Record or Credit
Record and all documents evidencing such transactions, or reproducible records
thereof, for twenty-four (24) months from the date you submitted the Charge or
the Credit to us. You must provide a copy of the Charge Record or Credit Record
and other supporting documents to us within twenty (20) calendar days of our
request.
   (k) Refunds. Your refund policy for purchases made with the Card must be at
least as favorable as your refund policy for purchases made with other forms of
payment. You must disclose your refund policy to Cardmembers at the time of the
purchase and in a manner that complies with applicable law.
PART I]                     INTERNET AGREEMENTS—FORMS                              579

    16. PROHIBITED TRANSACTIONS
    You may not accept the Card for:
          ο   Penalties or fines of any kind, damages, losses or any other costs or
              fees that are beyond the normal basic fee for the goods or services
              provided, or amounts for which the Cardmember has not specifically
              authorized payment by the Card;
          ο   Gambling services, gambling chips or gambling credits;
          ο   Cash;
          ο   Goods which will be resold;
          ο   Leases of personal property for greater than four (4) months;
          ο   Sales made under a different trade name or business affiliation than
              indicated in this Agreement or otherwise approved by us;
          ο   Sales by third parties; or
          ο   Amounts which do not represent a bona fide sale of goods or services
              at your Establishment.
    17. RESERVE
    We may withhold payment from you if, in our reasonable business judgment, it
is necessary to create a reserve as security for your obligations to us and/or any
of our parent, subsidiaries or affiliates under this Agreement or any other agree-
ment between you and us and/or any of our parent, subsidiaries or affiliates. We
have the right to deduct from and recoup and offset against the reserve, amounts
you owe us and/or any of our parent, subsidiaries or affiliates under this Agree-
ment or any other agreement between you and us and/or any of our parent, sub-
sidiaries or affiliates. We will notify you if we withhold payments. We may take
other reasonable actions to protect our rights and/or those of any of our parent,
subsidiaries or affiliates including, but not limited to, changing your speed or method
of pay, exercising Full Recourse immediately for all Disputed Charges without first
sending you an inquiry, and/or charging you a fee for each Disputed Charge.
    18. CONFIDENTIALITY
   You shall keep confidential any information you receive from us that is not
publicly available and the terms and conditions of this Agreement, including with-
out limitation your Discount Rate or Monthly Fee.
   You agree that the names, addresses and account numbers of Cardmembers
are our sole and exclusive property. You must not use or disclose a Cardmember’s
name, address or account number except as provided in this Agreement.
    19. TRADEMARKS AND SERVICE MARKS
    This Agreement does not give either party any rights in the other party’s name,
logo, service marks, trademarks, trade names, taglines or any other proprietary
designation (Marks). No use may be made of either party’s Marks without the
prior written permission of that party. Where you mention the Card as a payment
method you must use our Marks, but only as described in our logo sheets. You
agree that we may list the name and address of you and your Establishment(s) in
580                        CONVEYANCING, DRAFTING & DEEDS                     [PART I

materials containing lists of establishments which accept the Card which we may
publish from time to time.
      20. NOTICES
      Unless otherwise notified, you will send all notices to:
      Gold
      Travel Related Services Company, Inc.
      [Address].
      21. INDEMNIFICATION
    You agree to indemnify and hold harmless us, our parent, subsidiaries, affili-
ates, licensees, successors and assigns from and against all damages, losses
and expenses including, but not limited to, reasonable attorneys’ fees and costs,
arising or alleged to have arisen out of: (1) any goods or services you sell; (2) the
marketing of any goods or services you sell; (3) the negligent or wrongful perfor-
mance of, or failure to perform, by you, your agents and/or employees, any duties
or obligations under this Agreement; (4) the violation or alleged violation by you,
your agents and/or employees of any laws, regulations or rulings applicable to
you; and/or (5) your breach of this Agreement.
      22. TERMINATING THIS AGREEMENT
   Either party can terminate this Agreement by sending written notice to the
other party. The termination will be effective on the third business day after such
notice is sent.
     You agree that this Agreement is a contract to extend financial accommoda-
tions and that if bankruptcy proceedings or similar proceedings are filed with re-
spect to your business, this Agreement is automatically terminated. You must no-
tify us immediately if any of the above events occur.
    Upon termination, you must: (1) remove all Gold identification and return our
materials and equipment immediately; (2) submit any Charges incurred prior to
the termination in accordance with this Agreement; and (3) submit any Credits
relating to these Charges in accordance with this Agreement. Our rights under
the sections entitled “FULL RECOURSE,” “DISPUTED CHARGES,” “RESERVE,”
“CONFIDENTIALITY” and “INDEMNIFICATION” shall survive termination of this
Agreement.
      23. COMPLIANCE WITH LAWS
      You agree to comply with all laws, regulations and rules applicable to you.
    You represent and warrant that you are not a person or entity with whom the
[Country Name] prohibits local companies from dealing, including but not limited
to a person or entity, [for example, as listed on the United States Department of
Treasury, Office of Foreign Assets Control, Specially Designated Nationals List].
Our acceptance of you as a merchant that is permitted to accept the Card is
conditional upon the truthfulness of such representation and warranty.
      24. GOVERNING LAW
      THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCOR-
PART I]                   INTERNET AGREEMENTS—FORMS                               581

DANCE WITH THE LAWS OF THE [COUNTRY NAME], APPLICABLE TO AGREE-
MENTS NEGOTIATED, EXECUTED AND PERFORMED ENTIRELY WITHIN THE
[COUNTRY NAME].
    25. ASSIGNMENT
   You may not assign this Agreement. We may assign this Agreement to our
parent, subsidiaries or affiliates.
    26. NO WAIVER
    Failure to enforce any term or condition of this Agreement shall not be a waiver
of the right to later enforce such term or condition or any other term or condition of
this Agreement.
    27. CHANGING THIS AGREEMENT
   We have the right to change this Agreement at any time. We will notify you of
any change in writing at least ten (10) days in advance. If the changes are unac-
ceptable to you, you may terminate this Agreement as described in the section
entitled “TERMINATING THIS AGREEMENT.”
    28. ENTIRE AGREEMENT
    This Agreement is the entire agreement with respect to the subject matter
hereof and supersedes any previous agreement with respect to the subject mat-
ter hereof.
  29. VERIFICATION OF INFORMATION/INVESTIGATIVE CONSUMER RE-
PORTS
   You represent and warrant that all statements contained in the Creditcard
Service International Merchant Application and Agreement and such other infor-
mation you provide to us in connection with the Creditcard Service International
Merchant Application and Agreement are true, complete and correct.
    You understand and agree that an investigative or consumer report about the
commercial and/or personal finances of you, any person(s) signing the Creditcard
Service International Merchant Application and Agreement and/or any person(s)
providing us with permission may be requested from a consumer and/or commer-
cial credit reporting agency or other investigative agency in connection with this
Agreement.
    30. PROVISIONS APPLICABLE TO SPECIFIC INDUSTRIES
    If you are engaged in any of the following industries you must comply with the
following applicable provisions.
                        A. WHOLESALE DISTRIBUTION
    You represent that (i) your primary Standard Industrial Classification (SIC) is
that of a wholesale business; (ii) at least eighty percent (80%) of your annual
sales are transactions involving goods or services which will be resold; and (iii)
you are not in the oil or telecommunications industries. As such, the prohibition
against acceptance of the Card for goods which will be resold under “PROHIB-
ITED TRANSACTIONS” shall not apply. When you submit Charges to us, the
Charge Records or Charge Data, in addition to our other requirements, shall set
forth the quantity of product(s) or service(s) sold to the Cardmember. We will
582                     CONVEYANCING, DRAFTING & DEEDS                        [PART I

exercise Full Recourse immediately for all Charges involving actual or alleged
fraud, without first sending you an inquiry.
                                B. HEALTH CARE
   For services rendered or goods provided while a Cardmember is admitted as
a patient at your Establishment, you may delay submitting Charges up to $1200
but not for longer than thirty (30) days after the Cardmember is discharged.
                                 C. INSURANCE
    You may accept the Card for insurance premiums only at your Establishments
in the [Country Name].
                                   D. LODGING
    When a Cardmember wishes to use the Card to pay for a lodging stay, at the
time of check-in, you will obtain Authorization for the full estimated amount of the
Charge based upon the room rate and the number of days that the Cardmember
expects to stay, plus taxes and other known ancillary amounts (Estimated Lodg-
ing Charge). You shall not overestimate this amount. If you fail to obtain such
Authorization for the Estimated Lodging Charge and submit the Charge, and the
Cardmember fails to pay the Charge for any reason, we shall have Full Recourse
for the full amount of the Charge. Upon check-out: (1) If the final Charge is no
greater than the Estimated Lodging Charge plus fifteen percent (15%) of the Es-
timated Lodging Charge, no further Authorization is necessary. (2) If the final
Charge is greater than the Estimated Lodging Charge by more than fifteen per-
cent (15%), you will obtain Authorization for any additional amount of the Charge
which is greater than the Estimated Lodging Charge. If you fail to request such
Authorization for the additional amount, or request Authorization for the additional
amount but Authorization is declined, and the Cardmember fails to pay the Charge
for any reason, we will have Full Recourse for the amount of the Charge in excess
of the Estimated Lodging Charge.
    (1) Assured Reservations. If you have elected to participate in the Assured
Reservations program, you must accept the Card to reserve accommodations
until the published check-out time on the day following the scheduled arrival date
(Assured Reservations). For each Assured Reservation, you must confirm the
reservation and record the Cardmember’s name, address, Card account number
and expiration date.
    When accepting an Assured Reservation, you must advise the Cardmember
that, if the Cardmember does not claim the Assured Reservation, or cancel it
within the time specified in your stated cancellation policy, the Cardmember may
be charged for one night’s lodging plus applicable taxes. If the Cardmember does
not claim or cancel the Assured Reservation, and you decide to charge the one
night’s lodging, you must submit a completed Charge Record with the words “As-
sured Reservations—No Show” on the Cardmember signature line or transmit
the appropriate no-show description on the Charge Data. If the Cardmember can-
cels, you must provide the Cardmember with a cancellation number and maintain
a record of such cancellation number and the date provided.
    Failure by you to comply with the above requirements will result in our exercis-
ing our right to Full Recourse if the No-Show Charge is disputed by the
Cardmember.
PART I]                   INTERNET AGREEMENTS—FORMS                              583

   If you do not honor an Assured Reservation, you must: (1) pay for a one night
stay at comparable accommodations nearby; (2) pay for transportation to the al-
ternate location; (3) pay for a three (3) minute telephone call, if requested by the
Cardmember; and (4) forward all communications to the alternate location.
    If your cancellation policies and practices result in a disproportionate number
of disputes with respect to No-Show Charges, you agree to cooperate with us in
efforts to reduce the number of such disputes. In the event that such efforts fail to
reduce the number of such disputes, we reserve the right to exercise our right to
Full Recourse immediately for all such disputes without first sending you an in-
quiry.
    (2) CARDeposit. If you have elected to participate in the CARDeposit pro-
gram, to the extent you require room deposits you must accept the Card for pay-
ment of these deposits (CARDeposits). Only Cardmembers with a billing address
in the [Name of Countries]may use the Card for the payment of CARDeposits. A
CARDeposit may not exceed the cost of a fourteen (14)-night stay plus applicable
taxes.
   For each CARDeposit, you must complete a Charge Record except with the
word “CARDeposit” on the Cardmember signature line. You must also indicate on
the Charge Record the scheduled arrival date. Within three (3) business days
from the date of the CARDeposit Charge you must send the Cardmember written
confirmation of the arrival and departure dates, the amount of the CARDeposit, a
confirmation number and the cancellation policy.
    If a CARDeposit is canceled, you must send a written cancellation notice show-
ing the cancellation number to the Cardmember within three (3) business days. If
a refund is due, you must submit a Credit Record with the words “CARDeposit
Cancellation” on the Cardmember signature line.
   If an arrival date of a CARDeposit is changed, you will send the Cardmember
a written confirmation of the change within three (3) business days.
   Upon arrival the Cardmember must show the Card. If the Cardmember does
not have the Card, other identification must be shown.
    If you do not honor a CARDeposit you must: (1) issue a Credit for the
CARDeposit; (2) pay for comparable accommodations nearby for the duration of
the original reservation (not to exceed 14 nights) or until the original location
accommodations are available, whichever occurs first; (3) pay for the Cardmember’s
transportation to the alternate location and for a return to the original location
once each day until the original accommodations are available; and (4) pay for
two three-minute telephone calls for the Cardmember to inform of the alternate
location and to advise of being moved back to the original location.
    (3) Emergency Check-In. If a Cardmember whose Card is lost or stolen re-
quests check-in, you must call our toll-free authorization number, ask for an “Au-
thorizer,” request Authorization for an “Emergency Check-In” and follow the
Authorizer’s Instructions. You may then submit a Charge Record for the approved
amount with the words “Emergency Check-In” under the Cardmember’s signa-
ture.
    (4) Check Cashing. You must cash personal checks up to $250 per stay for
584                      CONVEYANCING, DRAFTING & DEEDS                       [PART I

Cardmembers who are paying for their stay with the Card, subject to cash avail-
ability. We will reimburse you for checks which are returned to you unpaid if you
have followed our instructions.
    (5) Promotional Materials. You must display prominently Gold signs, decals
or other identification, including our “Take-One” containers filled with Card appli-
cation forms, in all high traffic areas, such as front desks, cashiers’ locations and
restaurants. You must also put our “In-Room” applications on desk tops in at least
90% of your rooms.
                          E. MOTOR VEHICLE SALES
    We will accept Charges for the down payment or the entire purchase price of
new and used motor vehicles only if: (1) you provide a full warranty on the motor
vehicle of at least one year or 12,000 miles; (2) you transfer title and physical
possession of the motor vehicle to the Cardmember; (3) the amount of the Charge
does not exceed the total price of the motor vehicle after applicable discounts,
rebates, cash down payments, and trade-in values have been deducted; and (4)
you obtain Authorization for the entire amount of the Charge. If within ninety (90)
days after delivery of the motor vehicle, the Cardmember refuses to pay us due to
a dispute regarding the quality of the motor vehicle, we will have Full Recourse for
the Charge. We will not exercise our rights of Full Recourse until the Cardmember
has returned the motor vehicle to you.
                               F. VEHICLE RENTAL
      Special Authorization Procedures
    When a Cardmember wishes to use the Card to rent a vehicle, you shall ob-
tain Authorization for the full estimated amount of the Charge (Estimated Rental
Charge). The Estimated Rental Charge shall be determined by multiplying the
rate by the rental period reserved by the Cardmember. You shall not overestimate
this amount and shall not include an amount for any possible damage to or theft
of the vehicle. If you fail to obtain such Authorization for the Estimated Rental
Charge and submit the Charge, and the Cardmember fails to pay the Charge for
any reason, we shall have Full Recourse for the full amount of the Charge. Upon
return of the vehicle, the following terms shall apply: (1) If the final Charge is no
greater than the Estimated Rental Charge plus fifteen percent (15%) of such Es-
timated Rental Charge, no further Authorization shall be necessary; (2) If the final
Charge is greater than the Estimated Rental Charge by more than fifteen percent
(15%), you shall obtain Authorization for any additional amount of the Charge
which is greater than the Estimated Rental Charge. If you fail to request such
Authorization for the additional amount, or you request Authorization for the addi-
tional amount but Authorization is declined, and the Cardmember fails to pay the
Charge for any reason, we shall have Full Recourse for the amount of the Charge
in excess of the Estimated Rental Charge.
   We have the right to periodically monitor you or your Establishment’s compli-
ance with the Authorization procedures set forth above. If we notify you that an
Establishment is not complying with these procedures, you agree to cure such
non-compliance. If, after thirty (30) days from the date you were notified of the
non-compliance, the Establishment continues to fail to comply with these proce-
dures, then we shall have Full Recourse for the full amount of any Charges made
PART I]                   INTERNET AGREEMENTS—FORMS                              585

at that Establishment during such continued non-compliance. For purposes of
this provision, “non-compliance” shall occur when more than five percent (5%) of
an Establishment’s Authorizations or more than five percent (5%) of your Authori-
zations do not comply with these Authorization procedures.
  If you wish to accept the Card for property damage to a rented vehicle you
must sign our Vehicle Rental Addendum.
                               G. PARKING/TAXIS
   When the number of parking days is agreed upon when the Cardmember
leaves the motor vehicle with you, you must submit the Charge immediately.
   When you provide a parking pass valid for a predetermined number of parking
days, you must submit the Charge immediately.
   When the number of parking days is not known when the Cardmember leaves
the motor vehicle with you, you must not submit the Charge until the last day of
parking.
   If (1) you do not have an electronic authorization terminal; and (2) you are
submitting Charges for taxis (not including limousine or car service) or parking,
then you are not required to obtain Authorization for those Charges smaller than
$50 for taxis and $75 for parking lots, each such amount being a Floor Limit. You
must not attempt to avoid the Authorization requirement by submitting two or more
charges for a single transaction. We have the right to change, or eliminate such
Floor Limits, at any time.
                          H. TELECOMMUNICATIONS
    We will exercise Full Recourse immediately for all Disputed Charges without
first sending you an inquiry. For telephone call Charges, you will furnish a com-
plete description of each call to the Cardmember.
                                  I. TIMESHARE
    You represent that for at least 2 years you have been in the business of: (1)
selling Timeshare Units; or (2) listing Timeshare Units for sale, rental or exchange.
Timeshare Unit means the exclusive right to occupy a unit in a real estate devel-
opment located in the [Names of the Countries] for vacation and resort use for a
period of time each year not exceeding 4 weeks.
    You may accept the Card only for: (1) no more than 20% of the purchase price
of an ownership interest or other annual occupancy right in a Timeshare Unit; or
(2) membership fees to register or list a Timeshare Unit for sale, rental or ex-
change.
   You may not submit any Charges until you have the irrevocable right to retain
the payment under applicable law and under a written agreement signed by the
Cardmember. You may not accept the Card for: (1) maintenance fees; (2) camp-
ground memberships; (3) recreational fees; or (4) interests in real property other
than Timeshare Units.
                          J. CHARITABLE DONATIONS
    You represent that you are a non-profit organization incorporated or regis-
tered as such under applicable law and recognized by the Internal Revenue Ser-
586                     CONVEYANCING, DRAFTING & DEEDS                        [PART I

vice (IRS) as an entity qualifying for tax exemption under the IRS Code (Code).
You may accept the Card only for charitable donations: (1) which are 100% tax-
deductible to the payor as a charitable contribution under the Code; or ( 2) which
include the receipt of an item or service of value (such as a meal or admission to
an event or other incentive) where at least 75% of the amount is tax-deductible to
the payer as a charitable contribution under the Code.


DATE:                                                [Signature of Cardholder]


                                        50
                  Engineering Service Contract
           [System Design and Construction Inspection]
   THIS AGREEMENT made on this [date] BETWEEN ALAMOSA PCS LTD.
(hereinafter called the “Owner”) AND HICKS & RAGLAND ENGINEERING
CO.LTD.(hereinafter called the “Engineer”).
    WHEREAS, the Owner proposes to implement certain additions, rehabilita-
tions or improvements to its system (all such improvements, rehabilitation, new
construction with its associated facilities being hereinafter called the “Project” );
AND
   WHEREAS, the Owner desires the Engineer to perform certain engineering
services in connection with the Project; AND
   WHEREAS, the Engineer represents that it has access to sufficient experi-
enced personnel and equipment to perform such engineering services for the
Project.
    NOW, THEREFORE, in consideration of the mutual undertakings herein con-
tained, the parties hereto agree as follows:
    SECTION 1. FINANCING OF THE PROJECT. The financing of the Project,
including costs of materials, construction, installation, and engineering will be the
responsibility of the Owner.
   SECTION 2. GENERAL OBLIGATION. The Engineer shall diligently and com-
petently render engineering services which shall be reasonably necessary or
advisable for the expeditious, economical, and sound design of that portion of the
Project included in the Attachments and for such other preparatory work as is
necessary to place such portion of the Project in service, except where such
duties are excluded from the terms of this Agreement.
   2.01 DESCRIPTION OF PROJECT. The Engineer shall perform the services
identified in the Attachments for the Owner’s Project as described in general be-
low.
    Provide Engineering Services for implementation of a PCS system in the
Owner’s Markets. The Owner, as an Affiliate of Sprint, has the rights to serve
areas in Texas, New Mexico, Colorado and Arizona as defined in the Sprint agree-
ment Service Area. The Scope of Work is outlined in Attachment C. The Contract
will cover the deployment of mobile switching centers and base stations for the
PART I]                     INTERNET AGREEMENTS—FORMS                             587

pre-op period, year 1 and year 2. Estimates are based upon the deployment of
three switching centers: Lubbock, Albuquerque and El Paso. Estimates are also
based upon deployment of owner supplied base station estimates. The estimated
fees are based upon base station deployment as follows: pre op - 103 base sta-
tions, year 1 - 89 base stations, and year 2 - 25 base stations. The Pre-op period
will run through December [year]. Year 1 services will be from January [year]
through December [year]. Year 2 services will be from January [year] through
December [year]. This contract excludes services associated with tower and site
work which will be provided by others.
    SECTION 3. TERMS AND CONDITIONS.
   3.01 INSURANCE. The Engineer shall take out and maintain throughout the
contract period the following minimum insurance:
          a. Workmen’s compensation insurance in statutory limits covering all em-
             ployees of the Engineer who shall perform any of the obligations of
             the Engineer hereunder, whether or not such insurance is required by
             the laws of the State governing the employment of any such employee.
             If any employee is not subject to the workmen’s compensation laws of
             such State, such insurance shall extend to such employee, voluntary
             coverage to the same extent as though such employee were subject
             to such laws.
          b. Public liability and property damage liability insurance covering all op-
             erations under the contact; limits for bodily injury or death, not less
             than Rs.———— for each occurrence; for property damage, not less
             than Rs.———— for each occurrence and Rs.———— aggregate for
             occurrences during the policy period.
          c. Automobile liability insurance on all vehicles used in connection with
             the contract whether owned, non-owned, or hired; public liability limits
             of not less then Rs.———— for one person and Rs.———— for each
             occurrence; property damage limit of Rs.———— for each occurrence.
          d. The Engineer shall furnish the Owner a certificate evidencing compli-
             ance with the foregoing requirements which shall provide not less than
             thirty (30) days prior written notice to the Owner of any cancellation or
             material reduction in the insurance.
   3.02 PROJECT SCHEDULE. The Engineer shall prepare in collaboration with
the Owner, a work and progress report schedule.
    3.03 PLANS AND SPECIFICATIONS. Complete and detailed plans and speci-
fications, drawings, maps, and other documents as required for the construction
of the Project (all of the foregoing being herein sometimes collectively called the
“Plans and Specifications”), shall be prepared by the Engineer, pursuant to the
various Attachments to this Agreement, and made a part hereof.
   3.04 GOVERNING LAW. This Agreement shall be governed by the laws of the
State of [State]
    3.05 STANDARDS. All maps, drawings, plans, specifications, estimates, stud-
ies and other documents required to be prepared or submitted by the Engineer
under this Agreement shall conform to industry standards generally acceptable at
the date of this Agreement.
588                      CONVEYANCING, DRAFTING & DEEDS                         [PART I

    3.06 TERMINATION BY OWNER. The Owner may at any time terminate this
Agreement for cause by giving notice to the Engineer, in writing, to that effect not
less than thirty (30) days prior to the effective date of termination specified in this
notice. Such notice shall be deemed given if delivered or mailed to the last known
address of the Engineer. From and after the effective date specified in such notice
this Agreement shall be terminated. In the event of such termination, the Owner
shall immediately pay Engineer for all work performed on a Time & Expense basis
prior to the date of termination.
    3.07 TERMINATION BY THE ENGINEER. The Engineer may at any time ter-
minate this Agreement by giving notice to the Owner, in writing, to that effect not
less than thirty (30) days prior to the effective date of termination specified in this
notice. Such notice shall be deemed given if delivered or mailed to the last known
address of the Owner. From and after the effective date specified in such notice
this Agreement shall be terminated, except that the Engineer shall be entitled to
receive compensation for services performed hereunder, computed and payable
as set forth in Section 3, 3.06 and 3.13.
   3.08 OWNERSHIP OF DOCUMENTS. All reports, plans, specifications, com-
puter files and other documents prepared by the Engineer as instruments of ser-
vice shall remain the property of the Engineer. The Engineer shall retain all com-
mon law, statutory and other reserved rights including copyrights.
    3.09 EMPLOYEES’ QUALIFICATIONS. The obligations and duties to be per-
formed by the Engineer under this Agreement shall be performed by persons
qualified to perform such duties efficiently. The Engineer, if the Owner shall so
direct, shall promptly replace any resident engineer or other person employed by
the Engineer in connection with the Project.
   The term engineer or resident engineer as used in this Agreement shall mean
a person properly trained and experienced to perform the services required un-
der the terms of this Agreement, and does not mean that the person performing
those duties must be a licensed or a registered professional engineer.
   3.10 LICENCE. The engineer shall comply with all applicable statutes pertain-
ing to engineering and warrants that Mr.—————— who will be in responsible
charge of the Project possesses licence number ———— issued to him by the
State of [State] on the [date].
    3.11 PAYMENTS OF ENGINEER’S EMPLOYEES. Prior to the time when any
payment shall be made to the Engineer pursuant to this Agreement, the Engi-
neer, as requested by the Owner, shall furnish to the Owner, as a condition prece-
dent to such payment, a certificate to the effect that all salaries or wages earned
by the employees of the Engineer in connection with the Project have been fully
paid by the Engineer up to and including a date not more than thirty (30) days
prior to the date of such invoice. Before the time when the final payment provided
to be made pursuant to this Agreement shall be made to the Engineer by the
Owner, the Engineer shall also furnish to the Owner as a condition precedent to
such payment a certificate that all of the employees of the Engineer have been
paid by him for services rendered by them in connection with the Project, and that
all other obligations which might become a lien upon the Project have been paid.
      3.12 ENGINEER’S RECORDS. The Owner shall have the right to inspect and
PART I]                     INTERNET AGREEMENTS—FORMS                             589

audit all payrolls, records, and accounts of the Engineer relevant to the work for
the Purposes of this Agreement and the Engineer agrees to provide all reason-
able facilities necessary for such inspection and audit.
   3.13 COMPENSATION. For the purpose of this Agreement, compensation for
each type of work covered by the Attachments and thereby made a part of this
Agreement shall be as outlined below.
          a. TIME & EXPENSE. The Owner shall pay the Engineer for all services
             performed pursuant this Agreement.
          1. TIME RATES. For services defined as Time & Expense, the Time rates
             will include all costs associated with the employee except for those
             listed in 2 and 3 below. The hourly rates are identified in the Attach-
             ments and will be multiplied by the number of hours expended in each
             job category to determine the Time Rates.
          2. EXPENSE RATES. These will include subsistence expense, if any, paid
             to (or on behalf of) employees, plus reasonable transportation cost of
             employees, plus a fee of 7% of billed labour to cover the cost of prints,
             mailing and transportation expenses relating to printed and other
             materials and equipment, and telephone and telecommunications ex-
             penses.
          3. TEST EQUIPMENT AND COMPUTER USAGE. The Owner will pay
             the Engineer for the costs of test equipment and computer usage as
             identified in the Attachments.
          4. REVIEW OF RATES. The Time rates and Test Equipment and Com-
             puter Usage rates attached are valid until [date]. Beginning on [date]
             and on each subsequent anniversary of this Agreement new Rates
             shall be mutually agreed to by both Parties, until Completion or Termi-
             nation of this Agreement.
          b. GUARANTEED MAXIMUM FEE. The engineering cost identified as
             the Guaranteed Maximum Fee is based upon the time and expense
             billing of the project.
          5.    CONTINGENCIES. The Guaranteed Maximum Fee in this engineer-
               ing contract is based upon a set amount of construction. In the imple-
               mentation of a PCS project there are many uncertainties. The fees do
               not include any contingency costs that may or may not have been
               projected by the Owner. These contingencies, should they occur, will
               require additional engineering to ensure that the Owner’s system per-
               forms as required. Should any additional sites, beyond those identi-
               fied in 2.01 Description of Project, require additional engineering ex-
               penditures, the Guaranteed Maximum Fee of this contract will be au-
               tomatically amended to add any additional sites the owner requires
               due to any contingencies. The Guaranteed Maximum Fee will be
               amended upward on a per site fee. The per site fee will be the amount
               of the Guaranteed Maximum Fee of the original scope divided by the
               number of sites in the original scope.
590                     CONVEYANCING, DRAFTING & DEEDS                        [PART I

        6. INCENTIVE BONUS. The Owner and the Engineer mutually agree to
           strive to complete the work defined in this Agreement at a cost less
           than the guaranteed amount. As an incentive to reduce the cost of
           engineering, if the total billing for the project is less than the amount
           defined as the GMF, the Engineer will be paid an amount equal to
           50% of the difference between the GMF and the total billing as an
           Incentive Bonus. The incentive bonus will be paid based upon the
           identified periods as follows:
        7. PRE-OP INCENTIVE. The amount of incentive payable at the conclu-
           sion of the pre op period will be 75% of the calculated incentive amount
           due. The remaining 25% will be held as a reserve for future periods.
           The incentive amount due is calculated by taking the GMF for the pre-
           op period less the actual billing as follows.
             Incentive amount = [Pre-op GMF - Pre-op billing]*50%
                 1. Incentive payable = incentive amount * 75%
    The incentive payable will be determined within 45 days after the completion
of the pre-op period as defined in this agreement.
    8. YEAR 1 INCENTIVE. The amount of incentive payable at the conclusion of
the year 1 period will be 75% of the calculated incentive amount due. The remain-
ing 25% will be held as a reserve for future periods. The incentive amount due is
calculated by taking the GMF for all periods to date less the actual billing for all
periods as follows.
     Incentive amount = [Pre-op GMF + Year 1 GMF - Pre-op billing - Year 1 times
billing]*50%
   Incentive payable = incentive amount * 75% - pre-op incentive payable. The
incentive payable will be determined within 45 days after the completion of the
year 1 period as defined in this agreement.
   9. YEAR 2 (CONTRACT) INCENTIVE. The amount of incentive payable at the
conclusion of the contract which is the year 2 period is calculated by taking the
GMF for all periods to date less the actual billing for all periods as follows.
      Incentive amount = [Total GMF - Total billing]*50%
    Incentive payable = incentive amount - total incentive paid to date. The in-
centive payable will be determined within 45 days after the completion of the
Contract period as defined in this agreement.
    3.14 TAXES. Compensation payable to the Engineer under any of the attach-
ments to this Agreement shall be in addition to taxes, or levies, (excluding Cen-
tral, State and Local Taxes), which may be assessed against the Engineer by the
State or political sub-division directly on services performed or payments for ser-
vices performed by the Engineer pursuant to this Agreement. Such taxes or lev-
ies, which the Engineer may be required to collect or pay, shall, in turn, be added
by the Engineer to invoices submitted to the Owner pursuant to this Agreement.
   3.15 INTEREST. Interest at the rate of TWELVE percent (12%) per annum
shall be paid by the Owner to the Engineer on any unpaid balance due the Engi-
neer, commencing thirty (30) days after the due date, provided that the delay in
PART I]                   INTERNET AGREEMENTS—FORMS                               591

payment beyond due date shall not have been caused by any conditions within
the control of the Engineer. Such compensation shall be paid ten (10) days after
the amount of the interest has been determined.
    All amounts received by Engineer shall be applied first to accrued unpaid in-
terest and then to outstanding invoices for services and associated expenses.
  3.16 NON-ASSIGNMENT. The obligations of the Engineer under this Agree-
ment shall not be assigned without the approval in writing of the Owner.
   3.17 ATTACHMENTS. The following listed Attachments, when checked in ap-
propriate boxes, are attached to and made a part of this Agreement, by this refer-
ence.
                  Attachment A - Hourly Billing Rates
                  Attachment B - Test Equipment and Computer Usage Rates
                  Attachment C - PCS Engineering Services
    3.18 SERVICE ADDITION. If after execution of this Agreement, a service not
listed as an Attachment in Paragraph 3.17 above is added to this Agreement, an
amendment to this Agreement is required.
    3.19 INVOICE INFORMATION. The Engineer shall furnish to the Owner de-
tailed itemized invoices on a monthly basis.
  3.20 ENGINEERING FEE. The total cost of engineering shall not exceed the
Guaranteed Maximum Fee. Any change to the Scope of Work outlined in Attach-
ment C will require a contract amendment.
    3.21 COMPENSATION FOR CORRECTIONS. No compensation shall be due
or payable to the Engineer, pursuant to this Agreement, for any engineering ser-
vices performed by the Engineer in connection with effecting of corrections to the
Design of the Project, when such corrections are required as a direct result of
negligence by the Engineer to properly fulfill any of his obligations as set forth in
this Agreement.
   3.22 COMPENSATION PAYMENT. Compensation payable shall be due and
payable ten (10) days after approval of the Owner of the services performed. The
Engineer’s invoice shall include detail of the services performed. The Owner must
notify the Engineer within ten (10) days of receipt of invoice of any discrepancies
which require correction or of any additions as a precedent for payment of such
charges. If no discrepancies are noted within ten (10) days of receipt of invoice,
the invoice will be considered to be approved. On invoices where discrepancies
are noted, all charges not identified for correction will be considered approved
and shall be due ten (10) days from the date of the notification.
    3.23 INDEMNIFICATION. Engineer shall hold Owner and Owner’s employee’s
agents, officers, and directors, harmless from any and all claims for injuries to
persons or for damage to property happening by reason of any negligence, de-
fault or misconduct, on the part of the Engineer, his agents, servants or employ-
ees, during the performance of this contract. This indemnity shall include, but not
be limited to, all expenses of litigation, court costs and reasonable attorney’s fees.
    Owner shall hold Engineer and Engineer’s employee’s agents, officers, and
directors, harmless from any and all claims for injuries to persons or for damage
592                       CONVEYANCING, DRAFTING & DEEDS                           [PART I

to property happening by reason of any negligence, default or misconduct, on the
part of the Owner, his agents, servants or employees, during the performance of
this contract. This indemnity shall include, but not be limited to, all expenses of
litigation, court costs and reasonable attorney’s fees.
     3.24 LIMITATION OF LIABILITY. In no event will Engineer be liable for conse-
quential damages, including lost profits, loss of investment, or other incidental
damages incurred from Owner’s investment based on the Scope of Work to be
performed by Engineer under this Agreement. The Engineer’s total liability for
work performed shall never exceed the amount paid by the Owner for services
performed under this Agreement.
    3.25 FORCE MAJEURE. If the performance of the Agreement, or of any obli-
gation hereunder is prevented, restricted or interfered with by reason of fires,
breakdown of plant, labour disputes, embargoes, government ordinances or re-
quirements, civil or military authorities, acts of God or the public enemy, acts or
omissions of carriers, or other causes beyond the reasonable control of the party
whose performance is affected, then the party affected, upon giving prompt no-
tice to the other party, shall be excused from such performance on a day-for-day
basis to the extent of such prevention, restriction, or interference (and the other
party shall likewise be excused from performance of its obligations on the day-for-
day basis to the extent such party’s obligations relate to the performance so pre-
vented, restricted or interfered with); provided that the party so affected shall use
its best efforts to avoid or remove such causes.
    3.26 DISPUTES. Owner and Engineer agree to submit to non-binding arbitra-
tion as a first step toward resolution of any disputes arising under this contract.
    3.27 SOLICITATION TO HIRE EMPLOYEES. Owner and Engineer acknowl-
edge and agree that each party has invested significant time and resources in the
recruitment and training of its employees. Therefore, to the extent permitted by
applicable law, both parties agree that, during the term of this Agreement and for
one (1) year thereafter, that neither party will directly or indirectly solicit or seek to
employ the employees of the other party except as by mutual agreement of the
Owner and Engineer.
   IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed on the day month and the year first above written.
SIGNED SEALED AND DELIVERED BY
THE PARTIES IN THE PRESENCE OF
W I T N E S S E S:
1.
2.
                                           51
                          E-Consultancy Agreement

       [Terms and Conditions of the use of E-Consultancy.com web-site]
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PART I]                   INTERNET AGREEMENTS—FORMS                             593

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G : CDD (Vol. 4) – 38
594                       CONVEYANCING, DRAFTING & DEEDS                       [PART I

on the announcements board of the Site. However, E-Consultancy may choose to
temporarily change the fees for special services offered from time to time. Such
changes become effective immediately upon posting notice of the changes on the
announcements board. In these instances, you will have an opportunity to review
and accept the fees that you will be charged for the use of the service. Unless
otherwise stated, all fees are quoted in [Currency name]. You are responsible for
paying all fees associated with using the Services and the Site and all applicable
taxes.
    4.2 E-Consultancy.com accepts no responsibility for taxes etc on transac-
tions effected as a direct or indirect result of the use of the Site.
      5. The Site
    5.1 E-Consultancy reserves the right to change the content, presentation,
performance, user facilities and availability of any part of the Site at its sole dis-
cretion and without notice. It is the member’s responsibility to refer to and update
itself in relation to any changes made. Any such changes will become effective
upon posting by E-Consultancy.
   5.2 E-Consultancy does not warrant any continuity of connection, transmis-
sion over security or results from the use of any network connection or facilities
provided or omitted to be provided in connection with the use of the Site.
   5.3 Where E-Consultancy provides hyperlinks to a third parties website, E-
Consultancy shall not take any responsibility for nor does it make any warranties,
representations or undertakings about the content of any other web-site which
may be referred to or accessed by the hyperlink and E-Consultancy does not
endorse or approve the content of such third parties web-sites.
    5.4 E-Consultancy makes no warranty as to the continuous availability of the
Site, but shall use reasonable endeavours to keep down time to a minimum.
      6. E-Consultancy.com is only a Venue
        6.1 Overview. The Site acts as a venue for e-business professionals to
            interact and share information and opinions (“the Services”). Although
            community members may choose to conduct business related com-
            munications and transactions through the site, E-Consultancy are not
            involved in the actual transaction between buyers and sellers. As a
            result, E-Consultancy have no control over the quality, safety, truth,
            accuracy or legality of any products, items or services offered, nor any
            ability whatsoever to warrant or guarantee the integrity of the provid-
            ers or purchasers of such products, items or services. E-Consultancy
            cannot ensure that any provider or purchaser will actually complete a
            transaction.
        6.2   Member identities. Because identification and authentication on the
              Internet is difficult, E-Consultancy cannot and does not confirm each
              member’s purported identity. E-Consultancy has established a mem-
              ber-initiated rating system to help you evaluate the quality of any
              individual’s input and E-Consultancy allows members to give access
              to information about themselves to other members. If you are in any
              doubt as to an individual’s identity you are encouraged to attempt to
PART I]                       INTERNET AGREEMENTS—FORMS                              595

                communicate directly with that person to further establish their cre-
                dentials.
          6.3 Release. In the event that you have a dispute or issue with one or
              more of the other members, you shall release E-Consultancy (and our
              officers, directors, agents, subsidiaries and employees) from claims,
              demands and damages (actual and consequential) of any kind and
              nature, known and unknown, suspected and unsuspected, disclosed
              and undisclosed, arising out of or in any way connected with such
              disputes.
          6.4 Information Control. E-Consultancy is designed to help members ob-
              tain e-business information and to discuss e-business issues. This in-
              formation is largely provided by our members, many of whom use
              anonymous User IDs and are people we may have never met. Whilst
              the quality of material submitted to our Site is generally high, E-
              Consultancy does not control the information provided by members,
              and you may find other member’s information to be offensive, harmful,
              inaccurate, or deceptive. Please use caution and common sense when
              using our Site. Please note that there are also risks in dealing with
              foreign nationals, underage persons or people acting under false pre-
              tences including underage persons.
          6.5    Furthermore, as you cannot be sure who any contributor really is, you
                should treat the contributors here in the same way that you would
                treat anyone you had come across for the first time. You should not
                rely upon the information you find at the Site but rather, you should
                use it as a starting point for doing independent research, then decide
                for yourself the accuracy and merits of the information that has been
                shared in our forum and on our Site. As such E-Consultancy cannot
                guarantee and gives no warranty as to the accuracy, veracity, or com-
                pleteness of any information provided in our forum.
      6.6       The opinions expressed on this Site are those of the contributing indi-
                viduals. If you act on anything that is said or done you must do so on
                the basis of a considered decision of your own, having weighed up the
                pros, cons and risks thereby fully accepting the responsibility for the
                success or failure of your actions. Under no circumstances shall E-
                Consultancy be liable for direct, indirect, or incidental damages result-
                ing from your use of information, commentary, advice or other content
                on the Site. You agree to indemnify E-Consultancy against any ac-
                tions, claims, proceedings, or liabilities arising from your use of the
                content of the Site.
    7. Your Information
   7.1 “Your Information” is defined as any information you provide to E-
Consultancy or other users during registration, in any public message area, through
feedback or any e-mail or form features.
    7.2 Your Information and conduct (or any items listed therein) shall not:
           ο    be false, inaccurate or misleading
596                       CONVEYANCING, DRAFTING & DEEDS                        [PART I

         ο   be fraudulent or involve the sale of counterfeit or stolen items
         ο   infringe any third party’s copyright, patent, trade mark, trade secret or
             other proprietary rights or rights of publicity or privacy
         ο   violate any law, statute, ordinance or regulation (including without limi-
             tation those governing export control, consumer protection, unfair com-
             petition, anti-discrimination or false advertising)
         ο   be defamatory, trade libellous, unlawfully threatening or unlawfully ha-
             rassing
         ο   be obscene, blasphemous, contain any pornography including without
             limitation child pornography or other legally resricted material
         ο   contain any viruses, Trojan horses, worms, time bombs, cancelbots or
             other computer programming routines that are intended to damage,
             detrimentally interfere with, surreptitiously intercept or expropriate any
             system, data or personal information
         ο   create liability for us or cause us to lose (in whole or in part) the ser-
             vices of our ISPs or other suppliers
         ο   impersonate any person or entity, or falsely state or otherwise misrep-
             resent your affiliation with anyone or anything
         ο   post or transmit chain letters, pyramid schemes, advertising, promo-
             tional materials, or other solicitation except as where explicitly re-
             quested by another user
   7.3 To enable E-Consultancy to use the information supplied, such that we
are not violating any rights you might have in that information, you agree to grant
E-Consultancy a non-exclusive, worldwide, perpetual, irrevocable, royalty-free li-
cence and the right to sub-license (through multiple tiers) to use the copyright,
publicity and other intellectual property rights you have in Your Information, in any
media now known or not currently known. E-Consultancy will only use Your Infor-
mation in accordance with the Privacy Policy to the Site.
    7.4 You are responsible for all statements made and acts that occur through
the use of your membership and password. Please don’t disclose your password
to anyone. If your password has been stolen, you must let us know. E-Consultancy
may at any time, and at its sole discretion, terminate your membership without
prior notice to you for violating the above provisions.
    7.5 While E-Consultancy cannot review all transmissions by members in the
forum, we reserve the right to, and may from time to time, monitor any information
transmitted or received through our service. E-Consultancy, at our sole discretion
and without further notice to you, may review, remove, or otherwise block any
information (including posts to message boards) that we deem inappropriate or
that violates any of this agreement.
      8. Access and Interference
   8.1 You agree that you will not use any robot, spider, other automatic device,
or manual process to monitor or copy our web pages or the content contained
herein without the prior written consent of E-Consultancy.
PART I]                    INTERNET AGREEMENTS—FORMS                              597

    8.2 You agree that you will not use any device, software or routine to interfere
or attempt to interfere with the proper working of the Site.
    8.3 You agree that you will not take any action that imposes an unreasonable
or disproportionately large load on the Site’s infrastructure.
    8.4 Much of the information on the Site is updated on a real time basis and is
proprietary or is licensed to E-Consultancy by our users or third parties. You agree
that you will not copy, reproduce, alter, modify, create derivative works, or publicly
display any content (except for Your Information) from the Site without the prior
written consent of E-Consultancy or the appropriate third party, with the excep-
tion of downloading or printing a single copy for yourself for offline viewing.
    9. Ratings
    9.1 You may not take any actions, which may undermine the integrity of the
ratings system.
   9.2 Export. You acknowledge that your rating consists of a composite num-
ber compiled by the aggregated ratings of other site users. Because ratings are
not designed for any purpose other than for facilitating information searching for
E-Consultancy members, you agree that you shall not market or export your E-
Consultancy rating in any other venue.
    9.3 Import. E-Consultancy does not provide the technical ability to allow you
to import ratings from other websites, as this does not reflect your true online
reputation within our community.
    10. Breach
   10.1 Without limiting other remedies, E-Consultancy may immediately issue
a warning, temporarily suspend, indefinitely suspend or terminate your member-
ship and refuse to provide the Services to you if:
          ο   you breach this Agreement or the documents it incorporates by refer-
              ence (including but not limited to our Privacy Policy)
          ο   E-Consultancy are unable to verify or authenticate any information
              you provide to us; and
          ο   E-Consultancy believe that your actions may cause legal liability for
              you, our members or us
    11. Privacy
     By registering, you are agreeing that other members may make statements
about your views, opinions or services which you regard as untrue. In any such
case, if you contact E-Consultancy, giving full details, E-Consultancy will conduct
a brief investigation and may remove the offending statement. Whether or not the
offending statement is removed you hereby waive any right you might otherwise
have against E-Consultancy in connection with such statements. You accept that
E-Consultancy cannot control such statements and it is not practicable to conduct
full, detailed, investigations. For more details on Privacy, please review our Pri-
vacy Policy.
    12. No Warranty
    12.1 The Site including, without limitation, its contents, functionality,
598                         CONVEYANCING, DRAFTING & DEEDS                      [PART I

performance and features are provided on an “as available basis” at the member’s
sole risk and without representations or warranties of any kind and to the full
extent permitted by law. E-Consultancy and other parties involved in creating,
producing or delivering the Site expressly exclude all warranties, conditions or
terms express or implied, statutory or otherwise including without limitation any
warranty as to satisfactory quality or any warranty or commitment that access or
use will be uninterrupted or error free.
      13. Liability Limit
   13.1 Nothing in this agreement is intended to limit or exclude any liability on
the part of E-Consultancy where and to the extent that applicable law prohibits
such exclusion or limitation.
    13.2 Subject to the above statement, in no event shall E-Consultancy or its
suppliers be liable for any: lost profits; lost sales; lost business; lost opportunity;
lost information; lost anticipated savings; or special, indirect or consequential dam-
ages (however arising, including as a result of negligence) arising out of or in
connection with this agreement.
    13.3 Accordingly subject to clause 13.1, you agree not to bring a claim of any
nature against E-Consultancy in relation the use of or access to the Site, except
where such a claim cannot be excluded by law. You acknowledge and agree that
E-Consultancy will have the right (subject to the discretion of the Court) to a stay
of proceeding if you bring any claim against E-Consultancy in breach of the fore-
going.
      14. Indemnity
    You agree to indemnify, defend and hold harmless E-Consultancy and its sub-
sidiaries, affiliates, officers, directors, agents, and employees, from and against
any claim, demand, liability, cost, damage or lost it may incur, including legal fees,
made by any third party due to or arising out of your breach of this Agreement or
the documents it incorporates by reference, or your violation of any law or the
rights of a third party.
      15. Legal Compliance
   You shall comply with all applicable laws, statutes, ordinances and regulations
regarding your use of our service.
      16. No Agency
    You agree that you and E-Consultancy are independent contractors, and no
agency, partnership, joint venture, employee-employer or franchisor-franchisee
relationship is intended or created by this Agreement.
      17. Notices
   All notices required to be served on E-Consultancy shall be sent to the contact
address stated in clause 1 or to the e-mail address of E-Consultancy.
      18. Arbitration
  Any controversy or claim arising out of or relating to this Agreement or E-
Consultancy’s Services shall be settled by an arbitration tribunal designated by E-
Consultancy. Any such controversy or claim shall be arbitrated on an individual
PART I]                   INTERNET AGREEMENTS—FORMS                               599

basis, and shall not be consolidated in any arbitration with any claim or contro-
versy of any other party. The arbitration shall be conducted in [Country Name]
and judgment on the arbitration award may be entered into any court having juris-
diction thereof. Either you or E-Consultancy.com may seek any interim or prelimi-
nary relief from a court of competent jurisdiction in [Country Name] necessary to
protect the rights or property of you or us pending the completion of arbitration.
    19. Intellectual Property
    19.1 You acknowledge that the ownership in any intellectual property rights
(including, for the avoidance of doubt, patents, copyright, rights in databases,
trade marks and trade names) in the Site belongs to E-Consultancy or its third
party licensors. Accordingly, any part of this Site (or its source HTML code) may
not be used, transferred, copied or reproduced in whole or in part in any manner
other than for the purposes of utilising this Site, meaning that you may only dis-
play it on its computer screen and print it out on its printer for the sole purpose of
viewing its content in connection with the Services.
    19.2 Copyright and all other intellectual property rights subsisting in each and
every piece of information provided on the Site is owned by E-Consultancy or the
third party providers of such information. You may use information retrieved from
the Site only for the purposes of the Services.
   19.3 E-Consultancy reserves the right in accordance with the licence granted
under clause 7.3 to license and republish the material contributed by you. Any
work republished will be with proper attribution to the author.
   19.4 No person other than the rightful owner or licensee of any copyright and
other intellectual property rights may:
    19. 4.1. distribute, modify, transmit, re-use, re-post, or use any or all of the
information on this Site for any purpose other than as set out above nor for public
or commercial purposes without E-Consultancy’s or the relevant licensee’s prior
written permission;
    19.4.2 provide hypertext links, URL Links, graphic links, hyperlinks or other
direct connection for profit or gain to the E-Consultancy Services without E-
Consultancy’s or the relevant licensee’s prior written permission;
   19.4.3 display, publish, copy, print, post or otherwise use the E-Consultancy
Services and the information contained therein for the benefit of any other website
without E-Consultancy’s or the relevant licensee’s prior written permission;
   19.4.4 process or otherwise use the information contained on or within the E-
Consultancy Services for any illegal or immoral purpose nor use or process the
same unfairly.
    19.5 You agree and accept that E-Consultancy may publish or otherwise dis-
tribute your Information and you therefore grant to E-Consultancy an irrevocable,
perpetual, non-exclusive right and licence to publish the Submissions and all con-
tent contained therein on or within the Site, on any other media whatsoever and in
its own advertising and promotion.
   19.6 You therefore hereby undertake to E-Consultancy to indemnify and hold
harmless E-Consultancy in full and defend at its own expense E-Consultancy
600                       CONVEYANCING, DRAFTING & DEEDS                         [PART I

against all claims, liabilities, costs and losses whatsoever and howsoever incurred
by E-Consultancy its servants or nominees arising out of any claim made against
it in any jurisdiction in the world for infringement of any intellectual property rights
of any third party caused by your use of the Site and your Information.
   19.7 E-Consultancy, E-Consultancy.com, the E-Consultancy.com logo and the
E-Consultancy logo are trade names or trade marks of E-Consultancy, the use of
which is expressly forbidden by any other persons without the express permis-
sion of E-Consultancy.
    19.8 E-Consultancy makes no warranty or representation in respect of any
other trade mark or trading name, symbol or device, all of which are hereby ac-
knowledged. If you have any questions in relation to the use of any marks con-
tained within the E-Consultancy Services please contact E-Consultancy at the
address below.
      20. Intellectual Property Infringement
    20.1 Contributors might share messages and information that they have elec-
tronically copied from other sources. As there are many thousands of possible
sources spread out across the Internet, ranging from newspapers to scientific
journals to bulletin boards, it is impossible for E-Consultancy to know if a posting
or other content contribution infringes a third party’s intellectual property right
and to what degree.
    20.2 If you believe that your intellectual property right has been infringed, it is
your obligation to notify E-Consultancy immediately. E-Consultancy accepts no
liability for copyright infringement by any of its members though E-Consultancy
will endeavour to protect any rights owner through appropriate action should any
infringement come to light.
      21. E-Consultants
    21.1 You will notice that some of the Site’s members have a special icon after
their User ID in the forum postings. These people are ‘e-consultants’. They per-
form a variety of functions, including updating site content and contributing to the
forums.
   21.2 E-Consultants are appointed solely by E-Consultancy on the basis of
their merits and value as a contributor to the content and community of the site.
This should in no way be construed as an endorsement of that individual’s ser-
vices or professional competency outside the Site.
   21.3 E-Consultants are free to contribute as they see fit. Their opinions are
their own. Any decision to offer advice or information belongs to them. We do not
closely monitor their contributions. E-Consultancy does not regulate what the E-
Consultants say and, in some cases, their opinions may differ substantially from
each other. We value this freedom of opinion as this creates lively debate and an
open market.
    21.4 E-Consultants are appointed because E-Consultancy believes that they
have something valuable to contribute to the community. However, E-Consultancy
will not be held liable for the quality, accuracy or veracity of any of the content,
opinions or otherwise of the E-Consultants nor can we guarantee the ongoing
levels of quality of any E-Consultant(s). Any weight you ascribe to E-Consultants’
PART I]                  INTERNET AGREEMENTS—FORMS                             601

opinions should be based upon your judgment of their ability to provide useful
and insightful advice and information, as with anyone else you see in our forum.
You should not believe that these people necessarily have any additional insight
or information simply because they have been appointed E-Consultants.
   21.5 E-Consultancy reserves the right to appoint and dismiss e-consultants
entirely at its discretion. Members cannot apply to be E-Consultants and any re-
quest to be made an E-Consultant in no way guarantees that the user will be
made an E-Consultant, or even that their request will be considered or replied to.
   21.6 E-Consultants are appointed purely to help other users see who E-
Consultancy considers to offer useful and insightful advice. An E-Consultant and
E-Consultancy are independent contractors, and no agency, partnership, joint
venture, employee-employer or franchiser-franchisee relationship is intended or
created by the appointment of an e-consultant or under the terms of this Agree-
ment.
   21.7 A member may choose to accept or decline an offer of appointment to E-
Consultant status by E-Consultancy. An E-Consultant may request at any time
that their status as an E-Consultant be removed and E-Consultancy agrees to
comply with any such request within 30 working days of notice being given. An E-
Consultant may choose to maintain several identities on the site, in order to ap-
pear both as a normal user and as an e-consultant.
    22. General
   22.1 This Agreement shall be governed in all respects by the laws of [Country
Name] as if the Agreement was a contract wholly entered into and wholly per-
formed within [Country Name].
   22.2 If any provision of this Agreement is held to be invalid or unenforceable,
such provision shall be struck out of these Terms and Conditions and the remain-
ing provisions shall remain in force. Headings are for reference purposes only
and in no way define, limit, construe or describe the scope or extent of such
section. E-Consultancy’s failure to act with respect to a breach by you or others
does not waive our right to act with respect to subsequent or similar breaches.
    22.3 The laws of your country may be different from those of [Country Name]
in numerous respects. There is no practical way for E-Consultancy to monitor the
laws of every country in detail. Please do not assume that you are allowed to do
what other members do. E-Consultancy.com does not approve or validate trans-
actions, advice or communications, and you accept sole responsibility for the le-
gality of your actions under laws applying to you.
   22.4 E-Consultancy does not accept any obligation to protect you from any
unsafe merchandise, products or services that may be offered on the Site. Please
do not assume that such items offered will be harmless to people or property.
    22.5 These rules are in addition to all others contained in the agreement. You
are responsible for checking that your activities are all lawful according to the
local laws in your country. If you and any other party are both based in the [Coun-
try Name] and enter into a transaction agreement of any kind through the site
then the seller’s local law will govern further dealings as to shipment, payment
etc. - unless you both explicitly agree otherwise.
    22.6 Note however, that your country (and/or that of any member you deal
602                     CONVEYANCING, DRAFTING & DEEDS                        [PART I

with) may have some laws, which apply regardless of what you agree with us
(now) or with that member (later).
SIGNATURE WITH DESIGNATION &
OFFICIAL SEAL OF THE PARTIES


                                        52
 Administrative Services and Technology Sharing Agreement

  THIS ADMINISTRATIVE SERVICE AND TECHNOLOGY SHARING AGREE-
MENT (the “Agreement”) is effective as of [date] (the “Effective Date”) BETWEEN
ABC COMPANY LTD.(the “Client”), AND XYZ COMPANY LTD.(“XYZ”).
                           FACTUAL BACKGROUND
     A. The Client is a newly-formed, majority-owned subsidiary of XYZ. XYZ’s
Openclose Division has developed, in cooperation with Fannie Mae, a Web site
whereby participating mortgage lenders, brokers and vendors can exchange lender
product and pricing information, automated underwriting data and borrower ap-
plication infor mation in a neutral environment. This Web site, http://
www.openclose.com/ (the “Openclose Web Site”) is designed to expand the avail-
ability of important and useful underwriting information, which results in faster
transactions, cost savings for borrowers, brokers, and lenders by eliminating un-
necessary paperwork, and improved communications between lenders and bro-
kers. XYZ has transferred a co-ownership interest in the Openclose Web Site to
the Client. The Client also provides custom versions of the Openclose Web Site to
mortgage lenders and brokers for use in their own names (“Private Label”).
     B. The Client believes that it may be more efficient to “outsource” certain ad-
ministrative, management and technology support related functions, thereby pro-
viding the Client with access to higher quality and more sophisticated level of
support at a lower cost because of the ability to “share” the cost with other cus-
tomers of the “outsource” provider. Of course, the Client, desiring to be a stand-
alone business, will retain other administrative and management functions “in-
house” where it is necessary for the “core business” and is more cost effective or
is otherwise more desirable.
  C. The Client desires to have access to and the use of certain assets of which
XYZ is the owner or licensee.
   D. The Client also desires to engage XYZ to perform certain technology ser-
vices including Web hosting and source code development services.
      NOW, THEREFORE, the parties hereto agree as follows:
      1. MANAGEMENT AND TECHNOLOGY SERVICES.
    (a) ENGAGEMENT. The Client hereby engages XYZ to provide the following
services:
         (i) FINANCIAL AND ACCOUNTING MATTERS. XYZ shall maintain
             Client’s general ledger, accounts receivable and accounts payable
             records, and fixed asset records and provide billing and collection
PART I]                      INTERNET AGREEMENTS—FORMS                               603

               services. XYZ shall also prepare or cause to be prepared Client’s
               Central and local tax returns, and financial statements. XYZ shall also
               provide, or cause to be provided, to Client payroll services, including
               assistance with regulatory compliance matters. XYZ shall maintain all
               past accounting, tax and payroll records until such time as such records
               shall be disposed of in accordance with applicable legal requirements
               and XYZ’s normal record disposal policies.
          (ii) INSURANCE MATTERS. XYZ shall provide or cause to be provided to
               Client insurance with the coverage, insurers, and maximum deductibles
               set forth on SCHEDULE 1(a)(ii). All such insurance policies shall add
               Client as an additional named insured and such insurers shall be re-
               quired to provide Client with no less than 5 days prior written notice of
               any change or cancellation of any such insurance. In the event of any
               such potential change which may have a materially adverse affect on
               the Client, or in the event of potential cancellation, Client shall be en-
               titled to secure replacement insurance at its own cost.
          (iii) EMPLOYEE BENEFITS MATTERS. XYZ shall provide or cause to be
                provided administrative services necessary to the provision and main-
                tenance of customary employee benefits, including without limitation
                the Client’s 401(k) Plan, medical, dental, vision, and life insurance
                programs, and stock option plan, and to the extent feasible, will permit
                the employees of the Client to participate in XYZ’s 401(k), insurance
                and stock option plans.
          (iv) LEGAL SERVICES. XYZ shall provide Client with all legal services
               reasonably requested by Client which XYZ in-house counsel currently
               provides to XYZ in the ordinary course of business.
          (v) FACFILITIES MANAGEMENT SERVICES. As to the office space de-
              scribed in Section 5, XYZ shall provide Client with all facilities man-
              agement services that XYZ currently provides in the standard course
              of business in office space occupied by XYZ. XYZ shall provide Client
              with the use of computer equipment currently used in the Openclose
              Business.
          (vi) IT SERVICES. XYZ shall provide certain general information technol-
               ogy services and infrastructure including assistance with, installation,
               and maintenance of telephonic and computer equipment. As to the
               office space described in Section 5, XYZ shall also provide Client with
               the use of XYZ’s existing and future telephone automatic call distribu-
               tion networks and systems and e-mail systems. XYZ shall provide such
               technical support and maintenance as Client reasonably requests for
               Client and its clients and licensees for the Software (as defined in the
               Licence Agreement) and the Openclose Code. Client will not be
               charged for revisions or updates provided under the License Agree-
               ment.
      (vii) WEB HOSTING AND MAINTENANCE OF OPENCLOSE WEB SITE.
            XYZ will provide Web hosting services for the Openclose Web Site
            pursuant to the Web Hosting Agreement attached as EXHIBIT A. In
604                      CONVEYANCING, DRAFTING & DEEDS                        [PART I

            consideration of Rs.———— per month, or such other amount nego-
            tiated from time to time and stated in the Web Hosting Agreement,
            commencing with the month following the last month of a three-con-
            secutive-month period in which Client has positive net income, as re-
            flected on the monthly financial statements prepared by or for Client.
      (viii) WEB HOSTING OF PRIVATE LABEL SITES. XYZ will provide Web
             hosting services for Client’s Private Label Web sites for the following
             costs and charges: (i) for Private Label Web sites provided to brokers
             under the Countrywide Agreement, Client shall pay XYZ Rs.—— per
             month per Private Label Web site and (ii) for all other Private Label
             Web sites, Client shall pay to XYZ monthly an amount equal to 10% of
             the monthly receipts generated from each Private Label Web site,
             such payment to be made within 30 days following the end of the month
             for which receipts are being determined. Client shall be entitled to
             offer to its clients XYZ’s Private Label Web Hosting services provided
             that the applicable agreement includes provisions substantially simi-
             lar to those set forth in EXHIBIT A attached hereto, except that the
             limitation of liability set forth therein and established at Rs.————
             shall be modified as the parties mutually agree. Each such agreement
             shall identify XYZ as an intended third party beneficiary of such agree-
             ment and XYZ shall perform the hosting services therein. In the event
             of termination of such Web Hosting Services as permitted pursuant to
             the applicable agreement, if the third party client requests and Client
             agrees, XYZ shall transfer such site to Client or to such other location
             as Client shall direct, for Client to assume hosting obligations.
            Notwithstanding the foregoing, XYZ shall continue to provide and shall
            comply with all of its obligations under the Web site hosting agree-
            ments set forth on SCHEDULE 1(a)(viii) hereto (the “Existing Client
            Web Site Hosting Agreements”) even if such agreements have been
            assigned to Client under the Contribution Agreement, unless Client
            directs otherwise. XYZ shall not terminate or modify such agreements
            without Client’s prior written consent unless termination is permitted
            by the Existing Client Web Site Hosting Agreements. XYZ will use com-
            mercially reasonable efforts to notify Client of the reason(s) for such
            termination as soon as reasonably practicable after such termination.
            Openclose shall require the operator of each Private Label Web site
            (other than existing operators of Private Label Web sites identified on
            SCHEDULE 1(a)(viii)) to execute a Web hosting agreement that in-
            cludes provisions substantially similar to the Web      Hosting Agree-
            ment attached as EXHIBIT A, except that the limitation of liability set
            forth therein and established at Rs.———— shall be modified as the
            parties mutually agree. Each such agreement shall identify XYZ as an
            intended third party beneficiary. Except as described in Section 7,
            nothing herein shall prevent Client from offering additional Web host-
            ing services through itself or third parties.
       (ix) COOPERATION IN TRANSFERRING WEB SITES. In the event Client
            moves its Openclose Web Site or any of its Private Label Web sites to
PART I]                      INTERNET AGREEMENTS—FORMS                             605

               another host, XYZ shall reasonably cooperate in the transfer of the
               Web sites to the new host.
          (x) FANNIE MAE CONTENT. Pursuant to the Amended and Restated
              Desktop Underwriter Seller/Servicer Software Licence and Subscrip-
              tion Agreement between XYZ and Fannie Mae entered into [date] (the
              “Fannie Mae Agreement”), XYZ has access to certain technology made
              available by Fannie Mae (the “Fannie Mae Content”). As part of its
              obligations as co-owner of the Openclose Code, XYZ shall provide
              Client with access to the results generated by the Fannie Mae Con-
              tent and shall assist Client in incorporating such results into the
              Openclose Web Site. Client understands and agrees that use of and
              access to the Fannie Mae Content under this Agreement is subject
              to the terms and conditions of the Fannie Mae Agreement and that
              such use and access shall terminate on the earlier of (i) expiration or
              termination of Fannie Mae Agreement, (ii) expiration or termination
              of this Agreement, or (iii) transfer of XYZ’s interest in the Openclose
              Code to Client as set forth in Section 5.03 of the Contribution Agree-
              ment. XYZ hereby represents and warrants that the Fannie Mae Agree-
              ment is in full force and effect, that neither XYZ nor Fannie Mae are in
              breach thereof, that XYZ is entitled to provide the services and ac-
              cess hereunder provided to Client. XYZ hereby agrees to use its best
              efforts to maintain the Fannie Mae Agreement in full force and effect
              for the remaining term of the Fannie Mae Agreement and any renewal
              terms provided for therein and agrees to pursue on behalf of the Cli-
              ent any remedies for indemnification or otherwise on behalf of the
              Client.
          (xi) DEVELOPMENT SUPPORT. XYZ shall perform such specific consult-
               ing projects and research projects for source code development, from
               time to time, as shall be requested by the Client and upon such terms
               as may be agreed upon between the Client and XYZ; provided that
               the cost of these services to Client will equal XYZ’s salary and ben-
               efits costs for the employee-developers and other direct costs and
               expenses, plus 10%. It is understood between the parties that to the
               extent that XYZ performs development services for the Client on or in
               connection with the Openclose Web Site or Openclose Code, Client
               shall own all rights in the results and proceeds of such services (other
               than pre-existing works or material licensed from third parties), unless
               the parties agree otherwise in writing. Nothing herein shall prevent the
               Client itself or through third parties from performing such develop-
               ment services from time to time.
`     (xii) OTHER SERVICES PROVIDED BY XYZ. XYZ shall provide and per-
            form such other services, as shall be requested by the Client and
            agreed upon between the Client and XYZ, from time to time, at such
            price and on such terms as agreed.
     (xiii) GHR CONTRACT. Pursuant to the Technology Sharing and Marketing
            Agreement between XYZ and GHR Systems Ltd. dated [date] as
            amended ( the “GHR Contract”), XYZ and GHR share certain tech-
606                       CONVEYANCING, DRAFTING & DEEDS                          [PART I

            nology, revenue business knowledge and marketing and sales capa-
            bilities, portions of which apply to the Client’s Business, as
            hereinafter defined. To the extent that the obligations of GHR under
            the GHR Contract pertain to or are necessary for Client’s Business,
            XYZ and Client agree to use their reasonable best efforts to cooper-
            ate with each other in order to ensure that XYZ and Client each re-
            ceive the benefit of, and discharge the responsibilities of, the GHR
            Contract that pertain respectively to XYZ’s Business and Client’s Busi-
            ness, as their interests may appear. Without limiting the generality, to
            register with GHR prospects of Client under section 3.d of Schedule A
            of the GHR Contract, to pay to Client all amounts received from GHR
            that pertain solely to marketing related to Client’s Business. XYZ fur-
            ther agrees not to terminate the GHR Contract without Client’s prior
            written consent, which shall not be unreasonably withheld. XYZ fur-
            ther agrees that in connection with a renegotiation or renewal of the
            GHR Contract, Client shall have the right to direct XYZ as to whether
            the renegotiated or renewed GHR Contract provides GHR with any
            marketing or other rights with respect to Openclose Code. Client agrees
            to reimburse XYZ for any amounts required to be paid by XYZ to GHR
            that pertain to Client’s Business provided that to the extent it has a
            right to do so, XYZ shall not incur any expenses that relate to Client’s
            Business without Client’s prior written consent.
      (xiv) DEXMA AGREEMENT, EXISTING WEB SITE HOSTING AGREE-
            MENTS AND LENDER/BROKER CONTRACTS. The parties acknowl-
            edge that the Dexma Agreement and the Existing Web Site Hosting
            Agreements entered into prior to the date hereof are necessary for
            the operation of the Openclose Business but are not being assigned
            contemporaneously herewith and that all or a portion of the lender
            and broker agreements may not be currently assigned. XYZ agrees to
            execute any necessary documents, instruments or agreements nec-
            essary to assign these agreements to Client upon Client’s request
            and agrees that until the earlier of the expiration of the term of each
            such agreement (including any renewal periods contained therein) or
            any such assignment, XYZ shall use its best efforts to keep such agree-
            ments in full force and effect. XYZ further agrees that until the assign-
            ment of each of the aforementioned agreements, XYZ shall take all
            actions to enforce its rights under the agreements at the direction of
            Client and shall promptly remit to Client any proceeds, revenues or
            consideration received in connection with such agreements.
      (xv) COMPENSATION. For services described in subsections (a)(i), (a)(iii),
           (a)(iv), (a)(v) and (a)(vi) of this Section 1 (the “Administrative Services”),
           XYZ shall be compensated based on the following allocation of costs
           and expenses. Allocation of costs and expenses for Administrative Ser-
           vices shall be determined by headcount as follows: XYZ shall deter-
           mine the ratio of XYZ employees working full-time on Administrative
           Services for Client to the number of XYZ full-time employees on its
           payroll. Such ratio shall be applied to XYZ’s total salary, benefits costs
           and other direct costs and expenses for its employees to determine
PART I]                      INTERNET AGREEMENTS—FORMS                              607

               the pass-through cost to Client. For example, if 75 XYZ employees are
               working full-time on Administrative Services for Client and XYZ has
               750 full-time employees on its payroll, Such ratio shall be applied to
               XYZ’s total salary, benefits costs and other direct costs and expenses
               for its employees to determine the pass-through cost to Client. For
               example, if 75 XYZ employees are working full-time on Administrative
               Services for Client and XYZ has 750 full-time employees on its pay-
               roll, Client will be charged 10% of XYZ’s total salary costs, employee
               benefits costs and other direct costs and expenses relating to XYZ
               financial, accounting, employee benefits, human resources, legal, fa-
               cilities management and IT services. The same headcount ratio shall
               be applied to the cost of insurance provided under Section 1(a)(ii) to
               determine a pass-through cost to Client. Additional compensation is
               as otherwise described in the sections of this Agreement describing
               the services to be provided to Client.
              XYZ has attached as Schedule 1(b) its budget and estimate of the
              costs anticipated to be incurred by Client in connection therewith for
              the calendar years [Years]. Within 30 days prior to the commence-
              ment of each calendar year of the term of this Agreement, XYZ shall
              provide to Client for Client’s approval a similar budget, adjusted for the
              forthcoming year. XYZ shall not be entitled to incur any expense that
              is not set forth in such a budget without Client’s consent, which shall
              not be unreasonably withheld. Nothing in the budget shall be con-
              strued to limit Client’s ability to require XYZ to provide services under
              Section 1(a) or limit the compensation to which XYZ shall be entitled
              for services rendered to Client that are not described in the budget.
    2. OWNERSHIP AND USE OF INTELLECTUAL PROPERTY.
          (a) OPENCLOSE CODE. The term “Openclose Code” refers to the pro-
              gramming and other intellectual property identified in the Contribution
              Agreement among XYZ, Client and the other parties thereto, of even
              date herewith (the “Contribution Agreement”). Solely in order to pro-
              vide the services described in Section 1(a)(xi), XYZ may retain a rea-
              sonable number of copies of the Openclose Code (in both object code
              and source code forms) and all associated documentation which XYZ
              shall treat as Confidential Information of Client in accordance with this
              Agreement, and, upon termination or expiration of this Agreement for
              any reason, XYZ shall deliver to Client any and all copies of such
              Openclose Code, and modifications and derivative works based
              thereon, in whatever form or medium. XYZ acknowledges and agrees
              that Client shall be considered a joint owner and co-inventor of all
              copyrights, trade secrets, inventions, proprietary rights and intellec-
              tual property contained in the Openclose Code. XYZ warrants that no
              other copies of the Openclose Code exist on the date hereof.
          (b) DELIVERY OF MODIFICATIONS OF OPENCLOSE CODE. In the
              event that XYZ at Client’s request carries out any modifications of or
              preparation of any derivative works based on the Openclose Code,
              XYZ shall within ten (10) days of such services deliver to Client updated
608                      CONVEYANCING, DRAFTING & DEEDS                       [PART I

             source and object code, all copies and documentation in connection
             therewith.
        (c) DERIVATIVE WORKS OF OPENCLOSE CODE. All derivative works
            based on the Openclose Code developed by XYZ pursuant to Section
            1(a)(xi) of this Agreement (“Derivative Openclose Code”) shall be
            owned by Client. Such ownership rights shall be confirmed in the writ-
            ten terms agreed upon by the parties for such development or in any
            other agreement or document the Client reasonably requests XYZ to
            execute. Nothing herein shall entitle XYZ to create any such derivative
            works except pursuant to the provisions of a separate written agree-
            ment between the parties pursuant to Section 1(a)(xi) or otherwise.
        (d) LICENCE TO XYZ CODE. XYZ shall grant Client a perpetual, world-
            wide, irrevocable non-exclusive licence to the object code and source
            code versions of certain software, technology and other rights (“XYZ
            Code”), pursuant to the License Agreement attached hereto as
            Exhibit B (the “License Agreement”). As provided in the Licence Agree-
            ment, Client shall also be entitled to receive copies of the object code
            and source code versions of future XYZ Code developed by XYZ. XYZ
            shall be the exclusive owner of the XYZ Code.
        (e) RESIDUAL KNOWLEDGE. The parties mutually acknowledge that
            during development of the Openclose Code and the performance of
            services as provided in Section 1(a)(xi), XYZ and its personnel and
            agents have and may become acquainted with certain general ideas,
            concepts, know-how, methods, techniques, processes, and skills per-
            taining to the Openclose Code (the “Residual Knowledge”).
            Notwithstanding anything in this Agreement to the contrary, and re-
            gardless of expiration or termination of this Agreement, Client hereby
            grants XYZ a perpetual, worldwide, noncancelable, irrevocable, roy-
            alty free license to use the Residual Knowledge in conducting its busi-
            ness, other than the Openclose Code or Client’s Proprietary and
            Confidential Information. Such license includes the right for XYZ to
            use the Residual Knowledge in providing services and/or creating and
            licensing programming, technologies, and other materials for XYZ’s
            other clients and for XYZ itself and its subsidiaries and affiliates, and
            Client acknowledges and agrees that it shall not assert against
            XYZ, its personnel, or XYZ’s other clients any claim, prohibition, or
            restraint from using such Residual Knowledge. ANY SUCH LICENCE
             IS GRANTED “AS IS” AND “WITH ALL FAULTS.” CLIENT HEREBY DIS-
             CLAIMS ANY AND ALL WARRANTIES OF MERCHANTABILITY, FIT-
             NESS FOR A PARTICULAR PURPOSE OR OF TITLE. CLIENT SHALL
             HAVE NO LIABILITY WHATSOEVER IN CONNECTION WITH THE USE
             BY XYZ OF SUCH RESIDUAL KNOWLEDGE AND XYZ SHALL FOR-
             EVER DEFEND, INDEMNIFY AND HOLD HARMLESS CLIENT IN THE
             EVENT OF ANY CLAIM OR LOSS INCURRED BY CLIENT ARISING
             OUT OF USE BY XYZ OR ITS AFFILIATES, SUBSIDIARIES, LICENS-
             EES OR ASSIGNEES OF SUCH RESIDUAL KNOWLEDGE.
      3. TERM. The term of this Agreement shall be twenty-five (25) years from the
PART I]                     INTERNET AGREEMENTS—FORMS                               609

date hereof, provided that the term shall thereafter automatically renew from time
to time for successive, additional one-year terms unless either party shall provide
the other party with a written notice of termination at least six (6) months prior to
the termination date (including any termination date as a result of any renewal
period).
     4. BILLING. XYZ shall bill the Client, on a monthly basis, a fee reflecting
compensation due for services rendered in the preceding month calculated as
provided for in this Agreement. The bill shall be due and payable within thirty days
of receipt. The Client shall have full access to XYZ’s records to the extent neces-
sary to verify and audit XYZ’s billing procedures, provided that the Client agrees
to keep all such information confidential. The Client shall have the right, at any
time, to review and audit the bills, and in the event that the Client believes the bills
are not prepared by XYZ in a reasonable and good faith manner, the Client may
request that the bill be independently reviewed and adjusted by an independent
certified chartered accountant reasonably acceptable to the Client and XYZ. To
the extent that any investigation or audit reveals a discrepancy in XYZ’s favor in
the amount of 5% or more of amounts paid for the preceding month, XYZ shall
bear the cost of such audit or investigation.
    5. LEASE OF OFFICE SPACE TO THE CLIENT. XYZ recognizes that Client
would receive certain benefits from having a portion of its operations located at or
near XYZ’s offices. Therefore, XYZ will provide certain available office space and
office support services to the Client pursuant to the Sublease Agreement in the
form attached as Exhibit C, with such changes as may be required by the land-
lord. Until such time as the Sublease Agreement has been executed and consent
of the landlord obtained, the Client will reimburse XYZ for XYZ’s occupancy ex-
pense under its prime lease from landlord occupied by XYZ personnel involved in
the provision of services to the Client pursuant to this Agreement.
    6. SEPARATE IDENTITY OF CLIENT. The Client desires to remain at all times
a separate company. Toward that end, all business records, reports and files pre-
pared or maintained by XYZ for the Client shall remain the sole and exclusive
property and records of the Client and the Client shall be entitled to their return at
any time upon request. Moreover, all of the Client’s funds, accounts receivable or
other property shall at all times be clearly and distinctly maintained as the Client’s
separate and distinct property and shall not be combined or commingled with the
property of XYZ. Moreover, XYZ shall have no authority hereunder to enter into
contracts on behalf of, or otherwise legally bind, the Client. Although XYZ shall
make recommendations to the Client hereunder, all decisions whether to accept
or reject the advice of XYZ are up to the Client’s total discretion.
    7. Non-Competition.
          (a) BY CLIENT. The Client covenants and agrees that it will not directly or
              indirectly for the term of this Agreement and for a period of two years
              following the termination of this Agreement:
                (i) engage in, continue in or carry on any business which competes
                    with XYZ in XYZ’s Business (as hereinafter defined) or which is
                    substantially similar thereto (except that Client may engage in
                    mortgage banking to develop and maintain mortgage banking

G : CDD (Vol. 4) – 39
610                    CONVEYANCING, DRAFTING & DEEDS                         [PART I

               capability for the purpose of obtaining and maintaining approval
               of and a seller/servicer licence with, Fannie Mae, Freddie Mac,
               Ginnie Mae and similar institutions to the extent required to per-
               mit Client to obtain and maintain a licence to utilize any such
               institution’s automated underwriting software);
           (ii) offer employment to a person who is or was employed by XYZ
                during the then immediately preceding twelve (12) months, or
                assist any other person or entity in offering employment to a per-
                son who is or was employed by XYZ, during the then immediately
                preceding twelve (12) months, without the prior written consent
                of XYZ;
           (iii) undertake any business with or solicit the business of any per-
                 son, firm or company who shall have been a customer of XYZ
                 and with whom any executive of XYZ or their subordinates has
                 dealt with during the then immediately preceding twelve (12)
                 months which might adversely affect XYZ’s business relationship
                 with such customer, but only if such solicited business relates to
                 XYZ’s Business;
          (iv) engage in any practice the purpose of which is to evade the pro-
               visions of this covenant not to compete.
      (b) BY XYZ. XYZ covenants and agrees that it will not directly or indi-
          rectly for the term of this agreement and for a period of two years
          following the termination of this Agreement:
            (i) engage in, continue in or carry on any business which competes
                with the Client in the Client’s Business (as hereinafter defined) or
                which is substantially similar thereto, except that XYZ may pro-
                vide Web site development, marketing, hosting and operation
                services to those Mortgage Brokers (as defined in the agreement
                between XYZ and Countrywide Home Loans Corporation(the
                “Countrywide Agreement”)) that:(a) as of [date] have entered into
                a written agreement with XYZ whereby XYZ provides to such
                Mortgage Broker services and/or products other than or in addi-
                tion to Web site development or hosting services (and only so
                long as that written agreement remains in effect); or
               are net branches or are affiliated with a real estate broker or agent,
               builder or financial planner, insurance agent or other financial
               advisor that is not principally a mortgage broker and have en-
               tered into or shall hereafter enter into a written agreement with
               XYZ whereby XYZ provides to such Mortgage Brokers mortgage
               banking services and/or products other than or in addition to Web
               site development or hosting services (and only for so long as such
               affiliation and written agreement remains in effect). For purposes
               of this subparagraph (b), “net branches” shall mean written con-
               tractual relationships by which XYZ hires a person or entity to
               manage a loan origination office under a name other than
               “mortgage.com”, the principal purpose of which is to originate
               mortgage loans and sell them to XYZ;
PART I]                      INTERNET AGREEMENTS—FORMS                               611

               (ii) consult with, advise or assist in any way, whether or not for con-
                    sideration, any corporation, partnership, firm or other business
                    organization which is now or becomes a Competitor of the Client
                    if the principal purpose of such consultation, advice or assistance
                    is to permit such corporation, partnership, firm or business orga-
                    nization to compete with Client in the Client’s Business, includ-
                    ing, but not limited to, advertising or otherwise endorsing the prod-
                    ucts of any Competitor of the Client for such purpose; soliciting
                    customers or otherwise serving as an intermediary for any such
                    Competitor of the Client for such purpose; loaning money or ren-
                    dering any other form of financial assistance to or engaging in
                    any form of business transaction with any Competitor of the Cli-
                    ent for such purpose;
               (iii) offer employment to a person who is or was employed by the
                     Client during the then immediately preceding twelve (12) months,
                     or assist any other person or entity in offering employment to a
                     person who is or was employed by the Client, during the then
                     immediately preceding twelve (12) months, without the prior writ-
                     ten consent of the Client;
               (iv) undertake any business with or solicit the business of any per-
                    son, firm or company who shall have been a customer of the
                    Client and with whom any executive of the Client or their subordi-
                    nates has dealt with during the then immediately preceding twelve
                    (12) months which might adversely affect the Client’s business
                    relationship with such customer, but only if such solicited busi-
                    ness relates to the Client’s Business; or
               (v) engage in any practice the purpose of which is to evade the pro-
                   visions of this covenant not to compete.
          (c) XYZ’S BUSINESS. “XYZ’s Business” shall mean (i) the conduct of
              mortgage banking services consisting of one or more of the following:
              originating, processing, underwriting, closing, funding and selling loans
              on its own behalf or on behalf of its lender clientele and Mortgage
              Brokers identified in Section 7(b)(i); (ii) the development, marketing,
              sale and operation of Web sites, the principal purpose of which is for
              consumers to obtain from lenders (without participation of brokers,
              other than Mortgage Brokers identified in Section 7(b)(i)) the origina-
              tion, refinancing, processing, underwriting, funding and closing of resi-
              dential and commercial mortgages; and (iii) the development, market-
              ing, sale and operation of private label Web sites described in (ii) above
              for lenders to which consumers but not brokers (other than Mortgage
              Brokers identified in Section 7(b)(i)) would have access.
          (d) “CLIENT’S BUSINESS”. “Client’s Business” shall mean (i) the provi-
              sion (including, but not limited to, development, licensing and hosting)
              of business-to-business web site portals, or private label versions
              thereof, to mortgage brokers, lenders, mortgage insurance compa-
              nies and similar vendors pursuant to which such participants exchange
              through such portals information, including but not limited to, lender
612                     CONVEYANCING, DRAFTING & DEEDS                        [PART I

            product and pricing information, automated underwriting data, mort-
            gage insurance certificates and borrower application information, us-
            ing results obtained from Fannie Mae’s Desktop Underwriter software,
            Freddie Mac’s Loan Prospector Software, or functionally equivalent
            software (collectively, “Information”), except that “Client’s Business”
            shall not restrict XYZ from providing Information in connection with
            providing the services described in the definition of “XYZ’s Business”;
            (ii) providing “Web Site Services” to “Countrywide Customers” as such
            terms are described in the Countrywide Agreement; and (iii) providing
            Web site services to mortgage brokers, including without limitation,
            development, marketing, testing, sale, hosting and operation of Web
            sites for one particular broker or many brokers.
      (e) COMPETITOR. The term “Competitor” means any person, entity, cor-
          poration, partnership, association, joint venture or other organization
          that engages in or attempts to engage in the XYZ Business or Client
          Business, respectively.
       (f) SCOPE. The geographic scope of the covenant not to compete shall
           extend world-wide. The Client and XYZ each hereby acknowledges
           that the duration and scope of the covenants not to compete con-
           tained in this section are reasonable.
      (g) SURVIVAL. The provisions of this Section 7 shall survive termination
          or expiration of this Agreement for any reason.
    8. CONFIDENTIALITY. Subject to the License Agreement, the parties agree,
both during the Term of this Agreement and for a period of two years after termi-
nation of this Agreement, but in no event less than ten (10) years from the Effec-
tive Date, to hold each other’s Proprietary or Confidential Information in strict
confidence. The parties agree not to make each other’s Proprietary or Confiden-
tial Information available in any form to any third party or to use each other’s
Proprietary or Confidential Information for any purpose, other than the implemen-
tation of and as specified in this Agreement and other than use by Client in the
Openclose Business. Each party agrees to take all reasonable steps to ensure
that Proprietary or Confidential Information of either party is not disclosed or dis-
tributed by its employees, agents or consultants in violation of the provisions of
this Agreement. Each party’s.
    Proprietary or Confidential Information shall remain the sole and exclusive
property of that party. Each party expressly agrees to include, maintain, reproduce
and perpetuate all notices or markings on all copies of all tangible media comprising
each party’s Proprietary or Confidential Information in the manner in which such
notices or markings appear on such tangible media or in the manner in which
either party may reasonably request. The provisions of this Section 8 shall survive
termination or expiration of this Agreement for any reason. For the purposes of
this section, “Proprietary or Confidential Information” shall mean knowledge and
information not generally known in the industry which provides a competitive
advantage, including, without limitation, technology, computer programs, research
and development programs, formulas, know-how, forecasts, sales and marketing
methods, financing sources, customer and mailing lists, customer usages and
requirements, financial information and all other confidential information, trade
PART I]                     INTERNET AGREEMENTS—FORMS                             613

secrets and data. Proprietary or Confidential Information includes, but is not limited
to, the Openclose Code and the XYZ Code and all derivative works based thereon
and all trade secrets related thereto. Openclose Code and XYZ Code derivative
works shall be the Proprietary and Confidential Information of its owner. Neither
party shall have any obligation with respect to Proprietary or Confidential
Information which: (i) is or becomes generally known to the public by any means
other than a breach of the obligations of a receiving party; (ii) with respect to
Client, is Openclose Code and all derivative works based thereon and all trade
secrets related thereto, (iii) rightly received by the receiving party from a third
party after the date hereof, (iv) is independently developed by the receiving party
without reference to information derived from the other party; and (v) subject to
disclosure under court order or other lawful process.
    9. EQUITABLE RELIEF. Each party acknowledges that the provisions and
restrictions contained in Sections 7 and 8 of this Agreement are necessary to
protect the legitimate continuing interests of Client and XYZ and that any breach
or violation thereof may result in irreparable injury and damage to the other party.
Accordingly, each party hereby agrees that, in the event of such breach, the other
party may be entitled to seek equitable relief as granted by any appropriate judi-
cial body.
    10. TERMINATION.
          (a) BY CLIENT. The Client may terminate this Agreement immediately
              upon delivery of written notice to XYZ. In addition, the Client, from
              time to time, may expand or reduce the scope of services provided by
              XYZ. For example, as illustration, Client may determine that the num-
              ber of employees at Client has increased to the level where human
              resource management should now be handled “in-house” rather than
              by XYZ. The parties recognize that this will be a flexible and evolving
              relationship. If XYZ shall incur any expenses in connection with and
              resulting from the Client’s expansion, reduction, or termination of any
              specific services or provision of technology hereunder, Client shall
              reimburse XYZ for such costs or expenses promptly upon receipt of
              an itemized account thereof.
          (b) BY XYZ. XYZ may terminate the agreement upon not less than 90
              days written notice in the event that the Client has failed to pay any
              outstanding invoice on the date due or within 30 days thereafter.
          (c) TERMINATION OF LEGAL SERVICES. Notwithstanding anything
              herein to the contrary, XYZ’s obligations hereunder to provide legal
              services to Client as described in Section 1(a)(iv) hereof shall auto-
              matically terminate as of the date XYZ ceases to hold, directly or
              indirectly, a majority of the voting power of all classes of outstanding
              voting stock of Client.
    11. CHANGE OF CONTROL. The parties recognize that XYZ currently owns
more than a majority of the outstanding common stock of the Client. It is the
intention of the parties, and the parties hereto acknowledge and agree, that any
increase or decrease in XYZ’s ownership of the Client’s common stock shall have
no effect on XYZ’s obligations hereunder, except as otherwise expressly provided
herein.
614                      CONVEYANCING, DRAFTING & DEEDS                      [PART I

   12. INDEPENDENT CONTRACTOR RELATIONSHIP. It is acknowledged and
agreed that XYZ’s relationship with the Client is at all times hereunder an inde-
pendent contractor. The Client shall have no authority over XYZ’s internal busi-
ness affairs and decisions. XYZ shall have no authority to act on behalf of, or
legally bind the Client, and XYZ shall not hold itself out as having any such au-
thority. This Agreement shall not be construed as creating a partnership or joint
venture.
      13. LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES.
        (a) XYZ hereby warrants and represents that: XYZ will provide the ser-
            vices requested pursuant to this Agreement in a workmanlike and pro-
            fessional manner; XYZ shall comply with all of its obligations under
            the Web Site Hosting Agreements referred to under Sections 1(a)(vii)
            and 1(a)(viii) hereunder and the Licence Agreement; the results and
            proceeds of XYZ’s services provided hereunder do not and will not
            infringe upon the copyright, trademark or service mark rights of third
            parties; to the best of XYZ’s knowledge, the results and proceeds of
            XYZ’s services provided hereunder do not and will not infringe upon
            the patent rights of third parties. XYZ shall use reasonable efforts to
            provide the services and technology described herein with substan-
            tially the same degree of care as it employs in making the same ser-
            vices and technology available for its own operations; provided how-
            ever that XYZ shall not be liable to Client or any other person for any
            loss, damage, or expense which may result therefrom or from any
            change in the manner in which XYZ renders such services, so long as
            XYZ deems such change necessary or desirable in the conduct of its
            own operations.
        (b) EXCEPT AS PROVIDED IN SECTION 13(a), THE OPENCLOSE CODE,
            XYZ CODE, AND ALL OTHER PROGRAMMING AND SOFTWARE (COL-
            LECTIVELY “SOFTWARE”) BUT NOT THE SERVICES TO BE PROVIDED
            OR PERFORMED HEREUNDER, ARE PROVIDED “AS IS,” WITH ALL
            FAULTS, AND WITHOUT WARRANTY OF ANY KIND. EXCEPT AS PRO-
            VIDED IN SECTION 13(a), XYZ DISCLAIMS ALL WARRANTIES, EX-
            PRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IM-
            PLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A
            PARTICULAR PURPOSE. CLIENT EXPRESSLY AGREES AND AC-
            KNOWLEDGES THAT USE OF THE SOFTWARE HEREUNDER IS AT
            CLIENT’S SOLE RISK. XYZ DOES NOT WARRANT THAT THE SOFT-
            WARE AND ALL SERVICES TO BE PROVIDED OR PERFORMED HERE-
            UNDER WILL MEET CLIENT’S REQUIREMENTS, OR THAT THE OP-
            ERATION OF THE SOFTWARE OR USE OF THE SERVICES WILL BE
            UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE
            SOFTWARE OR SERVICES WILL BE CORRECTED.
        (c) IN NO EVENT SHALL XYZ OR ANY OF ITS OFFICERS, DIRECTORS,
            OR AGENTS BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY
            INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT
            LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAM-
            AGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS IN-
PART I]                       INTERNET AGREEMENTS—FORMS                                 615

               TERRUPTION, LOSS OF DATA, OR LOSS OF BUSINESS INFORMA-
               TION) ARISING OUT OF OR CONNECTED IN ANY WAY WITH THE
               SOFTWARE, SERVICES, OR XYZ’S PERFORMANCE UNDER THIS
               AGREEMENT, OR USE OF OR INABILITY TO USE THE SOFTWARE
               OR SERVICES, OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF
               XYZ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    14. CLIENT INDEMNITY.
    Client shall indemnify and hold XYZ harmless against any and all liabilities,
losses, damages, judgments, claims, causes of action, and costs (including attor-
neys fees and disbursements) which XYZ may hereafter incur, suffer, or be re-
quired to pay, defend, settle, or satisfy as a result of third party claims against
XYZ based on or arising out of: (i) representations or warranties made by Client to
its Private Label customers that are not substantially similar to those in EXHIBIT
A or have not been approved in writing by XYZ; or (ii) Client’s failure to comply
with its obligations under Section 1(a)(viii).
    15. MISCELLANEOUS.
          (a) FORCE MAJEURE. Neither party shall be in default of this Agreement
              or liable to the other party for any delay or default in performance
              where occasioned by any cause of any kind or extent beyond its con-
              trol, including but not limited to, armed conflict or economic disloca-
              tion resulting therefrom; embargoes; shortages or labor, raw materi-
              als, production facilities or transportation; labor difficulties; civil disor-
              ders of any kind; action of any civil or military authorities (including
              priorities and allocations); fires; floods; telecommunications failures;
              Internet slow-downs; and accidents. The dates on which the obliga-
              tions of a party are to be fulfilled shall be extended for a period equal
              to the time lost by reason of any delay arising directly or indirectly
              from:
                (i) Any of the foregoing causes; or ii) Inability of that party, as a re-
                    sult of causes beyond its reasonable control, to obtain instruc-
                    tion or information from the other party in time to perform its
                    obligations by such dates.
          (b) SEVERABILITY. Whenever possible, each provision of this Agreement
              will be interpreted in such a manner as to be effective and valid under
              applicable law, but if any provision hereof is held by a court of compe-
              tent jurisdiction to be prohibited or invalid, such prohibition or invalid-
              ity shall not affect the remaining provisions of this Agreement. In the
              event a court of competent jurisdiction shall determine and hold that
              the covenants contained herein are invalid or unenforceable for any
              reason, the parties hereby request that such court reform the provi-
              sions hereof in a manner to cause the covenants contained herein to
              be enforceable as closely as possible to the way in which originally
              written.
          (c) COUNTERPARTS. This Agreement may be executed in any number
              of counterparts, each of which, when so executed, shall be deemed to
              be an original, and all of which shall together constitute but a single
              instrument.
616                     CONVEYANCING, DRAFTING & DEEDS                        [PART I

      (d) FURTHER ASSURANCES. The parties hereby agree to execute such
          other documents and perform such other acts as may be reasonably
          necessary or desirable to carry out the purposes of this Agreement.
      (e) NOTICES. Any and all notices provided for herein shall be in writing
          and shall be considered as properly given if delivered to the party or
          sent by registered or certified mail, postage prepaid, to the parties
          hereto at their last known addresse or such other address or to the
          attention of such other person as the party shall have specified by
          prior written notice. Any notice under this Agreement shall be deemed
          to have been given (a) if delivered in person, when so delivered or
          refused; (b) if sent by facsimile or overnight courier, one (1) business
          day following transmission or delivery to courier (as the case may be;
          or (c) if by registered or certified mail, three (3) days following deposit
          in the Postal Mail services.
          Operating Officer.
      (f) BINDING EFFECT. This Agreement shall bind and inure to the benefit
          of the parties, and their respective successors, heirs and assigns.
      (g) GOVERNING LAW. This Agreement and the obligations of the parties
          hereunder shall be interpreted, construed and enforced in accordance
          with the laws of India.
      (h) ATTORNEYS’ FEES AND COSTS. If either party brings suit or arbi-
          tration against the other to enforce the terms of this Agreement, the
          prevailing party shall be entitled to recover all reasonable costs, in-
          cluding attorneys’ fees, from the other party as part of any judgment
          or award.
      (i) ASSIGNMENT. This Agreement shall not be assignable in whole or in
          part by XYZ or Client without the other party’s prior written consent,
          and any attempted assignment without such consent shall be void,
          provided that Client may assign this Agreement to any person acquir-
          ing all or substantially all of its assets without obtaining such consent.
      (j) SURVIVAL. The provisions of this Agreement which by their terms
          survive the termination of this Agreement, including Sections 7 and 8,
          or expressly require action subsequent to termination of this Agree-
          ment shall survive the termination of this Agreement to the extent set
          forth in such provisions.
    IN WITNESS WHEREOF, the undersigned parties hereto have duly executed
this Agreement on the date first above written.
SIGNED SEALED AND DELIVERED BY
THE PARTIES IN THE PRESENCE OF
W I T N E S S E S:
1.
2.
PART I]                   INTERNET AGREEMENTS—FORMS                               617

                                         53
   Agreement for Manufacturing and Supply of Magnetic Tape
                   and Database Samples
    THIS AGREEMENT is made on this [Date] BETWEEN SAMPLE COMMUNI-
CATIONS LIMITED. (Sample), a Company incorporated under the Companies
Act, 1956 and having its registered office at [Address] AND PRACTICAL DATA-
BASE SOLUTIONS LIMITED (PDSL), a Company incorporated under the Com-
panies Act, 1956 and having its registered office at [Address] , WITNESSES as
follows :—
    Magnetic tapes and updated data from the PDSL InTELEbill programme will
be delivered to PDSL for each billing cycle. Within two (2) working days of receipt
of all data, PDSL will return to Sample a list of all unprocessed call records.
   1. Sample will return the corrected bad call data to PDSL. PDSL will then
reprocess all calls according to data supplied by Sample and prepare telephone
statements for all of Sample’s customers. Laser printed bills will be mailed to all of
Sample’s customers no more than three (3) working days after receipt of bad call
corrections.
   2.One working day after the completion of the billing, electronic statements
and updated files will be shipped to Sample. The files will also be available at the
FTP site.
     3. PDSL will provide to Sample a copy of InTELEbill, a telecommunications
billing and customer service program. PDSL will provide training on the system at
a rate ofRs……. per hour plus expenses. All data maintenance will be the respon-
sibility of Sample.
   4. PDSL grants Sample a non-transferable non-exclusive licence to use the
PDSL InTELEbill Program. PDSL maintains exclusive rights to the source and
executable files. Lease of the program is Rs…… per month. These charges will
be applied toward charges in item #6. These are the minimums to be charged
each month. If the charges in item #6 are more than the rates specified in this
paragraph, the charges in item #6 will be charged.
   5. PDSL shall be compensated at a rate of: .008/CDR for 0-500,000 call records
007/CDR for 500,000 - 1M call records if more than 500,000 CDR .0055/CDR for
1M - 2M calls records if more than 1M call records .004/CDR for 2M or more call
records per month.
    6. Rs…… per printed image Billing forms and envelopes with logo and color(s)
designed by Sample will be provided at PDSL cost + 15%. Postage will be billed
at cost. Inserting is billed at Rs…… per statement.
   7. A deposit of Rs…… shall be paid to PDSL upon execution of this contract.
The deposit will be applied to the last months invoice.
   8. In the event of errors in data processing results, due to the failure of PDSL
equipment, PDSL employee’s, or PDSL billing software, PDSL’s liability to Sample
shall be limited to (1) the correction of errors of which PDSL has received written
notice and proof within (5) days; or (2) where such correction is not practical,
Sample shall be entitled only to an equitable credit not to exceed the charges
618                      CONVEYANCING, DRAFTING & DEEDS                        [PART I

invoiced to Sample for that portion of the service which produced the erroneous
results.
    9. If billing errors occur as a result of bad data being supplied by Sample or the
carrier supplying the magnetic media (CDR’s), those errors will be corrected at a
rate of Rs…… per hour plus processing costs as stated in item #6 and #7 above.
   10. All invoices shall be paid within 20 working days of receipt and prior to the
next months statements being generated.
     11. All inventions, improvements, developments, processes or methods that
may be made, conceived, invented, acquired or suggested while providing ser-
vices to Sample shall remain the absolute property of PDSL. PDSL will maintain
ownership of all right, title, and interest to the delivered software.
     12. Sample assumes full responsibility and shall indemnify PDSL and save it
harmless from and against any and all actions of suites, losses, damage, costs,
charges, counsel fees, payments, expenses and liabilities, arising out of this Agree-
ment where PDSL has acted without negligence. PDSL shall not be under any
obligation to prosecute any action or suit which, in its sole judgment, may involve
it in expense or liability.
   13. This agreement shall be deemed to have been made, executed and deliv-
ered in Kolkata and conditions of this agreement shall be construed in accor-
dance with the laws of India.
   14. PDSL will, under no circumstance disclose the customer database of
Sample to any other party. PDSL will not reveal any information about Sample or
the relationship between PDSL and Sample to any other party.
    This Agreement may be terminated at any time, by either party, with 90 days
written notice.
                    SIGNED SEALED AND DELIVERED BY:
For Practical Database Solutions Ltd.         For Sample Communications Ltd..
Date:________________                         Date: __________________
By:_________________                          By:____________________


                                         54
Agreement for Advertisement displaying Banners and Similar
 Devices and Sponsorship for display on Pages, Screens and
           other Segments or Spaces on Websites
    THIS AFFILIATION AGREEMENT made on this [date],the (“Effective Date”),
BETWEEN ADVERTISING MEDIA CORPORATION a Corporation incorporated
under the Companies Act, with its registered office at [Address] (“ADMED’), AND
NBC MULTIMEDIA COMPANY a company duly incorporated under the Compa-
nies Act and having its registered office at [Address], NBC”).
    WHEREAS, National Broadcasting Company,(hereinafter called the “NBC
Network”) and/or its affiliates are the operators and owners of the television sta-
tions (the “NBC TV Stations”) and the Internet Web sites (the “NBC Web Sites”)
specified on Schedule A hereto; AND
PART I]                   INTERNET AGREEMENTS—FORMS                             619

   WHEREAS, the NBC Network provides television programming and, through
NBC Interactive Neighborhood (“NBC-IN”), Internet content, to affiliated televi-
sion stations (“NBC Affiliates”), each of which operates and owns a television
station and many of which operate an associated Internet Web site (the “Affiliate
Web Sites”, and collectively with the NBC Web Sites, the “Web Sites”); AND
    WHEREAS, ADMED operates a network of Internet Web sites (the “ADMED
Network”) for which it solicits advertisers, advertising agencies, buying services
or others (“Advertisers”) regarding the placement of advertising banners and similar
devices and sponsorships (“Advertising”) for display on pages, screens, and other
segments or spaces on web sites reasonably suitable for the display of such Ad-
vertising; AND
    WHEREAS, NBC wishes to engage ADMED to sell Advertising on the Web
Sites individually and in packages that combine inventory from certain of the Web
Sites, the NBC TV Stations, NBC Affiliates and, in certain limited circumstances
set forth in Section 2.A, the ADMED Network, and ADMED wishes to accept such
engagement; AND
    WHEREAS, NBC and ADMED wish to encourage NBC Affiliates to become
parties to an Affiliation Agreement (the “Affiliate Agreement”) among the NBC
Affiliates, ADMED and NBC-IN;
   NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
and agreements contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged,—
    IT IS HEREBY AGREED as follows :—
    1. Affiliation.
    A. NBC hereby designates ADMED as its exclusive third-party Internet adver-
tising representation firm during the Term to sell (a) Co-op Advertising (as de-
fined below) in packages that combine inventory from one or more of the Web
Sites covered by an NBC TV Station or NBC Affiliate where ADMED then has in
place a dedicated full-time salesperson on site pursuant to Section 2.F (the
“Manned Markets”), and on-air inventory from such NBC TV Stations and/or NBC
Affiliates, and (b) Advertising on the Web Sites in the Manned Markets. In addi-
tion, NBC hereby grants ADMED the non-exclusive right to sell Co-op Advertising
and Advertising in all markets covered by an NBC TV Station that are not Manned
Markets. ADMED shall have a right of first refusal to man such markets before
NBC engages another third party. NBC also agrees to arrange for the NBC TV
Stations, and to use commercially reasonable efforts to encourage NBC Affili-
ates, to become party to an Affiliate Agreement substantially in the form of Exhibit
A (each, an “Affiliate Agreement”) to be attached hereto within 30 days of the
Effective Date in accordance with the timetable set forth on Schedule B hereto.
    B. For purposes of this Agreement, “Co-op Advertising” is intended to mean a
coordinated television and Internet advertising campaign in which multiple adver-
tisers participate simultaneously on a cooperative basis, and which (x) incorpo-
rate a promotional television advertisement in which viewers are directed to the
Web Site of the television station upon which such advertisement appears, and
more specifically to a promotion appearing on such Web Site (the “Promotion”),
620                      CONVEYANCING, DRAFTING & DEEDS                        [PART I

(y) incorporate Advertising appearing on such Web Site which directs end users
to the Promotion, and (z) results in at least 30% of the total ad buy being allocated
to such Web Site Advertising. It is mutually understood and agreed that ADMED
may have the opportunity to sell Co-op Advertising that deviates from the terms
set forth herein; provided, that (i) ADMED may do so only with the consent of NBC
and the applicable station manager, which consents may be withheld in NBC’s or
such station manager’s discretion, as the case may be, and (ii) payments with
respect to such modified Co-op Advertising shall be governed by the applicable
Affiliate Agreement.
      2. Obligations of ADMED.
      In furtherance of the foregoing, ADMED covenants and agrees to:
    A. Utilize its best efforts to sell Co-op Advertising and Advertising to Advertis-
ers for placement on the Web Sites, the NBC TV Stations and the NBC Affiliate
stations located in the Manned Markets, at such prices as NBC, the NBC TV
Stations, such NBC Affiliate stations and ADMED shall mutually agree, and in
accordance with this Agreement and any Affiliation Agreements; provided, that if
the inventory of a Web Site sought by a particular Advertiser (including any inven-
tory controlled by NBC-IN thereon) is sold out or otherwise not sufficient to meet
the needs of a particular advertiser for the time periods sought by such Adver-
tiser, then ADMED may offer such Advertiser inventory during such time periods
on the ADMED Network solely as a supplement to such Web Site’s inventory;
    B. Utilize commercially reasonable efforts to sell Advertising for placement on
the Web Sites in the non-Manned Markets, all in accordance with this Agreement
and the applicable Affiliation Agreements, if any, with all such Advertising and the
rates therefor subject to the approval of the applicable station management and
NBC-IN.
   C. Offer inventory on the ADMED Network to the NBC TV Stations and the
NBC Affiliates in those situations when such NBC TV Stations and/or NBC Affili-
ates have identified an advertiser who seeks more inventory than is available on
such NBC TV Station’s or NBC Affiliate’s Web Site;
    D. not to sell packages which in any fashion combine Internet inventory and
television inventory on behalf of any competitor of the NBC Network, the NBC TV
Stations or the NBC Affiliates in any local market containing an NBC Station or an
NBC Affiliate that executes the Affiliate Agreement within 90 days’ after first being
offered the opportunity to do so; provided, that ADMED agrees to negotiate in
good faith with each such NBC Station and NBC Affiliate and incorporate reason-
able changes to the Affiliate Agreement in order to accommodate the needs of
each such NBC Station or NBC Affiliate, as the case may be;
    E. offer all services set forth in this Section 2 to NBC TV Stations and NBC
Affiliates in accordance with the timetables set forth on Schedules A and B;
   F. maintain suitable and qualified personnel in administrative, sales and tech-
nical positions necessary for ADMED to perform effectively the terms of this Agree-
ment; ADMED shall hire and employ during the Term one salesperson resident in
each of the fifteen (15) mutually agreed upon NBC TV Stations and NBC Affiliate
stations (with the intention of manning at least 20 of the top 25 markets); which
PART I]                   INTERNET AGREEMENTS—FORMS                               621

salespersons shall devote substantially all of their full-time efforts to the sale of
Advertising in their assigned market pursuant to this Agreement (each, a “Manned
Market Salesperson”, and collectively the “Manned Market Salespeople”); pro-
vided, that if any such Manned.
    Market Salesperson’s employment is terminated, whether voluntarily or invol-
untarily, or if any such Manned Market Salesperson dies or becomes perma-
nently disabled, then ADMED shall promptly replace such Manned Market Sales-
person; and provided, further, that the hiring of each such Manned Market Sales-
person, and any replacements therefor, shall be subject to the reasonable ap-
proval of NBC and station management of the applicable NBC TV Station or NBC
Affiliate, as the case may be;
    G. serve or cause to be served Advertising to the Web Sites; it is understood
that Advertising shall be served initially through a re-direction of Advertising from
ADMED’s ad serving system to DART, the ad serving system currently employed
by NBC; provided, that NBC may elect at any time upon 60 days notice to ADMED
to transition fully to ADMED’s ad serving system at ADMED’s sole cost and ex-
pense, whereupon ADMED shall use its best efforts to promptly effect a smooth
transition to its system; and provided, further, that upon such election by NBC, the
parties shall negotiate in good faith regarding a service level agreement covering
Internet up-time, server up-time and response time, and other metrics relating to
the performance of ADMED’s ad serving system and the Internet connectivity
thereof, which in no event shall be less favorable to NBC than that of any service
level agreement provided to any other customer of ADMED;
    H. provide NBC with prompt notice, via e-mail posting, of all new Co-op Adver-
tising and Advertising that has been sold by ADMED to be displayed on the Web
Sites, and honour any decision by NBC or the station management of the appli-
cable NBC TV Station or NBC Affiliate, as the case may be, to decline any Co-op
Advertising or Advertising, in accordance with the Provisions in 3(B) below;
     I. Provide NBC with real-time access to records that will allow it to monitor the
volume of paid Co-op Advertising and Advertising delivered to the Web Sites and
the revenue produced (subject to billing corrections and adjustments) thereby; all
such records, including data, statistical information or other traffic analysis, pro-
duced or provided by ADMED (the “Data”) shall be the joint property of ADMED
and NBC; provided, however, that ADMED shall not, and shall ensure that any
third party ad serving company engaged by ADMED contractually agrees not to,
sell or otherwise distribute the Data to any third parties without the prior written
consent of NBC, which may be withheld by NBC in its sole discretion;
    J. To assist NBC in the acquisition of syndicated content acquisitions for the
Web Sites; provided, that NBC shall have no obligation to accept any such acqui-
sition sourced by ADMED;
    K. Conduct quarterly sales seminars and reviews during the Term in rotating
locations as mutually agreed by ADMED and NBC-IN, with the content and for-
mat of such seminars to be developed by ADMED in cooperation with the Steer-
ing Committee (as defined below) with the intent of communicating the sales ex-
periences and successes of the Manned Market Salespeople to the sales staffs
of the non-Manned Market stations; provided, that the quality of such seminars
622                      CONVEYANCING, DRAFTING & DEEDS                        [PART I

shall be at a level reasonably acceptable to NBC-IN; and provided, further, that
ADMED and NBC shall be jointly responsible for all costs and expenses associ-
ated therewith (such costs to be subject to mutual prior approval) other than travel,
lodging and meals of the attendees of such seminars, which shall be at the sole
expense of the applicable NBC TV Station or NBC Affiliate, as the case may be;
and
    L. Provide sales and marketing products, including brochures, marketing ma-
terials and case studies, to the sales staffs of the non-Manned Markets, which are
of a quality reasonably acceptable to NBC-IN; provided, that NBC shall reimburse
ADMED for the actual and reasonable out of pocket costs and expenses of such
products and that all such costs and expenses shall be subject to NBC’s prior
approval.
      3. Obligations of NBC.
      NBC covenants and agrees to:
    A. Consult with ADMED regarding the hiring and daily management of the
Manned Market Salespeople, and provide such sales personnel suitable office
space at the applicable NBC TV Station, and to make available to such sales
personnel the reasonable use of all existing office facilities (general support staff,
telephone system fax machines, photocopiers, rest rooms, kitchen facilities) on
the same basis that such facilities are made available to employees of NBC or the
TV Stations; no indirect or communal expense shall be allocated to ADMED for
the provisions in this paragraph, other than for expenses incurred directly by the
ADMED employee (i.e. long distance telephone, travel and entertainment, per-
sonal computer and personal office supplies);
       B. Provide ADMED with NBC Network policies, as amended from time to
time, regarding the acceptance of advertising and notify ADMED within two busi-
ness days from the time notice of any new Co-op Advertising or Advertising is
given in accordance with Section 2.F of NBCs rejection of any new Co-op Adver-
tising or Advertising. Failure to provide timely notice of rejection of the new Co-op
Advertising or Advertising shall be deemed acceptance thereof, until such time
as NBC notifies ADMED of NBC’s rejection thereof at which time ADMED shall
promptly remove the Co-op Advertising or Advertising;
    C. Furnish ADMED with all subscribership, viewership, inventory, and usage
reports, reviews and audience studies, deliveries, census requirements, and any
other information regarding the Web Sites as is reasonably available to NBC and
is deemed appropriate by NBC in its sole discretion for use by ADMED for the
sale of Co-op Advertising and Advertising; and
    D. Not engage, contract with, license or permit any 3rd party Internet advertis-
ing representation firm other than ADMED and its employees to sell, or represent
NBC or any of the NBC TV Stations for the sale of Advertising and Co-op Adver-
tising for which ADMED has been granted exclusive Internet advertising repre-
sentation rights pursuant to Section 1.
      4. Governance.
    A. ADMED shall appoint a senior officer to manage the relationship contem-
plated hereby and shall hire the Manned Market Salespeople to sell Co-op Adver-
PART I]                   INTERNET AGREEMENTS—FORMS                               623

tising and Advertising pursuant to this Agreement; provided, that the hiring or
appointment of all such personnel, and any replacements therefor, shall be sub-
ject to NBC’s reasonable approval. All such personnel shall be employees of
ADMED and shall be compensated entirely by ADMED. ADMED’s relationship
manager and its sales personnel shall provide periodic reports to NBC in a format
reasonably acceptable to NBC regarding sales of Co-op Advertising and Adver-
tising made pursuant to this Agreement and shall confer directly with the station
managers of the NBC TV Stations and each participating NBC Affiliate regularly
as needed to discuss strategies and goals and to resolve sales conflicts.
    B. The parties shall form a steering committee (the “Steering Committee”)
which shall be composed, of six representatives, one from each of (i) the NBC TV
Stations, (ii) the NBC Affiliates, (iii) NBC-IN, and three from ADMED. The Steering
Committee shall assist in developing and maintaining processes in order to achieve
the best overall performance by ADMED hereunder, including, without limitation,
resolving conflicts between station management and their resident Manned Mar-
ket Salespeople, the timing of NBC Affiliate roll-outs, and setting priorities for the
program. The parties shall use their best efforts to incorporate the recommenda-
tions of the Steering Committee into their performance under this Agreement and,
the Affiliate Agreements.
    5.    Payments.
    A. Advertisers shall be directed to pay all cash and other consideration gener-
ated from the sale of Co-op Advertising and Advertising by ADMED pursuant to
and during the term of this Agreement and at all times thereafter following the
termination of this Agreement (each, a “Payment”) directly to NBC or the appli-
cable NBC Affiliate. If ADMED receives any such payment from an advertiser, it
shall immediately forward such payment to NBC or the applicable NBC Affiliate
without any deduction or set-off whatsoever. ADMED will submit a monthly billing
statement outlining commissions earned for Advertising on NBC-IN sold by
ADMED, which billing statement shall specify the amounts due ADMED accord-
ing to Schedule C. NBC shall pay ADMED all undisputed amounts owed to ADMED
within forty-five (45) days after NBC’s collection of the Payment that gave rise to
such obligation. It is understood that when calculating the portion of the Payment
owed to ADMED hereunder, NBC shall exclude those advertising agency com-
missions actually retained by agencies or paid by NBC to agencies with respect
to the sale of Advertising.
   B. In the event that NBC converts to ADMED ad serving technology, NBC may
elect to have ADMED serve advertisements not sold by ADMED. For such ad
serving NBC will pay a serving fee at a cost per thousand (“CPM “) as shown
below: *
   6. Equity Issuance. In consideration of the foregoing, on the date hereof,
ADMED shall grant NBC a warrant which will give NBC the right to purchase
150,000 Equity shares of value Rs.10.oo per share of ADMED in the form at-
tached hereto as Exhibit 6(a) and pursuant to a Warrant Purchase Agreement, in
the form attached hereto as Exhibit 6(b). The exercise price per share shall be
equal to the average closing price of the Shares as quoted in the Share Market on
the five trading days immediately preceding the date of this Agreement.
624                      CONVEYANCING, DRAFTING & DEEDS                         [PART I

    7. Intellectual Property. All hardware, software, programs, codes, trade names,
technology, intellectual property, licences, patents, trademarks, copyrights, trade
secrets, know-how, and processes owned by ADMED as of the Effective Date
(collectively, the “ADMED Technology”) used by ADMED under this Agreement
shall remain the sole property of ADMED. NBC shall have no rights, title or inter-
est in the ADMED Technology. All hardware, software, programs, codes, trade
names, technology, intellectual property, licenses, patents, trademarks, copyrights,
trade secrets, know-how, and processes owned by NBC as of the Effective Date
(collectively, the “NBC Technology”) used by NBC under this Agreement shall
remain the sole property of NBC. ADMED shall have no rights, title or interest in
the NBC Technology. Upon the expiration or termination of this Agreement, each
party shall promptly return all information, documents, manuals and other materi-
als belonging to the other party except as otherwise provided in this Agreement.
    8. Year 2000. In addition to any other warranties and representations provided
by ADMED pursuant hereto, whether pursuant to this Agreement, by law, equity,
or otherwise, ADMED represents and warrants that (a) any product(s) and/or
service(s) provided by ADMED hereunder, including, without limitation, each item
of hardware, software, or firmware; any system, equipment, or products consist-
ing of or containing one or more thereof; and any and all enhancements, up-
grades, customizations, modifications, maintenance and the like (“Products/Ser-
vices”) shall be Year 2000 Compliant at the time of delivery and at all times there-
after and in all subsequent updates or revisions of any kind, and (b) ADMED’s
supply of the Products/Services to NBC shall not be interrupted, delayed, de-
creased, or otherwise affected by dates/times prior to, on, after or spanning Janu-
ary 1, 2000. For purposes of this Agreement, Year 2000 Compliant means that (1)
the Products/Services accurately process, provide and/or receive date/time data
(including without limitation calculating, comparing, and sequencing), within, from,
into, and between centuries (including without limitation the twentieth and twenty-
first centuries), including leap year calculations, and (2) by dates/times prior to,
on, after, or spanning January 1, 2000. The design of said Products/Services are
made to ensure compliance with the foregoing warranties and representations
shall include, without limitation, date data century recognition, calculations that
accommodate same century and multi-century formulae and date values, and
date data interface values that reflect the century. In particular, but without limita-
tion, (i) no value for current date/time will cause any error, interruption, or de-
creased performance in the operation of such Products/Services, (ii) all manipu-
lations of date/time-related data (including, but not limited to, calculating, com-
paring, sequencing, processing, and outputting) will produce correct results for all
valid dates/times, including when used in combination with other products, (iii)
date elements in interfaces and data storage will specify the correct century to
eliminate date ambiguity without human intervention, including leap year calcula-
tions, (iv) where any date element is represented without a century, the correct
century will be unambiguous for all manipulations involving that element, (v) au-
thorization codes, passwords, and zaps (purge functions) should function nor-
mally and in the same manner prior to, on, after and spanning January 1, 2000,
including, without limitation, the manner in which they function with respect to
expiration dates/times and CPU serial numbers. No obligation of ADMED under
this Agreement shall be excused by reason of the failure of any other person’s
PART I]                   INTERNET AGREEMENTS—FORMS                               625

(other than NBC’s) Products/Services to be Year 2000 Compliant, nor shall such
occurrence(s) be deemed a force majeure event.
    In the event of breach of this warranty, in addition to any other remedies NBC
may have, whether pursuant to this Agreement, by law, equity or otherwise, NBC
shall be entitled to repair or replacement of any non-Compliant item, at no cost to
NBC, within sixty (60) days after notice of breach from NBC to ADMED, or such
different period as specified by NBC in its sole discretion. In addition to ADMED’s
obligations as set forth above, ADMED shall indemnify and hold NBC harmless
from and against any claims, costs, losses, damages, or expenses (including rea-
sonable attorneys’ fees) incurred by NBC arising out of or relating to (a) any fail-
ure of the Products/Services to be Year 2000 Compliant or (b) any failure of ADMED
or its vendors’, sub-suppliers’, or contractors’ Products/Services to be Year 2000
Compliant. Notwithstanding anything herein to the contrary, the liability of ADMED
for a breach of ADMED’s Year 2000 Compliant representation and warranty shall
not be subject to any limitations or exclusions of remedies or warranties con-
tained in this Agreement or any other agreement between the parties.[The provi-
sions contained in this clause are only of academic interest and now considered
redundant.]
    9. Confidentiality. During the Term, each party hereto (the “Disclosing Party”)
may disclose to the other party (the “Receiving Party”) information in connection
with the performance of this Agreement, including, without limitation, information
concerning the Disclosing Party’s business, products, services, content, techni-
cal data, trade secrets, customer or advertiser lists, marketing plans, financial
documents or data, which when provided hereunder in documentary or other
tangible form shall be marked or stamped “Confidential”, and which if disclosed
orally or visually shall be identified in a writing marked “Confidential” by the Dis-
closing Party and submitted to the Receiving Party within thirty (30) days after
disclosure. All such information of or about the Disclosing Party shall be “Confi-
dential Information”. The parties shall use the Confidential Information of the other
party solely to perform its obligations under this Agreement, and all Confidential
Information shall remain the sole property of the Disclosing Party. ADMED and
NBC covenant to each other that during the Term and for a period of three (3)
years thereafter, neither party shall disclose to any third party (other than its em-
ployees and directors, in their capacity as such, and the employees and directors
of any affiliate, on a need to know basis so long as they are bound by the terms of
this Agreement) any information regarding the terms and provisions of this Agree-
ment or any Confidential Information of the other party except (i) in connection
with any federal securities laws and any applicable rules and regulations of any
stock exchange or quotation system; and (ii) in a confidential disclosure made in
connection with a contemplated financing, merger, consolidation or sale of capital
stock of ADMED or NBC or any affiliate of NBC. Notwithstanding the foregoing,
the Receiving Party shall have no obligation under this Agreement with respect to
any Confidential Information disclosed to it which (a) the Receiving Party can
demonstrate was already known to it at the time of its receipt hereunder, (b) is or
becomes generally available to the public other than by means of the Receiving
Party’s breach of its obligations under this Agreement, (c) is independently ob-
tained from a third party whose disclosure violates no duty of confidentiality, (d) is
independently developed by or on behalf of the Receiving Party without access to
G : CDD (Vol. 4) – 40
626                     CONVEYANCING, DRAFTING & DEEDS                        [PART I

or use of or reliance on any Confidential Information furnished to it under this
Agreement, and such independent development can be reasonably evidenced by
the Receiving Party, or (e) is disclosed pursuant to applicable law or regulation or
by operation of law, provided that the Receiving Party may disclose only such
information as is legally required, and provided further that the Receiving Party
shall provide reasonable notice to the Disclosing Party of such requirement and a
reasonable opportunity to object to such disclosure.
   10. Publicity. Each party shall consult with the other party before issuing any
press or other release or otherwise making any other public statement or any
statement to employees, customers or vendors of the parties with respect to this
Agreement; provided, however, that except as required by applicable law, neither
party shall issue any such press release or make any such public statement or
any statement to employees, customers or vendors without the prior written con-
sent of the other party.
    11. Records and Audit. Each party shall maintain complete, clear and accu-
rate books and records to verify in detail the calculations used to determine pay-
ments hereunder. Each party shall keep, store and maintain such books and
records for at least three years after Termination of the Agreement. At any time
during the Term or for three years thereafter, either party may, on thirty days’
notice to the other party, appoint an independent certified account to audit the
other party’s books and records during normal business hours to verify calcula-
tions, and the other party shall provide reasonable cooperation and assistance
necessary to the performance of said audit; provided, however, that each party
shall be limited to one (1) such audit in any twelve (12) month period.
      12. Term and Termination.
   A. The term of this Agreement (the “Term”) shall commence on the Effective
Date and shall continue in effect until (3) three months after the date, as deter-
mined under the provisions of Section 18 below, on which either party gives writ-
ten notice to the other party of its election to terminate the Agreement; provided,
however, that except as set forth below in this Section, neither party may give
notice of termination to the other party until three (3) months prior to the third
anniversary of the Effective Date.
    B. On or after [Date] either party terminate the Agreement with 60 days’ prior
written notice if gross total billings for Co-op Advertising and Advertising sold
pursuant to this Agreement is less than $* for the three months ended [Date].
    C. This Agreement may be terminated by either party on 60 days’ prior written
notice to the other party upon the occurrence of a material breach by the other
party of any covenant, duty or undertaking herein, which material breach contin-
ues without cure for a period of 45 days after written notice of such breach from
the non-breaching party to the breaching party.
   D. Either party may terminate this Agreement if a form of the Affiliate Agree-
ment is not agreed upon and attached to this Agreement within thirty (30) days of
the Effective Date.
   E. This Agreement may be terminated by NBC commencing 18 months after
the Effective Date if any of the following have occurred: (i) a significant change of
PART I]                   INTERNET AGREEMENTS—FORMS                              627

ownership of 50% or more of NBC-IN, (ii) a merger of NBC-IN (or a company
holding all or substantially all of the assets constituting NBC-IN) with a major
Internet company, (iii) a sale of all or substantially all of the assets constituting
NBC-IN, or (iv) a spin-off of NBC Internet properties or other material change in
NBC-IN’s status; provided, that NBC must provide ADMED with 90 days prior
written notice of such termination and such notice of termination may not be given
prior to 15 months after the Effective Date. If NBC terminates the Agreement
pursuant to this Section, then on the date such termination becomes effective it
shall pay ADMED a termination fee (the “Termination Fee”) equal to *.
    13. Indemnification.
    A. NBC shall indemnify and hold harmless ADMED and its officers, directors,
employees and agents against and in respect of any and all claims, suits, actions,
proceedings and investigations instituted by third parties, as well as any judg-
ments, damages, settlements, liabilities, and legal and other expenses (including
reasonable legal fees and expenses of attorneys) as and when incurred, arising
out of or based upon (a) any misrepresentation or breach of the representations
and warranties of NBC set forth in this Agreement, and (b) any non-compliance
by NBC with any covenants or agreements of NBC contained in or made pursuant
to this Agreement. ADMED shall indemnify and hold harmless NBC, its affiliates,
and their respective officers, directors, employees and agents, against and in
respect of any and all claims, suits, actions, proceedings and investigations insti-
tuted by third parties, as well as any judgments, damages, settlements, liabilities,
and legal and other expenses (including reasonable legal fees and expenses of
attorneys) as and when incurred, arising out of or based upon (a) any misrepre-
sentation or breach of the representations and warranties of ADMED set forth in
this Agreement, and (b) any non-compliance by ADMED with any covenants or
agreements of ADMED contained in or made pursuant to this Agreement.
    B. Upon the assertion of any claim or the commencement of any suit or pro-
ceeding against an indemnified party by any third party that may give rise to
liability of an indemnifying party hereunder, the indemnified party shall promptly
notify the indemnifying party of the existence of such claim and shall give the
indemnifying party reasonable opportunity to defend and/or settle the claim at its
own expense and with counsel of its own selection. The indemnified party shall
co-operate with the indemnifying party and shall at all times have the right to fully
participate in, but not control, such defense with its own counsel and at its own
expense. The indemnified party shall not make any settlement of any claims which
might give rise to liability of the indemnifying party hereunder without the prior
written consent of the indemnifying party.
    14. No Poaching. NBC and ADMED agree that during the Term, neither NBC
nor ADMED will solicit or recruit the services of each other’s employees, or hire
any such employees, for the purpose of selling Internet Advertising without prior
written consent of the other party. In addition, upon termination of this Agree-
ment, the party that first provides notice of termination (unless such notice is
pursuant to Sections 12.C or 12.D), shall not solicit or recruit the services of the
other party’s employees, or hire any such employees, for the purpose of selling
Internet Advertising for a period of one year without prior written consent of the
other party.
628                       CONVEYANCING, DRAFTING & DEEDS                          [PART I

    15. No Waiver. This Agreement shall not be waived or modified except by a
written consent to that effect signed by NBC and ADMED.
    16. Assignment. Neither party may assign this Agreement without the prior
written consent of the other, except (a) in connection with the sale of all or sub-
stantially all of its assets, (b) to the surviving entity in any merger or consolidation,
or (c) in the case of NBC, to an affiliated company. Each party agrees that if it
assigns or transfers this Agreement, it shall cause such successor, assignee, or
transferee to assume all of such party’s obligations hereunder.
   17. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of [Country Name].
    18. Notices. All notices required or permitted to be given hereunder shall be in
writing and either hand-delivered, telecopied, mailed by certified first class mail,
postage prepaid, or sent via electronic mail to the other party or parties hereto at
the last-known address(es).A notice shall be deemed given when delivered per-
sonally, when the telecopied notice is transmitted by the sender, three business
days after mailing by certified first class mail, or on the delivery date if delivered
by electronic mail.
    19. Entire Agreement. This Agreement, including the Schedules and Exhibits
attached hereto, constitutes the entire agreement and supersedes all prior agree-
ments of the Parties with respect to the transactions set forth herein and, except
as otherwise expressly provided herein, is not intended to confer upon any other
person any rights or remedies hereunder.
   20. Survival. The provisions of Sections 2.1, 5, 7-11, 13, 14 & 17 shall survive
any expiration or termination of this Agreement.
   21. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which together shall constitute one
and the same document.
  IN WITNESS WHEREOF, the parties hereto have duly executed this Agree-
ment on this [Date].
SIGNED SEALED AND DELIVERED BY
THE PARTIES IN THE PRESENCE OF
WITNESSES:
1.
2.


                                          55
         Safe Surfing Agreement about Using the Internet

    I, [Name], son/daughter of [Father’s name], aged [Age] , residing at [Address]
want to use the Internet. I know that there are certain rules about what I should do
online. I agree to follow these rules & my parents agree to help me follow these
rules:
PART I]                    INTERNET AGREEMENTS—FORMS                                 629

   1. I will not give my name, address, telephone number, school, or my parents’
names, addresses, or telephone numbers, or anything else that would help any-
one find me off-line (like the name of my sports team) to anyone I meet on the
computer.
    2. I understand that some people online pretend to be someone else. Some-
times they pretend to be kids, when they’re really grown-ups. I will tell my parents
about people I meet online. I will also tell my parents before I answer any e-mails
or instant messages I get from, or send e-mail or instant messages to, new people
I meet online.
   3. I will not buy or order anything online or give out any credit card information
without asking my parents.
    4. I will not fill out any form online that asks me for any information about
myself or my family without asking my parents first. This includes forms for con-
tests or registering at a site. I’ll also check to see if the sites have a privacy policy
& if they promise to keep my private information private. If they don’t promise to
keep my private information private, I won’t give them any private information. (I
will talk to my parents about what “private information” is.)
   5. I will not get into arguments or fights online. If someone tries to start an
argument or fight with me, I won’t answer him or her & will tell my parents.
   6. If I see something I do not like or that makes me uncomfortable or that I
know my parents don’t want me to see, I will click on the “Back” button or log off.
   7. If I see people doing things or saying things to other kids online I know
they’re not supposed to do or say, I’ll tell my parents.
    8. I won’t keep online secrets from my parents.
    9. If someone sends me any pictures, links to sites I know I shouldn’t be going
to, or any e-mail or instant messaging using bad language, I will tell my parents.
   10. If someone asks me to do something I am not supposed to do, I will tell my
parents.
   11. I will not call anyone I met online unless my parents say it’s okay. (Even
then I will block caller ID by pressing *57 on my phone.)
   12. I will never meet in person anyone I met online, unless my parents say it’s
okay & they are with me.
     13. I will never send anything to anyone I met online, unless my parents say
it’s okay.
    14. If anyone I met online sends me anything, I will tell my parents.
    15. I will not use something I found online & pretend it is mine.
    16. I won’t say bad things about people online, & I will practice good Netiquette.
   17. I won’t use bad language online or threaten anyone, even if I’m only kid-
ding.
   18. I know that my parents want to make sure I’m safe online, & I will listen to
them when they ask me not to do something.
    19. I will help teach my parents more about computers & the Internet.
630                      CONVEYANCING, DRAFTING & DEEDS                       [PART I

   20. I will practice safe computing, & check for viruses whenever I borrow a disk
from someone or download something or open any attachment, even from some-
one I know.
   21. I will tell my parents when something bad happens online, because they
promise not to overreact if something bad happens online. And I will remember
that it’s not my fault if others do bad things online!

_________________________________________________________________
I promise to follow these rules.

(signed by child/teen)

I promise to help my child follow these rules & not to overreact if my child tells me
about bad things that happen in cyberspace.

(Signed by parent)


                                         56
                   Network Travel Services Agreement
    THIS AGREEMENT is made on this ———day of ————, 2002 (“Effective
Date”) BETWEEN gettravel.com having its principal place of business at ———
—————(hereinafter called “GT”) AND Universal Airlines Corporation, with
its principal place of business at ————{hereinafter called {the “Company”).
                                 BACKGROUND
     GT develops and markets travel-related technology and services for use in
connection with the World Wide Web. The GT Reservation System permits cus-
tomers to access real-time inventory and make travel reservations via the World
Wide Web. Company wishes GT to provide online airline ticket reservation and
ARS and CRS ticketing services, and other ancillary reservation and ticketing
services, through access to the GT Reservation System via screens displaying
its logos and other Company-specific information.
      GT and COMPANY agree as follows:
      1. Certain Definitions.
        1.1 “ARS” means the Airline Reservations System.
        1.2 “Booking” means the creation of a PNR within the database of the
            applicable CRS or ARS and all changes and cancellations relating to
            such PNR.
        1.3 “Company Client” means a customer of Company that utilizes the
            licensing services.
        1.4 “Content” means the Company specific content as set forth in At-
            tachment A (“Company Content”) delivered by Company to GT for
            use in the Private Label Site.
PART I]                      INTERNET AGREEMENTS—FORMS                             631

          1.5 “CRS” means a computer reservation system other than ARS imple-
              mented or accessed by the GT Reservation System to process ticket
              reservation and purchasing.
          1.6 “Data Center” means the GT facilities where the servers and equip-
              ment necessary to host, operate, manage and maintain the Private
              Label Site and the G.T Reservation System are located.
          1.7 “GT Reservation System” means GT’s proprietary booking engine
              that provides access to ARS or to another CRS in order to make travel
              reservations via the World Wide Web.
          1.8 “PNR” means a single passenger name record (which can include
              multiple names and segments) containing sufficient information to pro-
              cess a travel reservation.
          1.9 “Private Label Site” means a set of World Wide Web pages through
              which a Company Client may access the GT Reservation System via
              screens displaying the Content.
    2. Content and License Rights.
          2.1 GT License. GT grants to Company a world-wide, non-exclusive, non-
              transferable, non-sublicensable, royalty-free license during the term
              of this Agreement to access, and to permit its employees, contractors,
              and Company Clients to access and use the Private Label Site and
              the GT Reservation System. Company acknowledges GT’s propri-
              etary rights set forth in Section 11.1.
          2.2 Company License. Company will provide GT with the Content for the
              Private Label Site as further described in the SOW (as defined be-
              low). Company grants to GT a world-wide, non-exclusive, royalty-free
              license during the term of this Agreement to reproduce, electronically
              distribute and publicly display the Content delivered to GT by Com-
              pany only on the Private Label Site in accordance with Company’s
              instruc ions. GT acknowledges that Company owns all right, title and
              interest in and to the Content.
    3. Implementation and Further Updates to Functionality and Performance.
          3.1 Assistance and Coordination. Company will (i) cause EDS to install
              a physical connection from ARS to the Data Center and provide infor-
              mation with respect thereto reasonably necessary to enable GT to
              use the connection; (ii) facilitate GT’s access to ARS and reasonably
              available personnel who can assist GT in understanding ARS so that
              GT can develop the code required to communicate with ARS, (iii) per-
              haps install dedicated lease lines if required between Company and
              the Data Center for updating Frequent Flyer information as set forth in
              the SOW, and (iv) provide such other items and assistance as may be
              reasonably necessary to enable GT to implement the Private Label
              Site, as expressly set forth in the SOW (as defined in Section 3.2
              below). If after no less than twenty one (21) days after the anticipated
              installation date discussed in Section 3.2, such physical connection is
              not installed, or if GT is unable to obtain the specified assistance from
632                     CONVEYANCING, DRAFTING & DEEDS                       [PART I

           Company for a period of twenty-one (21) consecutive days, and GT
           has used its diligent, good faith efforts to have such connection or
           lines installed or obtain such access or assistance, and GT has kept
           Company continuously informed regarding its inability to do so, GT
           will have the right to terminate this Agreement without penalty and
           with no cause of action against Company. In the event of any such
           termination, GT shall refund to Company [*], [*], or [*] of the License
           Fee paid by Company if the termination occurs in the first, second, or
           third month respectively during the term of this Agreement.
      3.2 Implementation. GT will implement the Private Label Site no later
          than —————,2003 (“Delivery Date”), in accordance in all material
          respects with the specifications set forth in the Statement of Work
          (“SOW”) contained in Attachment B hereto. The Delivery Date shall
          be extended one day for each day after————— that the ARS physi-
          cal connection referred to in Section 3.1 is not installed and shall oth-
          erwise be extended to account for delays resulting from Company’s
          failure to obtain the access or assistance referred to in Section 3.1, or,
          upon mutual written agreement, to account for other delays in the imple-
          mentation process and changes in the SOW agreed to by the parties.
          Implementation is understood to mean GT’s providing Company what
          GT reasonably and in good faith believes to be a fully functional ver-
          sion of the Private Label Site that operates in accordance in all mate-
          rial respects with the specifications in the SOW and that is ready to be
          acceptance tested as set forth in Section 3.3 below. Company ap-
          proval of such tests (and in turn acceptance) shall not be unreason-
          ably withheld.
      3.3 Acceptance. Acceptance of the Private Label Site will be deemed to
          have occurred at the end of fifteen (15) days after the Delivery Date,
          unless prior thereto notice of rejection is communicated by Company
          to GT in writing. Company may reject the Private Label Site only if it
          fails in some material respect to meet the specifications in the SOW. If
          Company properly rejects the Private Label Site, GT will correct or
          remedy such non-conformance as soon as reasonably possible but in
          no event in more than thirty days (30) days after receipt of notice of
          rejection. When it has made the necessary corrections, GT will again
          deliver the Private Label Site to Company and the acceptance/rejec-
          tion/correction provisions above shall be reapplied until the Private
          Label Site is accepted or the other remedies are selected, as set forth
          below; provided that, as Company’s sole remedy for GT’s breach of
          Section 3.2 or 3.3 Company may, after the second or any subsequent
          rejection under this Section 3.3, either (i) with GT’s agreement, have
          the GT Reservation System implemented with another CRS-based
          system of GT’s choice, until such time as GT can implement the GT
          Reservation System with ARS; (ii) extend the time frame for accep-
          tance of the GT Reservation System with ARS; or (iii) terminate this
          Agreement and receive a full refund of all amounts paid, with no fur-
          ther payment obligations thereafter to GT. If Company chooses the
          alternative described in clause (i), GT will reimburse Company for the
PART I]                      INTERNET AGREEMENTS—FORMS                             633

               difference, if any, between the transaction fees charged to Company
               by the CRS based system and the transaction fees that would have
               been charged to Company if it had used ARS. The Cut-Over Date
               shall be the date Company releases the Private Label Site to Com-
               pany Clients to perform live Bookings or the date mutually agreed
               upon by the parties but shall occur as soon as possible following the
               date that the Private Label Site is accepted as provided above. Failure
               by Company to object or notify prior to acceptance will not limit GT’s
               obligations to correct material non-conforming conditions later discov-
               ered pursuant to this Agreement. The acceptance processes set forth
               within this Section 3.3 will also govern the acceptance procedure for
               implementation of special features set forth in Section 8.3. Notwith-
               standing anything to the contrary in this Section 3.3, GT shall not be
               deemed to be in breach of Sections 3.2 or 3.3 if its failure to perform
               any obligation provided for herein or therein is a result of Company’s
               failure to cause EDS to install the ARS physical connection as re-
               quired under Section 3.1, or to perform any of its other obligations
               under Sections 3.1, 3.2 or 3.3, in any material respect or of any matter
               beyond GT’s reasonable control as specified in Section 13.1.
          3.4 Operation. GT will operate the Private Label Site from and after the
              Cut-Over Date in all material respects in accordance with the opera-
              tional specifications contained in the SOW and the system availability
              requirements set forth in Attachment D.
          3.5 Further Development Obligations. After acceptance of the Private
              Label Site, GT shall have no obligation to perform further develop-
              ment or customization work except as set forth in this Section 3, Sec-
              tion 10, or as may be required pursuant to Attachment D. Any modifi-
              cations or updates to the Private Label Site will be made at the Op-
              tional Services Fees set forth in Exhibit C, subject to this Section 3,
              Section 10 and Company’s right to receive such modifications or up-
              dates free of charge as set forth in this Agreement. GT acknowledges
              and agrees that it is obligated to provide such development or
              customization work in accordance with and subject to the procedures
              set forth in this Section 3 up to [*] hours of development time per con-
              tract year, as provided in Attachment C.
          3.6 Upgrades. GT agrees to offer and provide to Company any updates
              and upgrades to the GT Reservation System and related upgrades
              to the Private Label Site that GT creates, licenses or acquires and
              makes available generally to its comparable customers using compa-
              rable GT products and services. All such updates and upgrades shall
              be free of charge unless GT makes such updates or upgrade gener-
              ally available to comparable GT customers using comparable GT prod-
              ucts and services only at an additional price. GT agrees to make any
              such update or upgrade for which it charges additional prices avail-
              able to Company at a price no greater than the amount Company
              would pay if it had commissioned such update or upgrade as a sepa-
              rate development project under this Agreement. If implementation of
634                    CONVEYANCING, DRAFTING & DEEDS                       [PART I

           such updates or upgrades can be made on Company’s behalf only
           following special configuration work by GT because of customized
           configurations previously adopted by Company, the parties shall agree
           upon appropriate Optional Service Fees pursuant to the procedure
           set forth in Section 3.7 and in Attachment C. The provision of any
           such implementation work by GT may be counted as part of the one
           thousand (1,000) hours of services to be provided by GT at no charge
           if Company so elects.
      3.7 Project Management and Change Methodology. The parties will use
          the following project management methodology in developing any soft-
          ware under this Section 3 specifically for the purpose of operating the
          Private Label Site, either for any changes to the specifications for the
          initial implementation in the SOW or for any additional projects follow-
          ing the Cut Over Date: (i) project definition - Company will supply a
          written description of the proposed project or change order and its
          purpose; (ii) Requirements document - to be developed by Company
          either alone or with GT personnel; (iii) Cost analysis - within fifteen
          (15) days following receipt of the project definition document and the
          requirements document (if different), GT will use its reasonable com-
          mercial efforts to provide Company a detailed written list of all pro-
          jected project fees, costs and expenses, together with an initial de-
          scription of the necessary engineering specifications and development
          schedule to achieve the project or to enact the change order; (iv) Com-
          pany may then elect to proceed with the project for the price, specifi-
          cations and schedule agreed upon by the parties; (v) GT will include
          any such project or projects in its regular releases and in two addi-
          tional releases each year ; (vi) upon completion of a project (excluding
          changes to the initial implementation, which is addressed in Sections
          3.2 and 3.3 above), the parties shall conduct acceptance testing and
          verification for the project in accordance with the written specifica-
          tions agreed upon by the parties or in accordance with the procedures
          of Section 3.3 above; (vii) only upon acceptance pursuant to Section 3
          will GT implement the results of the project in the Private Label Site;
          and (viii) Post Mortem - the parties will meet to discuss issues and
          improvements that may be designed into development process for fu-
          ture projects. Nothing in this Section 3.7 will be deemed to require GT
          to accept or undertake any project or development effort that it is not
          required to accept or undertake by another provision of this Agree-
          ment.
      3.8 New Functionality. GT will obtain Company’s approval, which will
          not be unreasonably withheld, before it integrates any new functional-
          ity into the GT Reservation System or the Private Label Site. GT will
          provide Company access to one or more test servers for the purpose
          of understanding and testing such functionality. Notwithstanding the
          foregoing, GT reserves the right to integrate any new functionality,
          modifications or reliability or performance improvements into its basic
          application without prior approval of Company, so long as such modi-
          fications do not adversely affect Company’s or Company’s Clients’
          use of the GT Reservations System or the Private Label Site.
PART I]                      INTERNET AGREEMENTS—FORMS                             635

          3.9 Content Uploads. GT will provide Company with 24X7 access to the
              Private Label Site in order to enable Company to modify the Content
              of the Private Label Site as Company chooses. Company will be solely
              responsible for the Content it uploads or modifies. GT will provide pass-
              word security that will enable Company to designate individuals who
              are allowed to update content. GT shall not modify the Content or
              remove or upload Content from or to the Private Label Site without the
              prior written consent of Company.
      3.10 Time of Essence. Each party acknowledges that time is of the es-
           sence in performance of its obligations hereunder.
      3.11 Pooling Development Efforts. GT will invite Company to participate
           in user groups that GT may create or facilitate among GT’s online
           reservations customers. GT may facilitate and undertake joint devel-
           opment efforts by similar users where the users agree to share the
           costs and fees for such joint development efforts. Company may, for a
           premium price and other terms and conditions to be determined on a
           project-by-project basis, require that any development project funded
           solely by Company remain licensed or implemented solely for Com-
           pany. In the event that another GT customer in the same industry
           designates a project for its sole use, Company has the right to initiate
           a development project for the same or equivalent functionality or per-
           formance as that implemented for or licensed to the other GT cus-
           tomer on terms and conditions agreeable to the parties and for the
           fees set forth in Attachment C. Company acknowledges that any such
           development effort would involve code independently developed by
           GT, that GT would not use any intellectual or other proprietary rights
           owned by or licensed exclusively to such other customer, and that the
           project would likely be conducted and priced as if GT had not previ-
           ously undertaken such work.
      3.12 Advertising. Subject to this Section 3.12 and the SOW, GT shall have
           the sole and exclusive right to procure and display third party adver-
           tising on the Private Label Site for [*] of the page views throughout the
           Site (the “Exclusivity”) during the first two years of the Agreement
           beginning on the Cut- Over Date, and thereafter until such right is
           terminated as provided below. Company shall provide space on each
           page of the Site at the location and in the dimensions provided in the
           SOW, and GT shall have the right to display such advertising in the
           format specified in the SOW. The revenue from all such advertising
           shall be shared as provided in Attachment C. GT’s Exclusivity shall
           terminate six (6) months after it receives written notice from Com-
           pany (such termination not to be effective before the end of the sec-
           ond full year of the Agreement after the Cut-Over Date) that Com-
           pany has decided not to have any advertising displayed on the Site or
           has decided that it will procure and display all advertising on the Site
           using its own internal resources and not through a third party (“Termi-
           nation Notice”). GT’s Exclusivity shall also terminate thirty (30) days
           after it receives written notice from Company (such termination not to
636                       CONVEYANCING, DRAFTING & DEEDS                           [PART I

             be effective before the end of the second full year of the Agreement
             after the Cut-Over Date) that Company intends to accept a bona fide
             offer from another party to enter into an agreement with such party
             pursuant to which the party would have the sole and exclusive right to
             procure and display third party advertising on the Site for at least [*] of
             the page views throughout the Site (“Third Party Offer Notice”), un-
             less GT notifies Company in writing that it agrees to the revenue shar-
             ing and other material terms and conditions of the proposed agree-
             ment. If it does so agree, it’s Exclusivity shall continue until it is termi-
             nated as provided above or until it receives another Third Party Offer
             Notice (which will not be given before the end of six months from the
             date of the most recent prior Third Party Notice), in which event the
             same rights and procedures specified above shall apply. Any Third
             Party Offer Notice by Company shall include the advertising revenue
             sharing and other material terms and conditions of the proposed agree-
             ment with the third party. Company can reject any such advertising
             that it reasonably and in good faith deems to be inappropriate, and GT
             agrees not to display any advertisements for airline competitors of
             Company.
      4. Access.
        4.1 URL’s. Company will assign one or more Universal Resource Loca-
            tors (URL) for the Private Label Site, which GT will promptly imple-
            ment.
        4.2 Access Equipment. Except as otherwise provided in this Section 4.2
            or in Section 10.5 or Section 13.1 (regarding matters beyond its rea-
            sonable control), GT is responsible for all equipment, servers, soft-
            ware and communications within its Data Centers. GT is not respon-
            sible for (i) the ARS (except for the interface of the ARS to the GT
            Reservation System and the physical connection within the Data Cen-
            ters to the ARS); (ii) the transmission to the Data Center of the Con-
            tent (except for the physical connection within the Data Centers to the
            leased lines transmitting the content); (iii) Company Client’s access
            to ARS, the Content or any other data supplied by Company or to the
            Internet; or (iv) any equipment needed by Company or Company Cli-
            ents to access the Internet. In the event access to the Private Label
            Site requires additional communications connections to GT, the Con-
            tent or other data ARS or the Internet, Company shall be responsible
            for the reasonable costs associated with such connections, as set
            forth in Attachment C. To the extent that provisioning of such ccess
            results in GT incurring additional time, cost, or expense, GT and Com-
            pany will agree upon fees due for such implementation.
      5. Reports.
        5.1 Database Reports. GT shall provide Company written reports in elec-
            tronic form no less frequently than once every day detailing PNR infor-
            mation.
        5.2 Performance Reports. GT shall provide Company written reports in
PART I]                     INTERNET AGREEMENTS—FORMS                            637

               electronic form no less frequently than once every month detailing the
               performance of the Private Label Site and the GT Reservation Sys-
               tem during the last review cycle. Such report shall include summaries
               of all Company customer support requests and their resolution, all
               system down time, both scheduled and unscheduled, any errors or
               non- conformities reported or discovered in the Private Label Site or
               the GT Reservation System, any latency, bandwidth, equipment,
               communication or other problems, a status report on all Company
               current development projects, and such other performance character-
               istics and measurements as the parties may agree to from time to
               time.
    6. Technical Support. GT shall provide Company with the technical support
for the Private Label Site as set forth in Attachment D.
    7. Bookings. GT will queue to Company a live PNR via ARS for each Book-
ing made through the Private Label Site that will serve as confirmation to Com-
pany of each Booking made through the Private Label Site and will keep records
of such Bookings.
    8. Payments.
          8.1 Fees. During the initial and any renewal term of this Agreement Com-
              pany shall pay GT the Fees set forth in Attachment C. If the Agree-
              ment is renewed, GT may increase the Private Label Site Manage-
              ment Fees (“License Fees”) for any year in any renewal term by not
              more than [*] [*] over the License Fees in effect during the preceding
              year.
          8.2 Server and Communications Costs. Company shall pay the Server
              and Communications Costs as calculated in Attachment C.
          8.3 Optional Services Fees. If GT provides any special features in accor-
              dance with the procedures set forth in Section 3.7, Company shall
              pay the associated Optional Services Fees set forth in Attachment C.
              [*] hours of such services for each year of the term of the Agreement
              shall be provided as specified in Attachment C at no charge. GT will
              invoice Company every thirty (30) days for Optional Service Fees in-
              curred or based upon project milestone attainment, as mutually agreed
              by the parties for each project.
          8.4 Payment. Except as otherwise stated herein, all payments due GT
              hereunder shall be made within thirty (30) days of the date of GT’s
              invoice. Company shall pay GT for all sales, use and other taxes and
              similar charges based on or arising from this Agreement or its perfor-
              mance, other than taxes based on GT’s net income, that GT invoices
              Company. Any such taxes will be listed separately on each invoice.
              Late payments for any amounts due hereunder will bear interest at
              one and a half percent (1.5%) per month or the maximum rate permit-
              ted by law, whichever is less.
          8.5 Commissions and Advertising Revenue. Hotel and Car Commis-
              sions and advertising revenue due to Company, as set forth in At-
              tachment C, shall be paid by GT on a quarterly basis. Revenue owed
638                      CONVEYANCING, DRAFTING & DEEDS                       [PART I

             by GT may be paid or applied as a credit to Company monthly in-
             voices, as elected by Company.
        8.6 Expenses. In addition to the Optional Services Fees set forth in At-
            tachment C, Company shall reimburse GT for reasonable expenses
            incurred for meals, lodging, and travel (air coach rates) previously
            authorized in writing by Company and incurred as a result of imple-
            mentation of special features required by Company, GT shall invoice
            Company for these expenses and Company shall pay GT within thirty
            (30) days of the date of GT’s invoice.
        8.7 Air Travel. GT will notify Company before making any air travel ar-
            rangements involving services to be performed under or other mat-
            ters relating to this Agreement. Company will attempt to book any
            such travel on Company aircraft. If Company cannot do so, it will au-
            thorize GT to book travel on another carrier.
        8.8 Disputed Amounts. If Company in good faith disputes any portion of
            a GT invoice, Company will timely pay GT all undisputed amounts.
            Within thirty (30) days of invoice date for an invoice on which a dis-
            puted amount appears, Company will: (i) notify GT in writing of the
            specific items in dispute; (ii) will describe in detail Company’s reason
            for disputing each such item; and (iii) in the event that the disputed
            amount (or the aggregate of amounts previously disputed by Com-
            pany) exceeds fifty thousand Rupees (Rs.50,000), will deposit such
            disputed amount into an escrow account. Within fifteen (15) days of
            GT’s receipt of such notice, the parties will negotiate in good faith to
            reach settlement on any items that are the subject of such dispute. If
            Company does not notify GT of any items in dispute within such thirty
            (30) day period, Company will be deemed to have approved and ac-
            cepted such invoice, except to the extent that an audit as described in
            Section 9.1 reveals inaccuracies in any invoice not reasonably dis-
            cernible through commercially reasonable scrutiny in the course of
            Company’s payment processing system.
      9. Audit Rights.
        9.1 Record Keeping; Audit Rights. GT agrees that it will maintain its books
            and records relating to the fees and other costs and expenses paid by
            Company under this Agreement for not less than five (5) years after
            they have been paid, and will, upon reasonable cause and notice,
            permit such books and records to be examined, at Company’s ex-
            pense, by an independent certified public accountant retained by Com-
            pany reasonably acceptable to GT solely for the purpose of confirm-
            ing the accuracy of such Fees, costs and expenses. As a condition to
            such examination, the independent public accountant will execute a
            written agreement, reasonably satisfactory in form and substance to
            GT, to maintain in confidence all information obtained during the course
            of the examination except for disclosure to Company and GT as nec-
            essary for the above purpose and will only conduct such examination
            during regular business hours. If errors of five percent (5%) or more
            are discovered as a result of such examination, GT shall reimburse
PART I]                     INTERNET AGREEMENTS—FORMS                               639

              Company for the expense of such examination and pay the difference
              immediately.
          9.2 Technical Audits.
               (a) Employees of Company and its auditors who are from time to
                   time designated by Company and who agree in writing to the
                   security and confidentiality obligations and procedures reason-
                   ably required by GT shall be provided with reasonable access to
                   any facility at which services are being performed to enable them
                   to audit GT’s performance of services and other matters relevant
                   to this Agreement, including (i) verifying the accuracy of GT’s
                   charges to Company and (ii) verifying that services are being pro-
                   vided in accordance with this Agreement, including any applicable
                   performance criteria, standards and milestones.
               (b) Such audits may be conducted once every year during normal
                   business hours; provided, however, that the parties may agree to
                   more frequent audits as deemed reasonably necessary. Com-
                   pany will provide GT with reasonable prior written notice of an
                   audit. GT will cooperate in the audit, will make the information
                   reasonably required to conduct the audit available on a timely
                   basis and will assist the designated employees of Company or
                   its auditors as reasonably necessary. All information learned or
                   exchanged in connection with the conduct of an audit, as well as
                   the results of any audit, is confidential and will be subject to Sec-
                   tion 14.
               (c) Following an audit, Company will conduct an exit conference with
                   GT to discuss issues identified in the audit that person to GT, and
                   Company will give GT a copy of any portion of the audit report
                   pertaining to GT. The parties will review each GT audit issue and
                   will mutually agree: (i) what, if any, actions will be taken in re-
                   sponse to such audit issues, when and by whom and (ii) which
                   Party will be responsible for the cost of taking the actions neces-
                   sary to resolve such issues. Any such determination will be based
                   on the following criteria: (A) who caused the original deficiency;
                   (B) who has contractual responsibility for the improvement of in-
                   ternal controls; and (C) who set the standards against which the
                   audit is conducted. GT will not be responsible for the cost of an
                   audit, unless otherwise agreed to in writing by the parties.
10. Warranties and Disclaimers.
      10.1 Title Warranty; Authorization. Each of GT and Company warrants
           to the other that it has the right to enter into this Agreement and per-
           form its obligations hereunder. Without limiting the generality of fore-
           going, Company warrants to GT that it now has and/or will have the
           right to provide GT with all Content to be provided with respect to this
           Agreement. In addition, and without limiting the first sentence above,
           GT represents and warrants that it has all necessary right, title and
           interest to undertake the activities and perform the services required
           of it under this Agreement.
640                     CONVEYANCING, DRAFTING & DEEDS                       [PART I

      10.2 Performance Warranty. GT warrants that the GT Reservation Sys-
           tem and the Private Label Site will function and perform in all material
           respects in accordance with the specifications contained in the SOW,
           as the SOW may be amended and updated by mutual agreement of
           the parties. If Company notifies GT of a breach of the foregoing war-
           ranty, or if GT otherwise becomes aware of a breach of the foregoing
           warranty, GT shall implement the problem investigation and correc-
           tion procedures specified in Attachment D at no cost to Company.
      10.3 Year 2002 Warranty. GT warrants that the GT Reservations System
           will (a) manage and manipulate date data involving all dates from the
           21st centuries without functional or data abnormality related to such
           dates; (b) manage and manipulate date data involving all dates 21st
           centuries without inaccurate results related to such dates; and (c) have
           user interfaces and date data fields formatted (or inferred) to distin-
           guish between dates 21st centuries. No representation or warranty,
           however, is made with respect to any third party technology, other
           than as incorporated or used in the Data Centers, being used in com-
           bination with the GT Reservation System, including without limita-
           tion, third party software, services, telecommunications or technol-
           ogy, and this warranty is subject to the condition that any such third
           party technology outside the Data Centers will properly and correctly
           exchange data with the GT Reservation System and will be year
           2002 compliant. To the extent there is a breach of this Section 10.3 GT
           shall implement the problem investigation and correction procedures
           specified in Attachment D at no cost to Company.
      10.4 Harmful Code. GT represents and warrants to Company that, as of
           the Delivery Date, to the best of its knowledge, software utilized by GT
           in providing the service does not contain computer instructions, cir-
           cuitry or other technological means whose purpose is to disrupt, dam-
           age or interfere with any use of either party’s computer and communi-
           cations facilities or equipment (“Harmful Code”) and it has used com-
           mercially reasonable efforts to prevent the introduction of such “Harm-
           ful Code” to the services prior to delivery to or use by Company. For
           the purposes of this warranty, Harmful Code shall include, without
           limitation, any code containing viruses, Trojan horses, worms, or like
           destructive code or code that self-replicates. To the extent there is a
           breach of this Section 10.4 GT shall implement the problem investiga-
           tion and correction procedures specified in Attachment D at no cost to
           Company.
      10.5 Exemptions. Company acknowledges and agrees that GT shall not
           be responsible for Private Label Site or GT Reservation System un-
           availability due to (i) outages caused by the failure of public telecom-
           munications network or (ii) errors in coding in, or any other aspect of,
           HTML or the electronic files containing ARS or Content supplied by
           Company, (iii) unauthorized use or misuse by users of the Private
           Label Site unless such misuse is foreseeable or common; or (iv) EDS’s
           failure to provide access to the ARS or the physical connectivity from
PART I]                    INTERNET AGREEMENTS—FORMS                             641

             ARS to the Data Center. During the term of this Agreement, every
             quarter, Company shall provide GT with a six (6) month rolling fore-
             cast of the total transaction volumes on the Private Label Site (“Fore-
             cast”). If the actual transaction volume is twenty percent (20%) greater
             than the Forecast, then GT shall not be responsible for failure to meet
             the availability requirements specified in Section 2 of Attachment D;
             provided however, that GT shall use its commercially reasonable ef-
             forts to meet such availability requirements.
      10.6 Disclaimer. EXCEPT AS PROVIDED ABOVE, ALL INFORMATION,
             TECHNOLOGY AND SERVICES PROVIDED BY GT HEREUNDER ARE
             PROVIDED “AS IS” WITHOUT ANY REPRESENTATIONS OR WARRAN-
             TIES OF ANY KIND, EXPRESS OR IMPLIED. WITHOUT LIMITING THE
             GENERALITY OF THE FOREGOING, GT EXPRESSLY DISCLAIMS ANY
             IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PAR-
             TICULAR PURPOSE OR NON-INFRINGEMENT WITH RESPECT TO
             SUCH INFORMATION, TECHNOLOGY AND SERVICES.
11. Proprietary Rights.
      11.1 Ownership. Company acknowledges that, as between the parties,
           GT owns all right, title, and interest in and to all components of the
           Private Label Site (excluding the Content) and the GT Reservation
           System, and the interface to ARS, now or hereafter existing, including
           all improvements and derivatives thereof and modifications thereto.
           GT acknowledges that, as between the parties, Company owns all
           right, title and interest in and to the Content now or hereafter existing,
           including all improvements and derivatives thereof and modifications
           thereto.
      11.2 Use Restrictions. Except as otherwise specifically provided in this
           Agreement, nothing in this Agreement shall give Company any right
           or license to use, reproduce, display or distribute (electronically or
           otherwise) any technology or intellectual property rights in the GT Res-
           ervation System. Except as otherwise specifically provided in this
           Agreement, nothing in this Agreement shall give GT any right or li-
           cense of any kind to use the Content, any trademarks, logos, service
           marks or trade marks of Company, or any data supplied by a Com-
           pany client or discoverable about a Company client by way of its use
           of the Private Label Site.
      11.3 “Powered by GT.” GT reserves the right to display its copyright, stan-
           dard trademark graphic, the phrase “Powered by GT” and standard
           disclaimer on the Private Label Site in a manner and format to be
           mutually agreed upon by GT and Company.
      11.4 Trademark License. Subject to the terms and conditions set forth in
           the Agreement and solely for the purposes hereof, Company grants
           GT a non-transferable, non-exclusive license, without right of sub-li-
           cense, to place the Company trademarks, trade names, service marks
           and logos (“Marks”) on the Private Label Site as directed by Com-
           pany. In no event may GT alter or remove any Marks unless such

G : CDD (Vol. 4) – 41
642                     CONVEYANCING, DRAFTING & DEEDS                        [PART I

            alteration or removal is approved in advance in writing by Company.
            Except for the right to use the Marks as set forth in this Section 11.4,
            nothing contained in this Agreement shall be construed to grant GT
            any right, title or interest in or to the Marks. GT acknowledges
            Company’s exclusive ownership of the Marks and the renown of such
            Marks worldwide. GT agrees not to take any action inconsistent with
            such ownership and further agrees to take, at Company’s reasonable
            expense, any action which Company reasonably requests to estab-
            lish and preserve Company’s exclusive rights in and to its Marks. GT
            shall not adopt, use or attempt to register any trademarks or trade
            names that are confusingly similar to the Marks or in such a way as to
            create combination marks with the Marks. If, in Company’s reason-
            able discretion, GT’s use of the Marks does not meet Company’s
            then-current trademark usage policy, or the Private Label Site and
            associated services are performing in a manner that Company be-
            lieves negatively affects the value of the Marks, GT will, at Company’s
            request, undertake the necessary remediation, as set forth in Sec-
            tions 3 or 10 or as otherwise agreed by the parties.
      11.5 GT Indemnity. Except as provided in Section 11.6, GT shall indem-
           nify, defend and hold Company harmless from and against any and
           all liabilities, losses, damages, costs and expenses (including, without
           limitation, reasonable attorneys’ fees) incurred by Company on ac-
           count of such third party’s claim of infringement or misappropriation
           resulting from Company’s or Company Clients’ use of the GT Reser-
           vation System or the Private Label Site (excluding Content) any
           patent, copyright, trademark or trade secret or other proprietary right;
           provided however that Company shall give GT prompt notice in writ-
           ing of such suit or proceeding, GT shall have complete control of the
           settlement and defense thereof, and Company shall provide any in-
           formation and assistance reasonably requested by GT (at GT’s ex-
           pense). Notwithstanding the foregoing, GT shall not settle or compro-
           mise any claim hereunder in a manner that does not unconditionally
           release Company from liability or that adversely affects the provision
           of services hereunder without first obtaining Company’s prior written
           consent. The foregoing obligation does not apply with respect to the
           GT Reservation System or portions or components thereof or ser-
           vices (i) not supplied by GT (e.g. third party software, services, tele-
           communications or technology); or (ii) that are combined with other
           products, processes or materials not supplied by GT where the al-
           leged infringement relates to such combination. GT shall also not have
           any obligation with respect to further damages arising from Company’s
           continued use of infringing intellectual property after GT has provided
           and implemented modifications to the GT Reservation System or the
           Private Label Site, as applicable, that do not continue to infringe upon
           or misappropriate the third party’s claimed rights and that meet in all
           material respects the requirements of the SOW, as amended, and GT
           has notified Company in writing that the purpose of the modification
           is to avoid further infringement or misappropriation. In the event such
PART I]                   INTERNET AGREEMENTS—FORMS                              643

            a claim by a third party causes Company’s quiet enjoyment and use
            of the GT Reservation System to be seriously endangered or dis-
            rupted, or if either party reasonably believes that such is likely, GT
            will, at its option, do one of the following: (a) replace the GT Reserva-
            tion System, without additional charge, with a compatible, function-
            ally equivalent and non-infringing system; (b) modify the GT Reserva-
            tion System to avoid the infringement; (c) obtain a license to continue
            use of the GT Reservation System for the term of this Agreement
            and pay any additional fees required for such a license; or (d) if none
            of the foregoing alternatives are practical, indemnify Company as set
            forth above and terminate this Agreement for convenience.
      11.6 Company Indemnity. Company shall indemnify, defend and hold GT
           harmless from and against any and all liabilities, losses, damages,
           costs and expenses (including, without limitation, reasonable attor-
           neys’ fees) incurred by GT on account of such third party’s claim of
           infringement resulting from use or display of the Content or from use
           of the ARS (excluding the interface developed by GT hereunder) of
           any U.S. patent, trade secret trademark or copyright or other propri-
           etary right; provided however that GT shall give Company prompt
           notice in writing of such suit or proceeding, Company shall have com-
           plete control of the settlement and defense thereof, and GT shall pro-
           vide any information and assistance reasonably requested by Com-
           pany (at Company’s expense). Notwithstanding the foregoing, Com-
           pany shall not settle or compromise any claim hereunder in a manner
           that does not unconditionally release GT from liability without first ob-
           taining GT’s prior written consent. The foregoing obligation does not
           apply with respect to Content (i) not supplied by Company; or (ii) that
           is combined with other products, processes or materials not supplied
           by Company where the alleged infringement relates to such combina-
           tion.
    12. Term and Termination of Agreement.
      12.1 Term. Unless terminated earlier as provided herein, this Agreement
           shall begin on the Effective Date and continue for an initial period of
           four (4) years from the Cut Over Date. Thereafter, this Agreement shall
           automatically renew for two (2) years unless either party gives notice
           of its intent not to renew no later than one (1) year prior to the end of
           the initial term.
      12.2 Termination for Cause. Either party may terminate this Agreement
           upon ninety (90) days written notice in the event the other party
           breaches any material term of this Agreement and such breach con-
           tinues without cure for the duration of the notice period.
      12.3 Termination for Convenience. This Agreement may also be termi-
           nated by either party without cause by giving one (1) year prior written
           notice to the other party.
      12.4 Survival. Sections 1, 4 (during the transition period described in Sec-
           tion 12.5), 5 (during the transition period), 6 (during the transition pe-
           riod), 7 (during the transition period), 8 (except that Sections 8.2 and
644                        CONVEYANCING, DRAFTING & DEEDS                        [PART I

              8.3 shall survive only during the transition period), 9.1, 9.2 (during the
              transition period), 10, 11 (during the transition period), 12, 13, 14, 16,
              18, 19 and 20 will survive any termination or expiration of this Agree-
              ment. Any payment obligations that exist as of the termination or expi-
              ration of this Agreement shall remain in effect.
       12.5 Post-Termination Obligations. In the event of termination of this
            Agreement, GT agrees to continue to operate the Private Label Site
            under the terms and conditions of this Agreement, for a minimum of
            one year from the date such termination is effective. GT will also work
            with suppliers identified by Company and Company to structure a
            smooth changeover from GT to any other supplier of services. Without
            limiting the foregoing, GT will provide a secure one-time FTP feed of
            the Company’s existing user database in a comma-delimited form
            GT will assist in cutover from the Private Label Site as requested,
            including establishing a pointer from its main site to the new sites indi-
            cated by Company for a period of ninety (90) days following transition
            from the Private Label Site. The obligations of GT under this Section
            12.5 are subject to the timely payment by Company of all accrued
            fees and expenses under this Agreement, including, without limita-
            tion, the fees and expenses due GT pursuant to this Section 12.5.
            Notwithstanding the foregoing, GT shall have no obligations under this
            Section 12.6 if it has terminated this Agreement as a result of
            Company’s breach of its obligations to pay any Fees or other amounts
            due under this Agreement unless Company pays GT in advance the
            fees and expenses due GT pursuant to this Section 12.6.
      13. Limitation of Liability.
       13.1 Limitation of GT Liability. NOTWITHSTANDING ANYTHING IN THIS
              AGREEMENT OR OTHERWISE, AND EXCEPT FOR BODILY INJURY,
              GT SHALL NOT BE LIABLE OR OBLIGATED WITH RESPECT TO ANY
              SUBJECT MATTER OF THIS AGREEMENT OR UNDER CONTRACT,
              NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUI-
              TABLE THEORY (I) FOR ANY AMOUNTS IN EXCESS OF THE AGGRE-
              GATE LICENSE FEES PAID TO GT BY COMPANY FOR THE PRIVATE
              LABEL SITE DURING THE NINE MONTHS PRIOR TO THE CAUSE OF
              ACTION, (II) FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES;
              (III) FOR LOST PROFITS; OR (IV) FOR ANY MATTER BEYOND ITS
              REASONABLE CONTROL. FOR PURPOSES OF SECTION 3.3, ATTACH-
              MENT D AND THIS SECTION 13.1, THE EVENTS SPECIFIED IN SEC-
              TION THE SECOND SENTENCE OF SECTION 4.2 AND IN SECTION
              10.5 SHALL BE DEEMED, WITHOUT LIMITATION, TO BE MATTERS
              BEYOND GT’s REASONABLE CONTROL, AND FAILURES OF OR DE-
              FECTS IN COMPUTERS OR OTHER EQUIPMENT OR SOFTWARE
              USED TO OPERATE THE PRIVATE LABEL SITE MAINTAINED BY GT,
              OR FOR GT BY ANY THIRD PARTY PURSUANT TO AN AGREEMENT
              BETWEEN GT AND SUCH
             THIRD PARTY, SHALL NOT BE DEEMED TO BE MATTERS BEYOND
             GT’s REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE
PART I]                   INTERNET AGREEMENTS—FORMS                                645

            EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL
            DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT
            APPLY TO COMPANY. FOR PURPOSES OF THIS SECTION 13.1 AND
            SECTION 13.2, INCIDENTAL DAMAGES SHALL NOT INCLUDE COST
            OF COVER OR OTHER MITIGATION COSTS.
      13.2 Limitation of Company Liability. NOTWITHSTANDING ANYTHING IN
            THIS AGREEMENT OR OTHERWISE, AND EXCEPT FOR BODILY IN-
            JURY OR BREACHES OF SECTIONS 8.1 THROUGH 8.6, COMPANY
            SHALL NOT BE LIABLE OR OBLIGATED WITH RESPECT TO ANY SUB-
            JECT MATTER OF THIS AGREEMENT OR UNDER CONTRACT, NEG-
            LIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE
            THEORY (I) FOR ANY AMOUNTS IN EXCESS OF THE AGGREGATE
            OF FEES PAID OR PAYABLE TO GT BY COMPANY FOR THE PRIVATE
            LABEL SITE DURING THE NINE MONTHS PRIOR TO THE CAUSE OF
            ACTION, (II) FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES,
            OR (III) FOR LOST PROFITS (EXCEPT FOR FEES PAYABLE BY COM-
            PANY TO GT UNDER THIS AGREEMENT). SOME STATES DO NOT
            ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CON-
            SEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLU-
            SIONS MAY NOT APPLY TO GT.
     14. Confidentiality. Each party to this Agreement acknowledges that it or its
employees may be exposed to or acquire information in connection with this Agree-
ment that is proprietary or confidential to the other party or third parties to whom
either party has a duty of confidentiality. Except as set forth below, any and all
information relating to the business of either party or its clients or customers and
other information obtained by either party or its employees in the performance of
this Agreement shall be deemed to be confidential and proprietary information
provided all such material is clearly labeled as “Confidential” or “Proprietary.”
Except as otherwise provided herein, each party agrees to hold the Confidential
information of the other party in confidence and not to disclose such information
to third parties or to use such information for any purpose whatsoever and to
advise each of its employees who may be exposed to such proprietary and confi-
dential information of their obligations to keep such information confidential. Not-
withstanding the above: (A) nothing contained in this Section 14 or elsewhere in
this Agreement shall restrict GT from complying with industry reporting require-
ments; (B) the terms of this Agreement, Company Client’s names, travel destina-
tions, itineraries, technical data, implementation plans, traveler profiles, and travel
contracts shall be considered Confidential information of Company regardless of
whether such information is labeled as such; (C) neither party is prohibited from
(i) under confidence, using or disclosing Confidential Information to third parties
as required to perform its obligations under this Agreement, (ii) using or disclos-
ing such Information externally in an aggregate or statistical composite form (pro-
vided that such Information is combined with other similar information and does
not specifically identify the Information as specific to Company), or (iii) in confi-
dence, using or disclosing such Information to its auditors or attorneys, or to in-
vestors or potential investors or other financing sources and their advisors, or in
connection with a merger or acquisition or proposed merger or acquisition; and
(C) Confidential Information shall not include (i) information that is now or subse-
646                      CONVEYANCING, DRAFTING & DEEDS                        [PART I

quently becomes publicly available without breach of this Agreement by the re-
ceiving party, (ii) information made available to either party from other sources
without any obligation of confidentiality, (iii) information that is already in either
party’s possession not subject to an obligation of confidentiality, (iv) information
that is independently developed by either party without reference to any confiden-
tial information, and (v) information that is required to be disclosed pursuant to
any law or any rule or regulation of a governmental agency or any order of a court
or governmental agency provided that the receiving party shall first notify the
disclosing party of such disclosure requirement or order and uses reasonable
efforts to obtain confidential treatment or a protective order. Upon termination of
this Agreement, the receiving party will at its option return to the disclosing party
or destroy all Confidential Information of the disclosing party and all documents
or media containing any such Confidential Information and any and all copies or
extracts thereof, except that the receiving party mayretain one copy of all such
Confidential Information solely for archival legal purposes.
   15. Publicity and Marketing. Both parties agree to cooperate with each other
so that each party may issue a press release concerning this Agreement, pro-
vided that each party must approve any press release prior to its release, which
shall not be unreasonably withheld. Notwithstanding anything to the contrary herein,
GT may file the Letter of Intent between the parties dated as of ————, 20...,
regarding the subject matter of this Agreement, or may file this Agreement, as an
exhibit to its registration statement on Form S-1 as required by the Securities and
Exchange Commission. Company agrees that it may be designated as a “refer-
ence account” for GT’s online travel technology solution to certain potential cus-
tomers, upon terms to be mutually agreed by the parties hereto.
      16. User Data.
       16.1 Ownership. As between the parties, Company shall own all user
            data regarding all users of the Private Label Site and any tickets or
            services purchasable via the Private Label Site.
       16.2 Use Restrictions. GT shall not use for any purpose other than as
            expressly set forth herein or expressly permitted in writing by Com-
            pany, or disclose to any third party any user data related to the Pri-
            vate Label Site. Notwithstanding the foregoing, GT shall be entitled to
            use aggregated PNR data, page hits and user sessions data for all
            users collectively of GT services, so long as such data is not aggre-
            gated on an airline by airline basis.
    17. Source Code Escrow. Within thirty (30) days after execution of this Agree-
ment, GT will place in escrow pursuant to the terms of an escrow agreement
substantially in the form attached as Attachment E (the “Escrow Agreement”), all
as it exists on the Effective Date of this Agreement. GT will update the escrow
deposit and related documentation within thirty (30) days following acceptance of
the Private Label Site with the source code and related documentation for the GT
Reservation System (collectively the “Escrow Materials”), and will continue to
update the escrow deposit thereafter with any new or modified source code and
related documentation necessary for maintenance and/or support of the GT Res-
ervation System at least twice per year and will notify Company in writing when
it does so. All escrow agent fees will be borne by Company. If GT files Chapter 11
PART I]                     INTERNET AGREEMENTS—FORMS                               647

or Chapter 7 bankruptcy or ceases its business operations without a successor,
then GT shall grant Company an irrevocable (until GT emerges from Chapter 11
bankruptcy and is capable of performing its obligations under Section 3.4), per-
petual (until GT emerges from Chapter 11 and is capable of performing its obliga-
tions under Section 3.4), worldwide license to use or have used only internally in
furtherance of the purposes of this Agreement the Escrow Materials (until GT
emerges from Chapter 11 and is capable of performing its obligations under Sec-
tion 3.4) to the Private Label Site and the GT Reservation System and shall
authorize any Escrow Agent under the Escrow Agreement to release such Es-
crow Materials (until GT emerges from Chapter 11 bankruptcy and is capable of
performing its obligations under Section 3.4, at which time Company will return
all Escrow Materials to the Escrow Agent) pursuant to the Escrow Agreement.
    18. Account Managers.
          (a) GT will designate one person as the Account Manager for Company
              under this Agreement. The Account Manager shall be the primary con-
              tact for all matters arising under this Agreement and shall be primarily
              responsible for the delivery of services and the daily management
              and decision making responsibility.
          (b) Company will designate one senior level person as the primary con-
              tract for GT under this Agreement. This person shall have authority to
              make daily decisions, shall be the primary contact for all matters aris-
              ing under this Agreement, shall have signature authority, shall facili-
              tate payments due from Company, and shall facilitate work with and
              assistance by Company’s reservations system vendor.
    19. General. For all purposes of this Agreement, each party shall be and act
as an independent contractor and not as partner, joint venturer, or agent of the
other and shall not bind nor attempt to bind the other to any contract. All notices
under this Agreement shall be in writing, and shall be deemed given when per-
sonally delivered, when sent by confirmed fax, or three days after being sent by
prepaid certified or registered U.S. mail to the address of the party to be noticed
as set forth herein or such other address as such party last provided to the other
by written notice. Neither party shall have any right or ability to assign, transfer, or
sub-license any obligations or benefit under this Agreement without the written
consent of the other (and any such attempt shall be void), except that a party may
assign and transfer this Agreement and its rights and obligations hereunder to
any third party who succeeds to substantially all its business or assets. The failure
of either party to enforce its rights under this Agreement at any time for any period
shall not be construed as a waiver of such rights. It is the intention of the parties
that this Agreement be controlling over additional or different terms of any pur-
chase order, confirmation, invoice or similar document, even if accepted in writing
by both parties, and that waivers and amendments shall be effective only if made
by non-pre-printed agreements clearly understood by both parties to be an amend-
ment or waiver. This Agreement supersedes all proposals, oral or written, all ne-
gotiations, conversations, or discussions between or among parties relating to
the subject matter of this Agreement and all past dealing or industry custom. No
changes modifications, or waivers are to be made to this Agreement unless evi-
denced in writing and signed for and on behalf of both parties. In the event that
648                      CONVEYANCING, DRAFTING & DEEDS                        [PART I

any provision of this Agreement shall be determined to be illegal or unenforce-
able, that provision will be limited or eliminated to the minimum extent necessary
so that this Agreement shall otherwise remain in full force and effect and enforce-
able. This Agreement shall be governed by and construed in accordance with the
laws of the State of California without regard to the conflicts of law provisions
thereof. In any action or proceeding to enforce rights under this Agreement, the
prevailing party will be entitled to recover costs and attorneys fees. Headings
herein are for convenience of reference only and shall in no way affect interpreta-
tion of the Agreement.
                                   Attachment A
                               COMPANY CONTENT
   Company logo to be provided by Company in standard electronic format ac-
cording to specifications provided by GT.
  All text, data, passenger name records, pictures, sound, and graphics that
Company provides.
                                   Attachment B
                              SITE SPECIFICATIONS
                                (Statement of Work)
                                   Attachment C
                                        FEES
                                   Attachment D
                           Technical Support Services
      1. GT will provide support services to Company, including the following:
        1.1 Telephone Hot-Line Support; Acknowledgement of GT Reservation
            System Failures. GT will provide telephone hot-line support services
            to Company’s designated support contact twenty-four (24) hours a
            day, seven (7) days a week. Such support will include reasonable con-
            sultation on the operation and utilization of the Private Label Site and
            problem resolution for failures of the GT Reservation System as re-
            ported by the Company.
        1.2 Problem Definition. “PAR” means Problem Action Request. PAR(s)
            will be determined by the severity of the Private Label Site or GT Res-
            ervation System failure. Severity levels are defined as follows:
             Severity Level 1 shall be defined as a “Critical Problem” wherein the
             Private Label Site is not operational (such as Global Observer) or has
             a critical loss of capability such as the inability to browse or book,
             frequency of failure precludes productive use, or critical job/data in-
             tegrity defect.
             Severity Level 2 shall be defined as a “Major Problem” wherein the
             Privateer such as the inability to run a major application within the GT
             Reservation System, non-critical product feature or function that does
PART I]                   INTERNET AGREEMENTS—FORMS                              649

            not work, or failure that requires on-going intervention to maintain pro-
            ductive use.
            Severity Level 3 shall be defined as a “Minor Problem” wherein the
            Private Label Site is operational, with no significant impact to perfor-
            mance.
    1.3 Response Times
    GT shall acknowledge a Severity Level 1 Problem within sixty (60) minutes.
    GT shall exercise all commercially reasonable efforts to meet the following
response times for a Severity Level II or III Problem: two (2) hours for acknowl-
edgment of a Severity Level II Problem next calendar day for Severity Level III
Problem GT acknowledgement may be by fax, phone, or e-mail to Company pro-
gram administrator. All technical support services will be provided from GT’s facil-
ity unless otherwise requested by Company upon reasonable belief that such
services must be provided at Company’s facilities subject to the terms and con-
ditions of Sections 8.6 and 8.7 of this Agreement.
    1.4 Problem Resolution.
    GT shall implement the following problem investigation and resolution correc-
tion procedures:
    Severity Level I Problems:
    GT shall promptly initiate the following procedures: (1) assign senior GT engi-
neers to correct the Critical Problem; (2) notify senior GT management that such
a Critical Problem has been reported and that steps are being taken to correct the
Critical Problem; (3) provide Company with periodic reports every four (4) hours
on the status of the corrections; and (4) provide either (a) problem resolution or
(b) a plan to achieve problem resolution within thirty-six (36) hours. In the case
that GT’s plan for resolution or the actual time to resolution exceed one week of
system downtime, Company will have the right to terminate this Agreement pur-
suant to Section 12.2 (Termination for Cause).
    Severity Level II Problem:
    GT shall exercise all commercially reasonable efforts to provide Company
with a workaround and to include the fix for the Major Problem in the next upgrade
to the Private Label Site or the GT Reservation System.
    Severity Leve III Problems:
   GT may include the fix for the Minor Problem in the next upgrade to the Private
Label Site or the GT Reservation System, unless it reasonably believes that
there is insufficient time before release of the next update to add the fix, in which
case it shall include the fix in the update following the next update.
    2. GT Reservation System Availability. During the term of this Agreement,
GT shall use commercially reasonable efforts to ensure that the Private Label
Site and the GT Reservation System are available and able to accurately pro-
cess the Company’s employees inquiries for browsing and Booking a minimum
of ninety-nine percent (99%) of the time over a two month period. If system avail-
ability falls below 99% for either (a) nine months during a twelve month period or
(b) any consecutive six month period due to failures that are GT’s responsibility
650                      CONVEYANCING, DRAFTING & DEEDS                        [PART I

during such period and Company has provided a Forecast accurate to within
20% during such period, Company will have the right to terminate this Agree-
ment pursuant to Section 12.2 (Termination for Cause).
    3. Information Backup. As part of the service that GT provides GT will make
a complete backup of Company information stored in connection with operation
of the Private Label Site at least once a day. Upon Company’s reasonable re-
quest, GT shall provide Company a complete electronic copy of such informa-
tion. When determining whether any of the preceding performance measure-
ments for problem response time and system availability have been met, the mea-
surements above shall not include failures related to hardware or software sys-
tems outside of the reasonable control of GT, as determined in accordance with
Section 13.1 of the Agreement.
   IN WITNESS WHEREOF the parties hereto have executed these presents on
the day month and the year first above written.
SIGFNED SEALED AND DELIVERED BY
THE PARTIES IN THE PRESENCE OF:
WITNESSES:
1.
2.
                                   Attachment E
                             ESCROW AGREEMENT
   This Agreement is effective [Date] among DSI Technology Escrow Services,
(“DSI”), GetThere.Com (“Depositor”) and any additional party signing the Accep-
tance Form attached to this Agreement (“Preferred Beneficiary”), who collectively
may be referred to in this Agreement as “the parties.”
   A. Depositor and Preferred Beneficiary have entered or will enter into a ser-
vice agreement, license agreement, development agreement, and/or other agree-
ment regarding certain proprietary technology of Depositor (referred to in this
Agreement as the “Service Agreement”) which provides for the escrow of current
and complete software, source code, documentation and other matters related to
and required to operate, maintain and update the GT Reservation System as
defined in the Service Agreement (collectively, the “Deposit Materials”).
   B. Depositor desires to avoid disclosure of its proprietary technology except
under certain limited circumstances.
    C. The availability of the proprietary technology of Depositor is critical to Pre-
ferred Beneficiary in the conduct of its business and, therefore, Preferred Benefi-
ciary needs access to the proprietary technology under certain limited circum-
stances.
    D. Depositor and Preferred Beneficiary desire to establish an escrow with DSI
to provide for the retention, administration and controlled access of certain pro-
prietary technology materials of Depositor.
  E. The parties desire this Agreement to be supplementary to the Service Agree-
ment pursuant to 11 United States [Bankruptcy] Code, Section 365(n).
PART I]                    INTERNET AGREEMENTS—FORMS                              651

                             ARTICLE 1 — DEPOSITS
    1.1 Obligation to Make Deposit. Upon the signing of this Agreement by the
parties, including the signing of the Acceptance Form, Depositor shall deliver to
DSI the proprietary technology and other materials (“Deposit Materials”) required
to be deposited by the Service Agreement or, if the Service Agreement does not
identify the materials to be deposited with DSI, then such materials will be identi-
fied on an Exhibit A. If Exhibit A is applicable, it is to be prepared and signed by
Depositor and Preferred Beneficiary. DSI shall have no obligation with respect to
the preparation, signing or delivery of Exhibit A.
    1.2 Identification of Tangible Media. Prior to the delivery of the Deposit Mate-
rials to DSI, Depositor shall conspicuously label for identification each document,
magnetic tape, disk, or other tangible media upon which the Deposit Materials
are written or stored. Additionally, Depositor shall complete Exhibit B to this Agree-
ment by listing each such tangible media by the item label description, the type of
media and the quantity. The Exhibit B must be signed by Depositor and delivered
to DSI with the Deposit Materials. Unless and until Depositor makes the initial
deposit with DSI, DSI shall have no obligation with respect to this Agreement,
except the obligation to notify the parties regarding the status of the deposit ac-
count as required in Section 2.2 below.
    1.3 Deposit Inspection. When DSI receives the Deposit Materials and the
Exhibit B, DSI will conduct a deposit inspection by visually matching the labeling
of the tangible media containing the Deposit Materials to the item descriptions
and quantity listed on the Exhibit B. In addition to the deposit inspection, Pre-
ferred Beneficiary may elect to cause a verification of the Deposit Materials in
accordance with Section 1.6 below.
    1.4 Acceptance of Deposit. At completion of the deposit inspection, if DSI
determines that the labeling of the tangible media matches the item descriptions
and quantity on Exhibit B, DSI will date and sign the Exhibit B and mail a copy
thereof to Depositor and Preferred Beneficiary. If DSI determines that the labeling
does not match the item descriptions or quantity on the Exhibit B, DSI will (a) note
the discrepancies in writing on the Exhibit B; (b) date and sign the Exhibit B with
the exceptions noted; and (c) mail a copy of the Exhibit B to Depositor and Pre-
ferred Beneficiary. DSI’s acceptance of the deposit occurs upon the signing of the
Exhibit B by DSI. Delivery of the signed Exhibit B to Preferred Beneficiary is Pre-
ferred Beneficiary’s notice that the Deposit Materials have been received and
accepted by DSI.
    1.5 Depositor’s Representations. Depositor represents as follows:
          a. Depositor lawfully possesses all of the Deposit Materials deposited
             with DSI;
          b. With respect to all of the Deposit Materials, Depositor has the right
             and authority to grant to DSI and Preferred Beneficiary the rights as
             provided in this Agreement;
          c. The Deposit Materials are not subject to any lien or other encumbrance;
          d. The Deposit Materials consist of the proprietary technology and other
             materials identified either in the Service Agreement or Exhibit A, as
             the case may be; and
652                     CONVEYANCING, DRAFTING & DEEDS                        [PART I

       e. The Deposit Materials are readable and useable in their current form
          or, if the Deposit Materials are encrypted, the decryption tools and
          decryption keys have also been deposited.
    1.6 Verification. Preferred Beneficiary shall have the right, at Preferred
Beneficiary’s expense, to cause a verification of any Deposit Materials. A verifica-
tion determines, in different levels of detail, the accuracy, completeness, suffi-
ciency and quality of the Deposit Materials. If a verification is elected after the
Deposit Materials have been delivered to DSI, then only DSI, or at DSI’s election
an independent person or company selected and supervised by DSI, may per-
form the verification.
    1.7 Deposit Updates. Unless otherwise provided by the Service Agreement,
within thirty (30) days of the installation of any new update to the GT Reservation
System (or any other substantial modification thereto), or within six (6) months of
the last deposit hereunder, whichever is sooner, Depositor shall deliver to DSI for
deposit in accordance with this Agreement , any and all updates or other changes
to the Deposit Materials which correspond to changes, if any, made to the GT
Reservation System or shall notify DSI that no changes were made during the
preceding period. Such updates or other changes will be added to the existing
deposit. All deposit updates and other changes shall be listed on a new Exhibit B
and the new Exhibit B shall be signed by Depositor. Each Exhibit B will be held
and maintained separately within the escrow account. An independent record will
be created which will document the activity for each Exhibit B. The processing of
all deposit updates or other changes shall be in accordance with Sections 1.2
through 1.6 above. All references in this Agreement to the Deposit Materials shall
include the initial Deposit Materials and any updates or other changes.
   1.8 Removal of Deposit Materials. The Deposit Materials may be removed
and/or exchanged only on written instructions signed by Depositor and Preferred
Beneficiary, or as otherwise provided in this Agreement.
         ARTICLE 2 — CONFIDENTIALITY AND RECORD KEEPING
    2.1 Confidentiality. DSI shall maintain the Deposit Mater ials in a
secure,environmentally safe, locked facility which is accessible only to authorized
representatives of DSI. DSI shall have the obligation to reasonably protect the
confidentiality of the Deposit Materials. Except as provided in this Agreement,
DSI shall not disclose, transfer, make available, or use the Deposit Materials. DSI
shall not disclose the content of this Agreement to any third party. If DSI receives
a subpoena or other order of a court or other judicial tribunal pertaining to the
disclosure or release of the Deposit Materials, DSI will immediately notify the
parties to this Agreement. It shall be the responsibility of Depositor and/or Pre-
ferred Beneficiary to challenge any such order; provided, however, that DSI does
not waive its rights to present its position with respect to any such order. DSI will
not be required to disobey any court or other judicial tribunal order. (See Section
7.5 below for notices of requested orders.)
    2.2 Status Reports. DSI will issue to Depositor and Preferred Beneficiary a
report profiling the account history at least semi-annually. DSI may provide copies
of the account history pertaining to this Agreement upon the request of any party
to this Agreement.
PART I]                   INTERNET AGREEMENTS—FORMS                              653

    2.3 Audit Rights. During the term of this Agreement, Depositor and Preferred
Beneficiary shall each have the right to inspect the written records of DSI pertain-
ing to this Agreement. Any inspection shall be held during normal business hours
and following reasonable prior notice.
                   ARTICLE 3 — GRANT OF RIGHTS TO DSI
    3.1 Title to Media. Depositor hereby transfers to DSI the title to the media
upon which the proprietary technology and materials are written or stored. How-
ever, this transfer does not include the ownership of the proprietary technology
and materials contained on the media such as any copyright, trade secret, patent
or other intellectual property rights.
    3.2 Right to Make Copies. DSI shall have the right to make copies of the
Deposit Materials as reasonably necessary to perform this Agreement. DSI shall
copy all copyright, non-disclosure, and other proprietary notices and titles con-
tained on the Deposit Materials onto any copies made by DSI. With all Deposit
Materials submitted to DSI, Depositor shall provide any and all instructions as
may be necessary to duplicate the Deposit Materials including but not limited to
the hardware and/or software needed.
    3.3 Right to Transfer Upon Release. Depositor hereby grants to DSI the right
to transfer Deposit Materials to Preferred Beneficiary upon any release of the
Deposit Materials for use by Preferred Beneficiary in accordance with Section
4.5. Except upon such a release or as otherwise provided in this Agreement, DSI
shall not transfer the Deposit Materials.
                     ARTICLE 4 — RELEASE OF DEPOSIT
  4.1 Release Conditions. As used in this Agreement, “Release Condition” shall
mean a release condition as described in the Acceptance Form.
   4.2 Filing For Release. If Preferred Beneficiary believes in good faith that a
Release Condition has occurred, Preferred Beneficiary may provide to DSI writ-
ten notice of the occurrence of the Release Condition and a request for the re-
lease of the Deposit Materials. Upon receipt of such notice, DSI shall provide a
copy of the notice to Depositor by overnight courier.
    4.3 Contrary Instructions. From the date DSI mails the notice requesting re-
lease of the Deposit Materials, Depositor shall have ten (10) business days to
deliver to DSI Contrary Instructions. “Contrary Instructions” shall mean the written
representation by Depositor that a Release Condition has not occurred or has
been cured. Upon receipt of Contrary Instructions, DSI shall send a copy to Pre-
ferred Beneficiary by commercial express mail. Additionally, DSI shall notify both
Depositor and Preferred Beneficiary that there is a dispute to be resolved pursu-
ant to the Dispute Resolution section of this Agreement (Section 7.3). Subject to
Section 5.2, DSI will continue to store the Deposit Materials without release pending
(a) joint instructions from Depositor and Preferred Beneficiary; (b) resolution pur-
suant to the Dispute Resolution provisions described in Section 7.3; or (c) order
of a court.
  4.4 Release of Deposit. If DSI does not receive Contrary Instructions from the
Depositor, DSI is authorized to release the Deposit Materials to the Preferred
Beneficiary or, if more than one beneficiary is registered to the deposit, to release
654                     CONVEYANCING, DRAFTING & DEEDS                        [PART I

a copy of the Deposit Materials to the Preferred Beneficiary. However, DSI is
entitled to receive any fees due DSI before making the release. Any copying ex-
pense in excess of $300 will be chargeable to Preferred Beneficiary. Upon any
such release, the escrow arrangement will terminate as it relates to the Depositor
and Preferred Beneficiary involved in the release.
    4.5 Right to Use Following Release. Preferred Beneficiary has the right to
use the Deposit Materials for the sole purpose of continuing the benefits afforded
to Preferred Beneficiary by the Service Agreement; provided, however, that Pre-
ferred Beneficiary agrees not to exercise this right until it has received the De-
posit Materials upon their release in accordance with this Article 4. Preferred
Beneficiary shall be obligated to maintain the confidentiality of the released De-
posit Materials.
                   ARTICLE 5 — TERM AND TERMINATION
     5.1 Term of Agreement. The initial term of this Agreement is for a period of
one year. Thereafter, this Agreement shall automatically renew from year-to-year
unless (a) Depositor and Preferred Beneficiary jointly instruct DSI in writing that
the Agreement is terminated; (b) Preferred Beneficiary instructs DSI in writing
that the Agreement is terminated as it relates to Preferred Beneficiary; or (c) the
Agreement is terminated by DSI for non-payment in accordance with Section 5.2.
If the Acceptance Form has been signed at a date later than this Agreement, the
initial term of the Acceptance Form will be for one year with subsequent terms to
be adjusted to match the anniversary date of this Agreement. If the deposit mate-
rials are subject to another escrow agreement with DSI, DSI reserves the right,
after the initial one year term, to adjust the anniversary date of this Agreement to
match the then prevailing anniversary date of such other escrow arrangements.
    5.2 Termination for Non-payment. In the event of the non-payment of fees
owed to DSI, DSI shall provide written notice of delinquency to the parties to this
Agreement affected by such delinquency. Any such party shall have the right to
make the payment to DSI to cure the default. If the past due payment is not re-
ceived in full by DSI within one month of the date of such notice, then at any time
thereafter DSI shall have the right to terminate this Agreement to the extent it
relates to the delinquent party by sending written notice of termination to such
affected parties. DSI shall have no obligation to take any action under this Agree-
ment so long as any payment due to DSI remains unpaid.
    5.3 Disposition of Deposit Materials Upon Termination. Upon termination of
this Agreement, DSI shall destroy, return, or otherwise deliver the Deposit Mate-
rials in accordance with Depositor’s instructions. If there are no instructions, DSI
may, at its sole discretion, destroy the Deposit Materials or return them to Deposi-
tor. DSI shall have no obligation to return or destroy the Deposit Materials if the
Deposit Materials are subject to another escrow agreement with DSI.
   5.4 Survival of Terms Following Termination. Upon termination of this
Agreement, the following provisions of this Agreement shall survive:
       a. Depositor’s Representations (Section 1.5);
        b. The obligations of confidentiality with respect to the Deposit Materials;
        c. The rights granted in the sections entitled Right to Transfer Upon Re-
           lease (Section 3.3) and Right to Use Following Release (Section 4.5),
PART I]                    INTERNET AGREEMENTS—FORMS                            655

             if a release of the Deposit Materials has occurred prior to     termi-
             nation;
          d. The obligation to pay DSI any fees and expenses due;
          e. The provisions of Article 7; and
          f. Any provisions in this Agreement which specifically state they survive
             the termination or expiration of this Agreement.
                            ARTICLE 6 — DSI’S FEES
   6.1 Fee Schedule. DSI is entitled to be paid its standard fees and expenses
applicable to the services provided. DSI shall notify the party responsible for pay-
ment of DSI’s fees at least 90 days prior to any increase in fees. For any service
not listed on DSI’s standard fee schedule, DSI will provide a quote prior to render-
ing the service, if requested.
    6.2 Payment Terms. DSI shall not be required to perform any service unless
the payment for such service and any outstanding balances owed to DSI are paid
in full. Fees are due upon receipt of a signed contract or receipt of the Deposit
Materials whichever is earliest. If invoiced fees are not paid, DSI may terminate
this Agreement in accordance with Section 5.2. Late fees on past due amounts
shall accrue interest at the rate of one and one-half percent per month (18% per
annum) from the date of the invoice.
                    ARTICLE 7 — LIABILITY AND DISPUTES
    7.1 Right to Rely on Instructions. DSI may act in reliance upon any
instruction, instrument, or signature reasonably believed by DSI to be genuine.
DSI may assume that any employee of a party to this Agreement who gives any
written notice, request, or instruction has the authority to do so. DSI shall not be
responsible for failure to act as a result of causes beyond the reasonable control
of DSI.
    7.2 Indemnification. DSI shall be responsible to perform its obligations under
this Agreement and to act in a reasonable and prudent manner with regard to this
escrow arrangement. Provided DSI has acted in the manner stated in the preced-
ing sentence, Depositor and Preferred Beneficiary each agree to indemnify, de-
fend and hold harmless DSI from any and all claims, actions, damages, arbitra-
tion fees and expenses, costs, attorney’s fees and other liabilities incurred by DSI
relating in any way to this escrow arrangement.
    7.3 Dispute Resolution. Any dispute relating to or arising from this Agree-
ment shall be resolved by arbitration under the Commercial Rules of the Ameri-
can Arbitration Association. Depositor and Preferred Beneficiary will each select
one arbitrator and a third arbitrator will be selected unanimously by the two arbi-
trators selected by the parties. If the two arbitrators selected by the parties are
unable to select the third arbitrator within ten (10) days of the appointment of the
two arbitrators, the parties consent to the selection of the third arbitrator by the
Administrator. Unless otherwise agreed by Depositor and Preferred Beneficiary,
arbitration will take place in [Country Name]. Any court having jurisdiction over
the matter may enter judgment on the award of the arbitrators. Service of a peti-
tion to confirm the arbitration award may be made by First Class mail or by com-
656                      CONVEYANCING, DRAFTING & DEEDS                        [PART I

mercial express mail, to the attorney for the party or, if unrepresented, to the
party at the last known business address.
   7.4 Controlling Law. This Agreement is to be governed and construed in ac-
cordance with the laws of [Country Name].
    7.5 Notice of Requested Order. If any party intends to obtain an order from
the arbitrator or any court of competent jurisdiction which may direct DSI to take,
or refrain from taking any action, that party shall:
        a. Give DSI at least two business days’ prior notice of the hearing;
        b. Include in any such order that, as a precondition to DSI’s obligation,
           DSI be paid in full for any past due fees and be paid for the reasonable
           value of the services to be rendered pursuant to such order; and
        c. Ensure that DSI not be required to deliver the original (as opposed to
           a copy) of the Deposit Materials if DSI may need to retain the original
           in its possession to fulfill any of its other escrow duties.
                     ARTICLE 8 — GENERAL PROVISIONS
    8.1 Entire Agreement. This Agreement, which includes the Acceptance Form
and the Exhibits described herein, embodies the entire understanding among all
of the parties with respect to its subject matter and supersedes all previous com-
munications, representations or understandings, either oral or written. DSI is not
a party to the Service Agreement between Depositor and Preferred Beneficiary
and has no knowledge of any of the terms or provisions of any such Service
Agreement. DSI’s only obligations to Depositor or Preferred Beneficiary are as
set forth in this Agreement. No amendment or modification of this Agreement
shall be valid or binding unless signed by all the parties hereto, except that Exhibit
A need not be signed by DSI, Exhibit B need not be signed by Preferred Benefi-
ciary and the Acceptance Form need only be signed by the parties identified
therein.
    8.2 Notices. All notices, invoices, payments, deposits and other documents
and communications shall be given to the parties at the last known addresses of
the parties. It shall be the responsibility of the parties to notify each other as
provided in this Section in the event of a change of address. The parties shall
have the right to rely on the last known address of the other parties. Unless other-
wise provided in this Agreement, all documents and communications may be de-
livered by First Class mail.
    8.3 Severability. In the event any provision of this Agreement is found to be
invalid, voidable or unenforceable, the parties agree that unless it materially af-
fects the entire intent and purpose of this Agreement, such invalidity, voidability or
unenforceability shall affect neither the validity of this Agreement nor the remain-
ing provisions herein, and the provision in question shall be deemed to be re-
placed with a valid and enforceable provision most closely reflecting the intent
and purpose of the original provision.
    8.4 Successors. This Agreement shall be binding upon and shall inure to the
benefit of the successors and assigns of the parties. However, DSI shall have no
obligation in performing this Agreement to recognize any successor or assign of
PART I]                   INTERNET AGREEMENTS—FORMS                              657

Depositor or Preferred Beneficiary unless DSI receives clear, authoritative and
conclusive written evidence of the change of parties.
   8.5 Regulations. Depositor and Preferred Beneficiary are responsible for and
warrant compliance with all applicable laws, rules and regulations, including but
not limited to customs laws, import, export, and re-export laws and government
regulations of any country from or to which the Deposit Materials may be deliv-
ered in accordance with the provisions of this Agreement.

                                                [Signature and seal of the parties]


                          PREFERRED BENEFICIARY
                              ACCEPTANCE FORM
                                Account Number [*]
    Depositor, Preferred Beneficiary and DSI Technology Escrow Services, (“DSI”),
hereby acknowledge that [company Name] is the Preferred Beneficiary referred
to in the Master Preferred Escrow Agreement effective [Date] with DSI as the
escrow agent and GetThere.com . as the Depositor. Preferred Beneficiary hereby
agrees to be bound by all provisions of such Agreement.
    Depositor hereby enrolls Preferred Beneficiary to the following account(s):
    Account Name                         Account Number
    ——————                              ———————
    Notices and communications to Preferred
    Beneficiary should be addressed to:
    Company Name: ___________________
    Address:_________________________
    Telephone:_____________        Name:____________________
    Title:______________                   Date:_____________________


    DSI Technology Escrow Services, Inc.
    ——————————————————
    By: _____________________________
    Name:____________________________
    Title:___________________________
    Date:____________________________


                                      EXHIBIT A
                        MATERIALS TO BE DEPOSITED
                               Account Number [*]
   Depositor represents to Preferred Beneficiary that Deposit Materials deliv-
ered to DSI shall consist of the following: all current and complete software, source
G : CDD (Vol. 4) – 42
658                     CONVEYANCING, DRAFTING & DEEDS                    [PART I

code, documentation and other matters related to and required to operate, main-
tain and update the GT Reservation System as defined in the Service Agree-
ment.
      Depositor                   Preferred Beneficiary


                                       57
                       Network Access Agreement

   THIS AGREEMENT is made BETWEEN DOTNET LTD, a Company incorpo-
rated under the Companies Act, having its principal place of business at
[Address](“DOTNet”), AND the wholesale customer of DOTNet’s wide-area com-
puter network system GLOBELINK NETWORK SERVICES LTD, A Company
incorporated under the Companies Act and having its registered office at
[Address](“GlobeLink” or “Purchaser”) as specified above.
      WITNESSETH:
      WHEREAS, Purchaser desires to obtain from DOTNet network access for the
   benefit of Purchaser’s customers desiring access at speeds up to 128Kbps
(hereinafter, “Customers”); AND
      WHEREAS, DOTNet is willing and able to provide such access;
   NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties agree, intending to be legally bound, as follows:
   1. DEFINITIONS. The following terms shall have the following meanings for
purposes of this Agreement and for purposes of the Exhibits hereto:
      1.1 “HOST” shall mean a computer with a Network address (IP address).
   1.2 “NETWORK” shall mean the combination of computer hardware, com-
puter software programs and data transmission facilities operated by DOTNet
which will permit computers operated by Purchaser’s Customers to communi-
cate with computers at remote locations which are operated by others and to
provide access to Internet.
   1.3 “POP” shall mean a Network point-of-presence where DOTNet equip-
ment will be located and these POPs will be positioned throughout the world in
order to permit authorized users to access the Network by telephone.
   1.4 “DOTNET CUSTOMER” will be GlobeLink’s non-dedicated (non-static-
addressed) or non-LAN dial-up customers designated by GlobeLink as having
their principal dial-up access through DOTNet’s dial-up network in Kolkata City
and Kolkata Metropolitan Development Areas.
   1.5 “NON-DOTNET CUSTOMER” will be GlobeLink’s dial-up customers
designated by GlobeLink as having their principal dial-up access through another
network than DOTNet’s, whether it be GlobeLink’s own network, or another of
GlobeLink’s network vendors.
   1.6 “CUSTOMER” will be a customer of GlobeLink, whether a “DOTNet Cus-
tomer” or “Non-DOTNet Customer”.
PART I]                   INTERNET AGREEMENTS—FORMS                              659

2. INTERNET CONNECTION SERVICES.
   2.1 GENERAL. DOTNet agrees to provide Purchaser with dialup (also call
“switched”) telephone connection services for Purchaser’s Customers to access
the Network and the Internet. Purchaser and its Customers may access the Net-
work from any DOTNet POP in the Kolkata city and Kolkata Metropolitam Devel-
opment Areas. The fees to be paid by Purchaser to DOTNet for such access
services are set forth in Section 5.1.
   2.2 PROVISION OF ACCESS. Throughout the term of this Agreement,
DOTNet shall provide Purchaser’s Customers with the right to access at speeds
up to 128 Kbps using standard telephone and ISDN lines, and use its Network at
the levels then provided and supported by DOTNet (“Access”). A recent esti-
mated listing of Network POPs can be retrieved by sending electronic mail at
‘pop-info@psi.com’ or through access to DOTNet’s world-wide web site at ‘http://
www.psi.net’. DOTNet reserves the right to install new POPs and/or to close
existing POPs as it, in its sole discretion, deems appropriate. In the event DOTNet
deems it necessary to close an existing POP, DOTNet shall provide Purchaser
with sixty (60) days written notice thereof. Purchaser may order such Access on
behalf of its present or future Customers and there shall be no          limit on the
number of Customers who may use the Network; provided, however, subject to
the Service Level Agreement in Section 3.7 that DOTNet may refuse service to
Purchaser because there is insufficient capacity on the Network or in the POP to
provide the Access amount re quested.
   2.2.1 TERMINATION OF ACCESS. DOTNet shall terminate the Access rights
of any Purchaser Customer as soon as is reasonably practicable upon written
notice from Purchaser to do so or upon mutually agreed upon electronic process
with receipt confirmed, but shall have no liability in connection therewith.
   2.2.2 ISDN SERVICE. DOTNet shall make ISDN 64k and 128k Internet con-
nection services available to Purchaser for Purchaser’s dial-up customers. The
fees to be paid by Purchaser for such services are set forth in Section 5.1.
3. PURCHASER OBLIGATIONS.
    3.1 PURCHASER RESPONSIBILITY FOR ITS CUSTOMERS. Purchaser shall
be responsible for all Customer support, pricing and service plans, billing and
collections with respect to its own Customers.
   3.2 PURCHASER CONNECTION TO THE NETWORK. Purchaser may pro-
vide, at its own expense, the telecommunications circuit for its connection to the
Network which shall run between the best suited DOTNet POP (as determined
by DOTNet) and the Purchaser’s operations center (which includes the local tele-
phone company or Competitive Access Provider circuits). In addition, Purchaser
may provide an estimate of the traffic it anticipates between Purchaser’s network
and DOTNet’s Network.
    3.3 CUSTOMER EQUIPMENT. DOTNet shall not be responsible for the in-
stallation, operation or maintenance of any computer equipment or computer soft-
ware programs used by any Purchaser Customer.
   3.4 OPTIONAL PEERING. In addition to the connection of Purchaser’s
network and DOTNet’s Network as set forth in Section 3.2, Purchaser may, but
660                      CONVEYANCING, DRAFTING & DEEDS                       [PART I

shall not be obligated to, provide telecommunications circuits interconnecting
Purchaser’s network with DOTNet’s network at a location agreed upon by the
parties and, from time to time, in other locations. The parties will use these cir-
cuits only for traffic originating within one party’s network (or the networks of its
Customers) and destined only to the other party’s network (or the networks of its
Customers).
    3.5 SERVICE LEVEL AGREEMENT. Purchaser will maintain a 90 day rolling
forecast of predicted DOTNet Customers at each POP, and provide this forecast
to DOTNet as requested. This forecast will include comparative historical num-
bers as they become available. Except as set forth in the section below, Pur-
chaser will have no liability for the inaccuracy of this forecast. The number fore-
casted at each POP 60 days prior to a given day will give rise to mutual obliga-
tions for that day at that POP as follows:
         1. If the number of actual DOTNet Customers for a given POP on a given
            day is greater than 110% of the number forecasted, no penalty or
            Service Level Agreement (“SLA”) applies.
         2. If the number of DOTNet Customers on a given day is less than 90%
            of the number forecasted, Purchaser will pay a penalty of [___%] above
            the applicable fees for that POP for that day.
         3. For each POP where neither 1 nor 2 applies, DOTNet will be required
            to provide 99.5% availability for dial-in-access. For each day less than
            99.5% availability is provided, Purchaser will be credited * * * * * For
            example, if on [Date] Purchaser forecasted that there would be 910
            DOTNet Customers on the Kolkata POP, and the number of DOTNet
            Customers on the Kolkata POP on [Date] were 1000, and the total
            number of DOTNet Customers on [Date] were 155,001, and the avail-
            ability of Kolkata POP fell below 99.5% on [Date], Purchaser would
            be credited for that service lapse.
   Purchaser will provide at least 60 days’ notice if it decides to build a POP to
service existing DOTNet Customers in a particular city, provided the existing
DOTNet Customers for that POP exceed 5,000 customers.
      4. DOTNET OBLIGATIONS.
    4.1 QUALITY OF SERVICE. DOTNet shall provide to Purchaser (for its Cus-
tomers) Internet connection services that meet reasonable commercial stan-
dards, including, without limitation, with respect to accessibility, latency, packet
loss, and throughput. For example, DOTNet shall maintain throughput of 80% of
nominal port speed (e.g. 23 Kbps for a 28.8 Kbps connection, 51 Kbps for a 64
Kbps single ISDN connection) 90% of the time. DOTNet shall keep and maintain
its Network in good condition and repair. The Network shall be properly main-
tained, serviced and upgraded by DOTNet as it, in its sole discretion, shall deter-
mine is necessary in order to ensure connectivity to Purchaser Customers.
      4.1.1 REPORTS AND INFORMATION REGARDING SERVICE.
   4.1.1.1 ACCESS TO NETWORK MONITORING SYSTEMS. DOTNet shall
provide Purchaser with read-only access to all applicable network monitoring
systems used by DOTNet to monitor its network. Such access will permit Pur-
chaser to determine availability at each POP.
PART I]                   INTERNET AGREEMENTS—FORMS                             661

   4.1.1.2 DOTNET NETWORK OUTAGES. DOTNet shall provide to Purchaser
prompt notification of any DOTNet network outages that affect Purchaser’s Cus-
tomers. When possible, at least three days advance notice of planned outages
shall be given to Purchaser so that Purchaser’s Customers may be alerted.
   4.1.1.3 SNMP ACCESS. DOTNet shall provide to Purchaser SNMP access to
DOTNet’s Network (i.e., direct read-only access to the dialup equipment, as well
as, if possible, the devices used to provide backbone transport) with respect to
Purchaser’s dial-up Customers, as soon as such access is practicable.
    4.1.1.4 TECHNICAL INTERCONNECT. DOTNet will develop a means to al-
low DOTNet Customers to be authenticated via Purchaser’s RADIUS serves in
Purchaser’s data center. DOTNet Customers will be set up by Purchaser to log
into DOTNet’s network with an “ELN/” in front of their username. DOTNet will
provide real-time monitoring capabilities for Purchaser’s technical and support
staff to track access of DOTNet Customers on DOTNet’s network. DOTNet will
provide 24X7 NOC-to-NOC support for Purchaser.
    5. PRICE AND PRICING TERMS.
    5.1 CHARGES. Purchaser will pay DOTNet the applicable monthly fee for
each DOTNet Customer who has access to PSI’s network during a particular
month. Where the DOTNet Customer did not have access for the entire month,
the monthly fee will be prorated. Where the DOTNet Customer has signed up
AND canceled Purchaser’s service within an initial 30 day period, no monthly fee
will be due DOTNet for that DOTNet Customer. In addition to DOTNet Customers,
Purchaser will have customers who use Purchaser’s own dial-up TCP/IP network
or other networks provided by vendors other than DOTNet. Purchaser will make
reasonable efforts to ensure that it segregates customers to one network or an-
other in a given billing month. However, for such Non-DOTNet customers who
access the DOTNet network in a given month, DOTNet will charge Purchaser
$**** for each day such Non-DOTNet customer accesses the DOTNet network,
but no more than the applicable flat monthly rate for each DOTNet Customer.
   For each DOTNet customer in Kolkata City Area monthly charges to Purchaser
shall be based upon the number of DOTNet Customers, calculated at the end of
each month, as follows:
          TIER            PRICE              VOLUME
          A               ******            0-10,000
          B               *****             10,001-125,000
          C               *****             125,001 +
   For each DOTNet Customer in Kolkata Metropolitan Development Areas the
monthly charge to the Purchaser will be [Rs……] more than the price noted above.
Kolkata City and Kolkata Metropolitan Development Area Customers will count
together cumulatively for the purpose of determining Purchaser’s pricing tier above.
    The minimum volume required to maintain Tier C pricing shall increase ac-
cording to the month from the period beginning April 30, 2002 until December 31,
2002, after which the minimum monthly volume necessary to maintain Tier C
pricing shall remain at 250,000 Customers.
662                          CONVEYANCING, DRAFTING & DEEDS                   [PART I


      Month-ending Tier C minimum commitment table:
      ****************************************************
      ***************************************************
   The applicable base charges above are applied to all DOTNet Customers ir-
respective of the rate that previously was applied to each group of Customers.
That is, when the volume threshold for a certain tier is reached, Purchaser shall
be entitled to the pricing for that tier for all DOTNet Customers (e.g. at and below
that tier volume).
   ISDN Service: Charges will be the same as above for ISDN 64K connection
services. Charges will be twice the 64K rate for 128K service.
   5.1.1 PRICE WARRANTY. DOTNet commits that the pricing provided to
Purchaser will be at least as low as for comparable volume levels and similar
services as that provided to any other DOTNet customer.
    5.2 ADJUSTMENTS TO BASE CHARGE. When the number of DOTNet Cus-
tomers exceeds 500,000, DOTNet and purchaser will begin good faith negotia-
tions on new pricing terms.
    5.3 MINIMUM COMMITMENT: On January [Year] Purchaser’s minimum
monthly commitment to DOTNet shall become $******* per month for each month
of {year]. This minimum commitment will expire on December [Year].
    5.4 TAXES. Purchaser shall be liable for and shall reimburse DOTNet for all
taxes and related charges however designated, imposed in connection with or
arising from the provision of access to the DOTNet network by Purchaser or its
Customers. This clause is intended to cover “per-subscriber” or “per-byte” charges
targeted at the Internet traffic of Purchaser or its customers. These taxes will not
include the following:
           – Taxes on T1 or PRI local loop lines to DOTNet POPs
           – Taxes on DOTNet’s equipment or facilities
            – Taxes on DOTNet’s dedicated data circuits
    5.5 INVOICES. DOTNet shall invoice Purchaser monthly in arrears for all
charges under this Agreement. Except where inapplicable per Section 5.9, all
invoices will be payable within (30) days of receipt of invoice. Delinquent pay-
ments are subject to a late payment charge at the annualized rate of prime plus
four percent computed monthly (4%), or portion thereof, of the amount due (but
not to exceed the maximum lawful rate). In the event Purchaser shall fail to pay
DOTNet any amount due under this Agreement for a period of forty (40) days,
DOTNet, in addition to charging applicable delinquency fees, may discontinue
providing to Purchaser and its Customers upon seven (7) days’ prior written no-
tice to Purchaser. DOTNet shall resume providing Access immediately upon re-
ceipt of such payment, and in such event Purchaser shall pay DOTNet a reason-
able reconnection fee. However, Purchaser shall not be deemed to be delin-
quent, nor may access be terminated, until Purchaser has exhausted the line of
credit described in Section 5.9
      5.6 CUSTOMER CHARGES. Purchaser is solely responsible for establishing
PART I]                   INTERNET AGREEMENTS—FORMS                              663

and collecting its Customer charges for services it offers its customers through
the Network and for preparing and mailing invoices to its Customers. Purchaser is
responsible for payment of the total amounts invoiced it by DOTNet regardless of
whether Purchaser is paid by its Customers.
    5.7 MARKETING REFERRALS. Until January 1, 2003, DOTNet will provide
Purchaser with the first opportunity to sell to all leads calling into DOTNet inquir-
ing about or seeking the purchase of non-dedicated, dial up Internet access. At
Purchaser’s discretion, such leads will be transferred telephonically directly to
Purchaser’s telemarketing group, where Purchaser will attempt to sell the lead a
dial-up access account. Purchaser will pay DOTNet a one-time bounty of $*****
for each lead that signs up for services and remains a paying customer for more
than 60 days. By 30 days after the end of each month, Purchaser shall provide
DOTNet an accounting of the number of leads received and the number success-
fully converted into sign-ups, along with payment of applicable bounties.
   5.8 USAGE REPORTS. DOTNet will provide full usage reports at the end of
each day. These reports shall include detailed accounting of each Purchaser net-
work customer (DOTNet Customer or Non-DOTNet Customer) login to DOTNet’s
network. Additionally, DOTNet and Purchaser will work to set up a system whereby
Purchaser can track usage (connects and disconnects) in real time.
    5.9 ADDITIONAL CONSIDERATION. In exchange for Purchaser issuing to
DOTNet the sum of 200,000 warrants to purchase the same number of shares of
common stock of Purchaser (or the equivalent thereof to compensate for any
changes in the capital structure of Purchaser between the time of grant and the
time of exercise by DOTNet, with 4 years to exercise), the exercise price to be the
fair market value at the time of grant, DOTNet will provide the following credit and
rental facilities to Purchaser:
   1. A credit line for Purchaser’s payables to DOTNet hereunder according to
these terms:
          – Up to Rs.5,000,000
          – Accruing interest at prime plus 4% per annum
            Applied to payables beyond the 30 day payment term described above
          – Balloon payment at the end of the initial term hereof
    2. A commitment to a rental facility for Rs.5,000,000 of equipment (owned or
leased by DOTNet) for deployment in Purchaser’s network. Such rental charges
shall include all costs, such as service maintenance, and shall be for equipment
agreed to in advance by the parties. The equipment shall be Satyam servers,
Rainbow Hubs and other network equipment. The maximum initial value of as-
sets being rented shall not exceed Rs.5,000,000 in value. Rental agreement shall
include Fair Market Value buyout provisions, a 3-year term and an effective rate of
not more than prime plus 3% per annum. Monthly rental payments will be due
beginning 30 days after funding of Purchaser’s IPO, or February 1, 2003, which-
ever is sooner. Terms of Purchaser’s warrants shall include a term of 4 years; will
provide for appropriate adjustments to the exercise price and number of shares
which may be purchased in the event of stock splits, dividends and the like. In
addition, DOTNet shall receive registration rights in respect to the shares (the
664                       CONVEYANCING, DRAFTING & DEEDS                      [PART I

“Shares”) issuable upon the exercise of the Warrants as described in the attached
Exhibit “A”. DOTNet shall be entitled to receive financial information regarding the
Company for so long as DOTNet holds the Shares.
   6. TERM/EXTENSIONS/TERMINATION. The term of this Agreement shall be
two (2) years, commencing on [Date] and ending [Date], and, unless either party
notifies the other in writing not less than one-hundred eighty (180) days prior to
the end of the initial term or any extension thereof, this Agreement shall be auto-
matically renewed annually thereafter for a period of one year. Notwithstanding
the foregoing, such termination notice shall not be given by either party prior to
[Date].
     Either party may terminate this Agreement if such other party has materially
breached this Agreement and has failed to cure such breach within thirty (30)
days after receiving written notice of such breach; provided, however, that this
notice period shall not apply to a termination by DOTNet in accordance with the
provisions of Section 5.5.
   7. WARRANTIES EXCLUDED. EXCEPT AS EXPRESSLY PROVIDED HEREIN,
DOTNet MAKES NO WARRANTIES IN CONNECTION WITH ITS NETWORK OR
THE PROVISION OF ACCESS AS CONTEMPLATED HEREIN, WHETHER WRIT-
TEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMI-
TATION THE WARRANTY OF MERCHANTABILITY AND THE WARRANTY OF FIT-
NESS FOR A PARTICULAR PURPOSE OR USE. PURCHASER’S SOLE AND EX-
CLUSIVE REMEDY SHALL BE PSINET’S OBLIGATION TO ADJUST THE FEES PAY-
ABLE BY PURCHASER AS SET FORTH ELSEWHERE HEREIN.
    8. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING CONTAINED
IN THIS AGREEMENT TO THE CONTRARY, THE PARTIES AGREE THAT NEITHER
PARTY SHALL IN ANY EVENT BE LIABLE TO THE OTHER PARTY OR ANY OTHER
PERSON FOR ANY ACTUAL, DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL,
INCIDENTAL, RELIANCE, PUNITIVE OR ANY OTHER DAMAGES OR FOR ANY
LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER, REGARDLESS OF
THE FORESEEABILITY THEREOF, RISING OUT OF THE PROVISION OF ACCESS
OR IN ANY WAY ARISING OUT OF THIS AGREEMENT, WHETHER IN AN ACTION
ARISING OUT OF BREACH OF CONTRACT, BREACH OF WARRANTY, DELAY, NEG-
LIGENCE, STRICT TORT LIABILITY, PATENT MATTERS OR ANY OTHER THEORY.
NO ACTION OR PROCEEDING AGAINST EITHER PARTY MAY BE COMMENCED
MORE THAN TWO YEARS AFTER THE SERVICES ARE RENDERED. THIS CLAUSE
SHALL SURVIVE FAILURE OF AN EXCLUSIVE REMEDY. EITHER PARTY’S TOTAL
LIABILITY FOR GROSS NEGLIGENCE DURING THE LIFETIME OF THIS AGREE-
MENT SHALL IN NO EVENT EXCEED FIVE HUNDRED THOUSAND RUPEES
(Rs.500,000) IN THE AGGREGATE.
    9. INDEMNIFICATION OF PSINET. Purchaser shall indemnify and hold
harmless DOTNet and DOTNet’s directors, officers, employees, agents and advi-
sors from and against any and all claims of other persons or entities arising out of
material, data, information or other content transmitted by Purchaser Customers
or other acts or omissions of Purchaser and/or its Customers.
10. CONFIDENTIAL INFORMATION.
      10.1 Non-disclosure. If either party acquires Confidential Information of the
PART I]                    INTERNET AGREEMENTS—FORMS                                665

other, such receiving party shall maintain the confidentiality of the disclosing party’s
Confidential Information shall use such Confidential Information only for the pur-
poses for which it is furnished and shall not reproduce or copy it in whole or in
part, except for use as authorized in this Agreement. Confidential Information
shall mean all information of the disclosing party which it treats as confidential or
proprietary. Confidential Information shall not include information which is or here-
after becomes generally available to others without restriction or which is ob-
tained by the receiving party without violating the disclosing party’s rights under
this Article 10 or any other obligation of confidentiality. The terms and conditions
of this Agreement shall constitute Confidential Information. The provisions in the
Bilateral Nondisclosure Agreement executed between the parties on [date] shall
survive the execution and termination of this Agreement for any reason.
   10.2 Duration. With respect to all Confidential Information, the parties’ rights
and obligations under this Article shall remain in full force and effect following the
termination of this Agreement.
    10.3 Ownership. All materials and records which constitute Confidential In-
formation, other than service orders and copies of this Agreement, shall be and
remain the property of, and belong exclusively to, the disclosing Party, and the
receiving party agrees either to surrender possession of and turn over or to de-
stroy all such Confidential Information which it may possess or control upon re-
quest of the disclosing party or upon the termination of this Agreement.
    10.4 Injunctive Relief. The parties acknowledge and agree that, in the event
of a breach or threatened breach by any party of any provision of this Article 10,
the other party will have no adequate remedy in money or damages and, accord-
ingly, shall be entitled to an injunction against such breach. However, no specifi-
cation in this Section of a specific legal or equitable remedy shall be construed as
a waiver or prohibition against any other legal or equitable remedies in the event
of a breach of this Article of this Agreement.
    10.5 Legal Obligation to Disclose. Each party shall be released from its ob-
ligations under this Article 10 with respect to information which such party is re-
quired to disclose to others pursuant to obligations imposed by law, rule or regu-
lation; provided, however, that prior to any such required disclosure, if practicable,
such party provides written notice to and consults with the other party.
    11. MISCELLANEOUS.
    11.1 Independent Parties/No Agency. The relationship of DOTNet and
Purchaser shall be that of independent third parties. Except as otherwise ex-
pressly provided in this Agreement, this Agreement does not constitute either
party as the agent or legal representative of the other party and does not create a
partnership or joint venture between the parties. Except as otherwise expressly
provided in this Agreement, neither party shall have any authority to contract for
or bind any other party in any manner whatsoever. This Agreement confers no
rights of any kind upon any third party.
    11.2 Force Majeure. DOTNet shall not be liable for failure to fulfill its obliga-
tions hereunder if such failure is due to causes beyond its control, including, with-
out limitation, acts of God, fire, catastrophe, governmental prohibitions or regula-
tions, viruses which did not result from the acts or omissions of DOTNet, its
666                      CONVEYANCING, DRAFTING & DEEDS                          [PART I

employees or agents, national emergencies, insurrections, riots or wars, or
strikes, lockouts, work stoppages or other labor difficulties. The time for any per-
formance required hereunder shall be extended by the delay incurred as a result
of such act of force majeure, and DOTNet shall act with diligence to correct such
force majeure.
    11.3 Delays or Omissions. No delay or omission to exercise any right, power
or remedy accruing to a party under this Agreement shall impair any such right,
power or remedy of such party nor shall it be construed to be a waiver of any such
breach or default, or an acquiescence therein, or of or in any similar breach or
default thereafter occurring; nor shall any waiver of any single breach or default
be deemed a waiver of any other breach or default theretofore or thereafter oc-
curring. Any waiver, permit, consent or approval of any kind or character on the
part of either party of any breach or default under this Agreement, or any waiver
on the part of either party of any provisions or conditions of this Agreement must
be made in writing and shall be effective only to the extent specifically set forth in
such writing. All remedies, either under this Agreement or by law or otherwise
afforded to a party, shall be cumulative and not alternative.
    11.4 BENEFIT AND ASSIGNMENT. No party hereto shall assign this Agree-
ment, in whole or in part, whether by operation of law or otherwise, without the
prior written consent of the other party hereto (which consent shall not be unrea-
sonably delayed or withheld); and any purported assignment in violation of the
foregoing shall be void. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors and assigns as
permitted hereunder. No person or entity other than the parties hereto is or shall
be entitled to bring any action to enforce any provision of this Agreement against
any of the parties hereto, and the covenants and agreements set forth in this
Agreement shall be solely for the benefit of, and shall be enforceable only by, the
parties hereto or their respective successors and assigns as permitted hereun-
der.
    11.5 ADDITIONAL ACTIONS, DOCUMENTS AND INFORMATION: AUDIT.
Each of the parties hereto agrees that it will, at any time, prior to, at or after the
date hereof, take or cause to be taken such further actions, and execute, deliver
and file or cause to be executed, delivered and filed such further documents and
instruments and obtain such consents, as may be reasonably requested in order
to fully effectuate the purposes, erms and conditions of this Agreement. In addi-
tion, DOTNet may, at reasonable intervals and upon reasonable notice to Pur-
chaser, either by itself or by its outside audit firm, audit the relevant books, records
and electronic data of Purchaser to assure proper payments have been made by
Purchaser hereunder. DOTNet shall bear the costs of each such audit unless the
results of such audit show that Purchaser has underpaid DOTNet by 5% or more,
in which case the cost of such audit and the following correctional audit shall be
borne by Purchaser.
      11.6 NOTICES.
        (a)    All notices and other communications required or permitted hereun-
              der shall be in writing and shall be mailed by registered post with
              acknowledgement due, express air courier, charges prepaid, or
              facsimile addressed to the last known address of the parties. or to
PART I]                    INTERNET AGREEMENTS—FORMS                                 667

             such other address as either party shall have furnished to the other in
             writing.
        (b) If a notice is given by either party by registered mail, it will be deemed
             received by the other party on the third business day following the
             date on which it is deposited for mailing. If a notice is given by either
             party by air express courier, it will be deemed received by the other
             party on the next business day following the date on which it is pro-
             vided to the air express courier. If a notice is given by facsimile, it will
             be deemed received by the other party after confirmation of receipt.
             Notwithstanding the foregoing, any payments made under this Agree-
             ment shall be deemed received only when actually received.
    11.7 SEVERABILITY. In case any provision of this Agreement shall be invalid,
illegal or unenforceable, such provision shall be construed so as to render it en-
forceable and effective to the maximum extent possible in order to effectuate the
intention of this Agreement; and if such provision shall be wholly invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions
hereof shall not in any way be affected or impaired thereby.
    11.8 SURVIVAL OF OBLIGATIONS. The parties’ rights and obligations that,
by their nature, would continue beyond the termination, cancellation, or expiration
of this Agreement, shall survive such termination, cancellation or termination.
   11.9 TITLES AND SUBTITLES. The titles of the Articles and Sections of this
Agreement are for convenience of reference only and are not to be considered in
construing this Agreement.
   11.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together shall
constitute one instrument.
    11.11 GOVERNING LAW. This Agreement shall be governed in all respects
by the laws of [Country Name].
    11.12 ENTIRE AGREEMENT/AMENDMENTS. This Agreement (including all
Exhibits and the Bilateral Nondisclosure Agreement) constitutes the full and en-
tire understanding and agreement between the parties with regard to the sub-
jects hereof and thereof. Neither this Agreement nor any term hereof may be
amended, waived, discharged or terminated, except by a written instrument signed
by the parties hereto.
  BOTH PARTIES REPRESENT AND WARRANT THAT THEY HAVE FULL COR-
PORATE POWER AND AUTHORITY TO EXECUTE AND DELIVER THIS AGREE-
MENT AND TO PERFORM THEIR OBLIGATIONS HEREUNDER, AND THAT THE
PERSON WHO’S SIGNATURE APPEARS BELOW IS DULY AUTHORIZED TO EN-
TER INTO THIS AGREEMENT ON BEHALF OF THE PARTY.
  IN WITNESS WHEREOF, THE PARTIES HAVE ENTERED INTO THIS AGREE-
MENT AS OF THE DATE SET FORTH HEREINBEFORE.
SIGNED SEALED AND DELIVERED BY
RHE PARTIES IN THE PRESENCE OF
WITNESSES:
1.
2.
668                       CONVEYANCING, DRAFTING & DEEDS                        [PART I

                AMENDMENT TO NETWORK ACCESS AGREEMENT
   This Amendment to the Network Access Agreement (this “Amendment”) is
made as of this _____ day of [date] BETWEEN DOTNet Limited, a Company
incorporated under the Companies Act AND GlobeLink NetworksERVICES Ltd.,
a Company incorporated under the Companies Act
                                     RECITALS
  A. DOTNet and GlobeLink entered into that certain Network Access agree-
ment for network access for the benefit of GlobeLink’s customers, on [Date].
   B. The parties wish to amend the Original Agreement to reflect certain revi-
sions as discussed between the parties.
   NOW, THEREFORE, in consideration of the mutual obligations in this Amend-
ment and for other good consideration, the receipt and sufficiency of which are
acknowledged, the parties to this Amendment agree as follows:
     1. MODIFICATION OF CLAUSE 5.1. Clause 5.1 of the Original Agreement,
titled Charges, specifically the third paragraph relating to monthly charges, is
modified to read in its entirety as follows:
        Tier                Price            Volume
        ——                  ——               ———
        A                   ******            0-10,000
        B                   *****            10,001-100,000
        C                   *****            100,000+
      The fifth paragraph of Clause 5.1 is modified to read as follows:
   The minimum volume required to maintain Tier C pricing shall increase ac-
cording to the month from the period beginning [date] until [date], after which the
minimum monthly volume necessary to maintain Tier C pricing shall remain at
165,000 Customers.
      The sixth paragraph of Clause 5.1 is modified to read as follows:
      7/2002       8/2002      9/2002       10/2002      11/2002          12/2002
      100,000     110,000      120,000      135,000       150,000         165,000
     2. MODIFICATION OF CLAUSE 5.3. Clause 5.3 of the Original Agreement,
titled Minimum Commitment, is modified to read in its entirety as follows:
      On [Date], Purchaser’s minimum monthly commitment to DOTNet shall
      become $******* per month for each month until expiring on [Date].
     3. MODIFICATION OF CLAUSE 5.7. Clause 5.7 of the Original Agreement,
titled Marketing Referrals, shall read as follows:
   Beginning December [Date], and continuing through [Date], DOTNet will pro-
vide Purchaser with the first opportunity to sell to all leads calling into DOTNet
inquiring about or seeking the purchase of non-dedicated, dial up Internet ac-
cess. At Purchaser’s discretion, such leads will be transferred telephonically di-
rectly to Purchaser’s telemarketing group, where Purchaser will attempt to sell
the lead a dial-up access account. Purchaser will pay DOTNet a one-time bounty
PART I]                     INTERNET AGREEMENTS—FORMS                           669

of $***** for each lead that signs up for services and remains a paying customer
for more than 60 days. By 30 days after the end of each month, Purchaser shall
provide DOTNet an accounting of the number of leads received and the number
successfully converted into sign-ups, along with payment of applicable bounties.
  CANCELING CUSTOMERS. The following text is added to the Original Agree-
ment as the second paragraph of Clause 5.7:
   Existing DOTNet service customers who don’t want to move to Mindspring or
who are otherwise canceling the DOTNet service will be offered by DOTNet
GlobeLink as an alternative. If interested, DOTNet will transfer or otherwise direct
such customers to GlobeLink’s sales group to be closed.
    4. CONTINUED EFFECT OF ORIGINAL AGREEMENT. All provisions of the
Original Agreement, except as modified by this Amendment, shall remain in full
force and effect and are hereby reaffirmed.
   IN WITNESS WHEREOF, the duly authorized representatives of the parties
hereto have executed this Amendment as the date first written above.
SIGNED SEALED AND DELIVERED BY
THE PARTIES IN THE PRESENCE OF
W I T N ES S E S:
1.
2.
                                          58
                Internet Administrative & Customer Support
                           Services Agreement
   THIS SERVICES AGREEMENT, made on this [date] BETWEEN TELCOM
DEVELOPMENT CORPORATION,("TDC"), a Company incorporated under the
Companies Act and having its registered office at [address] AND NET PHONE
SERVICES {" NPS"},a Subsidiary Company, incorporated Under the Companies
Act and having its registered office at [address], WITNESSES as Follows:
   WHEREAS, NPS is currently a subsidiary of TDC and obtains administrative,
customer support and other services from TDC; AND
   WHEREAS, NPS and TDC expect that equity interests in NPS may be sold to
additional investors; AND
    WHEREAS, NPS desires to continue to obtain administrative, customer sup-
port and other services from TDC pursuant to the terms hereof and TDC desires
to continue to provide such services pursuant to the terms hereof.
    NOW, THEREFORE, in consideration of the premises and mutual promises
and representations contained herein, and other good and valuable consider-
ation, the sufficiency of which is hereby acknowledged, the parties hereto do
mutually covenant, stipulate and agree as follows:
     1. Services.
          (a) TDC shall render to NPS general accounting services, payroll and ben-
              efits administration services, customer support and other services all
670                       CONVEYANCING, DRAFTING & DEEDS                          [PART I

             as more particularly described in Exhibit 1 hereto (collectively, the "Ser-
             vices"). The Services shall be rendered by TDC in conformity with good
             commercial practice, the terms and conditions of this Agreement and
             the reasonable instructions of NPS as set forth in this Agreement.
        (b) NPS shall provide to TDC when required all funds necessary to per-
            form the Services, including, without limitation, all amounts required
            to pay payroll expenses of employees of NPS and all amounts neces-
            sary to pay accounts payable of NPS.
         (c) TDC shall have no authority pursuant to this Agreement to commit
             NPS to any obligation in any manner whatsoever with respect to third
             parties, to use NPS's name in any way or to enter into any contracts
             on behalf of NPS.
        (d) In the event that NPS requests services in addition to the Services
            provided for herein, and if TDC agrees to provide such services, TDC
            and NPS shall negotiate in good faith a fee for such services, which
            compensation shall be covered by the final sentence of Section 2(a)
            hereof; provided, however, that the fee payable by NPS for such ser-
            vices shall be no less favorable to NPS than the charges for compa-
            rable services from unaffiliated third parties. In the event that the par-
            ties agree to additional services, the scope and duration of such ser-
            vices, and any termination provisions with respect thereto, shall be
            described in an addendum to Exhibit 1 and thereafter such services
            shall be considered Services hereunder. If and to the extent the par-
            ties agree to cancel or terminate any of the Services, such services
            shall be deemed deleted from Exhibit 1, with the remaining services
            thereafter constituting the Services hereunder.
      2. Compensation.
        (a) NPS shall pay to TDC a fee for each of the Services equal to the amount
            set forth in Exhibit 1 corresponding to such service. In the event NPS
            terminates any Service in accordance with the final sentence of Sec-
            tion 3 hereof, the fee for such Service shall no longer be payable for
            any period subsequent to the effective date of such termination. In the
            event the parties agree to additional services, such fee shall be pay-
            able as provided herein.
        (b) Within 15 days following the end of each calendar month, TDC shall
            submit to NPS for payment a billing invoice setting forth the amount of
            fees payable by NPS to TDC for Services rendered during such calen-
            dar month. NPS shall pay the invoiced amount to TDC within thirty
            (30) days following receipt of such invoice by NPS.
      3. Term.
    The term of this Agreement shall commence on the date hereof and shall
continue for a period of one (1) year (the "Initial Term") and, at the end of the Initial
Term and of each year thereafter, shall automatically renew for an additional one
(1) year period unless one party has given the other party thirty (30) days' prior
written notice terminating this Agreement. Following the Initial Term, this Agree-
ment may be terminated at any time at the option of either TDC or NPS upon
PART I]                      INTERNET AGREEMENTS—FORMS                               671

thirty (30) days' prior written notice. Specific categories of Services may be can-
celled as set forth in Exhibit 1.
    4. Records and Accounts.
    TDC shall maintain accurate records and accounts of all transactions relating
to the Services performed by it pursuant to this Agreement. Such records and
accounts shall be maintained separately from TDC's own records and accounts
and shall reflect such information as would normally be examined by an indepen-
dent accountant in performing a complete audit pursuant to United States gener-
ally accepted auditing standards for the purpose of certifying financial statements,
and to permit verification thereof by governmental agencies. NPS shall have the
right to inspect and copy, upon reasonable notice and at reasonable intervals
during TDC's regular office hours, separate records and accounts maintained by
TDC relating to the Services.
    5. Directors and Officers of NPS and TDC.
          (a) Nothing contained in this Agreement shall be deemed to relieve the
              officers and directors of NPS from the performance of their duties or
              limit the exercise of their powers in accordance with NPS's Certificate
              of Incorporation or the laws of India.The services of TDC's officers
              and employees which are rendered to NPS under this Agreement shall
              at all times be in accordance with the reasonable instructions of NPS's
              officers and in accordance with TDC's historical business practice.
          (b) Nothing in this Agreement shall limit or restrict the right of any of TDC's
              directors, officers or employees to engage in any other business or
              devote their time and attention in part to the management or other
              aspects of any other business, whether of a similar nature, or to limit
              or restrict the right of TDC to engage in any other business or to ren-
              der services of any kind to any corporation, firm, individual, trust or
              association; provided, however that the foregoing shall in no way modify
              or limit TDC's agreement not to compete with NPS as set forth in Sec-
              tion 6.3 of the Separation Agreement between TDC and NPS, dated
              the date hereof (the "Separation Agreement"), and TDC hereby con-
              firms its agreement to be bound by the terms thereof..
    6. Liability; Indemnification.
          (a) TDC shall have no liability whatsoever to NPS for any error, act or
              omission in connection with the services to be rendered by TDC to
              NPS hereunder unless any such error, act or omission derives from
              willful misconduct or gross negligence. The parties acknowledge that
              Article VIII of the Separation Agreement provides for indemnification
              obligations relating to this Agreement and confirm their agreement to
              be bound by the terms thereof. IN NO EVENT SHALL TDC BE LIABLE
               TO NETPHONE SERVICES FOR ANY SPECIAL, INCIDENTAL OR CON-
               SEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS
               OF PROFITS, REVENUES OR DATA), WHETHER BASED ON BREACH
               OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE,
               WHETHER OR NOT TDC HAS BEEN ADVISED OF THE POSSIBILITY
               OF SUCH DAMAGE.THE LIABILITY OF TDC FOR DAMAGES OR AL-
672                         CONVEYANCING, DRAFTING & DEEDS                       [PART I

              LEGED DAMAGES HEREUNDER, WHETHER IN CONTRACT, TORT OR
              ANY OTHER LEGAL THEORY, IS LIMITED TO, AND WILL NOT EXCEED,
              NETPHONE'S DIRECT DAMAGES.
         (b) TDC is an independent contractor and when its employees act under
             the terms of this Agreement, they shall be deemed at all times to be
             under the supervision and responsibility of TDC; and, notwithstanding
             any reimbursement of labor costs as provided herein or otherwise, no
             person employed by TDC and acting under the terms of this Agree-
             ment shall be deemed to be acting as agent or employee of NPS or
             any customer of NPS for any purpose whatsoever.
      7. Other Agreements.
    From time to time, NPS may find it necessary or desirable either to enter into
agreements covering services of the type contemplated by this Agreement to be
provided by parties other than TDC or to enter into other agreements covering
functions to be performed by TDC hereunder. Nothing in this Agreement shall be
deemed to limit in any way the right of NPS to acquire such services from others
or to enter into such other agreements; provided that in no such event shall the
compensation to be paid to TDC pursuant to Section 2 hereof be reduced on
account thereof unless and until this Agreement is terminated, or the applicable
category of Services set forth in Exhibit 1, is cancelled in accordance with Sec-
tion 3 hereof and Exhibit 1 hereto.
      8. Confidentiality.
    TDC agrees to hold in strict confidence, and to use reasonable efforts to cause
its employees and representatives to hold in strict confidence, all confidential in-
formation concerning NPS furnished to or obtained by TDC in the course of pro-
viding the Services (except to the extent that such information has been (a) in the
public domain through no fault of TDC or (b) lawfully acquired by TDC from sources
other than NPS); and TDC shall not disclose or release any such confidential
information to any person, except its employees, representatives and agents who
have a need to know such information in connection with TDC's performance
under this Agreement, unless (i) such disclosure or release is compelled by the
judicial or administrative process, or (ii) in the opinion of counsel to TDC, such
disclosure or release is necessary pursuant to requirements of law or the require-
ments of any governmental entity.
      9. Miscellaneous.
         (a) This Agreement may not be transferred or assigned by either party,
             whether voluntarily or by operation of law, without the prior written
             consent of the other which consent may be withheld in such party's
             sole discretion. This Agreement shall inure to the benefit of and be
             binding upon all permitted successors and assigns.
         (b) This Agreement shall be governed by the laws of the State of New
             York (regardless of the laws that might otherwise govern under appli-
             cable principles of conflicts of law) as to all matters, including, but not
             limited to, matters of validity, construction, effect, performance and
             remedies.
PART I]                       INTERNET AGREEMENTS—FORMS                                673

          (c) This Agreement may be executed in counterparts, each of which shall
              constitute an original and both of which together shall be deemed to
              be one and the same instrument.
          (d) All notices, requests, demands, waivers and other communications
              required or permitted to be given under this Agreement shall be in
              writing and shall be deemed to have been duly given if delivered per-
              sonally or by facsimile transmission or mailed by registered Post with
              acknowledgement due, to the last known address of the party. All such
              notices, requests, demands, waivers and communications shall be
              deemed to have been received on the date on which hand delivered,
              upon transmission of the facsimile transmission by the sender and
              issuance by the transmitting machine of a confirmation slip confirming
              that the number of pages constituting the notice have been transmit-
              ted without error, or on the third business day following the date on
              which so mailed, except for a notice of change of address, which shall
              be effective only upon receipt thereof. In the case of a notice sent by
              facsimile transmission, the sender shall contemporaneously mail a copy
              of the notice to the addressee as stated above. In no event shall the
              provision of notice pursuant to this Section 9(d) constitute notice for
              service of process.
          (e) This Agreement and those provisions of the Separation Agreement
              specifically referred to herein contain the entire understanding of the
              parties hereto with respect to the subject matter of this Agreement.
              This Agreement and such referenced provisions of the Separation
              Agreement supersede all prior agreements and understandings, oral
              or written, with respect to the subject matter of this Agreement.
          (f) The provisions of Sections 6 and 8 hereof shall survive any termina-
              tion of this Agreement.
          (g) In the event that any one or more of the provisions contained herein is
              held invalid or unenforceable in any respect, the parties shall negoti-
              ate in good faith with a view toward substituting therefor a suitable and
              equitable solution in order to carry out the intent and purpose of such
              invalid provision; provided, however, that the validity and enforceabil-
              ity of any such provision in every other respect and of the remaining
              provisions contained herein shall not be in any way impaired thereby,
              it being intended that all of the rights and privileges of the parties
              hereto shall be enforceable to the fullest extent permitted by law.
          (h) The Section headings contained in this Agreement are for reference
              only and shall not affect the meaning or interpretation of this Agree-
              ment.
          (i)   Any dispute, controversy or claim arising out of or relating to this Agree-
                ment or the breach, termination or validity hereof, or any transaction
                contemplated hereby shall be settled in accordance with the proce-
                dures set forth in Article VIII of the Separation Agreement as if such
                Article VIII were set forth herein in its entirety.


G : CDD (Vol. 4) – 43
674                          CONVEYANCING, DRAFTING & DEEDS                     [PART I

      IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth above.
SIGNES SEALED AND DELIVERED BY
THE PARTIES IN THE PRESENCE OF
W I T N E S S E S:
1.
2.
                                          59
             Agreement on Interterritorial Data Protection

                                     By And Between
      A. Service Provider - hereinafter referred to as "SP" -
      B. Data Protection Company, - hereinafter referred to as " DP" -
      C. Client Company - hereinafter referred to as "CC" -
    CC has unrestricted authority to engage in banking transactions. CC has en-
trusted SP with the operation and management of the Credit Card business, in-
cluding the accounting and data processing, on the basis of the terms of an Ser-
vice Agreement dated XX.YY.ZZ, according to which SP performs for CC all ser-
vices pertaining to such Credit Card business. Concurrent with their application
for a Credit Card, the cardholders agree to the transfer of their personal data to
SP and to those companies entrusted by SP with such data processing.
   Due to reasons of efficiency, service and centralization, SP have entrusted DP
with the processing of the Credit Card business as of XX.YY.ZZ. In light of such
considerations, the SP - as principals - and DP - as independent contractors -
concluded the DP Service Agreement, to which CC has expressly consented.
   The performance of the DP Service Agreement requires SP to transfer the
personal data of the cardholders to DP and further requires DP to process and
use these data.
    In order to protect the cardholders' rights with respect to both the data protec-
tion law, as well as the banking secrecy, and in order to comply with the banking
supervisory and data protection requirements,
      THE CONTRACTUAL PARTIES AGREE AND COVENANT AS FOLLOWS:
      § 1 Basic Principles
              The parties hereto undertake to safeguard the cardholders' right to
              protection against unauthorized capture, storage and use of their per-
              sonal data and their right to informational self-determination. The scope
              of such protection shall be governed by the standards as laid down in
              the relevant Data Protection Law . The parties hereto additionally agree
              to comply with the banking secrecy regulations.
      § 2 Instructions of the SP
          1. DP shall process the data provided by the SP solely in accordance
             with the SP's instructions and rules, and the provisions contained in
PART I]                      INTERNET AGREEMENTS—FORMS                              675

               this Agreement. DP undertakes to process and use the data only for
               the purpose for which the data have been provided by SP to DP, said
               purposes including those as described in the DP Service Agreement.
               The use of such data for purposes other than described above re-
               quires the SP's express written consent.
          2.    At any time, SP may make inquiries to DP about the personal data
               transferred by SP and stored at DP, and SP may require DP to per-
               form corrections, deletions or blockings of such personal data trans-
               ferred by SP to DP.
    § 3 Inspection Rights of the SP
               At regular intervals, an (joint) agent appointed by SP shall verify as to
               whether DP complies with the terms and conditions of this Agree-
               ment, and in particular with the data protection law as well as the
               banking secrecy regulations. DP shall grant SP's agent supervised
               unimpeded access to the extent necessary to accomplish the inspec-
               tion and review of all data processing facilities, data files and other
               documentation needed for processing and utilizing the personal data
               transferred by the SP in a fashion which is consistent with the DP
               Operational Policies. DP shall provide the agent with all such informa-
               tion as deemed necessary to perform this inspection function.
    § 4 Use of Subcontractors, Transmission of Data to Third Parties
          1. DP may not appoint non-affiliated third parties, in particular subcon-
             tractors, to perform and fulfill DP's commitments and obligations un-
             der this Agreement.
          2. For marketing purposes, the transfer of personal data to third parties
             provided by the SP is prohibited, except in those cases, where such
             personal data is transferred to affiliated companies engaged in the
             banking business in order to market financial services, the transfer of
             such data beyond the aforementioned scope to third parties, shall re-
             quire SP's express approval. Such approval is limited to the scope of
             the cardholders' consent as obtained on the application form.
    § 5 Data Protection
               DP and the SP undertake to Institute and maintain the following data
               protection measures:
    5.1 Access Control of Persons
               DP shall implement suitable measures in order to prevent unautho-
               rized persons from gaining access to the data processing equipment
               where the data transferred by SP are processed.
    This shall be accomplished by:
          a. Establishing security areas,
          b. Protection and restriction of access paths;
          c. Securing the decentralized data processing equipment and personal
             computers;
676                        CONVEYANCING, DRAFTING & DEEDS                       [PART I

          d. Establishing access authorizations for employees and third parties,
             including the respective documentation;
          e. Identification of the persons having access authority;
          f. Regulations on key-codes;
          g. Restriction on keys;
          h. Code card passes;
          i. Visitors books;
          j. Time recording equipment;
          k. Security alarm system or other appropriate security measures.
      5.2 Data Media Control
             DP undertakes to implement suitable measures to prevent the unau-
             thorized reading, copying alteration or removal of the data media used
             by DP and containing, personal data of the cardholders.
      This shall be accomplished by:
          a. Designating the areas in which data media may/must be located;
          b. Designating, the persons in such areas who are authorized to remove
             data media;
          c. Controlling the removal of data media;
          d. Securing the areas in which data media are located;
          e. Release of data media to only authorized persons;
          f. Control of files, controlled and documented destruction of data media;
          g. Polices controlling the production of back-up copies.
      5.3 Data Memory Control
             DP undertakes to implement suitable measures to prevent unautho-
             rized data input into memory and the unauthorized reading, alteration
             or deletion of the stored data on cardholders.
      This shall be accomplished by:
          a. An authorization policy for the input of data into memory, as well as for
             the reading, alteration and deletion of stored data;
          b. Authentication of the authorized personnel;
          c. Protective measures for the data input into memory, as well as for the
             reading, alteration and deletion of stored data,
          d. Utilization of user codes (passwords);
          e. Use of encryption for critical security files,
          f. Specific access rules for procedures, control cards, process control
             methods, program cataloging authorization;
          g. Guidelines for data file organization;
          h. Keeping records of data file use;
PART I]                     INTERNET AGREEMENTS—FORMS                             677

          i. Separation of production and test environment for libraries and data
             files
          j. Providing that entries to data processing facilities (the rooms housing
             the computer hardware and related equipment) are capable of being
             locked,
          k. Automatic log-off of user ID's that have not been used for a substantial
             period of time.
    5.4 User Control
             DP shall implement suitable measures to prevent its data processing
             systems from being used by unauthorized persons by means of data
             transmission equipment.
    This shall be accomplished by:
          a. Identification of the terminal and/or the terminal user to the DP sys-
             tem,
          b. Automatic turn-off of the user ID when several erroneous passwords
             are entered, log file of events, (monitoring of break-in-attempts);
          c. Issuing and safeguarding of identification codes,
          d. Dedication of individual terminals and/or terminal users, identification
             characteristics exclusive to specific functions;
          e. Evaluation of records.
    5.5 Personnel Control
             Upon request, DP shall provide SP with a list of DP employees en-
             trusted with processing the personal data transferred by SP, together
             with a description of their access rights.
    5.6 Access Control to Data
             DP commits that the persons entitled to use DP's data processing
             system are only able to access the data within the scope and to the
             extent covered by their respective access permission (authorization).
    This shall be accomplished by:
          a. Allocation of individual terminals and /or terminal user, and identifica-
             tion characteristics exclusive to specific functions;
          b. Functional and/or time-restricted use of terminals and/or terminal us-
             ers, and identification characteristics;
          c. Persons with function authorization codes (direct access, batch pro-
             cessing) access to work areas;
          d. Electronical verification of authorization;
          e. Evaluation of records.
    5.7 Transmission Control
             DP shall be obligated to enable the verification and tracing of the loca-
             tions/destinations to which the cardholders' data are transferred by
             utilization of DP's data communication equipment/devices.
678                        CONVEYANCING, DRAFTING & DEEDS                      [PART I

      This shall be accomplished by:
          a. Documentation of the retrieval and transmission programs;
          b. Documentation of the remote locations/destinations to which a trans-
             mission is intended, and of the transmission paths (logical paths).
      5.8 Input Control
               DP shall provide for the retrospective ability to review and determine
               the time and the point of the cardholders' data entry into DP's data
               processing system.
      This shall be accomplished by:
          a. Proof established within DP's organization of the input authorization;
          b. Electronic recording of entries.
      5.9 Instructional Control
               The cardholders' data transferred by SP to DP may only be processed
               in accordance with instructions of SP.
      This shall be accomplished by:
          a. Binding policies and procedures for DP employees, subject to SP's
             prior approval of such procedures and policies,
          b. Upon request, access will be granted to those SP's employees and
             agents who are responsible for monitoring DP's compliance with this
             Agreement (c.f. § 3 hereof.)
      5.10 Transport Control
               DP and SP shall implement suitable measures to prevent the
               cardholders' personal data from being read, copied, altered or de-
               leted by unauthorized parties during the transmission thereof or dur-
               ing the transport of the data media.
      This shall be accomplished by:
          a. Encryption of the data for on-line transmission, or transport by means
             of data carriers, (tapes and cartridges);
          b. Monitoring of the completeness and correctness of the transfer of data
             (end-to-end check).
      5.11 Organisation Control
               DP shall maintain its internal organization in a manner that meets the
               requirements of this Agreement.
      This shall be accomplished by:
          a. Internal DP policies and procedures, guidelines, work instructions,
             process descriptions, and regulations for programming, testing, and
             release, insofar as they relate to data transferred by SP;
          b. Formulation of a data security concept whose content has been rec-
             onciled with SP;
          c. Industry standard system and program examination
          d.   Formulation of an emergency plan (back-up contingency plan).
PART I]                     INTERNET AGREEMENTS—FORMS                                 679

    § 6 Data Protection Supervisor
          1. DP undertakes to appoint a Data Protection Supervisor and to notify
             SP of the appointee(s). DP shall only select an employee with ad-
             equate expertise and reliability necessary to perform such a duty, and
             provide SP with appropriate evidence thereof.
          2. The Data Protection Supervisor shall be directly subordinated/account-
             able to DP's General Management. He shall not be bound by instruc-
             tions which obstruct or hinder the performance of his duty in the field
             of data protection. He shall cooperate with SP's agent - as indicated in
             § 3 hereof - in monitoring the performance of this Agreement and
             adhering to the data protection requirements in conjunction with the
             data in question. In the event that DP chooses to change the person
             who serves as a Data Protection Supervisor, DP shall give timely no-
             tice to SP of such change. The Data Protection Supervisor shall be
             bound by confidentiality obligations.
          3. The Data Protection Supervisor shall be available as the on-site con-
             tact for SP.
    § 7 Confidentiality Obligation
             DP shall impose a confidentiality obligation upon those employees
             entrusted with processing the personal data transferred by SP. DP
             shall furthermore obligate its employees to adhere to the banking and
             data secrecy regulations and document such employees' obligation in
             writing. Upon request, DP shall provide SP with satisfactory evidence
             of compliance with this provision.
    § 8 Rights of Concerned Persons
          1. At any time, cardholders whose data are transferred by CC to SP, and
             thereafter further transferred by SP to DP, shall be entitled to make
             inquiries to DP (who are required to respond) as to:
                o the stored personal data, including the origin and the recipient of
                  the data,
                o the purpose of storage,
                o the persons and locations/destinations to which such data are
                  transferred on a regular basis.
    The requested Information shall generally be provided in writing.
          2. SP shall honour the concerned person's request to correct his per-
             sonal data at any time, provided that the stored data are incorrect. The
             same shall apply to data stored at DP.
          3. The concerned person may claim from SP the deletion or blocking of
             any data stored at the SP or DP, in the event that
                o such storage is prohibited by law,
                o the data in question relate to Information about health, criminal
                  actions, violations of the public order, or religious or political opin-
                  ions, and its truth/correctness cannot be proved by SP,
680                       CONVEYANCING, DRAFTING & DEEDS                       [PART I

                o such data are processed to serve SP's own purposes, and such
                  data are no longer necessary to serve the purpose of the data
                  storage under the agreement with the respective cardholders.
   Notwithstanding the foregoing, the parties hereto submit to the provisions of
Data Protection Law as may be applicable, and agree to be familiar with such
provisions.
          4. The concerned person may demand that SP block his or her personal
             data, if he or she contests the correct nature thereof and if it is not
             possible to determine whether such data is correct or incorrect. This
             shall also apply to such data stored by DP.
          5. If CC, SP or DP should violate the data protection or banking secrecy
             regulations, the person concerned shall be entitled to claim damages
             caused and incurred thereby as provided in the German Federal Data
             Protection Law (BDSG). CC's and SP's liability shall moreover extend
             to those claims arising from breach of this Agreement and asserted
             against DP and/or its employees in performance of this Agreement.
          6. DP acknowledges the obligation assumed by CC and SP towards the
             concerned person, and undertakes to comply with all SP's instruc-
             tions concerning such person. The concerned person may also di-
             rectly assert claims against DP and file an action at DP's applicable
             place of jurisdiction.
      § 9 Notification to the Concerned Person
        SP undertake to appropriately notify the concerned cardholder of the trans-
           fer of their data to DP.
      § 10 Data Protection Supervision
          1. According to the relevant Data Protection Law , SP and CC are sub-
             ject to public control exercised by the respective responsible supervi-
             sory authorities.
                                                       ,
          2. Upon request of CC or either of the SP DP shall provide the respec-
             tive supervisory authorities with the desired Information and grant them
             the opportunity of auditing to the same extent as they would be en-
             titled to conduct audits at SP and CC; this includes the entitlement to
             inspections at DP's premises by the supervisory authorities or their
             nominated agents, unless barred by binding instructions of the appro-
             priate authorities.
      § 11 Banking Supervision
          1. Any vouchers, commercial books of accounting, and work instructions
             needed for the comprehension of such documents, as well as other
             organizational documents shall physically remain at SP, unless elec-
             tronically archived by scanning, devices in a legally permissible fash-
             ion.
          2. SP and DP undertake to adhere to the principles of proper accounting
             practice applicable in Germany for computer-aided processes and the
             auditing thereof, in particular FAMA 1/1987.
PART I]                    INTERNET AGREEMENTS—FORMS                               681

          3. SP undertakes to submit a data processing concept and a data secu-
             rity concept to the appropriate Authority for the Supervision of Banks
             prior to commencing transfer of data to DP.
          4. The remote processing of the data shall be subject to the internal au-
             dit department of CC and SP. DP agrees to cooperate with the internal
             auditors of CC and SP, who shall have the right to inspect the files of
             DP's internal auditors, insofar as they relate to the data files trans-
             ferred by SP to DP. The internal auditors of SP and of CC shall con-
             duct audits of DP as required by due diligence.
          5. In a joint declaration to the Federal Banking Supervisory Authority;
             CC, SP and DP shall undertake to allow the inclusion of DP in audits
             in accordance with the provisions of § 44 of the Banking Law at any
             time and not to impede or obstruct such audits, provided that legal
             requirements and/or instructions of appropriate. authorities bind DP
             to the contrary.
          6. DP shall request the banking supervisory authorities' confirmation in
             writing to the effect that no objections will be raised against the in-
             tended remote data processing concept. In the event that DP cannot
             procure such, written confirmation upon SP's request, SP and CC may
             withdraw from this Agreement and the underlying DP Service Agree-
             ment.
    § 12 Indemnification Claim
          1. DP shall indemnify SP within the scope of their internal and contrac-
             tual relationship from any claims of damages asserted by cardholders,
             and resulting from DP's incompliance with the terms and conditions of
             this Agreement.
          2. SP shall indemnify DP within the scope of their internal and contrac-
             tual relationship from any claims of damages asserted by cardholders,
             and resulting from SP's incompliance with the terms and conditions of
             this Agreement.
    § 13 Term of the Agreement
          1. This Agreement is effective as of [date] until terminated. It may be
             terminated by any party hereto at the end of each calendar year upon
             12 months notice prior to the expiration date, subject to each party's
             right of termination of the Agreement for material, unremedied breach
             hereof The termination of this Agreement by any one of the parties
             shall result in the termination of the entire Agreement with respect to
             the other parties.
          2. DP commits to return and delete all personal data stored at the time of
             termination hereof in accordance with the SP's instructions.
    § 14 Confidentiality
             The parties hereto commit to treat strictly confidential any trade, busi-
             ness and operating secrets or other sensitive information of the other
             parties involved. This obligation shall survive termination of this Agree-
             ment.
682                        CONVEYANCING, DRAFTING & DEEDS                       [PART I

      § 15 General Provisions
           1. This Agreement sets forth the entire understanding between the par-
              ties hereto in conjunction with the subject matter as laid down herein
              and none of the parties here to has entered into this Agreement in
              reliance upon any representation, warranty or undertaking of any other
              party which is not contained in this Agreement or incorporated by ref-
              erence herein. Any subsequent amendments to this Agreement shall
              be in writing duly signed by authorized representatives of the parties
              hereto.
           2. If one or more provisions of this Agreement becomes invalid, or the
              Agreement is proven to be incomplete, the validity and legality of the
              remaining provisions hereof shall not be affected or impaired thereby.
              The parties hereto agree to substitute the invalid part of this Agree-
              ment by such a legally valid provision which constitutes the closest
              representation of the parties' intention and the economical purpose of
              the invalid term, and the parties hereto further agree to be bound by
              such a valid term. An incompleteness of this Agreement shall be bridged
              in a similar fashion.
           3. The Parties hereto submit to the jurisdiction and venue of the courts of
              [place of jurisdiction] .
           4. This Agreement shall be governed by, interpreted and construed in
              accordance with law. Of [place/country].


      SP                              DP                        CC


      By:___________                  ___________               ___________
      Its: ___________                ___________


                                           60
        Agreement for Transaction Processing Network Services

                                Terms and Conditions
   This Agreement is entered into on this day [Date] (herein after referred to as
the "Agreement") by and between NETSERVICE.COM, whose principal place of
business is AT [address] (hereinafter referred to as "Netservice.com"), and "Mer-
chant," whose name, complete address, business organization and type of busi-
ness are stated on the Agreement. In consideration of the premises set forth
herein, Netservice.com and Merchant hereby agree as follows:
           1. Netservice.com agrees to perform transaction processing services for
              Merchant. This includes the acceptance and authorization of
              transactions forwarded from Merchant in a timely manner, the
              subsequent transmission of transactions to the processing network
              and the detailed reporting of those transactions via Merchant's web-
              based Merchant Menu.
PART I]                     INTERNET AGREEMENTS—FORMS                               683

          2. By signing the Agreement, Merchant understands and agrees that the
             Netservice.com Transaction Processing Services require additional
             charges, as indicated above under Schedule of Fees, to be billed di-
             rectly by Netservice.com to the Merchant and payable pursuant to
             paragraphs 14 and 16 listed below.
          3. By signing this document, Merchant will indemnify, protect, defend and
             hold Netservice.com, affiliates and / or subsidiaries and all of its or
             their officers, agents and / or employees, harmless from and against
             any and all claims, losses, demands, actions, expenses, damages,
             liability, and / or causes of action, including (without limitation) attor-
             neys' fees, other costs of defense and / or collection fees, which in any
             way result directly or indirectly from:
               a. Merchant breach of this Agreement or any warranty or represen-
                   tation made to Netservice.com;
               b. Any damage or loss caused by negligence, fraud, dishonesty or
                  willful behavior by Merchant or any of Merchant employees or
                  agents;
               c. Any contention, whether well-founded, baseless or otherwise, that
                  Merchant violated the law or any rule or regulation;
               d. Any damages resulting from or related to any failure or delay of
                  Netservice.com in providing Transaction Processing services un-
                  der this Agreement; or
               e. Any delays in the performance of services hereunder or for any
                  failure to perform same hereunder if such delays are due to strikes,
                  inclement weather, acts of God, or other causes beyond
                  Netservice.com's reasonable control. Netservice.com will not be
                  liable for performance of services where delayed by war, riots,
                  embargoes, strikes, or acts of it's vendors and suppliers, con-
                  cealed acts of workmen (whether of Netservice.com or others),
                  or accidents.
    The indemnifications provided for in this Article shall survive any termination
of this Agreement.
    4. Merchant warrants to Netservice.com all of the following:
               a. That all representations and statements made by Merchant in
                  this Agreement, or in any other document relating hereto, by
                  Merchant or on Merchant's behalf are true, accurate and com-
                  plete in all material respects. Merchant hereby authorizes
                  Netservice.com to investigate and confirm the information herein.
                  For this purpose, Netservice.com may utilize credit bureau / re-
                  porting agencies and / or its own agents. Upon Merchant's re-
                  quest, Netservice.com will provide Merchant with a copy of the
                  results of such investigation.
               b. That Merchant is engaged in the lawful business shown on the
                  Agreement which includes the sale of merchandise and / or ser-
                  vices, and is duly licensed to conduct such business under the
                  laws of the state, county and city in which Merchant is located.
684                     CONVEYANCING, DRAFTING & DEEDS                        [PART I

       5. Netservice.com shall not be liable for the individual merit and legiti-
          macy of orders forwarded from Merchant. This liability shall remain
          the Merchant's.
       6. Netservice.com shall in no event be liable to Merchant or Purchaser
          (Purchaser is any customer, client, member or entity who elects to
          buy goods or services from Merchant) for any indirect, special or con-
          sequential damages or lost profits arising out of or related to this Agree-
          ment, the performance or breach thereof, or the accuracy or correct-
          ness of the data being passed to and from Merchant, even if
          Netservice.com and/or Merchant has been advised of the possibility
          thereof.
       7. Any claim or legal action arising out of disputes, failures, misrepresen-
          tations, malfunctions, or defects shall be waived. In no event shall
          Netservice.com's liability to Merchant exceed the total amount Mer-
          chant paid to Netservice.com hereunder. Merchant agrees that any
          cause or action arising out of or relating to this Agreement must com-
          mence within one (1) year after the cause of action arose; otherwise,
          such cause of action is permanently barred. Jurisdiction of any legal
          proceeding arising hereby shall be [Country Name]. .
       8. Merchant agrees, as a company and/or as an individual, to defend,
          indemnify, and hold harmless Netservice.com from any and all claims
          resulting from Merchant's use of any services contemplated under
          this Agreement, which cause damage to Merchant or any other party.
       9. Netservice.com shall not be responsible or liable for unauthorized ac-
          cess of facilities or to Merchant's data or programs due to accident,
          illegal or fraudulent means or devices.
      10. Netservice.com shall retain full ownership of all data submitted by ei-
          ther Merchant or Purchaser through the Netservice.com Payment Gate-
          way (Payment Gateway refers to the electronic systems through which
          a Merchant may pass payment information to Netservice.com) includ-
          ing, but not limited to name, mailing & shipping address, e-mail ad-
          dress, phone number, dollar amount of purchase, type of purchase
          and description of purchase.
      11. Merchant agrees that Netservice.com's services shall only be per-
          formed for lawful purposes. Any transaction or transmission, which
          violates any Federal, State, or local laws is expressly prohibited.
      12. Merchant understands that Merchant may not process orders on be-
          half of any other entity or individual and that the use of the Transaction
          Processing services is provided herein as a service license for a single
          Merchant account. Any attempt to use the Transaction Processing ser-
          vices provided herein for more than one Merchant account without
          additional service licenses may result in additional fees and charges
          and/or the revocation of the service license and termination of this
          Agreement. This service licence is non-transferable and may not be
          sold, traded, assumed or otherwise transferred to any other individual
          or entity without the express written consent of Netservice.com.
PART I]                      INTERNET AGREEMENTS—FORMS                            685

          13. This Agreement may be amended by Netservice.com at any time upon
              written or electronic notice to Merchant of not less than ten (10) days
              prior to the effective date of such amendment, except for service fee
              or other fee increases, exclusive of those increases listed in Section
              12, of which will be upon thirty (30) days' notice.
          14. Merchant hereby authorizes Netservice.com to either initiate transac-
              tion entries to Merchant's depository account number or to charge
              Merchant's credit card, both of which are listed on the Agreement
              (and as those numbers may be changed, any new account numbers
              that shall be provided to Netservice.com) for the monthly charges re-
              quired as listed under Schedule of Fees. This billing will occur on the
              first business day of each month regardless of the number of days in
              which services were actually performed for that month. The Merchant
              will be considered in default when past due charges have not been
              paid by the first business day following the 10th day of the month and
              will be subject to a [Amount] collection charge. Merchant agrees that
              in the event of non-payment by the last business day of the month
              Merchant's processing services will be disconnected. Service will be
              restored immediately upon payment in full of past due charges and
              fees, as well as [Amount] reactivation fee. Merchant agrees to pay all
              costs and expenses of whatever nature, including attorneys' fees and
              other legal expenses, incurred by or on behalf of Netservice.com in
              connection with the collection of all unpaid charges and fees.
          15. Merchant agrees not to change its type of business, as indicated on
              the Agreement without the express written consent of Netservice.com.
          16. Merchant may terminate monthly service with 30 days written notice
              and only a request in writing relieves Merchant from the obligation to
              pay charges at the conclusion of thirty days from date of receipt of
              notice. Netservice.com reserves the right to cancel Merchant's Trans-
              action Processing account at any time for any reason.
          17. If any provision in this Agreement is invalid, such invalidity shall not
              affect the validity of the remaining provisions of this Agreement and
              Merchant and Netservice.com agree to substitute for the invalid pro-
              vision a valid provision which most closely approximates the effect
              and intent of the invalid provision.
          18. This Agreement shall remain ineffectual until signed by an
              Netservice.com Corporation authorized signatory.
   IN WITNESS WHEREOF the parties hereto have executed this Agreement on
the day month and the year first abovesritten.
SIGNED SEALED AND DELIVERED BY
THE PARTIES IN THE PRESENCE OF:
WITNESSES:
1.
2.
686                   CONVEYANCING, DRAFTING & DEEDS                       [PART I

                                     61
                    Software Licence Agreement
      1. Grant of Software Licence: Upon installation/setup of the
         Netservice.com software and service (the "Software") or by using it
         for any purpose, you accept all the terms and conditions of this Li-
         cence. Please read this Licence in its entirety carefully before using
         the Software. Subject to your acceptance of the terms of this Licence,
         Netservice.com hereby grants to you, the Licensee, a non-exclusive
         licence to use the Software for sending and/or receiving payment au-
         thorizations for delivery and processing through an authorized pay-
         ment gateway.
      2. Limitations:
           a. Copyright Protection. The Software is owned or licensed by
              Netservice.com and is subject to protection under the copyright,
              patent and trademark laws of the United States and other coun-
              tries. You may not remove any of the copyright notices,
              Netservice.com identifiers, or other proprietary labels, or modify,
              reverse engineer, decompile, or disassemble the binary compo-
              nents of the Software, or assign or transfer your rights under this
              Licence.
           b. Single Product. The Software is licensed as a single product and
              it may not be separated into its component files nor shall its com-
              ponent files be used for any purpose other than as set forth in
              Section 1.
           c. Distribution and Copying. You may not distribute the Software or
              incorporate the Software or any portion of it into any other prod-
              ucts or software or create derivative works from it without the
              prior written consent of Netservice.com.
           d. Changes and Updates. Netservice.com may, in its discretion, is-
              sue updates, corrections, and new releases (a "Change") to the
              Software. Netservice.com is not responsible for any damages
              suffered as a result of such Change. If Netservice.com chooses
              to issue a Change, the terms of this Licence shall apply to such
              Change and the same shall be treated as Software hereunder.
              Changes may require that you agree to additional or revised terms
              and conditions as a condition of continued use of the Software.
              Unless otherwise agreed to by Netservice.com in writing,
              Netservice.com shall have no obligation to provide Changes,
              maintenance, or support to you or any person to whom you pro-
              vide access to the Software.
      3. Government Use: Use, duplication or disclosure by or on behalf of
         Government entities is subject to restrictions.
      4. Restrictions on Export: You may not setup, download or otherwise
         export or re-export the Software or any of its components, data, code
         or technology except in full compliance with all applicable laws and
         regulations. In particular, but without limitation, none of the Software
PART I]                     INTERNET AGREEMENTS—FORMS                              687

             or it's components, data, code or technology may be downloaded or
             otherwise exported or re-exported a. into (or to a national resident of)
             Cuba, Iraq, Libya, Sudan, North Korea, Iran, or Syria, or
               b. to anyone on the U.S. Treasury Department's list of Specially Des-
                   ignated nationals or the U.S. Commerce Department's Table of
                   Deny Orders. By downloading the Software, you are agreeing to
                   the preceding terms and are representing and warranting that
                   you are not located in, under the control of, or a national or resi-
                   dent of any such country or on any such list.
          5. Limited Warranty: Netservice.com warrants that if the Software is in-
             operable or defective, it will make commercially reasonable efforts to
             make available to you at no charge a replacement copy of the Soft-
             ware. Netservice.com and its vendors disclaim all other warranties,
             expressed or implied, written or oral, including but not limited to those
             of merchantability, fitness for a particular purpose, and infringement.
          6. Limitation of Damages:
               a. Except for a breach by you of your obligations under Sections
                  2(a), (b), and (c), the parties hereto, and their vendors (and any
                  officers, directors, employees and agents of the parties, and their
                  vendors) shall not be liable for any consequential, incidental or
                  indirect damages.
               b. Except for claims arising from criminal or willful misconduct, the
                  parties agree to waive any claim to seek punitive or exemplary
                  damages.
          7. Termination:
               a. Either party may terminate this License on 30 days written notice
                  for material breach by the other party of its obligations hereun-
                  der unless such breach is cured within such 30-day period.
               b. In addition to your termination right under paragraph (a) you may
                  terminate this license on 10 days written notice.
               c. In addition to Netservice.com's termination right under paragraph
                  (a), Netservice.com may terminate this license as provided in
                  Section 11.
               d. Upon termination of this Licence, you will return or destroy all
                  copies of the Software in your possession.
          8. Notices: All notices shall be given electronically, with notices to you
             being sent to the electronic mail address which you furnish at the time
             you install the Software and notices to Netservice.com going to
             legal@Netservice.com.
          9. Trademarks: "Netser vice.com", the Netser vice.com logo,
             "Netservice.com Corporation", the Netservice.com Corporation logo
             are trademarks of Netservice.com Corporation. Netservice.com grants
             you a limited, non-exclusive license to use those trademarks in dis-
             playing payment options on your web site and in promotional docu-
             mentation.
688                       CONVEYANCING, DRAFTING & DEEDS                        [PART I

      10. No Agency: Without Netservice.com's written consent, you will not rep-
          resent that you are an agent of Netservice.com, or that you have been
          endorsed or certified by Netservice.com.
      11. Infringement Indemnity:
         a. Netservice.com hereby agrees to indemnify you against any loss or
            damage, including attorneys' fees and costs of litigation, arising from
            a claim that the Software infringes a patent, copyright, trademark or
            other intellectual property right of any other person.
         b. You hereby agree to indemnify Netservice.com against any loss or
            damage, including attorneys' fees and costs of litigation, arising from
            a claim that the Software infringes a patent, copyright, trademark or
            other intellectual property right resulting from
               i. your use of the Software for purposes other than making use of a
                  payment service authorized by Netservice.com; or
               ii. an unauthorized modification of the Software by you, provided,
                   however, that the foregoing indemnification obligation applies only
                   to such a claim that would have been avoided in the absence of
                   such use or modification.
          c. In the event a party (the "Indemnified Party") becomes aware of a
             claim described in Sections 11 (a) or (b) for which it may seek indem-
             nification, the Indemnified Party shall promptly give the other party
             (the "Indemnifying Party") notice of the claim and permit the Indemni-
             fying Party to assume the defense of the claim. The Indemnified Party
             shall have the right to participate in the defense at its expense.
         d. Netservice.com shall have no obligation to indemnify you with respect
            to any claim to extent it is based on
               i. the use of the Software for a purpose other than using a payment
                  service authorized by Netservice.com;
               ii. the use of the Software in combination with other products, equip-
                   ment, devices or software where such combination is likely to
                   infringe or infringes the rights of a third party; or
              iii. the alteration or modification of the binary elements of the Soft-
                   ware by or for you if such infringement charge would have been
                   avoided in the absence of such alteration or modification.
         e. If the Software or any component of the Software becomes, or in
            Netservice.com's opinion is likely to become, the subject of a claim of
            infringement, then you shall permit Netservice.com, at its option and
            expense, either
               i. to procure for you the right to continue using the Software as
                  permitted in this Agreement, or
               ii. to replace or modify Software or the infringing component of the
                   Software so that it becomes non-infringing. If, after the using com-
                   mercially reasonable efforts Netservice.com is unable to cure
PART I]                     INTERNET AGREEMENTS—FORMS                              689

                   the infringement, either party may terminate this Agreement on
                   written notice to the other.
    12. Payment Terms:
          a. It is the Licensee's understanding they will be charged the rates and
             fees for their use of the Software as set forth in their Agreement at the
             time of sale.
       b. If the Licensee fails to stay current with the payment terms as de-
          scribed in 12 (a), Netservice.com reserves the right to discontinue
          use of the Software by Licensee until paid in full.
   13. Acceptable Use Policy: Merchant will not engage in Net Abuse, that can
be defined as (but is not limited to):
          a. Sending any kind of unsolicited or unwelcome email to a substantial
             number of network users, anywhere on the Internet.
          b. Posting a single article or substantially similar articles to an excessive
             number of newsgroups or mailing lists (i.e., 20 or more).
          c. Repeated or deliberate posting of articles that are off-topic according
             to the charter of that newsgroup or mail list.
          d. Posting commercial advertising in almost any conference or newsgroup,
             unless it is specifically permitted within that group. I understand that
             Netservice.com investigates all reported occurrences of net abuse,
             and will take action according to the circumstances and severity of the
             abuse. For first offenders, Netservice.com will normally issue a warn-
             ing, and take necessary action to minimize any damage. Depending
             on the severity of the breach of this policy, Netservice.com may im-
             mediately take any of the following actions:
               i. Immediate suspension of your account, halting all processing of
                  credit card and/or ACH transactions.
                ii. Possible termination of account. Netservice.com will not tolerate
                    Net Abuse of any kind.
    14. Entire Agreement: This Licence constitutes the entire Agreement between
you and Netservice.com pertaining to the subject matter hereof, and supersedes
in their entirety any and all written or oral Agreements pertaining to the Software
and its use between the parties.
    15. Governing Law: This Licence Agreement shall be governed by the laws of
the[Country Name].
    IN WITNESS WHEREOF the Parties hereto have executed this Agreement on
this-------------day of---------------, 2003.
    Signature with common seal of the parties


                                          62
                        Network Services Agreement
  THIS AGREEMENT is made on this [date] BETWEEN GLOBENET
CORPORATION,['GLOBENET'], a Company incorporated under the Companies

G : CDD (Vol. 4) – 44
690                      CONVEYANCING, DRAFTING & DEEDS                       [PART I

Act and having its registered office at [address] AND WEBLINK SERVICES,
[‘WEBLINK'],a Company having its registered office at [Address], WITNESSES
as follows :
      The parties hereto agree and bind themselves as follows:
    1. SERVICES: GLOBENET will sell, and WebLink will purchase, telecommu-
nications services for the interconnection of WebLink's end users with the Internet.
WebLink is responsible for all end-user customer support, billing, and collections.
GLOBENET's relationship under this agreement is solely with WebLink.
      2. PRICING: Prices are as stated in Attachment A.
   3. EQUITY TRANSACTION. GLOBENET and WebLink agree that GLOBENET
shall purchase WebLink warrants. The price shall be [Rs….] per warrant for war-
rants to purchase 20,000 shares of WebLink at [Rs…..] per share for five years
from the warrant issuance. GLOBENET and WebLink agree to use best efforts to
complete this transaction within 30 days of the signature date of this agreement.
    4.TERMS AND CONDITIONS: WebLink agrees to comply with the
GLOBENET"s Terms and Conditions contained in Schedule B. It further agrees to
require its end users to comply with terms and conditions in substance identical
to those in Sections One, Two, and Three. WebLink shall defend, indemnify, and
hold harmless GLOBENET against any claims resulting from WebLink's use of
GLOBENET's services, or that of its customers.
   5. RELATIONSHIP: The relationship of GLOBENET and WebLink shall be
that of independent third parties.
    6. EFFECTIVITY AND TERM: This agreement supersedes the current
GLOBENET/WebLink agreement, dated [date]. The term of this new agreement
is one year from [date] which term shall be automatically renewed for additional
one year terms, providing that neither party has noticed the other party with a
written notice of intent not to renew for the forthcoming term. Such notice of intent
shall be not less than 60 days in advance of the end of the current term.
   7. TECHNICAL AGREEMENT: WebLink agrees to comply with the technical
Agreement for Network Interoperability, attached as Schedule C. GLOBENET and
WebLink will work diligently to set up monitoring between Network Operations
centers so as to provide WebLink with real-time information on GLOBENET's
network status. WebLink and GLOBENET will provide operations and marketing
management personnel for a monthly conference call or meeting to discuss cur-
rent needs, issues, and forecasts.
    8. GLOBENET Termination for Cause. GLOBENET may terminate this agree-
ment for cause without penalty in the event that WebLink shall materially breach
any term of this agreement. Prior to such termination, GLOBENET shall first give
WebLink written notice of its intent to terminate which shall clearly describe
problem(s) constituting cause. WebLink will have 30 days from receipt of notice to
correct the problem. If the problem is not corrected within such period, GLOBENET
may terminate under this paragraph with 30 additional days written notice. How-
ever, if WebLink shall violate the acceptable use policy in Section 2 of the at-
tached Terms and Conditions, or permit such violation, and does not immediately
act to remedy such violation when it becomes aware of it, GLOBENET may termi-
PART I]                   INTERNET AGREEMENTS—FORMS                               691

nate this agreement without penalty with 10 days written notice. If any amounts
due and owing by WebLink remain unpaid 60 days after date of invoice, then
GLOBENET may terminate this agreement immediately without penalty.
    9. No Publicity. The prices and terms of this agreement shall be held confi-
dential by both parties, as shall the parties' respective performance under this
agreement and the quality of network performance. Neither party shall publicize
the existence of this agreement without consent of the other, and in the event of
such agreement, all press release materials shall be reviewed and approved by
the other party. In particular, WebLink shall use best efforts to maintain the confi-
dentiality of the terms in Schedule A. In the event that any disclosure of terms or
performance is required for legal or regulatory reasons, WebLink shall use best
efforts to minimize this disclosure and to notify GLOBENET in advance of such
required disclosure.
     10. Limitation of Liability. Notwithstanding anything else to the contrary stated
or implied herein, neither party shall have any liability whatsoever for any inciden-
tal, consequential or special damages suffered by the other or by any assignee or
other transferee of the other, even if informed in advance of the possibility of such
damages, except in connection with the indemnification provisions of Section 4.
   11. Governing Law. This agreement and the rights of the parties hereunder
shall be governed by and interpreted in accordance with the laws of the Union of
India.
    12. Entire Agreement. The parties hereto acknowledge that they have read
this entire agreement and that this agreement and the exhibits attached hereto
constitute the entire understanding and contract between the parties and super-
sedes any and all prior or contemporaneous oral or written communications with
respect the subject matter hereof. This agreement shall not be modified, amended
or in any way altered except by an instrument in writing signed by the parties.
   13. Binding Effect. Except as herein otherwise specifically provided, this
agreement shall be binding upon and inure to the benefit of the parties and their
legal representatives, heirs, administrators, executors, successors and assigns.
    14. Plural/Gender. Whenever from the context it appears appropriate, each
term stated in either the singular or the plural shall include the singular and the
plural, and pronouns stated in the masculine, the feminine or the neuter gender
shall include the masculine, feminine and neuter. The term "person" means any
individual, corporation, partnership, trust or other entity.
    15. Severability. If any provision of this agreement, or the application of such
provision to any person or circumstance, shall be held invalid, the remainder of
this agreement, or the application of such provision to persons or circumstances
other than those to which it is held invalid, shall not be affected thereby.
    16. Counterparts. This agreement may be executed in several counterparts,
each of which shall be an original, but all of which together shall constitute one
instrument. It shall not be necessary for all parties to execute the same counter-
part hereof.
    17. Waiver. No failure on the part of either party to exercise, and no delay in
exercising, any right or remedy hereunder shall operate as a waiver thereof; nor
692                       CONVEYANCING, DRAFTING & DEEDS                       [PART I

shall any single or partial exercise of any right or remedy hereunder preclude any
other or further exercise thereof or the exercise of any other right or remedy granted
hereby or by law.
     18. Notice. Unless other provided, any notice to be given hereunder shall be
effective five days after despatch by Registered Post, with acknowledgement due
and address to the last known address of the parties or at such other addresses
of which notice has been given to the addressing party.
   19. Force Majeure. No party shall be liable by reason of any failure to delay in
the performance of its obligations due to strikes, riots, fires or explosions, acts of
God, war, governmental action or any other cause which is beyond the reason-
able control of such parties.
    20. Facsimile Transmission. Parties to this Agreement are authorized to ex-
ecute the Agreement, and transmit a signed copy of same via TeleFax to the
other parties, who hereby agree to accept and rely upon such documents as if
they bore original signatures. The parties sending such TeleFaxes hereby ac-
knowledge and agree to provide to the other parties, within seventy-two (72) hours
of transmission, the Agreement bearing an original signature.
    IN WITNESS WHEREOF, the parties hereto have set their hands and seals as
of the date first above recited.
SIGNED SEALED AND DELIVERED BY
THE PARTIES IN THE PRESENCE OF
W I T N E S S E S:


                              SCHEDULE A - PRICING
      2 Pricing for Dial-Up Services
         (a) "National Users" are defined as all WebLink and users making use of
             the GLOBENET network, except for "External Users". External Users
             are defined as those WebLink users whose primary connection is to
             WebLink's own network outside this territory or elsewhere whose use
             of GLOBENET is incidental or takes place in a travel situation. ELN
             shall designate External Users in accordance with the above defini-
             tion.
         (b) All ISDN usage will be surcharged at the rate of Rs******. This sur-
             charge applies to both National Users and External users. Only a
             single "B" channel will be supported.
         (c) The pricing above is valid only for [One year]. There is a [---%] sur-
             charge for 800-number service. For external usage for any WebLink
             customers, the price is [Amount]. If the percentage of External usage
             as compared to the total usage on the network is [percentage]. These
             External prices are valid for [One year] from the signature date of this
             agreement. Prior to the end of this period, this pricing may be renego-
             tiated in good faith between the parties.
         (d) Summary information concerning the Pricing, including specifically the
PART I]                   INTERNET AGREEMENTS—FORMS                               693

            number of Services, as with all dealings under this Agreement, pro-
            vided by ELN to GLOBENET will remain confidential between the par-
            ties and will be used for the purpose of verification of compliance with
            this agreement only. At GLOBENET's request, WebLink shall make
            available full confidential information, including the dates on which the
            services were installed. GLOBENET shall have the right of reason-
            able audit to ensure the accuracy of the above. ELN shall keep and
            maintain full, true and accurate records containing all data reason-
            ably required for verification of ELN's compliance with the terms of
            this Agreement. GLOBENET shall have the compliance with the terms
            of this Agreement. GLOBENET shall have the right, during normal
            business hours upon at least Fifteen (15) business days prior notice,
            to direct its independent auditors, who shall execute an appropriate
            non-disclosure agreement mutually agreeable to both parties, to audit
            and analyze the relevant records of ELN to verify compliance with the
            provisions of this Agreement. The audit shall be conducted at
            GLOBENET's expense unless the results of such audit establish that
            inaccuracies in the monthly reports have resulted in underpayment of
            fees to GLOBENET by more than Five percent (5%) of the amount
            actually due in any month, in which case ELN shall bear the expenses
            of the audit.
                                   SCHEDULE B
                    GLOBENET TERMS AND CONDITIONS
    (1) GLOBENET exercises no control whatsoever over the content of the infor-
mation passing through GLOBENET. GLOBENET MAKES NO WARRANTIES
OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, FOR THE SERVICE IT IS
PROVIDING. GLOBENET also disclaims any warranty of merchantability or fit-
ness for a particular purpose. GLOBENET will not be responsible for any damage
you suffer. This includes loss of data resulting from delays, non-deliveries, misde-
liveries, or service interruptions caused by its own negligence or your errors or
omissions. Use of any information obtained via GLOBENET is at your own risk.
GLOBENET specifically denies any responsibility for the accuracy or quality of
information obtained through its services.
   (2) GLOBENET may only be used for lawful purposes. Transmission of any
material in violation of any Central or state regulation is prohibited. This includes,
but is not limited to: copyrighted material, material which is threatening or ob-
scene, or material protected by trade secret. You agree to indemnify and hold
harmless GLOBENET from any claims resulting from your use of the service
which damages GLOBENET or another party.
   (3) Any access to other networks connected to GLOBENET must comply with
the rules appropriate for that other network. Use of GLOBENET itself may be for
any lawful purpose. Use of GLOBENET for lawful commercial purposes is both
permitted and encouraged. Resale to other individuals and organizations is per-
mitted, but they may not further resell the services.
    (4) Payment is due 30 days after date of invoice. Accounts are in default if
payment is not received within 30 days after date of invoice.If your payment is
returned to us unpaid you are immediately in default and subject to a returned
694                     CONVEYANCING, DRAFTING & DEEDS                        [PART I

check charge of $25 from us. Accounts unpaid 60 days after date of invoice may
have their service interrupted. Such interruption does not relieve you from the
obligation to pay the monthly charge. ONLY A WRITTEN REQUEST TO TERMI-
NATE YOUR SERVICE RELIEVES YOU OF YOUR OBLIGATION TO PAY THE
MONTHLY ACCOUNT CHARGE. Accounts in default are subject to an interest
charge of 1.5% per month on the outstanding balance. If you default, you agree
to pay GLOBENET its reasonable expenses, including attorney and collection
agency fees, incurred in enforcing its rights under these Terms and Conditions.
   (5) In the event of early cancellation of a one, two, or three-year Term Com-
mitment, the customer will be required to pay 75% of GLOBENET's standard
monthly charge for each month remaining in the Term Commitment.
   (6) These Terms and Conditions supersede all previous representations,
understandings or agreements and shall prevail notwithstanding any variance
with terms and conditions of any order submitted. Use of GLOBENET constitutes
acceptance of these Terms and Conditions.
                    SCHEDULE C--TECHNICAL AGREEMENT
   1. WebLink agrees that it shall operate its own Radius server, which will per-
form user validation functions, and will maintain this server in a secure environ-
ment. WebLink also will maintain this server with reasonably current versions of
the Radius protocols.
    2. WebLink agrees to use software and procedural safeguards to insure that
only accurate routing information, for networks to be used by WebLink's custom-
ers, is transmitted from WebLink's Radius server into GLOBENET's network, and
to use best efforts to immediately remedy any problems leading to transmission
of incorrect routing information.
    3. WebLink agrees to assign each end customer a unique identification num-
ber for billing purposes, and to reasonably cooperate with GLOBENET in estab-
lishing the structure of this identification number.
    4. WebLink and GLOBENET each agree to cooperate with the other in identi-
fying and resolving any security infringements which involve WebLink's custom-
ers and GLOBENET network.
   5. It is recognized and agreed that the billing data supplied on an interim basis
(more frequently than monthly) is an estimate and may not be relied upon for
100% accuracy.
                             SERVICE AGREEMENT
             (Please check your desired sustained usage rate)
      SERVICE TYPE               MONTHLY RATE*                START-UP COST
        [Specify]                           [Rs…..]
       * PRICES ABOVE DO NOT INCLUDE INSTALLATION FEES, MONTHLY
                 LINE CHARGES, OR EQUIPMENT COSTS.
        Discounted monthly rates with long-term service commitments(2):
   / / 1-year commitment (5% discount) / / 2-year commitment (10% discount) / /
3-year commitment (15% discount)
PART I]                   INTERNET AGREEMENTS—FORMS                            695

    (2) At the conclusion of the term, pricing will revert to the standard rates in
effect. Any customer wishing to cancel service before the completion of the term
will be required to pay 75% of the monthly charges for the months remaining on
the contract.
    PAYMENT (CHOOSE ONLY ONE): If you choose to pay by Credit
    Card please fill in the following information:
    / / Check (please return with this form) VISA / / MasterCard / /
    / / Credit Card (please see box) Name as it appears on card:
    // Purchase Order Number:_______ _____________________________
    (please return the PO with this form)       Card Number________________
                                                Expiration Date ______________
                                                Signature____________________
                                                Date_______________________
    Company Name ________________             Phone _______________________
    Address     ____________________          Fax ________________________
    ________________________ Contact Name _______________________
  PLEASE READ THE TERMS AND CONDITIONS ON THE BACK OF THIS
FORM AND SIGN HERE TO INDICATE YOUR ACCEPTANCE.
    Signature: _________________________Date _______________________
    GLOBENET CORPORATION                     +1 800 488 6383 (voice)
                                             +1 703 206 5600 (voice)
                                             +1 703 206 5601 (fax)
                                             http://www.globenet
                       GLOBENET SERVICES PROVIDED
  -Full, unrestricted access to GLOBENET's – Full maintenance of all
GLOBENET-owned network. equipment.
    - Routing and other network management, - A UUCP/TCP newsfeed connec-
tion from support, and monitoring as necessary GLOBENET if desired. to provide
the IP access.
                    GLOBENET TERMS AND CONDITIONS
    (1) GLOBENET exercises no control whatsoever over the content of the infor-
mation passing through its network. GLOBENET MAKES NO WARRANTIES OF
ANY KIND, WHETHER EXPRESSED OR IMPLIED, FOR THE SERVICE IT IS
PROVIDING. GLOBENET also disclaims any warranty of merchantability or fit-
ness for a particular purpose. GLOBENET will not be responsible for any dam-
age you suffer. This includes loss of data resulting from delays, nondeliveries,
misdeliveries, or service interruptions caused by its own negligence or your er-
rors or omissions. Use of any information obtained via GLOBENET's network is at
your own risk. GLOBENET specifically denies any responsibility for the accuracy
or quality of information obtained through its services.
696                      CONVEYANCING, DRAFTING & DEEDS                        [PART I

    (2) GLOBENET's network may only be used for lawful purposes. Transmis-
sion of any material in violation of any Central or state regulation is prohibited.
This includes, but is not limited to: copyrighted material, material legally judged to
be threatening or obscene, or material protected by trade secret. You agree to
indemnify and hold harmless GLOBENET from any claims resulting from your
use of the service or the use of the service by any of your customers or others
throughout your chain of distribution, including end users, which damages an-
other party.
   (3) Any access to other networks connected to GLOBENET's network must
comply with the rules appropriate for that other network. Use of GLOBENET's
network itself may be for any lawful purpose. Use of GLOBENET's network for
lawful commercial purposes is both permitted and encouraged.
    (4) Payment is due 30 days after date of invoice. Accounts are in default if
payment is not received within 30 days after date of invoice. If your payment is
returned to us unpaid you are immediately in default and subject to a returned
check charge of $25 from us. Accounts unpaid 60 days after date of invoice may
have their service interrupted. Such interruption does not relieve you from the
obligation to pay the monthly charge. ONLY A WRITTEN REQUEST TO TERMI-
NATE YOUR SERVICE RELIEVES YOU OF YOUR OBLIGATION TO PAY THE
MONTHLY ACCOUNT CHARGE. Accounts in default are subject to an interest
charge of 1.5% per month on the outstanding balance. If you default, you agree to
pay GLOBENET its reasonable expenses, including attorney and co-attorney
and collection agency fees incurred in enforcing its rights under these Terms and
Conditions.
    (5) Billing for GLOBENET service will normally commence when the connec-
tion from the GLOBENET hub is completed to your site and IP packets can be
passed. However, in certain circumstances billing may occur when a GLOBENET
hub and a functioning telephone circuit are prepared to route IP packets to your
site. Service is invoiced monthly in advance and may be cancelled in writing with
60 days notice with no penalty. In the event of early cancellation of a one-, two-,
or three-year Term Commitment, the customer will be required to pay 75% of
GLOBENET's standard monthly charge for each month remaining in the Term
Commitment. GLOBENET reserves the right to change the rates by notifying you
60 days in advance of the effective date of the change.
   (6) These Terms and Conditions supersede all previous representations,
understandings or agreements and shall prevail notwithstanding any variance
with terms and conditions of any order submitted. Use of GLOBENET's network
constitutes acceptance of these Terms and Conditions.
   PLEASE SIGN ON THE FRONT OF THIS PAGE TO INDICATE YOUR UNDER-
STANDING AND ACCEPTANCE OF THESE TERMS AND CONDITIONS.

                                         63
              On-line Navigational Services Agreement
      THIS SERVICE AGREEMENT (the "Agreement") is made as of [date]
      BY AND BETWEEN SKYLARK ONLINE LTD. ("SOL"), a Company incorpo-
PART I]                      INTERNET AGREEMENTS—FORMS                               697

rated under the Companies Act having its registered office at [Address] AND
BHARAT TELECOM LTD. ("BTL") a company incorporated under the Compa-
nies Act and having its registered office at [Address].
   BTL has been organized as a joint venture between ----------, a_, wholly owned
subsidiary of Skylark Communication("SC") and SB Holdings India Ltd., an affili-
ate of SOL, pursuant to a joint venture agreement dated as of this same date (the
"Joint Venture Agreement"), in order to operate in India a localized version of the
Skylark! Guide (such localized guide,( "Skylark India") to develop related on-line
navigational services in India and to conduct certain other businesses related to
such activities.
  BTL desires that SOL provide certain Services (the "Services") for BTL and
SOL desires to provide such Services for BTL.
   NOW, THEREFORE, in consideration of the premises and mutual covenants
and obligations set forth herein, the parties hereto agree as follows:
    1. OFFICE, FINANCIAL AND ADMINISTRATIVE SERVICES.
          (a) SOL shall provide the following Services to BTL:
                (i) office space for up to ten (10) employees of BTL along with re-
                    lated office services such as utilities, telecommunications equip-
                    ment (including the costs of installment and maintenance of lines,
                    office units and the PBX switch as well as an estimated amount
                    for actual calls), general office supplies, mailroom services, clean-
                    ing services, maintenance services and general office equipment
                    (for example, photocopiers and telefax machines); and
               (ii) financial management and other administrative support including
                    payroll processing, accounting, purchasing, management infor-
                    mation, recruiting, other human resource and facility services. In
                    providing accounting services, SOL shall use its reasonable ef-
                    forts to provide data and information to BTL so that BTL's finan-
                    cial personnel may prepare reports in accordance with the Statu-
                    tory requirements.BTL acknowledges that SOL may need a rea-
                    sonable period of time to adjust its accounting procedures to pro-
                    duce reports in that form. SOL shall also provide to BTL other
                    similar administrative and operational services required to carry
                    out BTL's business plan that SOL has the resources to provide
                    without unreasonable cost or burden to its own operations.
          (b) BTL shall pay SOL for the Services all of SOL's out-of-pocket expenses
              to third parties incurred in connection with the Services (including those
              incurred prior to this date on behalf of BTL). Those expenses shall
              include actual charges for telecommunications calls (i.e., above the
              estimated amount included with the office space in Section 1(a)(i)
              above), special postage, courier service, and any other similar prod-
              ucts or services provided by third parties which are individually billed
              to SOL and which are not included in its general charges specified
              above. Commencing with the launch date of Skylark Communication
              [date], BTL shall also pay an allocated part of SOL's internal costs in
              providing the Services, determined in accordance with the allocations
698                      CONVEYANCING, DRAFTING & DEEDS                         [PART I

            which SOL uses for its own operating units. The allocations for current
            financial year are set forth in Schedule 1(b). SOL shall have the right
            to make appropriate adjustments in Schedule 1(b) for each calendar
            year hereafter based on increases in its applicable costs. If service
            taxes or any other taxes are at any time to be required to be paid on
            the services, they will be added to the amounts payable by BTL pursu-
            ant to this Agreement.
        (c) SOL shall send an itemized monthly invoice to BTL for the Services
            provided by SOL during the previous month and for any other charges
            that may be due by BTL under this Agreement. BTL shall pay such
            amount within thirty (30) days after receipt of the invoice.
        (d) Prior to this date and the formation of BTL, SOL has directly paid
            through its payroll certain persons who have been hired on behalf of
            BTL and who will be transferred to the BTL payroll after BTL's forma-
            tion and commencement of operations. BTL shall reimburse SOL for
            all salary, payroll taxes, benefits and similar costs paid or liabilities
            incurred by SOL in connection with those employees. BTL shall also
            reimburse SOL for all salary, payroll taxes, benefits and similar costs
            from [date] until he is transferred to BTL's payroll and paid directly by
            BTL. BTL shall also reimburse SOL for any other out-of-pocket ex-
            penses incurred by SOL or its personnel on behalf of BTL including,
            without limitation, travel and entertainment expenses, employee pro-
            curement fees and expenses and similar costs incurred since the dis-
            cussion of the formation of BTL began.
        (e) BTL acknowledges that although SOL shall provide purchasing assis-
            tance, it shall be responsible for paying for all furniture and computer
            equipment and similar items principally used by its employees on SOL's
            premises.
              (f) BTL shall give SOL at least thirty days notice of its need for office
                  space for new employee. Nothing herein shall require SOL to
                  lease new space to accommodate BTL personnel.
      2. PROMOTIONAL SERVICES.
        (a) During the term of this agreement, SOL and BTL shall provide each
            other with the right to run a reasonable number of advertisements and
            promotions at "house rates" in their respective publications and ser-
            vices. For purposes of this agreement "house rates" shall mean 30%
            of the regular rate charged for a page, banner or other promotional or
            ad space. Any production or similar out-of-pocket charges related to
            house ads shall be paid in full. All advertising services provided shall
            be subject to the applicable rate card or other applicable terms and
            conditions of the publication or service being used. House rates may
            not be combined with other promotional rates including volume or fre-
            quency discounts or other special rate programs or used for inserts.
        (b) SOL and BTL shall explore with other promotional activities as may be
            appropriate including, for example, joint participation in marketing and
PART I]                      INTERNET AGREEMENTS—FORMS                             699

              promotional events such as trade shows. Each party shall discuss with
              the other party in good faith (before any other comparable third party
              any plans to incorporate editorial materials, listings, brand features
              and similar content within publications or services similar to those dis-
              tributed by the other party, and shall allow the other a reasonable time
              to make a first offer, it being the intention to cooperate in such areas
              as reasonably practical for both parties; provided, however, that the
              foregoing shall not obligate either party to enter into any such arrange-
              ment.
    3. AD REPRESENTATIVE SERVICES.
          (a) SOL has acted and shall act as the exclusive advertising representa-
              tive for Skylark Communication and any other products and services
              of BTL for India and any other regions in which SOL or its affiliates
              regularly solicit online advertising (the "Territory"). SOL shall use its
              reasonable efforts to sell advertising in the Territory and to collect
              amounts owed to BTL from such advertisers. Although SOL shall use
              its ZDNet sales force to sell ads on BTL as well as ZDNet, SOL shall
              add an additional sales person above the personnel anticipated for
              selling ZDNET and its other products in light of its ad sales services
              for SOL and SOL shall be entitled to interview prospective candidates
              for such positions and to approve the person hired provided it does so
              promptly. SOL shall use reasonable efforts to hire such sales person
              with a six month probation period if labor laws permit. Although all of
              SOL sales personnel shall continue to be employees of SOL and sub-
              ject to its direction, all such personnel shall provide the BTL sales
              director with reports on sales calls and sales as the BTL sales director
              may request (including daily reports if requested) in coordination with
              reports to SOL sales managers.
              BTL acknowledges that SOL has not made any representation with
              respect to the amount of advertising it may sell. All such advertising
              shall be sold in accordance with such standard terms and conditions
              as BTL may provide.
          (b) All advertising shall be subject to acceptance by BTL and BTL shall
              accept or reject any insertion order within two business days of re-
              ceipt of that order from SOL; failure to respond within that time shall
              be deemed acceptance.
          (c) As compensation for its services, SOL shall be entitled to a commis-
              sion on the Net Amount collected on advertisements from the Terri-
              tory carried by SOL and BTL's other products and services. That
              commission shall be [XXXX] of the Net Amount collected from adver-
              tising up to the cumulative amount of advertising projected for period
              of SOL's services as set forth in the Business Plan attached to the
              Joint Venture Agreement and [XXXX] of the Net Amount collected from
              advertising above that amount. (For example, if the Business Plan
              calls for[XXXX] of advertising in the first six months of this agreement
              and SOL sells the Net Amount of [XXXX] for that period, SOL shall
              receive commissions on the first [XXXX] at the rate of [XXXX] and on
700                       CONVEYANCING, DRAFTING & DEEDS                          [PART I

             the remaining [XXXX] at the rate of [XXXX]) Net Amount means gross
             ad revenues, adjusted for ad agency commissions, discounts, billing
             adjustments and allowances, make goods, bad debt write-offs, and
             collection agency, attorney and other out-of-pocket collection fees and
             expenses. SOL shall not be responsible for bad debts; it being the
             intention of the parties that BTL bear the credit risk of its advertisers.
             SOL shall pay to BTL within ten days following the end of each month
             all of the amounts collected by it for advertising run on BTL's products
             and services, less its commission and any out-of-pocket costs for col-
             lection agencies, attorneys, or other collection efforts. At the end of
             each calendar quarter, SOL and BTL shall review the Net Amount of
             advertising for all quarters preceding the quarter then ending and de-
             termine whether SOL shall be entitled to the [XXXX] commission on
             the Net Amount of any advertising in any prior period.
        (d) SOL shall provide the ad rep services through [XXXX]. The parties
            shall commence discussions about the renewal of the services for an
            additional period not later than [XXXX]. If BTL shall not continue SOL's
            exclusive ad sales services beyond [XXXX]or the end of any renewal
            term thereafter (i.e., BTL begins to sell part or all of its inventory itself
            or through a third party), BTL shall continue to pay SOL commissions
            on all advertising carried by BTL from the Territory following the effec-
            tive date of discontinuation for which SOL secured orders prior to the
            discontinuation date. In addition, notwithstanding any other provision
            of this agreement, in that event, SOL shall have the right to require
            BTL to hire and assume all ongoing employment obligations to the
            new sales person referred to in above without any severance or other
            cost to SOL arising out of that person's employment with SOL.
        (e) SOL may carry out its services outside of Indian territory through its
            affiliated companies and may sell ads in those countries for BTL's
            products and services.
        (f) Although SOL's ad representation services shall be exclusive, BTL
            may have members of its internal staff assist in sales efforts provided
            that such efforts shall be coordinated with SOL and that all sales re-
            sulting from such efforts shall be commissionable to SOL as if its
            sales force had made such sales.
      4. TERM AND TERMINATION.
        (a) This Agreement shall be commence as of the date set forth above
            and, unless earlier terminated pursuant to paragraphs (b), (c), or (d)
            of this Section, shall continue for [XXXX] years after that date. Upon
            termination, all rights and obligations of each party hereto shall cease
            as of the date of termination and any amounts owed by either party
            hereto shall be paid in full.
        (b) This Agreement shall also terminate automatically and effective im-
            mediately upon the earlier to occur of:
              (i) the dissolution, termination or liquidation of SOL or BTL;
PART I]                      INTERNET AGREEMENTS—FORMS                                701

               (ii) the appointment of a trustee in bankruptcy for SOL or BTL, an
                    assignment of assets for the benefit of SOL's or BTL's creditors
                    or the adjudication of bankruptcy with respect to SOL or BTL.
               (iii) the termination of the Joint Venture Agreement.
          (c) In the event that either party hereto shall commit any material breach
              of or default under this Agreement and such breach or default is not
              cured within thirty days after notice of such breach or default (if re-
              mediable), the non-defaulting or non-breaching party shall have the
              right (but not the obligation), in addition to all other legal and equitable
              remedies that may be available to such party, to terminate this Agree-
              ment.
          (d) BTL may terminate any or all of the Services described in Section 1
              upon not less than ninety (90) days notice to SOL. At the end of such
              ninety (90) days, SOL shall make an appropriate reduction in its allo-
              cated charges. To the extent BTL wishes to terminate services upon
              less than 90 days notice SOL shall use its reasonable efforts to end
              those services, reduce its costs and therefore reduce its charges to
              BTL in accordance with BTL's schedule.
    5. DIRECTION AND CONTROL OF SOL'S PERSONNEL.
          (a) SOL shall have the exclusive right to direct and control its personnel
              and/or any third parties providing the Services hereunder, free of any
              supervision, direction or control by BTL (other than in respect of BTL's
              right, as the recipient of such Services, to specify the nature of the
              Services desired to be performed). SOL shall have the sole right to
              determine the conditions of employment for all SOL personnel provid-
              ing Services hereunder, including without limitation, their working
              hours, employment and vacation policies, benefits, seniority, promo-
              tions and assignments. SOL will be solely responsible for compensa-
              tion of such personnel and for all withholding taxes, unemployment
              insurance, workmen's compensation, and any other insurance and
              fringe benefits with respect to such personnel. SOL shall also have
              the exclusive right to hire and fire such personnel. Unless BTL shall
              have acted in breach of this agreement with respect to SOL's person-
              nel, SOL shall be solely responsible for severance or amounts pay-
              able upon the termination of employment of such personnel or any
              dispute or claim concerning that termination and SOL shall indem-
              nify, defend and hold BTL and its officers and directors, harmless,
              from any and all claims brought against by SOL personnel relating to
              such termination, dispute or claim.
          (b) BTL shall not solicit the employment or hire, whether as an employee
              or consultant, any employee or former employee of SOL or its Euro-
              pean affiliates without SOL's (or such affiliate's) prior written consent
              unless such former employee has not worked for SOL or an affiliate
              for a period of six months prior to the date of hire by BTL.
    6. LIMITATION OF LIABILITY.
          (a) SOL shall use its best efforts to provide the Services under this agree-
702                       CONVEYANCING, DRAFTING & DEEDS                         [PART I

             ment in a professional and timely manner; in no event, however, shall
             SOL be liable to BTL for any loss, damage, claim, liability or expense
             of any kind caused directly or indirectly by any action (other than for
             SOL's gross negligence or willful breach of this Agreement) taken in
             furnishing the Services to be provided under this Agreement.
        (b) Neither SOL nor BTL shall be liable to the other for any special indi-
            rect, incidental, consequential or punitive damages, including without
            limitation, lost or imputed profits, lost savings, loss of goodwill or legal
            expenses, resulting from any cause whatsoever, whether liability is
            asserted in contract, tort or otherwise (including negligence and strict
            product liability), and regardless of the form of legal action, even if the
            party has advised or has been advised of the possibility of any such
            loss or damage. In no event shall the aggregate damages claimed by
            BTL hereunder exceed the total fees actually paid by BTL to SOL
            under this Agreement, regardless of the number or extent of such
            claims.
     7. CONFIDENTIALITY. Confidential information disclosed by either party
hereto to the other for the purposes of this Agreement which is clearly so identi-
fied in writing as proprietary or confidential or which the circumstances surround-
ing its disclosure indicate that it is confidential or proprietary shall be protected by
the recipient in the same manner and to the same degree that the recipient pro-
tects its own confidential information. Notwithstanding the foregoing, the recipient
shall have no obligation under this Agreement with respect to any confidential
information disclosed to it which (i) was already known to recipient at the time of
its receipt hereunder, (ii) becomes generally available to the public other than by
means of recipient's breach of its obligations hereunder, (iii) is received by recipi-
ent from a third party whose disclosure is not in breach of any agreement of
confidentiality or (iv) is ordered to be disclosed by a court or other governmental
body with jurisdiction over the parties hereto.
    8. FORCE MAJEURE. SOL shall not be responsible for any failure or delay
in performance of its obligations under this Agreement because of circumstances
beyond its reasonable control including, but not limited to, acts of God, fires, floods,
wars, civil disturbances, sabotage, accidents, labor disputes (whether or not the
employees' demands are reasonable and within the party's power to satisfy), gov-
ernmental actions or transportation delays.
      9. NOTICES.
        (a) Any notice required or permitted to be given under this Agreement
            shall be in writing and shall be deemed to have been sufficiently given
            when (i) hand delivered by one party to the other party at the ad-
            dresses set for th below, (ii) dispatched by register post with
            acknowledgement due or (iii) sent by reputable overnight courier to
            the last known address of the addressee. or to such other address or
            addresses as may be specified from time to time in a written notice
            given by such party.
        (b) Notwithstanding the foregoing, routine instructions, requests, direc-
            tions and notices dealing with day to day operations under this Agree-
PART I]                      INTERNET AGREEMENTS—FORMS                                703

               ment may be given in such manner to such persons as may be agreed
               by the parties hereto from time to time is reasonable and practicable.
    10. MISCELLANEOUS.
          (a) Entire Agreement: This Agreement constitutes the entire agreement
              between the parties hereto with respect to the provision of the Ser-
              vices, supersedes all previous oral or written negotiations, represen-
              tations, undertakings and agreements heretofore made between the
              parties hereto in respect to the subject matter hereof and may not be
              amended except in writing signed by both parties.
          (b) Saving: If any term or provision of this Agreement is held to be invalid
              or unenforceable by reason of any rule of law or public policy, then this
              Agreement shall be deemed amended to delete therefrom the term or
              provision held to be invalid or unenforceable and all of the remaining
              terms and provisions of this Agreement shall remain in full force and
              effect.
          (c) Governing law: This Agreement shall be interpreted, construed and
              governed under and by the laws of India.
          (d) Third party: Except as expressly set forth herein, no person not a
              party hereto shall be a third-party beneficiary of any provision of this
              Agreement. Nothing contained herein shall be construed or deemed
              to confer any benefit or right upon any third party.
          (e) Waiver: to that term or any other term of this Agreement.
          (f) Headings: The headings in this Agreement are intended solely for the
              convenience of reference and shall be given no effect in the construc-
              tion or interpretation of this Agreement. No modification of this Agree-
              ment shall be effected by the acknowledgment or acceptance of any
              purchase order, acknowledgment or other forms containing terms or
              conditions at variance with or in addition to those set forth in this Agree-
              ment.
          (g) Relationship: The parties hereto are not in the relationship of partners,
              joint ventures, principal and agent, or employer and employee.
          (h) Execution: This Agreement may be executed in counterparts, each of
              which shall constitute an original but all of which, taken together, shall
              constitute a single instrument.
    IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective duly authorized officers or representatives as of
the day and year first above written.
SIGNED SEALED AND DELIVERED BY
THE PARTIES IN THE PRESENCE OF
W I T N ES S E S:
                                    SCHEDULE 1(b)
   1. Space and related office services including utilities, telecommunications
equipment, general office supplies, mailroom services, cleaning services, main-
704                     CONVEYANCING, DRAFTING & DEEDS                       [PART I

tenance services and general office equipment shall be apportioned to BTL per
standard SOL apportionment practices which are based on employee head count
(determined on the basis of the number of full-time or equivalent full-time posi-
tions). The per annum charge per full-time employee or equivalent services is
Rs.--------..
   2. Financial management and other administrative support including payroll
processing, accounting, purchasing and management information, recruiting, other
human resource and facility services shall be apportioned to BTL per standard
SOL apportionment practices which are based on employee head count (deter-
mined on the basis of the number of full-time or equivalent full-time positions).
The per annum charge per full-time employee or equivalent for these services is
Rs.__________.

                                       64
                  Disclaimer for Interactive Services

                          TERMS AND CONDITIONS
   _____________________________ maintains the interactive portion(s) of their
Web site as a service free of charge. By using any interactive services provided
herein, you are agreeing to comply with and be bound by the terms, conditions
and notices relating to its use.
   1. As a condition of your use of this Web site and the interactive services
contained therein, you represent and warrant to _______________________that
you will not use this Web site for any purpose that is unlawful or prohibited by
these terms, conditions, and notices.
     2. This Web site contains one or more of the following interactive services:
bulletin boards, chat areas, news groups, forums, communities and/or other mes-
sage or communication facilities. You agree to use such services only to send
and receive messages and material that are proper and related to the particular
service, area, group, forum, community or other message or communication facil-
ity. In addition to any other terms or conditions of use of any bulletin board ser-
vices, chat areas, news groups, forums, communities and/or other message or
communication facilities, you agree that when using one, you will not:
       ο   Publish, post, upload, distribute or disseminate any inappropriate, pro-
           fane, derogatory, defamatory, infringing, improper, obscene, indecent
           or unlawful topic, name, material or information.
       ο   Upload files that contain software or other material protected by intel-
           lectual property laws or by rights of privacy of publicity unless you own
           or control such rights or have received all necessary consents.
       ο   Upload files that contain viruses, corrupted files, or any other similar
           software or programs that may damage the operation of another's
           computer.
       ο   Advertise any goods or services for any commercial purpose.
       ο   Offer to sell any goods or services for any commercial purpose.
       ο   Conduct or forward chain letters or pyramid schemes.
PART I]                     INTERNET AGREEMENTS—FORMS                              705

          ο   Download for distribution in any manner any file posted by another
              user of a forum that you know, or reasonably should know, cannot be
              legally distributed in such manner.
          ο   Defame, abuse, harass, stalk, threaten or otherwise violate the legal
              rights (such as rights of privacy and publicity) of others.
          ο   Falsify or delete any author attributions, legal or other proper notices,
              proprietary designations, labels of the origin, source of software or
              other material contained in a file that is uploaded.
          ο   Restrict or inhibit any other user from using and enjoying any of the
              bulletin board services, chat areas, news groups, forums, communi-
              ties and/or other message or communication facilities.
    3. ____________________has no obligation to monitor the bulletin board ser-
vices, chat areas, news groups, forums, communities and/or other message or
communication facilities. However, _____________________________________
reser ves the right at all times to disclose any information deemed by
_____________________________ necessary to satisfy any applicable law, regu-
lation, legal process or governmental request, or to edit, refuse to post or to re-
move any information or materials, in whole or in part.
    4. You acknowledge that communications to or with bulletin board services,
chat areas, news groups, forums, communities and/or other message or commu-
nication facilities are not private communications, therefore others may read your
communications without your knowledge. You should always use caution when
providing any personal infor mation about yourself or your children.
__________________________ does not control or endorse the content, mes-
sages or information found in any bulletin board services, chat areas, news groups,
forums, communities and/or other message or communication facilities and, spe-
cifically disclaims any liability with regard to same and any actions resulting from
your participation. To the extent that there are moderators, forum managers or
hosts, none are authorized ___________________ spokespersons, and their views
do not necessarily reflect those of ____________________________________.
    5. The information, products, and services included on this Web site may in-
clude inaccuracies or typographical errors. Changes are periodically added to the
information herein. ___________________ may make improvements and/or
changes in this Web site at any time. Advice received via this Web site should not
be relied upon for personal, legal or financial decisions and you should consult an
appropriate professional for specific advice tailored to your situation.
   6. ________________________________ MAKES NO REPRESENTATIONS
ABOUT THE SUITABILITY, RELIABILITY, TIMELINESS, AND ACCURACY OF THE
INFORMATION, PRODUCTS, AND SERVICES CONTAINED ON THIS WEB SITE
FOR ANY PURPOSE. ALL SUCH INFORMATION, PRODUCTS, AND SERVICES
ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND.
  7. _________________________________ HEREBY DISCLAIMS ALL WAR-
RANTIES AND CONDITIONS WITH REGARD TO THE INFORMATION, PRODUCTS,
AND SERVICES CONTAINED ON THIS WEB SITE, INCLUDING ALL IMPLIED WAR-
RANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICU-
LAR PURPOSE, TITLE AND NON-INFRINGEMENT.
G : CDD (Vol. 4) – 45
706                     CONVEYANCING, DRAFTING & DEEDS                        [PART I


   8. IN NO EVENT SHALL ___________________________________ BE LIABLE
FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUEN-
TIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMI-
TATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR
IN ANY WAY CONNECTED
        ο   WITH THE USE OR PERFORMANCE OF THIS WEB SITE,
        ο   WITH THE DELAY OR INABILITY TO USE THIS WEB SITE,
        ο   WITH THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR
   ·FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED
GRAPHICS OBTAINED THROUGH THIS WEB SITE, OR OTHERWISE ARISING OUT
OF THE USE OF THIS WEB SITE, WHETHER BASED ON CONTRACT, TORT, STRICT
LIABILITY OR OTHERWISE, EVEN IF ____________________________HAS BEEN
ADVISED OF THE POSSIBILITY OF DAMAGES.
   9. DUE TO THE FACT THAT CERTAIN JURISDICTIONS DO NOT PERMIT OR
RECOGNIZE AN EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUEN-
TIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO
YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THIS WEB SITE, OR
WITH ANY OF THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS
TO DISCONTINUE USING THIS WEB SITE.
    10. __________________________ reserves the right in its sole discretion to
deny any user access to this Web site, any interactive service herein, or any
portion of this Web site without notice, and the right to change the terms, condi-
tions, and notices under which this Web site is offered.
    11. This agreement is governed by the laws of the [Country name]. You hereby
consent to the exclusive jurisdiction and venue of courts in [Country name] in all
disputes arising out of or relating to the use of this Web site. Use of this Web site
is unauthorized in any jurisdiction that does not give effect to all provisions of
these terms and conditions, including without limitation this paragraph. You agree
that no joint venture, partnership, employment, or agency relationship exists be-
tween you and __________________________ as a result of this agreement or
use of this Web site. The performance of this agreement by ___________________
is subject to existing laws and legal process, and nothing contained in this agree-
ment is in derogation of its right to comply with governmental, court and law en-
forcement requests or requirements relating to your use of this Web site or infor-
mation provided to or gathered with respect to such use. If any part of this agree-
ment is determined to be invalid or unenforceable pursuant to applicable law in-
cluding, but not limited to, the warranty disclaimers and liability limitations set
forth above, then the invalid or unenforceable provision will be deemed super-
seded by a valid, enforceable provision that most closely matches the intent of the
original provision and the remainder of the agreement shall continue in effect.
    12. This agreement constitutes the entire agreement between the user and
__________________________ with respect to this Web site and it supersedes
all prior or contemporaneous communications and proposals, whether electronic,
oral or written with respect to this Web site. A printed version of this agreement
and of any notice given in electronic form shall be admissible in judicial or admin-
PART I]                   INTERNET AGREEMENTS—FORMS                               707

istrative proceedings based upon or relating to this agreement to the same extent
and subject to the same conditions as other business documents and records
originally generated and maintained in printed form. Fictitious names of compa-
nies, products, people, characters and/or data mentioned herein are not intended
to represent any real individual, company, product or event. Any rights not ex-
pressly granted herein are reserved.
    13_______________islocated at __________________________________,
telephone ___________________ fax _______________________________.
    14. All contents of this Web site are: Copyright(ed).

                                              [Signature with Designation & Official
                                                                Seal of the parties]


                                         65
               Students Labs Service Level Agreement
    [The intent of this document is to define the operating parameters for the
students.labs.ualberta.ca server, which will be used to house on-line assignments
for several MIS courses and for BUS 201. This document has been approved by
instructors teaching courses for which the server will be used. It should also be
distributed to students, so they understand both their responsibilities and the level
of services that will be provided.]
    1. SERVICES
    (1) ACCOUNTS
    Each student registered in a course that uses the students.labs server will
receive a computing account and disk space on the server. Accounts will remain
active until the end of the academic year (end of April). At that point, all of the
accounts and all of the content on the server will be erased. It is the responsibility
of students to ensure that any data they wish to keep is removed before this time.
    (2) DISK SPACE
    Students will each be provided with a quota of 30 MB of disk space.
    (3) ACCEPTABLE USE
   Use of the server is subject to the CNS Conditions of Use, the Code of Stu-
dent Behavior, and any other applicable policies, regulations, or statutes. Keep in
mind that the content of the sub webs on the students.labs web server will be
publicly accessible for viewing.
    (4) WEB PAGE EDITING SOFTWARE
    The software required to access the students.labs server is MS-FrontPage
2000. This software is installed in all the Business labs. No other web page editing
software or version of MS-FrontPage other than 2000 will be supported. FrontPage
can also be used to transfer files to and from the server.
    (5) FTP SERVICES
    FTP services will not be provided. Students attempting to use other web design
708                      CONVEYANCING, DRAFTING & DEEDS                        [PART I

software packages such as Macromedia Dream Weaver which rely on the FTP
protocol will not be able to access the server.
      2. ADMINISTRATION
    (1) ROOT ACCESS FOR INSTRUCTORS AND TEACHING ASSISTANTS.
The Technology Group will provide system administration for the students.labs
server. However, the Technology Group will also provide root access to the
students.labs server for all instructors and teaching assistants. This access is
granted with the understanding that root access permits an individual to make
modifications to permissions, folders and files for any student sub web. Individu-
als with root access must use it responsibly. Abuse of this access will result in the
disabling of the account.
     (2) BACKUP SERVICES. Backup Services will be run daily to a 100GB IDE
Drive. The backups are used only to restore a server-level failure. Backups cannot
be used to restore individual or groups of files deleted from a student directory. It
is the responsibility of the student to back up data in their own directory.
   (3) REMOTE ACCESSS SERVICES. The students.labs server will be acces-
sible from off campus. Connection instructions will be available at http://
students.labs.com.edu. Because of the myriad of potential configurations of home
systems, troubleshooting support for home computers will not be provided. If you
cannot connect from home, you will be expected to access the server from within
the computing labs in the Business Building. If your computer at home is behind a
proxy server or firewall, you might have additional difficulty connecting to the
students.labs server remotely.
      (4) DISASTER RECOVERY SERVICES
     (a) Operating System Failure. In the event of a failure of the Operating Sys-
tem the server will be restored from a ghost image. The drives on the system have
been separated so that the Operating system is on its own independent drive.
Restoration of the Operating System will not affect any of the student sub web
folders. However, restoration of the server from an O/S failure could take up to 1.5
business days.
     (b) Power Failure. In the event of a scheduled power outage during normal
business hours, all services on students.labs will be shut down for the duration of
the outage. In the event of a scheduled power outage scheduled outside normal
business hours, all services will be shut down from the end of the business day on
or immediately before the outage is to occur until 9:00 am the following business
day.
   In the event of an unscheduled power outage, all services will stop for the
duration of the outage. The server is programmed to automatically reboot when
the power is restored and all services will automatically be re-enabled. If the server
does not automatically reboot, it will be manually restarted at the beginning of the
next business day.
   (c) Hard Disk Failure. In the event of a SCSI hard disk failure the server will be
shut down and all services will be unavailable. The server could be inoperable for
up to 5 business days until the new drive(s) are shipped to the School, installed in
the server, and the content rebuilt. The MIS Department and the Management
PART I]                   INTERNET AGREEMENTS—FORMS                                709

Science Department will pay for the cost of replacement SCSI drive(s) and re-
pairs.
    (d) Complete System Failure. In the event of a complete or critical system
failure, all services will be unavailable. The server could be inoperable for up to 10
business days until repairs are made or until a replacement is installed and imple-
mented. The MIS and Management Science Department will pay the cost of any
replacement components or repairs required.


                                     [Signature & Office Seal of the Lab Authority]


Date :                                                [Signature of the Student]


                                         66
          Use of Computers, Internet and Electronic Mail
                           SCHOOL PERMISSION FORM
    _____________ School is pleased to offer students access to a computer
network for electronic mail and the Internet. To gain access to e-mail and the
Internet, all students must obtain parental permission as verified by the signa-
tures on the form below. Should a parent prefer that a student not have e-mail and
Internet access, use of the computers is still possible for more traditional pur-
poses such as word processing.
    1. What is possible? Access to e-mail and the Internet will enable students to
explore thousands of libraries, databases, museums, and other repositories of
information and to exchange personal communication with other Internet users
around the world. Families should be aware that some material accessible via the
Internet may contain items that are illegal, defamatory, inaccurate, or potentially
offensive. While the purposes of the school are to use Internet resources for con-
structive educational goals, students may find ways to access other materials. We
believe that the benefits to students from access to the Internet in the form of
information resources and opportunities for collaboration exceed the disadvan-
tages. But ultimately, parents and guardians of minors are responsible for setting
and conveying the standards that their children should follow when using media
and information sources. Therefore, we support and respect each family's right to
decide whether or not to apply for access.
   2. What is expected? Students are responsible for appropriate behavior on
the school's computer network just as they are in a classroom or on a school
playground. Communications on the network are often public in nature. General
school rules for behavior and communications apply. It is expected that users will
comply with district standards and the specific rules set forth below. The use of
the network is a privilege, not a right, and may be revoked if abused. The user is
personally responsible for his/her actions in accessing and utilizing the school's
computer resources. The students are advised never to access, keep, or send
anything that they would not want their parents or teachers to see.
710                        CONVEYANCING, DRAFTING & DEEDS                        [PART I

   3. What are the rules? Privacy — Network storage areas may be treated like
school lockers. Network administrators may review communications to maintain
system integrity will insure that students are using the system responsibly.
   3.1 Storage capacity — Users are expected to remain within allocated disk
space and delete e-mail or other material which take up excessive storage space.
    3.2 Illegal copying — Students should never download or install any commer-
cial software, shareware, or freeware onto network drives or disks, unless they
have written permission from the Network Administrator. Nor should students copy
other people's work or intrude into other people's files.
   3.3 Inappropriate materials or language -- No profane, abusive or impolite
language should be used to communicate nor should materials be accessed which
are not in line with the rules of school behavior. A good rule to follow is never view,
send, or access materials which you would not want your teachers and parents to
see. Should students encounter such material by accident, they should report it
their teacher immediately.
   4. Succinct Advice. These are guidelines to follow to prevent the loss of net-
work privileges at
      5. School.
      5.1. Do not use a computer to harm other people or their work.
      5.2. Do not damage the computer or the network in any way.
   5.3. Do not interfere with the operation of the network by installing illegal soft-
ware, shareware, or freeware.
      5.4. Do not violate copyright laws.
      5.5. Do not view, send, or display offensive messages or pictures.
      5.6. Do not share your password with another person.
      5.7. Do not waste limited resources such as disk space or printing capacity.
      5.8. Do not trespass in another's folders, work, or files.
   5.9. Do notify an adult immediately, if by accident, you encounter materials
which violate the miles of appropriate use.
    5.10. BE PREPARED to be held accountable for your actions and for the loss
of privileges if the Rules of Appropriate Use are violated.
    6. PARENT PERMISSION FORM and USER AGREEMENT -
    As a parent or guardian of a student at School, I have read the above informa-
tion about the appropriate use of computers at the school and I understand this
agreement will be kept on file at the school. (Questions should be directed to the
principal for clarification.)
   My child may use e-mail and the Internet while at school according to the rules
outlined.____
      I would prefer that my child not use e-mail and the Internet while at school._____
      Parent Name (print)
      Parent Signature
      Date :
PART I]                    INTERNET AGREEMENTS—FORMS                           711

  7. PARENTS' PERMISSION FOR THE PUBLICATION OF STUDENT WORK/PIC-
TURES
    I understand that from time-to-time the school may wish to publish examples
of student projects, photographs of students, and other work on an Internet ac-
cessible world wide web server.
   My child's work can be published on the Internet and photographs of my child
can be published ______________
   I would prefer that my child's work and picture not be published on the Internet
____________________
Parent Name (print)
Parent Signature
Date :
   As a user of the School computer network, I agree to comply with the above
stated rules and to use the network in a constructive manner.
Student Name (print)
Student Signature
Teacher
Date :
                                        67
          Internet User Agreement for Students and Teachers

    A. Directions for Account Application.
   [Note: Copy the following for use in applying for an account for your students.
Edit the areas marked Name to reflect the name of your own school. Be sure that
everybody who signs the contract has read the application and understands the
terms. Send a copy of both signed forms to: Name and Address of School Official.
The user account will be assigned after the application forms are received.]
    B. Terms and Conditions for Use of Internet.
    1. Please read the following carefully before signing this document. This is a
legally binding document. Internet access is now available to students and teach-
ers in the name of thec School. The access is being offered as part of a research
project involving Name. Name provides this service for faculty and student use
only and makes no guarantees about reliability of service or content. We are very
pleased to bring this access to Name and believe the Internet offers vast, diverse
and unique resources to both students and teachers. Our goal in providing this
service to teachers and students is to promote educational excellence in theName
by facilitating resource sharing, innovation and communication.
    2. The Internet is an electronic highway connecting thousands of computers
all over the world and millions of individual subscribers. For example, students
and teachers have access to electronic mail communication with people all over
the world.
          ο   information and news from NASA as well as the opportunity to corre-
              spond with the scientists at NASA and other research institutions.
712                       CONVEYANCING, DRAFTING & DEEDS                        [PART I

          ο   public domain and shareware of all types.
          ο   discussion groups on a plethora of topics ranging from Chinese cul-
              ture to the environment to music to politics.
          ο   access to many University Library Catalogs, all over the world.
    3. With access to computers and people all over the world also comes the
availability of material that may not be considered to be of educational value in
the context of the school setting. Name have taken available precautions to re-
strict access to controversial materials. However, on a global network it is impos-
sible to control all materials and an industrious user may discover controversial
information. Name firmly believes that the valuable information and interaction
available on this worldwide network far outweighs the possibility that users may
procure material that is not consistent with the educational goals of this Project.
    4. Internet access is coordinated through a complex association of govern-
ment agencies, and regional and state networks. In addition, the smooth opera-
tion of the network relies upon the proper conduct of the end users who must
adhere to strict guidelines. These guidelines are provided here so that you are
aware of the responsibilities you are about to acquire. In general this requires
efficient, ethical and legal utilization of the network resources. If a Name user
violates any of these provisions, his or her account will be terminated and future
access could possibly be denied. The signature(s) at the end of this document is
(are) legally binding and indicates the party (parties) who signed has (have) read
the terms and conditions carefully and understand(s) their significance.
      C. Internet - Terms and Conditions
    (1) Acceptable Use - The purpose of NSFNET, which is the backbone network
to the Internet, is to support research and education in and among academic
institutions in the [Country name] by providing access to unique resources and
the opportunity for collaborative work. The use of your account must be in support
of education and research and consistent with the educational objectives of the
Name. Use of other organization's network or computing resources must comply
with the rules appropriate for that network. Transmission of any material in viola-
tion of any Government regulation is prohibited. This includes, but is not limited
to: copyrighted material, threatening or obscene material, or material protected
by trade secret. Use for commercial activities is generally not acceptable. Use for
product advertisement or political lobbying is also prohibited.
    (2) Privileges - The use of Internet is a privilege, not a right, and inappropriate
use will result in a cancellation of those privileges. (Each student who receives an
account will be part of a discussion with a Name faculty member pertaining to the
proper use of the network.) The system administrators will deem what is inappro-
priate use and their decision is final. Also, the system administrators may close an
account at any time as required. The administration, faculty, and staff of Name
may request the system administrator to deny, revoke, or suspend specific user
accounts.
   (3) Netiquette - You are expected to abide by the generally accepted rules of
network etiquette. These include (but are not limited to) the following:
          ο   Be polite. Do not get abusive in your messages to others.
PART I]                     INTERNET AGREEMENTS—FORMS                               713

          ο   Use appropriate language. Do not swear, use vulgarities or any other
              inappropriate language. Illegal activities are strictly forbidden.
          ο   Do not reveal your personal address or phone numbers of students or
              colleagues.
          ο   Note that electronic mail (e-mail) is not guaranteed to be private. People
              who operate the system do have access to all mail. Messages relating
              to or in support of illegal activities may be reported to the authorities.
          ο   Do not use the network in such a way that you would disrupt the use of
              the network by other users.
          ο All communications and information accessible via the network should
             be assumed to be private property.
    (4) Name makes no warranties of any kind, whether expressed or implied, for
the service it is providing. Name will not be responsible for any damages you
suffer. This include loss of data resulting from delays, nondeliveries, misdeliver-
ies, or service interruptions caused by it's own negligence or your errors or omis-
sions. Use of any information obtained via Name Internet access is at your own
risk. Name specifically deny any responsibility for the accuracy or quality of infor-
mation obtained through its services.
    (5) Security - Security on any computer system is a high priority, especially
when the system involves many users. If you feel you can identify a security prob-
lem on Internet, you must notify a system administrator or e-mail (sysop e-mail
address here). Do not demonstrate the problem to other users. Do not use an-
other individual's account without written permission from that individual. Attempts
to login to Internet as a system administrator will result in cancellation of user
privileges. Any user identified as a security risk or having a history of problems
with other computer systems may be denied access to Internet.
   (6) Vandalism - Vandalism will result in cancellation of privileges. Vandalism is
defined as any malicious attempt to harm or destroy data of another user, Internet,
or any of the above listed agencies or other networks that are connected to the
NSFNET Internet backbone. This includes, but not limited to, the uploading or
creation of computer viruses.
   (7) Updating Your User Information - Internet may occasionally require new
registration and account information from you to continue the service. You must
notify Internet of any changes in your account information (address, etc.). Cur-
rently, there are no user fees for this service.
    (8) Exception of Terms and Condition - All terms and conditions as stated in
this document are applicable to the Name. These terms and conditions reflect the
entire agreement of the parties and supersedes all prior oral or written agree-
ments and understandings of the parties. These terms and conditions shall be
governed and interpreted in accordance with the laws of [Country name]. .
    I understand and will abide by the above Terms and Conditions for Internet. I
further understand that any violation of the regulations above is unethical and
may constitute a criminal offense. Should I commit any violation, my access privi-
leges may be revoked, school disciplinary action may be taken and/or appropri-
ate legal action.
    User Signature:_____________________________ Date: ___/ ___/ ___
714                       CONVEYANCING, DRAFTING & DEEDS                      [PART I

    PARENT OR GUARDIAN (If you are under the age of 18 a parent or guardian
must also read and sign this agreement.) As the parent or guardian of this student
I have read the Terms and Conditions for Internet access. I understand that this
access is designed for educational purposes and Name has taken available pre-
cautions to eliminate controversial material. However, I also recognize it is impos-
sible for Name to restrict access to all controversial materials and I will not hold
them responsible for materials acquired on the network. Further, I accept full re-
sponsibility for supervision if and when my child's use is not in a school setting. I
hereby give permission to issue an account for my child and certify that the infor-
mation contained on this form is correct.
      Parent or Guardian (please print): _______________________________
      Signature: _________________________________ Date: ___/ ___/ ___
   SPONSORING TEACHER (Must be signed if the applicant is a student).I have
read the Terms and Conditions and agree to promote this agreement with the
student. Because the student may use the network for individual work or in the
context of another class, I cannot be held responsible for the student use of the
network. As the sponsoring teacher I do agree to instruct the student on accept-
able use of the network and proper network etiquette.
      Teacher's Name (please print): __________________________________
      Teacher's Signature: _________________________ Date: ___/ ___/ ___


                     APPLICATION PORTION OF DOCUMENT
      User's Full Name (please print): _________________________________
      Home Address: _________________________________________________
      Home Phone: ____________________ Work Phone: _________________


      I am a ____ (initial) Name student and will graduate in _____. (year)
   When your account is established you will be notified of your logon name and
user password. Thank you for your interest and support of this exciting new re-
source in the Name


                                         68
         User Agreement and Parental Consent for University
                         Internet Services

   After reading the University of ___________ ("University") [Acceptable Use
Policy], please complete this form to indicate that you agree with the terms and
conditions as stated. The signatures of both the student and parent/guardian are
mandatory before access may be granted to University Internet services. This
document, which includes the [Acceptable Use Policy], reflects the entire agree-
ment and understanding of all parties.
PART I]                   INTERNET AGREEMENTS—FORMS                                715

                                     STUDENT
    As a user of the University's computer network and Internet access services,
I have read and hereby agree to comply with the [Acceptable Use Policy].
    STUDENT SIGNATURE:__________________________ DATE:_____________
    PRINTED NAME:___________________________________________________
    CAMPUS:_________________________________________________________
    GRADE:_________________________ DATE OF BIRTH: ________________

                            PARENT/LEGAL GUARDIAN
    As parent/legal guardian of the student signing above, I grant permission for
my child to access networked computer services through the Internet, World Wide
Web and electronic mail. I have read and agree to the [Acceptable Use Policy],
and I understand that I may be held responsible for violations by my child. I under-
stand that some materials on the Internet may be objectionable; therefore I agree
to accept responsibility for guiding my child and conveying to her/him appropriate
standards for selecting, exploring, and/or sharing information and media. I realise
that the University would not be able to provide access to these resources if it had
to accept liability for a minor's activities. In exchange for the opportunity for my
minor child to participate, I agree to hold the University harmless, and indemnify it
against any harms that I or my minor child may suffer as a result of this unre-
stricted access.
    PATENT/GUARDIAN SIGNATURE:_____________________________________
    DATE:____________________
    PRINTED NAME:___________________________________________________
    ADDRESS:________________________________________________________
    HOME TELEPHONE:____________ DAYTIME TELEPHONE:________________


                                          69
                              Permission to Link
   _____________("Grantor") has a Web site located at http://_______________
("Grantor's Web site"). ___________________("Grantee") has a Web site lo-
cated at http://_________________ ("Grantee's Web site").
   1. Grantor hereby grants Grantee permission to provide a hypertext link from
Grantee's Web site to the home page of Grantor's Web site.
    2. Neither party shall be liable to the other party for the content of its Web site
or links on its Web site to other Web sites.
    3. Grantee acknowledges that Grantor may terminate this Permission at any
time with or without cause by giving notice to Grantee. Grantee must remove the
hypertext link to Grantee's Web site within _____________ days of receiving such
notice.
   4. This Agreement is governed by the laws of the State of __________________
excluding its conflict of laws principles.

				
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