Internet Agreements from by Gupta


INTERNET AGREEMENTS?FORMS 145
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THIS AGREEMENT, including all attachments hereto, (this  ?Agreement?) is
entered into as of [date] (the ?Effective Agreement Date?), BETWEEN DATAPRO
CORPORATION, a Company duly incorporated and having its registered office at
[address] and all of its Affiliates (as defined below) (?DATAPRO?); AND BIOGE-
NETIC CORPORATION. a Company duly incorporated  and having its registered
office at [address] (?BIOGENETIC?).
WHEREAS, DATAPRO possesses knowledge and experience in the research
and generation of Knockout Mice (defined below); AND
WHEREAS, BIOGENETIC wishes to engage DATAPRO to obtain the benefit
of such knowledge and experience with respect to projects being conducted by
BIOGENETIC in research, development or evaluation of various gene sequences,
pharmaceutical compounds or products of BIOGENETIC;
NOW THEREFORE, in consideration of mutual covenants set forth herein,
DATAPRO and BIOGENETIC (individually  ?Party? and collectively  ?Parties?) agree
as follows:
1. DEFINITIONS.
1.1 ?Affiliate? of a Party shall mean any corporation or other business en-
tity controlled by, controlling or under common control with, such Party.
For this purpose ?control? shall mean direct or indirect beneficial own-
ership of more than fifty percent (50%) of the voting or income interest
in such corporation or other business entity.
1.2 ?Budget? means the pricing and payment terms for a Knockout Mice
Project substantially in the form set forth in Attachment II attached hereto.
1.3 ?Claim(s)?shall have the meaning set forth in Section 12.1 below.
1.4 ?Confidential Information? means with respect to a Party hereto (the
?Disclosing Party?), collectively, all technical, financial and business
information of any kind whatsoever, and all tangible and intangible em-
bodiments thereof of any kind whatsoever, disclosed by the Disclosing
Party to the other Party hereto (the ?Receiving Party?) or obtained by
the Receiving Party through observation or examination of the forego-
ing, but only to the extent such information or embodiment is main-
tained, as confidential by the Disclosing Party and is marked or other-
wise identified as confidential when disclosed to the Receiving Party
or, in the case of information given verbally, is identified as confidential
in a written document provided to the Receiving Party within thirty (30)
days after verbal disclosure to the Receiving Party. For purposes of
this Agreement and without limiting the generality of the foregoing, the
Data and the Study materials shall be considered the Confidential In-
formation of BIOGENETIC.
G : CDD (Vol. 4) ? 10146 CONVEYANCING, DRAFTING & DEEDS [PART I
1.5 ?Data? means all data-or information generated under this Agreement
during a Knockout Mice Project * * * required to be generated, col-
lected or analyzed by Deltagen under a Scope of Work.
1.6 *  *  *.
1.7 ?Designated Site(s)? means the site(s) designated for a Knockout Mice
Project as set forth in the applicable Scope of Work.
1.8 ?Effective Commencement Date? shall have the meaning set forth in
Section 2.3 below.
1.9 ?FDA? means the Food and Drug Administration.
1.10 ?Inventions? means technology, information, data, know-how, inventions,
improvements and all patent or other intellectual property rights therein-
and thereto.
1.11 *  *  *.
1.12 ?Knockout Mice (Mouse) Project? means a specific project to create,
test and generate Knockout Mice under this Agreement in accordance
with the terms of a specific Scope of Work.
1.13 ?Law? means any Central, State or Local law, rule, or regulation.
1.14 ?Milestone? shall mean the milestones set forth on the Scope of Work
attached hereto.
1.15 ?Regulatory Agency? means the FDA or any other similar governmen-
tal agency or agencies in countries other than India.
1.16 ?Regulatory Filing? means any form or other statement required to be
filed with any Regulatory Agency.
1.17 ?Biogenetic Representative? means the representative identified in writ-
ing by BIOGENETIC on a Scope of Work, as such representative may
be changed from time to time in writing by BIOGENETIC.
1.18 *  *  *.
1.19 ?Scope of Work? means a work plan for a Knockout Mice Project (or
other similar document) substantially in the form attached hereto as
Attachment I which references this Agreement and is mutually agreed
to in writing by BIOGENETIC and DATAPRO.
1.20 *  *  *.
1.21 ?Study Materials? means any samples or materials (including chemical
or biological) provided by BIOGENETIC to DATAPRO under this Agree-
ment for purposes of a Knockout Mice Project, including but not limited
to drugs, compounds, genes, probes, formulations and other sub-
stances.
2. SCOPE OF WORK
2.1 INDIVIDUAL KNOCKOUT MICE PROJECTS. If BIOGENETIC wishes
DATAPRO to perform a Knockout Mice Project under this Agreement,
BIOGENETIC and DATAPRO shall meet and attempt to reach mutual-
agreement upon a Scope of Work for such Knockout Mice Project,
including the applicable technical specifications, budget and a time
schedule for such Knockout Mice Project to be performed pursuant toPART I] INTERNET AGREEMENTS?FORMS 147
Attachments I and II. BIOGENETIC shall initiate a request for a Scope
of Work by notifying DATAPRO in writing and providing a description of
the par ticular Knockout Mice Project requested. DATAPRO shall
evaluate each such request to determine whether such Knockout Mice
Project is  feasible, if it is otherwise acceptable to DATAPRO or if
DATAPRO requires modifications thereto. If such a Knockout Mice
Project, in DATAPRO?s commercially reasonable discretion, is not
feasible or is not otherwise acceptable to DATAPRO, DATAPRO shall
have the right (without penalty) to decline to undertake such Knockout
Mice Project. The terms of this Agreement, the Scope of Work and the
Budget shall form the entire agreement of the Parties with respect to
each Knockout Mice Project.
2.2 INITIATION OF KNOCKOUT MICE PROJECTS. Prior to DATAPRO?s
initiation of each Knockout Mice Project, BIOGENETIC shall:
2.2.1 Identify to DATAPRO in writing each Knockout Mice  Project to be initi-
ated and agree with DATAPRO upon the Scope of Work for such Knock-
out Mice Project;
2.2.2 Disclose in writing to DATAPRO all * * * in the possession of or freely
available (without restriction) to BIOGENETIC that is reasonably nec-
essary or useful for DATAPRO to * * * to complete Milestones 1 and 2
under this Agreement with respect to each Knockout Mice Project.
2.2.3 Consult with and agree with DATAPRO regarding * * *;
2.2.4 Transfer to DATAPRO any * * * licensed (without restriction or cost),
owned by or freely available (without restriction) to BIOGENETIC that
may be suitable for * * *; and
2.2.5 Identify and notify DATAPRO in writing of the specifications (including
the specific gene sequence) for each Knockout Mice Project for which
DATAPRO is requested by BIOGENETIC to produce Knockout Mice.
2.3 COMMENCEMENT OF KNOCKOUT MICE PROJECT. Each Knock-
out Mice Project conducted hereunder shall commence fifteen (15)
days after written agreement by both parties on a Scope of Work and
DATAPRO?s receipt from BIOGENETIC of all information and materials
set forth in Section 2.2 relating to such Knockout Mice project (the
?Effective Commencement Date?). BIOGENETIC shall be solely respon-
sible for identifying and notifying DATAPRO in writing of the specific
gene sequence for each Knockout Mice Project.
2.4 PERFORMANCE. DATAPRO shall use its commercially reasonable ef-
forts to perform its obligations under this Agreement, PROVIDED THAT,
BIOGENETIC agrees that the performance of the Knockout Mice
Projects involves a number of technologically complex steps and that
any time periods for performance are reasonable estimates only and
may be subject to change due to potential technological difficulties en-
countered. DATAPRO shall notify BIOGENETIC of any such technical
difficulties as soon as reasonably practicable after such difficulties are
encountered and the parties shall discuss in good faith methods to
resolve such technical difficulties in a reasonable manner. Except as148 CONVEYANCING, DRAFTING & DEEDS [PART I
otherwise set forth in this Agreement, if DATAPRO is unable to com-
plete a Milestone under any Scope of Work for a Knockout Mice Project
within the estimated times set forth in the Scope of Work, BIOGENETIC
shall have the right to terminate such Knockout Mice Project as set
forth in Section 11.4.1.
2.5 COMPLETION OF KNOCKOUT MICE PROJECT. Each Knockout Mice
Project shall be deemed complete upon DATAPRO?s completion of Mile-
stone 3 on Attachment I for each such Knockout Mice Project ,and
DATAPRO?s delivery of at least * * * for a minimum of * * * and
BIOGENETIC?s confirmation of * * *.
2.6 DESIGN BY DATAPRO.  DATAPRO shall use reasonable efforts to de-
sign, as technically practical, * * * and to generate Knockout Mice un-
der each Knockout Mice Project according to the specifications of BIO-
GENETIC as set forth in Section 2.2 above.
2.7 ADHERENCE TO SCOPE OF WORK. DATAPRO shall perform those
activities described in the Scope of Work for each Knockout Mice Project
at the Designated Site, and shall comply with all the terms and require-
ments of both this Agreement and the applicable Scope of Work. Nei-
ther Party shall change or deviate from a Scope of Work without the
prior written consent of the other Party. * * * pursuant to the terms of
this Agreement and in compliance with all applicable laws.
2.8 CHANGES TO A KNOCKOUT MICE PROJECT. BIOGENETIC may,
from time to time, propose a modification to the terms of a Knockout
Mice Project. If BIOGENETIC intends to change any terms of a Knock-
out Mice Project, including but not limited to the time schedule for the
work, BIOGENETIC shall submit such change(s) in writing to DATAPRO
(the  ?Proposed Change?).  Such Proposed Change shall be implemented
by the parties only upon DATAPRO?s acceptance of such modifications
in writing and upon the mutual agreement of the parties on a revised
Budget as set forth in Section 3.2 below. DATAPRO shall have the right,
in its commercially reasonable discretion, to accept or reject such Pro-
posed Change based upon DATAPRO?s good faith belief as to whether
such change would alter DATAPRO?s technical or financial obligations
under a Scope of Work.
2.9 STANDARDS OF WORK AND ANIMAL CARE. With respect to each
Knockout Mice Project, DATAPRO shall comply with all applicable *  *  *
and good industry standards regarding the maintenance and care of
the Knockout Mice. Prior to delivery to BIOGENETIC, *  *  *. DATAPRO
warrants that the Knockout Mice delivered to BIOGENETIC under this
Agreement shall be in good health *  *  *. DATAPRO shall replace any
Knockout Mice that arrive at BIOGENETIC diseased or dead (except
for disease or death resulting from the actions of BIOGENETIC?s des-
ignated carrier). Upon the reasonable request of BIOGENETIC,
DATAPRO shall provide *  *  * reports to BIOGENETIC concerning
maintenance and care of the Knockout Mice.PART I] INTERNET AGREEMENTS?FORMS 149
3. PAYMENTS AND BUDGET.
3.1 BUDGET. BIOGENETIC shall pay to DATAPRO the payments set forth
in the Budget for each Knockout Mice Project. Except as set forth in
Section 3.2, such payments shall constitute full payment for such Knock-
out Mice Project, including all labour, materials and overhead and BIO-
GENETIC shall have no other payment obligations hereunder. All pay-
ments made by BIOGENETIC under this Agreement shall be made in
accordance with the Budget.
3.2 CHANGES TO BUDGET. Upon DATAPRO?s receipt of a Proposed
Change in accordance with Section 2.8, if such Proposed Change is
acceptable to DATAPRO, BIOGENETIC and DATAPRO shall negotiate
in good faith a revised Budget (based upon the pricing and standards
set forth in Attachment II) and milestones based on the revised Scope
of Work. No such revised Budget or schedule shall be effective until
mutually agreed to in writing by both ROCHE BIOSCIENCE and
DATAPRO.
3.3 PAYMENTS. For each Knockout Mice Project, DATAPRO shall submit
invoices to BIOGENETIC upon DATAPRO?s completion of each Mile-
stone  set forth in the Scope of Work. BIOGENETIC shall pay such
invoices within thirty (30) days after receipt. Invoices based on accom-
plishment of Milestones  shall include a written representation of
DATAPRO?s completion of such Milestones in compliance with the terms
of this Agreement and, where applicable, documentation showing such
completion.
4. RIGHTS TO INVENTIONS.
4.1 *   *  *.
4.2 *  *  *.
4.3 *  *  *.
4.4 *  *  *.
4.5 NO OTHER TECHNOLOGY RIGHTS. Except as otherwise expressly
provided in this Agreement, under no circumstances shall a Party, as a
result of this Agreement, obtain any ownership interest or other right or
licence in any technology, information, know-how, patents, pending patent
applications, products or materials of the other Party, including items
owned, controlled or developed by the other Party or transferred by the
other Party to the-first Party at any time pursuant to this Agreement.
4.6 FURTHER ACTIONS. Each party shall reasonably (a) provide the other
party with such information reasonably available to such party, and (b)
execute and deliver such instruments, in each case, to assist in per-
fecting each respective party?s patent and intellectual property rights
to Inventions under Sections 4.1, 4.2 and 4.3 above.
5. CONFIDENTIALITY.
5.1 CONFIDENTIAL INFORMATION. Except as otherwise expressly pro-
vided in this Agreement, each Party shall maintain in confidence the150 CONVEYANCING, DRAFTING & DEEDS [PART I
Confidential Information of the other Party for a period of * * * years.
Neither Party shall use, disclose or grant the use of the other?s Confi-
dential Information except on a need-to-know basis to those directors,
officers, employees, Affiliates, agents, sub-licensees and permitted as-
signees, to the extent such disclosure is reasonably necessary in con-
nection with its activities as expressly authorized by this Agreement. To
the extent that disclosure is authorized by this Agreement, prior to dis-
closure, the Party wishing to disclose the other?s Confidential Informa-
tion shall obtain the written agreement of any such Person who is not
otherwise bound by confidentiality obligations at least as restrictive as
the obligations set forth in this Agreement, to hold in confidence and
not make use of the Confidential Information for any purpose other
than those permitted by this Agreement. Each Party shall notify the
other upon discovery of any unauthorized use or disclosure of that
Party?s Confidential Information.
5.2 PERMITTED DISCLOSURES. The non-use and non-disclosure obli-
gations contained in this Article 5 shall not apply to the extent that (a)
the Receiving Party is required to disclose information by law, order or
regulation of a governmental agency or a court of competent jurisdic-
tion, PROVIDED THAT, the Receiving Party shall notify the Disclosing
Party prior to any such disclosure to permit the Disclosing Party to
oppose such disclosure or to seek confidential treatment of such infor-
mation); or (b) the Receiving Party can demonstrate that (i) the infor-
mation was public knowledge at the time of such disclosure by Receiv-
ing Party, or thereafter became public knowledge, other than as a re-
sult of acts attributable to Receiving Party in violation hereof; or (ii) the
information was rightfully known by the Receiving Party (as shown by
its written records) prior to the date of disclosure to it by the Disclosing
Party; or (iii) the information was disclosed to the Receiving Party on
an unrestricted basis from a third party not under a duty of confidenti-
ality to the Disclosing Party; or (iv) the information was independently
developed by employees or agents of the Receiving Party without ac-
cess to the Confidential Information of the Disclosing Party.
5.3 TERMS OF  THIS AGREEMENT.  Neither Party shall disclose any terms
or conditions of this Agreement to any Third Party without the prior
consent of the other Party, except as required by applicable law; PRO-
VIDED HOWEVER, that either Party may disclose the terms or condi-
tions of this Agreement to a third party under an obligation of confiden-
tiality to such Party in connection with a proposed sale or in the event
of a proposed merger, change in control, consolidation or other similar
transaction. Notwithstanding the foregoing, prior to execution of this
Agreement, BIOGENETIC and DATAPRO shall agree upon the sub-
stance of information that can be used to describe the existence and/
or terms of this transaction in a press release and BIOGENETIC and
DATAPRO may disclose such information, as modified by mutual agree-
ment from time to time, without the other Party?s consent.
5.4 NO LICENCE. Except as expressly provided in this Agreement, nothingPART I] INTERNET AGREEMENTS?FORMS 151
herein shall be construed as giving either Party any licence, right, title
or interest in or ownership of the other Party?s Confidential Information.
Upon termination of this Agreement or a particular Knockout Mice
Project as provided in Article 11, or upon either Party?s request, each
Party shall return all Confidential Information of the other Party and/or
destroy any portion of any documents, computer records, notes and
other material retained by such Party which contains the Confidential
Information of the other Party. However, each Party may retain one
copy of such Confidential Information in its legal files to be used only
for interpretation of this Agreement.
6. REPRESENTATIONS AND WARRANTIES.
6.1 GENERAL REPRESENTATIONS. Each Party hereby represents and
warrants to the other Party as follows:
6.1.1 CORPORATE -EXISTENCE. Such Party is a Company duly incorpo-
rated, validly existing and in good standing under the laws of the state
in which it is incorporated.
6.1.2 AUTHORIZATION AND ENFORCEMENT OF OBLIGATIONS. Such
Party (a) has the corporate power and authority and the legal right to
enter into this Agreement and to perform its obligations hereunder,
and (b) has taken all necessary corporate action on its part to autho-
rize the execution and delivery of this Agreement and the performance
of its obligations hereunder. This Agreement has been duly executed
and delivered on behalf of such Party, and constitutes a legal, valid,
binding obligation, enforceable against such Party in accordance with
its terms.
6.1.3 NO CONSENTS. All necessary consents, approvals and authorizations
of all governmental authorities and other persons required to be ob-
tained by such Party in connection with this Agreement have been ob-
tained.
6.1.4 NO CONFLICT. The execution and delivery of this Agreement and the
performance of such Party?s obligations hereunder (a) do not conflict
with or violate any requirement of applicable laws or regulations, and
(b) do not conflict with, or constitute a default under, any contractual
obligation of it.
6.2 *  *  *.
6.3 *  *  *.
6.4 *  *  *.
7. REPORTING.
DATAPRO shall deliver via overnight delivery service (or other service
agreed to by the parties) to the BIOGENETIC Representative all re-
ports required to be delivered in connection with a Knockout Mice
Project.
8. RECORD RETENTION, INSPECTIONS, AND COOPERATION.
8.1 MAINTENANCE OF DATA. DATAPRO shall maintain all written Data152 CONVEYANCING, DRAFTING & DEEDS [PART I
for a period of not less than * * * years. At the expiration of such * * *
year period, BIOGENETIC, at BIOGENETIC?s cost and expense, shall
promptly arrange with DATAPRO for delivery of such Data to BIOGE-
NETIC or DATAPRO may dispose of such written Data sixty (60) days
after providing written notice of the same to BIOGENETIC.
8.2 NOTICE OF REGULATORY ACTION. If a Regulatory Agency or, any
other Central, State or Local Government authority conducts, or gives
notice of its intent to conduct, an inspection at any Designated Site, or
takes any other regulatory action with respect to a Knockout Mice Project
conducted under this Agreement, then the Party learning thereof shall
promptly give the other Party notice thereof, and each Party shall pro-
vide the other with any information  reasonably required in connection
therewith.
9. DATA.
For each Knockout Mice Project, DATAPRO shall prepare and submit
to BIOGENETIC or its designee all Data as set forth under the appli-
cable Scope of Work, but in no event later than thirty (30) business
days after (i) the date of termination of such Knockout Mice Project or
(ii) the date on which BIOGENETIC otherwise requests delivery of the
Data.
10. SUBCONTRACTING AND INDEPENDENT CONTRACTOR.
10.1 SUBCONTRACTING. BIOGENETIC is aware that certain Knockout
Mice Projects may require DATAPRO to subcontract to third parties
portions of the work required by a Scope of Work.  BIOGENETIC shall
be deemed to have approved such sub-contracting on the following
terms and conditions: (i) DATAPRO shall not be allowed or authorized
to make any representations relating to BIOGENETIC without the prior
written consent of BIOGENETIC; and (ii) such third party sub-contrac-
tor shall be subject to the terms and conditions of this Agreement. Prior
to subcontracting any work contemplated by a Knockout Mice Project,
DATAPRO shall notify BIOGENETIC of the intended third party sub-
contractor and BIOGENETIC shall be provided with fourteen (14) days
in which to object to the use of a particular sub-contractor. If BIOGE-
NETIC does not object to the use of a particular sub-contractor within
such fourteen (14) day period, DATAPRO may sub-contract such work
under the Scope of Work to such third party sub-contractor.
10.2 INDEPENDENT CONTRACTOR.  DATAPRO shall perform its obligations
under this Agreement as an independent contractor, and NOTHING
CONTAINED herein shall be construed to be inconsistent with that
relationship or status. Neither Party, nor their employees, agents and
consultants, shall be considered employees or agents of the other Party
and shall not constitute, create, or in any way be interpreted as a joint
venture, partnership or business organization of any kind. Neither Party
shall have the authority to bind the other Party to any agreement
whatsoever. Each Party shall provide evidence satisfactory to the other
Party of the existence of workers? compensation and employer?s liability
insurance covering any personnel of such Party supplied hereunder.PART I] INTERNET AGREEMENTS?FORMS 153
11. TERM AND TERMINATION.
11.1 TERM . This Agreement shall begin on the Effective Agreement Date
and remain in full force and effect until the later of (a) two (2) years
after the Effective Agreement Date, or (b) the completion by DATAPRO
of all Milestones under any applicable Knockout Mice Projects under
this Agreement, unless earlier terminated as provided in thi Article 11.
11.2 *  *  *.
11.3 TERMINATION BY DATAPRO.DATAPRO may terminate a Knockout
Mice Project upon DATAPRO?s identification of an item described in
Section 2.4 which would prevent DATAPRO from completing such
Knockout Mice Project using commercially reasonable efforts.
11.4 TERMINATION BY EITHER PARTY.
11.4.1 MATERIAL DEFAULT. This Agreement or a Knockout Mice Project may
be terminated by either Party upon any material breach of this Agree-
ment by the other Party, provided that any breaching Party shall be
given not less than twenty (20) days prior written notice of such breach
and the opportunity to cure such breach during such period.
11.4.2 BANKRUPTCY. This Agreement or a Knockout Mice Project may be
immediately terminated by either Party if the other Party is dissolved or
liquidated, makes a general assignment for the benefit of its creditors,
or files or has filed against it, a petition in bankruptcy or has a receiver
appointed for a substantial part of its assets.
11.5 RIGHTS AND OBLIGATIONS AFTER NOTICE OF TERMINATION.
11.5.1 TERMINATION BY BIOGENETIC
* * * OR FOR BREACH OR BANK-
RUPTCY OF BIOGENETIC. If this Agreement or a Knockout Mice
Project is terminated by BIOGENETIC pursuant to Section 11.2 or ter-
minated by DATAPRO pursuant to Section 11.4, DATAPRO shall cease
further work on applicable Knockout Mice Projects as immediately as
practicable in accordance with its responsibilities under this Agreement
and applicable Laws, in order to reduce or eliminate further costs, and
to cancel, if permitted under the terms of applicable agreements, any
third party obligations. Within thirty (30) days after DATAPRO?s ceasing
of work on such Knockout Mice Projects, DATAPRO shall provide BIO-
GENETIC with a written itemized statement of all work performed by it
through termination, including any non-cancelable costs or expenses
incurred by DATAPRO prior to termination. DATAPRO shall invoice BIO-
GENETIC for all unpaid Milestones completed by DATAPRO and if such
notice is received by DATAPRO prior to DATAPRO?s completion of work
under a Milestone, DATAPRO shall in addition have the right to further
invoice BIOGENETIC for payment of such one uncompleted Milestone
as if DATAPRO had completed such Milestone. DATAPRO shall deliver
to BIOGENETIC all deliverables prepared or completed by DATAPRO
at the time of such cessation of work and all unused Study Materials
and Data.154 CONVEYANCING, DRAFTING & DEEDS [PART I
11.5.2 TERMINATION BY BIOGENETIC FOR BANKRUPTCY OF DATAPRO
OR BY DATAPRO FOR DATAPRO?S INABILITY  TO COMPLETE
MILESTONE. If this Agreement or a Knockout Mice Project is termi-
nated by DATAPRO pursuant to Section 11.3 or by BIOGENETIC pur-
suant to Section 11.4.2 above, DATAPRO shall deliver all deliverables
prepared or completed by DATAPRO at the time of such termination,
all un-used Study Materials and all Data to BIOGENETIC within sixty
(60) days of receipt by DATAPRO of notice of termination. DATAPRO
shall provide BIOGENETIC with a written itemized statement of all work
performed by DATAPRO through the date of termination (including any
Milestones completed by DATAPRO) and BIOGENETIC shall pay such
invoiced amount within thirty (30) days of receipt of such statement.
11.5.3 TERMINATION BY BIOGENETIC FOR BREACH BY DATAPRO. If this
Agreement or a Knockout Mice Project is terminated by BIOGENETIC
pursuant to Section 11.4.1 above, DATAPRO shall deliver all deliverables
prepared or completed by DATAPRO at the time of such termination,
all unused Study Materials and all Data to BIOGENETIC within sixty
(60) days of receipt by DATAPRO of notice of termination. DATAPRO
shall provide BIOGENETIC with a written itemized statement of all work
performed by DATAPRO through the date of termination (including any
Milestones completed by DATAPRO) and BIOGENETIC shall pay such
invoiced amount (or portion thereof that is not reasonably the subject
of such breach) within thirty (30) days of receipt of such statement.
11.6 EFFECT OF EXPIRATION OR TERMINATION. Expiration or termina-
tion of this Agreement shall not relieve the parties of any obligation
accruing prior to such expiration or termination.  The provisions of Ar-
ticles 4, 5, 6.4 and 12 shall survive any expiration or termination of this
Agreement.
12. INDEMNIFICATION.
12.1 *  *  *.
12.2 *  *  * .
12.3 PROCEDURE. A Party (the  ?Indemnified Party?) which intends to claim
indemnification under this Article 12, shall promptly notify the other
Party (the ?Indemnifying Party?) of any Claim with respect to which the
Indemnified Party intends to claim such indemnification. The Indemni-
fying Party shall assume and control the defense of such Claim with
counsel selected by the Indemnifying Party; PROVIDED, HOWEVER,
that the Indemnified Party shall have the right to retain its own counsel,
with the fees and expenses to be paid by the  Indemnifying Party if
representation of the Indemnified Party by the counsel retained by the
Indemnifying Party would create a conflict for the interests of the In-
demnified Party. The indemnity obligations under this Article 12 shall
not apply to amounts paid in settlement of any Liability if such settle-
ment is effected without the consent of the Indemnifying Party, which
shall be given or not in the  Indemnifying Party?s sole discretion. The
failure to deliver notice to the Indemnifying Party within a prompt timePART I] INTERNET AGREEMENTS?FORMS 155
after the commencement of any such action, if prejudicial to its ability
to defend such action, shall relieve the Indemnifying Party of any liabil-
ity to the Indemnified Party under this Article 12, but the omission so to
deliver notice to the Indemnifying Party will not relieve it of any liability
that it may have to the  Indemnified Party otherwise than under this
Article 12. The Indemnifying Party may not settle the action or other-
wise consent to an adverse judgment in such action that diminishes
the rights or interests of the Indemnified Party without the express writ-
ten consent of the  Indemnified Party. The  Indemnified Party, its em-
ployees and agents, shall cooperate fully with the  Indemnified Party
and its legal representatives in the investigation of any Claim covered
by this indemnification.
13. TAXATION.
In order that BIOGENETIC may comply with applicable tax laws and
regulations, DATAPRO, at BIOGENETIC?s cost and expense, if rea-
sonably requested by BIOGENETIC, agrees to provide within thirty
(30) days after the close of each calendar year such non-confidential
information reasonably available to DATAPRO which BIOGENETIC rea-
sonably requests and deems necessary to properly compute its tax
liability . In order to assist DATAPRO in providing such information, BIO-
GENETIC shall provide DATAPRO with a summary of payments made
to it during such year for research activities conducted during such
year.
14. TRADEMARKS.
Neither Party shall use of the trademarks or trade names of the other
Party without the express written consent of the other Party.
15. DELAYS OR FORCE MAJEURE.
15.1 FORCE MAJEURE. Neither Party shall be liable for the failure to per-
form its obligations under this Agreement or a Knockout Mice Project if
such failure is occasioned by a contingency beyond such Party?s rea-
sonable control, including but not limited to strikes or other labor dis-
turbances, lockouts, riots, wars, fires, floods, earthquakes or storms. A
Party claiming a right to excused performance under this Section 15.1
shall immediately notify the other Party in writing of the extent of its
inability to perform, which notice shall specify the occurrence beyond
its reasonable control that prevents such performance.
15.2 DELAY. If BIOGENETIC delays the actual start of a Knockout Mice
Project for any reason, the date by which DATAPRO is obligated to
complete its duties and obligations as described in the applicable Scope
of Work shall be extended by the number of days the start was delayed.
16. NOTICES.
Any notice-required or permitted to be given hereunder shall be deemed
sufficient if sent by facsimile letter or overnight courier, or delivered by
hand to BIOGENETIC or DATAPRO at (i) in the case of notices pursuant
to this Agreement, the respective last known addresses of the parties156 CONVEYANCING, DRAFTING & DEEDS [PART I
or at such other address as either Party hereto may designate. If sent
by facsimile letter, notice shall be deemed given when the
TRANSMISSION IS completed if the sender has a confirmed
transmission report. If a confirmed transmission report does not exist,
then the notice shall be deemed given when the notice is actually
received by the person to whom it is sent. If delivered by overnight
courier, notice shall be deemed given when it has been signed for. If
delivered by hand, notice shall be deemed given when received. Any
notice sent by facsimile must also be sent by mail or overnight courier
or delivered by hand.
17. MISCELLANEOUS PROVISIONS.
17.1 *  *  *.
17.2 AMENDMENTS. No provision of this Agreement, the Budget or the
Scope of Work may be amended, revoked, or waived except in writing
signed and delivered by an authorized officer of each Party. Either
Party?s failure to require the other Party to comply with the provisions
of this Agreement shall not be deemed a waiver of such provision or
any other provision of this Agreement.
17.3 VALIDITY. If any clause, section or paragraph of this Agreement is
determined by a court of competent jurisdiction to be illegal, invalid or
unenforceable, it will be deemed severed from the remainder of this
Agreement and will have no effect on the legality, validity or enforce-
ability of the remaining provisions.
17.4 HEADINGS. The paragraph headings of this Agreement are merely for
the convenience of the parties and are not to be construed as modifying
or changing the obligations or conditions expressed in this Agreement.
17.5 ENTIRETY. This Agreement represents the entire understanding as of
the Effective Agreement Date hereof between the parties with respect
to the matter hereof, and supersedes all prior agreements, negotia-
tions; understandings, representations, statements, and writings be-
tween the parties relating thereto.
17.6 CONFLICT WITH SCOPE OF WORK OR BUDGET. If any terms of this
Agreement are in conflict with any terms of any Scope of Work or Bud-
get, the terms of this Agreement shall govern.
17.7 COUNTERPARTS. This Agreement may be executed in several coun-
terparts, each of which shall be deemed an original but all of which
shall. constitute one and the same instrument.
17.8 GOVERNING LAW. This Agreement shall be governed by and con-
strued in accordance with the laws of [Country Name].
IN WITNESS WHEREOF, the Parties hereto through each of their respective
duly authorized representatives have caused this Agreement to be executed as of
the Effective Date.
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 157
2 2 2 2 2
Master Services Agr Master Services Agr Master Services Agr Master Services Agr Master Services Agreement eement eement eement eement
(Another form)
THIS AGREEMENT, including Exhibits A, B, C and D attached hereto (the
?AGREEMENT?), is made on this [Date] (?EFFECTIVE DATE?)  BETWEEN
LINKLINE CORPORATION, a Coorporation duly incorporated and having its reg-
istered office at [Address] (?LINKLINE?) AND ZENITH  INFOWAY,  a Company
duly incorporated and having its registered office at [Address] (the ?Company?).
WITNESSES as follows :
SERVICES INFORMATION
Service Level : Level 3 Support and Level 4 Support
Service Fee : Level 3 Support : * per hour
Level 4 Support : * per hour
Invoice Period : monthly
Term of Contract : 1 year (renewable)
Technical Support  Set Up Fee : *
SERVICES PROVIDED
Subject to payment of all applicable fees, Linkline will use reasonable com-
mercial efforts to perform the services specified in the Statement of Work (?SOW?)
attached hereto as Exhibit B (?SERVICES?) and incorporated herein, in accor-
dance with the Terms and Conditions attached hereto as Exhibit A, and incorpo-
rated herein. Exhibits C (a Confidential Disclosure Agreement) is also attached
hereto and made a part hereof (collectively, Exhibits A, B and C shall be called
the  ?EXHIBITS?). Company understands that Linkline?s performance is depen-
dent in part on Company?s actions. Accordingly, any dates or time periods rel-
evant to performance of Services by Linkline shall be appropriately and equitably
extended to account for any delays resulting from changes to Company products
or otherwise due to Company. Company may request additional hours or levels of
Services (?EXTENDED SERVICES?), which Linkline may provide at Linkline?s sole
discretion, provided that Company pays Linkline?s then current  fees for such Ex-
tended Services and enters into such amendments to this Agreement as mutually
agreed upon by the parties hereto.
The Exhibits contain, among other things, warranty disclaimers and  liability
limitations. Any different or additional terms of any related purchase order, confir-
mation, or similar form even if signed by the parties after the date hereof shall
have no force or effect. References in this Agreement or the Exhibits to a capital-
ized term appearing on this cover page shall have the meaning or value of such
term on this cover page.
EXHIBIT A
TERMS AND CONDITIONS
1. Linkline Obligations. Upon commercial release any version of the Linkline
Software (as defined in Section 1 of the SOW attached hereto as Exhibit B),158 CONVEYANCING, DRAFTING & DEEDS [PART I
Linkline will provide (i) Level 3 Support (as defined in Section 1 of the SOW) in
accordance with Section 2 of the SOW, and (ii) Level 4 Support (as defined in
Section 1 of the SOW attached hereto as Exhibit B) in accordance with Section 3
of the SOW, to the staff of Company with respect to any such commercially re-
leased Linkline Software which is also supported by Company, in English only.
2. Company Obligations. Company will (1) provide Level 1 Support and Level
2 Support (as defined in Section 1 of the SOW) to End-Users; and (2) pay the
Technical Support Set Up Fee, all Services fees, and any other fees hereunder in
accordance with Section 5 of this Exhibit A.
3. Training. When mutually agreed upon by both Linkline and Company, and
subject to payment of all fees, Linkline will provide any training requested or re-
quired by Company in accordance with Linkline?s current, published  ?Linkline Train-
ing Programs? documentation. Unless otherwise arranged between Company and
Linkline, all training shall occur at Linkline?s facilities in San Francisco, California
on such date(s) and  time(s) as determined by Linkline. The fees for training will
be Linkline?s then current published training fees (?CURRENT TRAINING FEES?),
less a discount equal to ten percent (10%) of such Current Training Fees (?Train-
ing Fees?).
4. Consulting Services. In the event that Company requires additional levels of
services outside the scope of Sections 2 and 3 of Exhibit B, or as otherwise
agreed upon by Linkline and Company, Linkline will perform such consulting ser-
vices for Company as mutually agreed upon by Linkline and Company, provided
that the fees associated with such consulting services payable by Company shall
be at the Linkline?s then current consulting services rate (?Consulting Fee?). The
consulting services rate as of the Effective Date of this Agreement is  * per hour;
however, this rate is subject to change in accordance with Section 5 of this Exhibit
A.
5. Fees and Payment. Company will pay the Technical Support Set Up Fee
within 90 days of the Effective Date. Company will pay Linkline?s fees for Services
provided under Section 2 and 3 of Exhibit B (the ?SERVICE FEES?) incurred for
any Invoice Periods within 90 days after receipt of Linkline?s invoice therefor. Com-
pany will also pay Linkline all other fees, including, but not limited to, Extended
Services fees, Training Fees, and Consulting Fees, within 90 days after receipt of
Linkline?s invoice therefor. All payments shall be made in U.S. Dollars and are
non- refundable. Service Fees, Training Fees and fees for Extended Service un-
der this Agreement are subject to change annually and will be reviewed by Linkline
and Company annually during the term of the Agreement, commencing 30 days
prior to the expiration of the Initial Term in order to discuss appropriate fee and/or
price levels. If the parties are unable to agree on new fees and prices or are
unable to meet, Linkline shall have the right to make a reasonable adjustment in
the fee and/or price upon notice to Company; provided, however, that Company
shall have the right to terminate this Agreement upon thirty (30) days written
notice to Linkline if the adjusted fees are not acceptable. Consulting Fees may be
subject to change by Linkline at any time upon at least thirty (30) days prior notice
to Company.
6. Proprietary Rights. As between the parties, Linkline will retain all right, title
and interest in and to any software, tools, techniques, and other materials used inPART I] INTERNET AGREEMENTS?FORMS 159
connection with providing the Services contemplated hereunder (?LINKLINE
MATERIALS?). As between the parties, Company will retain all right, title and
interest in and to any software, products, documentation and other materials it
supplies. Linkline hereby assigns to Company all right, title and interest, in any
work product created as part of the Services (?WORK PRODUCT?), but this as-
signment does not include any portion of the Linkline Materials or any other work
product generally applicable to Linkline?s business, and will not prevent Linkline
from using the expertise, ideas and know-how learned while performing Services
for other purposes (including, without limitation, for itself or on behalf of third
parties).
7. Confidential Information.
7.1 Confidential Information. Confidential information arising under this
Agreement shall be governed by the Confidential Disclosure Agreement
attached hereto as Exhibit C (the ?CDA?); provided, however, that any
conflict or inconsistency between any provision of the CDA and this
Agreement shall be governed by this Agreement without regard to Ex-
hibit C. The disclosure period covered by the CDA shall commence on
the Effective Date of this Agreement and end upon the termination or
expiration of this Agreement. Thereafter, the period during which the
confidentiality obligations of the parties survive begins, and continues
for the duration of time specified in the CDA.
7.2 Publicity.  Linkline and Company agree that neither party will, except as
may be required by law, disclose or issue any press release with respect
to this Agreement or any transactions contemplated by this Agreement,
without the prior written consent of the other party to this Agreement.
7.3 Non-Solicitation. Linkline hereby agrees that it will not actively solicit
End-Users (as defined in Section 1 of the SOW) which are referred to
Linkline by Company under this Agreement; provided,  however, that
nothing shall prohibit Linkline from providing services to End-Users who
are not referred to Linkline by Company, and to End-Users who are ini-
tially referred to Linkline by Company and who subsequently seek ser-
vices from Linkline independently.
8. Term and Termination.
8.1 Term.  This Agreement will commence on the Effective Date of this Agree-
ment and remain in force for a term of one year thereafter (the ?INITIAL
TERM?), unless earlier terminated in accordance with the terms of this
Agreement. This Agreement will automatically renew at the end of such
Initial term for successive one year periods (each, a  ?RENEWAL TERM?)
for a period of four years thereafter.
8.2 Termination for Breach. In the event that either party commits a material
breach of its obligations hereunder, the other party may, at its option,
terminate this Agreement by written notice of termination, which notice
shall identify and describe the basis for such termination; provided, how-
ever, that such termination shall not take place if the defaulting party
shall have cured the default within thirty (30) days from the date of re-
ceipt of such notice.160 CONVEYANCING, DRAFTING & DEEDS [PART I
8.3 Termination at Will. This agreement may be terminated by either party
upon at least thirty (30) days written notice prior to the expiration of the
Initial Term or any Renewal Term. In addition, Linkline may terminate
this Agreement at any time in its sole discretion in the case of non-
payment by Company of any undisputed fees, unless Company pays
such fees in full within ten (10) days after receiving notice of  non-pay-
ment from Linkline.
8.4 Termination for Insolvency. Each party shall have the right to terminate
this Agreement on written notice if the other party ceases to do busi-
ness in the ordinary course or is insolvent (i.e., unable to pay its debts in
the ordinary course as they come due), or is declared  bankrupt, or is
the subject of any liquidation or insolvency proceeding which is not dis-
missed within ninety (90) days, or makes any assignment for the benefit
of creditors.
8.5 Termination Upon Change in Control. Either party may terminate this
Agreement at any time upon at least thirty (30) days written notice to the
other party, in the event such other party is merged into  consolidated
with, or sells all or substantially all of its assets to a third party which the
terminating party determines, in its good faith commercially reasonable
judgment, is a competitor of the terminating party.
8.6  Survival. Sections 6, 7, 8, 9, 10, 11, 12 and 13, of this Exhibit A, as well
as those portions of the covering page, Exhibit B, and Exhibit C which
expressly contain terms that shall survive expiration or termination of
this Agreement, and all accrued rights to payment, shall survive termi-
nation or expiration of this Agreement. All accrued but unpaid obliga-
tions of Company shall become immediately due and payable upon ter-
mination or expiration of this Agreement.
8.7 Non-Exclusive Remedy. Termination is not an exclusive remedy and all
other remedies will be available whether or not termination occurs.
9. Warranty and Disclaimer. Linkline hereby warrants to Company that all
services provided by Linkline under this Master Services Agreement
shall be performed in a professional and workmanlike manner. THE PAR-
TIES ACKNOWLEDGE  THAT THIS IS AN AGREEMENT FOR SER-
VICES AND NOT FOR THE SUPPLY OF GOODS. EXCEPT FOR THE
FOREGOING, LINKLINE MAKES NO OTHER  WARRANTIES OR REP-
RESENTATIONS AS TO THE SERVICES RENDERED, AND HEREBY
DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUD-
ING BUT NOT LIMITED TO, IMPLIED  WARRANTIES OF MERCHANT-
ABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-IN-
FRINGEMENT. LINKLINE FURTHER DISCLAIMS ANY WARRANTY
THAT THE SERVICES WILL SUCCEED IN RESOLVING ANY PROB-
LEM, OR THAT ANY WORK PRODUCT OF THE SERVICES WILL BE
FREE FROM PROGRAM ERRORS.
10. Limitation of Liability  NOTWITHSTANDING ANYTHING ELSE IN THIS
AGREEMENT OR OTHERWISE, NEITHER PARTY SHALL BE LIABLE
OR OBLIGATED WITH RESPECT TO THE SUBJECT MATTER OF THISPART I] INTERNET AGREEMENTS?FORMS 161
AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT
LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (1) FOR ANY
AMOUNTS IN EXCESS IN THE AGGREGATE OF THE FEES PAID
HEREUNDER WITH RESPECT TO THE PERFORMANCE OF OBLI-
GATIONS, (II) FOR ANY COST OF (  ) PROCUREMENT OF SUBSTI-
TUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; OR (III) FOR
INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA.
NEITHER PARTY TO THIS AGREEMENT SHALL BE LIABLE OR
OBLIGATED WITH RESPECT TO THE SUBJECT MATTER OF THIS
AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT
LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (I) FOR ANY
MATTER BEYOND ITS REASONABLE CONTROL, OR (II) FOR ANY
INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOST
PROFITS OF ANY NATURE, WHETHER ARISING UNDER STATUTE,
TORT (INCLUDING NEGLIGENCE) OR CONTRACT, EVEN IF SUCH
PARTY HAS BEEN ADVISED BY THE OTHER PARTY OF THE POSSI-
BILITY OF SUCH DAMAGES.
11. Export Control. Both parties shall comply with all applicable export laws,
restrictions, and regulations of [Country Name]  and foreign agency or
authority.
12. Indemnification.
12.1 By Linkline.  Linkline agrees to defend, indemnify an hold Company harm-
less from any liability or expense paid to third parties (including without
limitation reasonable attorneys? fees) incurred by Company as a result
of any judgment or adjudication against Company or final settlement
arising from any claim that Linkline infringed any patent, trademark, copy-
right, or trade secret of any third party with respect to original code and
original patches and related documentation created by Linkline and pro-
vided to Company pursuant to this Agreement (?INDEMNIFIED MATE-
RIALS?);  provided that Company provides Linkline with (a) prompt writ-
ten notice of any such claim(s), (b) promptly tenders to Linkline sole
control over the defense and settlement of such claim(s) at Linkline?s
expense and with Linkline?s choice of counsel, and (c) full information
and reasonable assistance to Linkline permitting it to defend and/or settle
such claim(s).  Company may not settle any such claim(s) without Linkline?s
prior written consent.  In the event that any  Indemnified Materials pos-
sessed by Linkline are held, or in Linkline?s sole opinion, may be held to
constitute an infringement, Linkline, at its option and expense, may either
(x) modify the Indemnified Materials so they becomes non-infringing, (y)
procure for Company a license to use the infringing Indemnified Materi-
als, or (z) accept a return of the Indemnified Materials and create new,
non-infringing, functionally equivalent materials, in lieu of all other claims
by Company except for the above stated indemnification.
12.2 Exclusions. Notwithstanding the foregoing, Linkline shall have no liabil-
ity if the alleged infringement arises from (a) the modification of the In-
demnified Materials by any party other than Linkline, or (b) the use of
any hardware or software product with the  Indemnified Materials or a
G : CDD (Vol. 4) ? 11162 CONVEYANCING, DRAFTING & DEEDS [PART I
combination of the Indemnified Materials with any software or hardware
product not approved by Linkline, if the infringement would not have
occurred using the Indemnified Materials either alone or in combination
with any software or hardware product approved by Linkline, or (c) use
of the Indemnified Materials except as specified by Linkline.
13. General Terms.
13.1 Governing Law: Jurisdiction. This Agreement shall be deemed to have
been made in, and shall be construed pursuant to the laws of [Country
Name].Any disputes between the parties related to or arising out of this
Agreement shall be litigated in Courts of appropriate jurisdiction  in [Coun-
try Name].
13.2 Attorney?s Fees. The prevailing party in any action to enforce this Agree-
ment will be entitled to recover its reasonable attorney?s fees and costs
in connection with such action.
13.3 Assignment. This Agreement is not assignable or transferable by either
party without the prior written consent of the other party and any at-
tempt to do so shall be void; provided, however, that this Agreement
may be assigned by either party, upon written notice to the other party,
in connection with a merger or a sale of all or substantially all of the
assets of the party subject to Section 8.5. Either party may subcontract
the performance of its obligations to third parties. However, any contact
to Linkline under this Agreement must come from Company?s desig-
nated contacts per  Section 2.1 of Exhibit B.
13.4 Severability. If any provision of this Agreement, or portion thereof, shall
be adjudged by any court of competent jurisdiction to be unenforceable
or invalid, that provision shall be limited or eliminated to the minimum
extent necessary so that this Agreement shall otherwise remain in full
force and effect and enforceable.
13.5 Relationship of the Parties. The parties agree that they are independent
contractors and that this Agreement and relations between Linkline and
Company hereby established do not constitute a joint venture, agency
or contract of employment between them, or any other similar relation-
ship. Neither party has the right or authority to assume or create any
obligation or responsibility on behalf of the other.
13.6 Waiver. No failure or delay in exercising any right hereunder will operate
as a waiver thereof, nor will any partial exercise of any right or power
hereunder preclude further exercise. Any waivers or amendments shall
be effective only if made in writing and signed by an authorized repre-
sentative of the parties hereto.
13.7 Notices. Any notice, report, approval or consent required or permitted
hereunder shall be in writing and shall be deemed given when faxed,
personally delivered, delivered by courier, or three days after being sent
by registered post to the last known address of the party or such other
address as such party last provided to the other by written notice.
13.8 Entire Agreement.  This Agreement, and Exhibits A, B, and C to the Agree-PART I] INTERNET AGREEMENTS?FORMS 163
ment represent the complete and exclusive statement of the mutual un-
derstanding of the parties and supersedes and cancels all previous writ-
ten and oral agreements and communications relating to the subject
matter of this Agreement.
13.9 Force Majeure. Neither party shall be liable to the other for inability to
perform its obligations under the Agreement due to causes beyond its
reasonable control, including, but not limited to acts of God, war, riot,
embargo, earthquake, act of government or any other force majeure
event.
EXHIBIT B
STATEMENT OF WORK
1. Definitions
1.1 A ?CRITICAL PROBLEM? shall exist when there is an emergency con-
dition that causes critical impact to a user?s schedule, or that makes
performance or continued performance of any feature or function im-
possible or impractical by the End-User. It includes, but is not limited to,
situations when the product will not function, has a severe negative im-
pact on the system, or is causing data corruption.
1.2 ?END-USER? shall mean the end-user of Company?s Products who re-
ports an Incident to Company.
1.3 A ?FIX? involves resolution of an Incident and involves taking the appro-
priate steps to resolve a request for assistance. This may include provid-
ing circumvention work-arounds, temporary or permanent source code
fixes, fix distribution technical information, how-to assistance and other
similar information.
1.4 ?INCIDENT? shall mean any one single identified End-User issue or prob-
lem. One contact by the End-User may include multiple Incidents, and a
single Incident may require more than one contact to resolve.
1.5 ?LEVEL 1 SUPPORT? shall mean identifying and solving any issue that
is covered in the operating system installation guide, and relates only to
the existing pre-installed operating system and pre-configured
hardware.
1.6 ?LEVEL 2 SUPPORT? shall mean identifying and solving software and
hardware (excluding Microsoft products, RAID systems, WAN Network-
ing products, and USB devices) issues that have prescribed solutions,
existing patches, prior fixes, etc. This also covers basic re-configuration
of the operating system which is not covered in the  installation guide,
configuration of professional user space applications (providing that the
existing system configuration allows installation), and configuration of
new hardware (excluding Microsoft products, RAID systems, WAN Net-
working products, and USB devices) utilizing existing functional device
drivers. This may require multiple e-mail and/or telephone communica-
tions between support engineers and the users. This level is restricted
to a single Incident, strictly within the scope of the problem at hand.164 CONVEYANCING, DRAFTING & DEEDS [PART I
1.7 ?LEVEL 3 SUPPORT? shall mean identifying and solving software and
hardware (excluding Microsoft products) issues that have un-documented
solutions or fixes;  any mid-level and higher system reconfiguration  not
covered at the Level 1 Support or Level 2 Support. This level of  support
may require multiple e-mail communications, telephone communications,
and remote sessions between support engineers and the user to fix or
resolve, such as reviewing system logs, long configuration files, or gain-
ing root access.
1.8 ?LEVEL 4 SUPPORT? shall mean any issues, above Level 3 Support,
which involve development, such as original code writing or patch writ-
ing to resolve.
1.9 ?LINKLINE SOFTWARE? shall mean (a) all major distributions (includ-
ing but not limited to Caldera, RedHat, Debian, SuSe, and TurboLinkline)
of the Linkline operating system which are open source code and au-
thorized under the General License now existing or hereafter developed,
including Update Releases, and (b) open source applications which run
on the  Linkline operating systems described in (a) and listed on the
Linkline web site (www.linkline.com), including but not limited to Samba,
Apache and Sendmail.
1.10 A ?MEDIUM PROBLEM? shall exist when an important product function
has an intermittent problem, or a common, non-essential operation is
failing consistently for the End-User. The problem is not critical in re-
gards to performance, and use can be continued without difficulty or
loss of data by easy circumvention or avoidance by the End-User. The
inconvenience can be tolerated until the next scheduled release.
1.11 A  ?MINOR PROBLEM? shall exist when an error causes the user a slight
inconvenience but is not critical. The error can be tolerated or can easily
be avoided or circumvented by the user.
1.12 ?RESPONSE TIME? is defined as that time beginning when  Linkline
receives a call about an Incident from Company, and ending when that/
those individual(s) update(s) the Company on the status of the
problem and the action plan for resolution.
1.13 A ?SERIOUS PROBLEM? shall exist when a major product function has
a  reproducible problem which significantly affects a user?s schedule,
causes a minor security breach or which makes performance or contin-
ued performance of any feature or function difficult, and can not be cir-
cumvented or avoided on a temporary basis by the user causing the
user significant inconvenience.
1.14 ?SYSTEM RESTORATION? shall mean a solution which stabilizes the
user system by providing an alternative which allows the use of the pro-
duct without negative impacts or data corruption to the system. This
solution can be an existing patch work around or a set of recommenda-
tions for optimizing the End-User?s situation. It shall include a documented
plan for a permanent resolution, which resolution may require Level 4
Support.
1.15 ?UPDATE RELEASE? shall mean a new version release of the LinklinePART I] INTERNET AGREEMENTS?FORMS 165
Software distributed by third parties, including but not limited to Caldera,
RedHat, Debian, SuSe, or TurboLinkline, which are open source code
and authorized under the General License, now existing or hereafter
developed, that contains maintenance fixes, major functional enhance-
ments and feature additions.
2. Delivery of Level 3 Support. Company and Linkline agree that the Level
3 Support shall be delivered as described in Section 2.1 and Section 2.2
below.
2.1. Company Obligations. Company will receive all initial End-User con-
tact for technical assistance. Company will determine the End-User?s
issue, diagnose and isolate the problem, search the database of known
problems for resolution, and determine whether it is an issue that re-
quires Level 1 Support, Level 2 Support, Level 3 Support, or Level 4
Support. If the issue requires Level 1 Support or Level 2 Support, it will
be resolved within Company. If the issue requires Level 3  Support, it will
be referred to Linkline for completion of resolution.  Company shall des-
ignate twelve (12) individuals as authorized technical contacts for this
Agreement.  Company shall give prompt notice to Linkline of any changes
to such authorized contacts. If Linkline support is required, an autho-
rized contact of Company,and only an authorized contact, will contact
Linkline via telephone, communicating in the English language only, and
insure that any required information about the End-User and the issue
is included in the transfer call. After receiving the Fix from Linkline, Com-
pany will deliver that Fix to the End-User. Linkline Coverage hours, Re-
sponse times, and Fix times will depend on the call severity level    nd
will meet the delivery specifications as shown in Table 1. In the event
that such delivery specifications cannot be met, Linkline will notify Com-
pany, and Linkline shall assign a technical account manager (?TAM?) for
that Incident(s) to Company. The TAM will contact the Company?s autho-
rized contact (or such other contact as designated by the authorized
contact), communicate the reason for failing to meet the delivery speci-
fications, and the TAM and Company?s authorized contact will create an
action plan on how to solve the Incident in the most efficient manner.
2.2. Linkline Obligations. Upon receiving the support call from Company,
Linkline will assign a support engineer that will be responsible for man-
aging the diagnosis and resolution of the call, and for communicating
the status of the problem resolution to Company. Coverage hours, Re-
sponse Times, and Fix times will depend on the call severity level and
will meet the delivery specifications as shown in Table 1. The Linkline
support engineer will provide all necessary information to Company
that is required to implement the Fix on the End-User?s issue. The
Linkline support engineer will provide Company with any assistance
required to resolve the End-User?s problem and close the Incident. Af-
ter resolution, Linkline will provide Company information as it relates
to the solved/closed Incidents in order to assist Company in solving
future Incidents.166 CONVEYANCING, DRAFTING & DEEDS [PART I
TABLE 1
DELIVERY SPECIFICATIONS FOR LEVEL 3 AND LEVEL 4 SUPPORT
Call Permanent
Status
Severity Coverage Response System Solution
Reporting Hours Time Restoration (Fix)1
Level to
Company
Critical 24 hrs/day, 4 hours 24 hours 3  days
daily or as
Problem 365 days/year
mutually agreed
Serious 24 hrs/day, 8 hours 48 hours 10 days
daily or as
Problem 365 days/year
mutually agreed
Medium 24 hrs/day, 24 hours not required 15 days
as needed
Problem 365 days/year
Minor 24 hrs/day, 48 hours not required next
Update as needed
Problem 365 days/year Release
1. Linkline will use commercially reasonable efforts to provide permanent so-
lutions or Fixes within the indicated number of calendar days after being informed
of the problem by Company.
2. Delivery of Level 4 Support. Level 4 Support shall be delivered in accor-
dance with the same procedures outlined in Sections 2.1 and 2.2 above and the
delivery specifications as shown in Table 1 above.  In the event that such delivery
specifications cannot be met, Linkline will notify Company, and Linkline shall as-
sign a TAM for that Incident(s) to Company. The TAM will contact the Company?s
authorized contact (or such other contact as designated by the authorized con-
tact), communicate the reason for failing to meet the delivery specifications, and
the TAM and Company?s authorized contact will discuss how to solve the Incident
in the most efficient manner.
3.0 Reporting.
3.1 Metrics Report. Linkline shall provide a metrics report to Company which
will give a summary description of Incidents in a manner and with con-
tent that is mutually agreeable to the parties, and any other generally
available reports reasonably requested by Company.
3.2 Incident Report. Linkline shall make Incident reports available online
to Company upon receiving a call from Company which requires Linkline
to provide Services. The reports shall be password protected, and will
allow Company immediate access to updates on the reported Inci-
dent.
4. Quarterly Distribution Reports. Linkline shall provide Company with infor-PART I] INTERNET AGREEMENTS?FORMS 167
mation relating to new Linkline Software releases and Update Releases on a
quarterly basis.
EXHIBIT C
CONFIDENTIAL DISCLOSURE AGREEMENT
Effective Date: [Date].
In order to protect certain confidential information, Hewlett-Packard Company:
1. DISCLOSING PARTY: The party disclosing confidential information  ?Dis-
closer?) is Linkline.
2. PRIMARY REPRESENTATIVE: Each party?s representative for coordinating
disclosure or receipt of confidential information is:
HP :
PARTICIPANT : John Hayes
3. DESCRIPTION OF CONFIDENTIAL INFORMATION: The confidential infor-
mation disclosed under this Agreement is described as:
HP :
PARTICIPANT : Services Protocol
4. USE OF CONFIDENTIAL INFORMATION: The party receiving confidential
information (?Recipient?) shall make use of the confidential information only for
the following purpose (e.g., ?evaluation and testing for a make/buy decision on
project xyz. ?):
HP :