Software Agreements from by Gupta

SOFTWARE AGREEMENTS?FORMS 855
FORMS FORMS FORMS FORMS FORMS
1 1 1 1 1
Non-exclusive Software License Agreement Non-exclusive Software License Agreement Non-exclusive Software License Agreement Non-exclusive Software License Agreement Non-exclusive Software License Agreement
WARNING :
PERMISSION TO USE THE ENCLOSED  ?COMPUTEK? SOFTWARE IS CON-
DITIONAL UPON THE COMPANY, PERSON OR OTHER ENTITY NAMED
ON THE ORDER FORM AS THE LICENSEE (?LICENSEE?) AGREEING TO
THE TERMS SET OUT BELOW. ACCEPTANCE SHALL BIND THE LICENSEE
AND ALL EMPLOYEES OF THE LICENSEE TO THE TERMS OF THE LI-
CENCE CONTAINED IN THIS AGREEMENT. IF THE LICENSEE ACCEPTS
THE FOLLOWING TERMS THE ORDER FORM SHOULD BE SIGNED AND
RETURNED TO INFOWAY COMPUTER SYSTEMS PTY LTD ACN 007 038
431 (?INFOWAY?) WITH PAYMENT OF THE LICENCE FEE. IF THE ORDER
FORM IS RETURNED UNSIGNED, THE LICENSEE WILL BE DEEMED NOT
TO HAVE ACCEPTED THE TERMS OF THE LICENSE AND ANY LICENSE
FEE PAID WILL BE REFUNDED.
1. In this Agreement :
1.1 ?Product? means the ?Computek? software;
1.2 ?Documentation? means the user manual supplied with the Product;
1.3 ?Agreement? means this agreement and includes the attached order
form.
2. Licence :
Infoway grants to the Licensee a non-exclusive licence for the Term to:
2.1 use the number of copies of the Product specified on the order form;
2.2 use the Product in relation to the number of companies specified on
the order form; and
2.3 install the Product on either a Local Area Network (?LAN?) or Wide
Area Network (?WAN?) in accordance with the number of users and/
or companies specified on the order form.
3. Copyright :
3.1 The Licensee acknowledges that the Product and the Documenta-
tion are the subject of copyright, ownership of which vests in Infoway,
and the Licensee shall not during the Initial Term, any Further Terms,
or at any time after the expiry or termination of this Agreement do or
authorise the doing of any act which infringes that copyright.
3.2 The Documentation may not be reproduced under any circumstances.
Additional copies of the Documentation may be acquired from  Infoway.
4. Licensee?s Obligations :
4.1 The Licensee undertakes the following obligations:
(i) to use and to control and supervise the use of the Product or856 CONVEYANCING, DRAFTING & DEEDS [PART 2
any part of it strictly in accordance with the provisions of this
Agreement;
(ii) to not reverse engineer, decompile, translate, adapt, vary or
modify the Product;
(iii) to not copy or reproduce the Product or any part of it, except as
expressly authorised by this Agreement;
(iv) to ensure that the Product is used only by the employees of the
Licensee and that the Product or any part of it is not made
available in any form to any other person without the prior writ-
ten consent of Infoway;
(v) to ensure that its employees who have authorised access to
the Product or any part of it are made aware of the terms of this
Agreement; and
4.2 The Licensee acknowledges that reproduction by any means of any
part of the Product for distribution or supply to users other than as
specified on the order form is a breach of this Agreement.
4.3  The Licensee must apply whatever virus protection measures it con-
siders appropriate and acknowledges that Infoway will not be respon-
sible for any damage or loss caused by any virus in the Product.
4.4 The Licensee acknowledges that the data contained in the Product
cannot be guaranteed error free and further acknowledges that the
existence of any such errors shall not constitute a breach of this li-
cence.
5. Licensee?s Indemnities :
5.1 The Licensee indemnifies  Infoway fully against all liabilities, costs
and expenses incurred by Infoway as a result of any breach of this
Agreement by the Licensee.
5.2 The Licensee indemnifies  Infoway against any damage, including con-
sequential damage, suffered by the Licensee or any other party as a
result of use of the Product by the Licensee.
6. Termination of License :
6.1 The license granted by this Agreement may be terminated by Infoway
in the following circumstances:
(i) if Infoway suspects that the Licensee is in breach of any term of
this Agreement;
(ii) if the Licensee, being a corporation, becomes the subject of
insolvency proceedings; or
(iii) if the Licensee, being a firm or partnership, is dissolved.
6.2 If this Agreement is terminated by  Infoway under clause 6.1, the
Licensee shall destroy any remaining copies of the Product, return
them to Infoway or dispose of them as directed by Infoway and shall
delete and remove from its computer system all files created by the
Product.PART 2] SOFTWARE AGREEMENTS?FORMS 857
6.3 Termination pursuant to this clause shall not affect any rights or rem-
edies which Infoway may have otherwise under this license or at law,
and the Licensee acknowledges that the indemnities given by it in
clauses 5.1 and 5.2 shall survive the termination of this Agreement.
7. Miscellaneous :
7.1 Notwithstanding clauses 4.3 and 4.4, Infoway warrants that it shall
use its best endeavours to ensure that the Product is free from de-
fects in manufacture and that it will in all material respects perform in
accordance with the Documentation.
7.2 Infoway will replace any defective Product at no charge, subject to
notification of the said defect within 14 days of receipt of the defec-
tive Product by the Licensee from Infoway.
8. Limitation :
8.1 The Licensee acknowledges that it has exercised its independent
judgement in acquiring the Product and has not relied on any repre-
sentation made by Infoway or upon any descriptions or illustrations
or specifications contained in any document including catalogues or
publicity material produced by  Infoway which has not been stated
expressly in this Agreement.
8.2 In the event that any statute implies terms into this Agreement which
cannot be lawfully excluded, such terms will apply to this Agreement,
save that the liability of Infoway for breach of any such implied term
will be limited, at the option of  Infoway, to any one or more of the
following:
(i) the replacement of the Product;
(ii) the repair of such product; or
(iii) the payment of the cost of replacing the Product.
8.3 Except as provided in clauses 7.1 and 8.2, all express or implied
conditions or warranties, statutory or otherwise, in respect of the Prod-
uct are expressly negatived and excluded.  In particular, but without
limiting the generality of this sub-clause 8.3, Infoway does not war-
rant that the Product is fit for any purpose, irrespective of whether
any purpose is communicated to Infoway.
8.4 The Licensee acknowledges that once the software has been issued,
no refunds of the license fee will be given.
8.5 To the extent that any statute provides a remedy to the Licensee in
relation to the Licensee?s use of data contained on the Product, such
right is expressly preserved, save that any such right shall be limited
to the extent permitted by such statute.
9. Assignment :
The benefit of this Agreement shall not be dealt with in any way by the
Licensee (whether by assignment, sub-licensing or otherwise) without the
written consent of Infoway.858 CONVEYANCING, DRAFTING & DEEDS [PART 2
10. Waiver :
Failure or neglect by either party to enforce at any time any of the provi-
sions of this Agreement shall not be construed or deemed to be a waiver
of that party?s rights under this license.
11. Governing Law :
This Agreement shall be governed by and construed according to the laws
of the [Country Name].
12. Severability :
In the event of the invalidity of any part or provision of this Agreement,
such invalidity shall not affect the enforceability of any other part or provi-
sion of this Agreement.
Signature………………………………..
Designation……………………………..
Date……………………………………….
Office Seal………………………………
2 2 2 2 2
Non-exclusive, Non-transferable Software License Agreement Non-exclusive, Non-transferable Software License Agreement Non-exclusive, Non-transferable Software License Agreement Non-exclusive, Non-transferable Software License Agreement Non-exclusive, Non-transferable Software License Agreement
[Special Note: Upon installing the Unispeed Software, the Participant agrees
to the Terms and Conditions contained with the Software Licensee Agree-
ment.]
1. This is a legal agreement between you (either an individual or an entity,
hereinafter known as  ?Licensee?), and Unispeed Limited (herein known
as?Licensor?).
2.  By subscribing to use the Software, you agree to be bound by the terms of
this Agreement. If you do not agree to the terms of this Agreement, you may return
the Software and all accompanying items to Licensor.
A. Grant of License :
1. Unispeed Limited hereby grants the Participant a limited, non- exclu-
sive, non-transferable license subject to the terms and conditions
contained herein to use the Unispeed  Software (called  ?the Soft-
ware? in this Agreement).
2. You are only licensed to use the Software on a single computer, on
its temporary replacement, or on a subsequent computer.
3. If you wish to use the Software on more than one computer, you
must  purchase an additional License of the Software.
4.  The Licensor may in some instances allow the Software to be in-
stalled on a second machine for the sole use by the Licensee. Any
such permission must be provided, in writing, by the Licensor to the
Licensee. PART 2] SOFTWARE AGREEMENTS?FORMS 859
B. Confidentiality :
1. The Licensee hereby agrees that the documents, concepts, ideas,
calculations, formulae, intellectual property and any other materials
or information (whether written or oral) given to the Licensee are
strictly  confidential and remains the property of Unispeed Ltd.
2.  These materials may only be used solely by the Licensee and may
not be adopted or used for any other purpose, or in particular to
conduct any other promotional or marketing activity without the prior
written consent of Unispeed Ltd.
3. In addition, the materials are subject to copyright and are proprietary
to Unispeed Ltd.  No part thereof may be reproduced or distributed in
any form for any purpose without prior written consent of Unispeed
Ltd.
C. Ownership :
1. This Agreement does not pass on any intellectual property or other
ownership rights in the Software. You acknowledge that the rights to
the Software, all training materials, client communications and other
related materials are the exclusive property of Unispeed Ltd.
2. By accepting this Agreement, you do not become the owner of the
Software, but you do have the right to use the Software in accor-
dance with the terms of this Agreement.
3.  You agree to use your best efforts and to take all reasonable steps
to  protect the Software from illegal use, reproduction or illicit distri-
bution.
D. Technical Support :
1.  The Licensor agrees to provide technical support to the Licensee for
the term of the License period.
2. The majority of technical support is provided by e-mail although where
a problem cannot be resolved by e-mail, a representative of Unispeed
Ltd will call the Licensee at a mutually convenient time.
GENERAL LICENSE TERMS
1. Use Limitations :
(1) (Y ou may make backup copies of the Software strictly for your own
archival purposes. Except as explicitly permitted 1) You may not rent,
lease, lend, sub-license, time-share, distribute, sell or assign the li-
cense to use this Software. In no event may you or any other party
modify , adapt, translate, reverse engineer, decompile, disassemble,
or create derivative works based on this Software or related materi-
als.
(2) You must not do any act, which infringes upon the copyright in the
Software; create a derivative work from the Software or related ma-
terials by any means; or use it for any purpose other than for your
own personal investment decision making. You must keep all reports860 CONVEYANCING, DRAFTING & DEEDS [PART 2
generated by the Software confidential and no distribute reports to
third parties.
(3) If you wish to use the Software with third parties, you must apply for
a Corporate License and specify the nature and extent of the third
parties with whom you wish to share the  information.
(4) Nor may you use this Software on more than one computer or termi-
nal, unless expressly permitted in writing by Unispeed Ltd. pursuant
to this Agreement, you may not otherwise distribute, copy, reproduce,
sub-license, sell or otherwise distribute the licensed Software or any
confidential information or reports.
2. Disclaimer of Warranty :
(1) This Software is provided as is. To the extent permitted by applicable
law, the Licensor and its suppliers do not and cannot warrant the
performance or results that you may obtain by using the Software.
(2)  The Licensor and its suppliers make no warranty of any kind, ex-
press or implied, including without limitation, any warranties of mer-
chantability and/or fitness for a particular purpose.
3. Exclusion of Consequential, Incidental and Special Damages :
To the extent permissible by law, neither the Licensor nor its suppliers shall
be liable for any consequential, incidental or special damages, including
lost profits, lost savings or other incidental or consequential  damages aris-
ing out of the use of or inability to use the licensed Software, even if the
Licensor and its suppliers have been advised of the possible damages.
4. Limitation of Liability :
In no event will the Licensor?s liability for any damages ever exceed the
lower of suggested list price or actual price paid for the Software.
5.  Termination of Liability :
To the extent that Licensor, notwithstanding the above disclaimers, remains
legally liable to the Licensee, such liability shall be three months from the
Date of this Agreement.
6. Limitation on transfer of intellectual property rights in the Software :
(1) This Software is owned by the Licensor, and its structure, organiza-
tion  and code are the valuable trade secrets of the Licensor.  The
Software is also protected by the[Country Name] Copyright law and
International Treaty provisions.
(2) You may not copy the Software, except as provided in this Agree-
ment.  Any copies that you are permitted to make pursuant to this
Agreement  must contain the same copyright and other proprietary
notices that appear on or in the Software.
(3)  You agree not to modify, adapt, translate, reverse engineer,
decompile,  disassemble or otherwise attempt to discover the source
code of the Software.
(4) Trademarks shall be used in accordance with accepted trademarkPART 2] SOFTWARE AGREEMENTS?FORMS 861
practice, including identification of trademark owner?s name.  Such
use of any trademark does not give you any rights of ownership in
the trademark. Except as stated above, this Agreement does not grant
you any intellectual property rights in the Software.
7. International Law and Export :
(1)  This Agreement will not be governed by the United Nations Conven-
tion on Contracts or the International Sale of Goods, the application
of which is expressly excluded.
(2) You agree that the Software will not be shipped, transferred or ex-
ported into any country or used in any manner prohibited by [Coun-
try Name] export laws, restrictions or regulations.
8. Date of Agreement :
The  ?Date? of this Agreement, as used herein and in all previous and
subsequent sections, shall be the day that Licensor receives the licensed
Software.
9. Third Party Data Carriers :
(1) You acknowledge that Unispeed Ltd obtains data from third parties,
namely:
(a) ASX Data is supplied by [Name],  of [Address]  &
(b) NYSE Data is supplied by  [Name]  of [Address].
(2) Data suppliers may change from time to time at the discretion of
Unispeed Ltd.
(3) Unispeed Ltd will not be liable for the failure to supply the data pro-
vided by the above-mentioned carriers.  The material supplied by the
data carriers is subject to a claim of copyright and is published under
license from those companies.
(4) Unispeed Ltd and its third party data carriers will not be liable for any
loss or damages of any kind whatever (including, without limitation,
consequential loss or damages) in respect of any goods or services
supplied or to be supplied in accordance with this Agreement whether
arising from any act or omission (and whether negligent or not) of the
carriers, their servants, agents or independent contractors, or other-
wise.
(5) The data carriers shall have no liability for delays or non-performance
occasioned by causes  beyond its control, including but not limited to
acts of God, fires, inability to obtain materials, strikes or other labor
actions, breakdown of equipment, delays or shutdowns of carriers or
suppliers, and government acts or regulations.
(6) The data carriers base their data on sources believed by each orga-
nization to be reliable and each organization will endeavor to insure
that the data contained in the licensed data is complete, accurate
and timely . However, the data carriers and Unispeed Ltd do not rep-
resent, warrant, or guarantee such completeness, accuracy or time-
liness, and it shall have no liability of any kind whatsoever to the862 CONVEYANCING, DRAFTING & DEEDS [PART 2
Licensee, or to any other party, on account of any incompleteness of,
inaccuracies in or untimeliness of the data provided hereunder or for
any delay in reporting such data.
(7) There are no express or implied warranties of any kind with respect
to the data provided under this Agreement.
(8) The Licensee understands and agrees that the resale or redistribu-
tion of any data obtained from the Software or through Unispeed Ltd
is prohibited.
10. Termination of Agreement :
If any of the terms of Agreement are broken, Unispeed Ltd has the right to
immediately terminate the Agreement and demand that you return the
Software. At that time, you must also certify in writing that you have not
retained any copies of the Software.
11. Arbitration :
In the event that the Licensor brings any claims of any nature against
Unispeed Ltd; its affiliates, directors or officers, then the Licensee must
agree to submit to independent arbitration.
12. Governing Law :
(1) This Agreement is construed to be governed by, and interpreted in
accordance with, the laws of  [Country Name].
(2) Copyright 2003 Unispeed Limited.  All rights reserved.  No  material
may be reproduced, except as allowed by the Copyright Act, without
the prior written approval of Unispeed Ltd.
(3) Some of the data and analysis provided by [Company Name] copy-
right and is published licence from[Company Name] of [Address]
Some share price information supplied by the[Company Name] of
[Address].
Signature………………………………..
Designation……………………………..
Date……………………………………….
Office Seal………………………………
3 3 3 3 3
Software License Agreement of  Software License Agreement of  Software License Agreement of  Software License Agreement of  Software License Agreement of H H H H Hitech Computer itech Computer itech Computer itech Computer itech Computer
[HITECH COMPUTERS (?Licensor?) IS WILLING TO LICENSE THE ENCLOSED
SOFTWARE TO YOU ONLY IF YOU ACCEPT ALL OF THE TERMS IN THIS LICENCE
AGREEMENT. PLEASE READ THE TERMS CAREFULLY BEFORE YOU OPEN THIS
PACKAGE, BECAUSE BY OPENING THIS SEALED DISK PACKAGE  YOU ARE AGREE-
ING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE
TO THESE TERMS, LICENSOR WILL NOT LICENSE THIS SOFTWARE TO YOU, ANDPART 2] SOFTWARE AGREEMENTS?FORMS 863
IN THAT CASE YOU SHOULD RETURN THIS PRODUCT PROMPTLY, INCLUDING
THE PACKAGING, THIS UNOPENED DISK PACKAGE, AND ALL WRITTEN MATERI-
ALS, TO THE PLACE OF PURCHASE PROMPTLY FOR A FULL REFUND.]
A. Ownership of the Software :
1. The enclosed Licensor software program (?Software?) and the accompa-
nying written materials are owned by Licensor and are protected by [Country
Name] copyright laws, by laws of other nations, and by international trea-
ties.
B. Grant of License :
2. Licensor grants to you the right to use one copy of the Software on a single
computer. You may load one copy into permanent memory of one com-
puter and may use that copy, or the enclosed diskettes, only on that same
computer. You may install the Software on a single network server, pro-
vided that you have a License for Network Station from Licensor for each
station of the network at which the Software is used.
3. This license is valid worldwide.
C. Restrictions on Use and Transfer :
4. This Software package contains both 3½? and 5¼? disks, you may use
only the size disks appropriate for your computer. You may not use the
other size disks on another computer or loan, rent, transfer, or assign them
to another user except as part of the permanent transfer of the Software
and all written materials (as provided for below).
5. You may not copy the Software, except that (1) you may make one copy of
the Software solely for backup or archival purposes, and (2) you may transfer
the Software to a single hard disk provided you keep the original solely for
backup or archival purposes. You may not copy the written materials.
6. You may permanently transfer the Software and accompanying written
materials (including the most recent update and all prior versions) if you
retain no copies and the transferee agrees to be bound by the terms of this
Agreement. Such a transfer terminates your license. You may not rent or
lease the Software or otherwise transfer or assign the right to use the
Software, except as stated in this paragraph.
7. You may not reverse engineer, decompile, or disassemble the Software.
D. Limited Warranty :
8. Licensor warrants that the Software will perform substantially in accor-
dance with the accompanying written materials for a period of 90 days
from the date of your receipt of the Software.  Any implied warranties on the
Software are limited to 90 days. Some states do not allow limitations on
duration of an implied warranty, so the above limitation may not apply to
you.
9. LICENSOR DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-
INFRINGEMENT, WITH RESPECT TO THE SOFTWARE AND THE ACCOM-864 CONVEYANCING, DRAFTING & DEEDS [PART 2
PANYING WRITTEN MATERIALS.  This limited warranty gives you specific
legal rights. You may have others, which vary from state to state.
10. LICENSOR?S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY SHALL
BE, AT LICENSOR?S CHOICE, EITHER (A) RETURN OF THE PRICE PAID
OR (B) REPLACEMENT OF THE SOFTWARE THAT DOES NOT MEET
LICENSOR?S LIMITED WARRANTY AND WHICH IS RETURNED TO LICEN-
SOR WITH A COPY OF YOUR RECEIPT. Any replacement Software will be
warranted for the remainder of the original warranty period or 30 days,
whichever is longer. These remedies are not available outside Australia.
11. This Limited Warranty is void if failure of the Software has resulted from
modification, accident, abuse, or misapplication.
12. IN NO EVENT WILL LICENSOR BE LIABLE TO YOU FOR DAMAGES, IN-
CLUDING ANY LOSS OF PROFITS, LOST SAVINGS, OR OTHER INCIDEN-
TAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF YOUR USE OR
INABILITY TO USE THE SOFTWARE. Because some states do not allow
the exclusion or limitation of liability for consequential or incidental dam-
ages, the above limitation may not apply to you.
13.  This Agreement is governed by the laws of the [Country Name].
14. If you have any questions concerning this Agreement or wish to contact
Licensor for any reason, please write: Hitech Computers, [Address].
15. Government Restricted Rights. The Software and documentation are
provided with Restricted Rights. Use, duplication, or disclosure by the
Government is subject to restrictions , as applicable. Supplier is Hitech
Computers, [Address].
Signature………………………………..
Designation……………………………..
Date……………………………………….
Office Seal………………………………
4 4 4 4 4
E E E E End-User Software License Agreement nd-User Software License Agreement nd-User Software License Agreement nd-User Software License Agreement nd-User Software License Agreement
1. Subject to the terms of this Agreement, Webtech Data Programming hereby
grants you a limited, personal, non-transferable, non-sub-licensable, roy-
alty-free, non-exclusive license to use one copy of the software product.
2. You may copy the software for archival purposes, provided any copy must
contain all of the original software?s proprietary notices; you may use the
software subject to the terms and conditions of this license.
3. You may not, directly or indirectly: modify, translate, reverse engineer,
decompile, disassemble (except to the extent applicable laws specifically
prohibit such restriction), create derivative works based on, or otherwise
attempt to discover the source code or algorithms of the software; or copyPART 2] SOFTWARE AGREEMENTS?FORMS 865
(except for archival purposes as set forth above), rent, lease, distribute,
transfer or otherwise transfer rights to the software; or remove any propri-
etary notices or labels on the software.
4. Software :
This license does not grant you any right to any enhancement or update.
Furthermore, this licence does not grant you continued access to other
software.
5. Support :
This Agreement does not entitle you to any maintenance, upgrades,
patches, enhancements, fixes, new versions or other support (?Support
Programs?) for the software; provided, however, that if you obtain in any
manner any Support Programs they shall become part of the software and
the terms of this Agreement shall apply. Webtech Data Programming main-
tains a policy of supplying patches and fixes on a basis of verbal agree-
ment.
6. Title :
As between the parties, title, ownership rights, and intellectual property
rights in and to the software, and any copies or portions thereof, shall
remain with Webtech Data Programming and its suppliers.  The software is
protected by the copyright laws of the[Country Name] and international
copyright treaties. Title, ownership rights, and intellectual property rights in
and to any software, data, information, text, pictures, images, sounds, or
other content (?Content?) accessed through the software or otherwise is
the property of the applicable owner and may be protected by applicable
copyright or other law. This license gives you no rights, title, or interest to
Content except the limited licence to use the software as described above.
7. Disclaimer of Warranty :
The software and any services that you receive from Webtech Data Pro-
gramming, are provided ?as is. ? Webtech Data Programming hereby dis-
claims all express or implied warranties, including without limitation war-
ranties of merchantability, fitness for a particular purpose, and non-infringe-
ment.
8. Limitation of Liability :
You assume the entire risk as to the quality and performance of the soft-
ware.  Webtech Data Programming assumes no liability for the cost of any
service or repair if the software is defective. Webtech Data Programming
exercises no screening, editorial, or other control over Content available to
you through your use of the software, and Content may include material
that could be deemed distasteful, misleading, inaccurate, offensive, por-
nographic or otherwise objectionable. Furthermore, use of the software
does not guarantee any privacy or confidentiality of any Content you post
or make available through the software and Webtech Data Programming
assumes no responsibility or liability for the preservation of such Content
and may modify or remove it at Webtech Data Programming sole discre-
tion. You hereby release Webtech Data Programming from any and all li-
ability for all claims related to Content as well as claims related to the
security or level of privacy provided.
G : CDD (Vol. 4) ? 55866 CONVEYANCING, DRAFTING & DEEDS [PART 2
9. Under no circumstances and under no legal theory, tort, contract, strict
liability, or otherwise, shall Webtech Data Programming or its licensors,
suppliers or resellers be liable to you or any other person for any indirect,
special, incidental, or consequential damages including, without limitation,
damages for lost profits, loss of goodwill, work stoppage, computer failure
or malfunction, or any and all other commercial damages or losses. In no
event will Webtech Data Programming be liable for any damages in ex-
cess of Webtech Data Programming?s list price for a licence to the soft-
ware, even if Webtech Data Programming shall have been informed of the
possibility of such damages.
10. Termination :
Webtech Data Programming may, at its sole discretion, terminate this Agree-
ment, the licence granted herein, and your right to use or access the soft-
ware at any time. On termination, you must destroy all copies of the soft-
ware.
11. Export Controls :
None of the software, or underlying information or technology may be ex-
ported or re-exported (i) into (or to a national or resident of) any country to
which the [Country Name] . has embargoed goods; or (ii) into any country
in which the [Country Name]. has embargoed goods. By using the soft-
ware, you are agreeing to the foregoing and you are representing and
warranting that you are not located in, under the control of, or a national or
resident of any such country.
12. Miscellaneous :
This Agreement represents the complete license agreement and may only
be amended by a writing executed by the parties. If any provision of this
Agreement is held to be unenforceable for any reason, such provision shall
be reformed only to the extent necessary to make it enforceable.  This Agree-
ment shall be governed by and construed under the law.of [Country Name]
13. Prohibition and Restriction Rights :
Use, duplication or disclosure by any Government, Government agency or
contractor is forbidden for legal reasons.
Signature………………………………..
Designation……………………………..
Date……………………………………….
Office Seal………………………………
5 5 5 5 5
S S S S Software License Agreement with Restrictive Covenants oftware License Agreement with Restrictive Covenants oftware License Agreement with Restrictive Covenants oftware License Agreement with Restrictive Covenants oftware License Agreement with Restrictive Covenants
1.  The enclosed programs (herein known as software) contains copyright ma-
terial in which Duplex and/or its suppliers retain proprietary rights. The use of thisPART 2] SOFTWARE AGREEMENTS?FORMS 867
software is strictly limited to the terms set out in this License and the receipt by
electronic transfer or by CD-ROM or otherwise and use of the software shall be
deemed to be acceptance of these terms whether or not payment was made for
the receipt of the software. Duplex reserves all rights not explicitly granted herein.
At all times Duplex and/or its suppliers retain ownership of the software.
2. Duplex authorises the use of this software on the following conditions,
(a) you may access the software on a single computer at any one time. If
the software is installed on a common CD-ROM drive or disk drive
and accessed by multiple computers, an additional license is required
for each computer,
(b) you may copy part of the software using only the supplied set-up
utility and only on to a single computer at any one time,
(c) You may transfer the software with these License Conditions to an-
other party subject to the other party agreeing to accept these Li-
cense Conditions. In such circumstances you must provide to the
other party the full software and any accompanying hard copy docu-
ments and destroy all copies or portions of the software and docu-
ments and you will immediately cease to have any further rights with
respect to the software and the license for use of the software trans-
fers to the other party,
(d) you must ensure that you reproduce and include the copyright notice
in any copy of the software or portion of the same, whether or not
merged into other software,
(e) you may not use copy modify or transfer the software (or any copy or
merged portion of the software) in whole or in part except as ex-
pressly permitted by this license,
(f) you may not rent lease or sell the software to another party ,
(g) nothing in this licence shall affect the statutory rights of consumers.
3.   Part of this software contains copyright material supplied to Duplex pursuant
to a Software Licence Agreement from Webtech Corporation (?Webtech?). Its use
within the software is conditional upon the following terms,
(a) you are prohibited from any use which contravenes the terms of the
Webtech License (a copy of which is available from Duplex on re-
ceipt by Duplex of a written request),
(b) you ensure that the software will not be provided to, used on or ac-
cessed through a public computer bulletin board or shareware distri-
bution process,
(c) you will not use or create new applications designed to operate in an
Duplex Toolbook or Duplex Multimedia Toolbook environment,
(d) you do not use or permit the use of any clip files in a library of clip
files,
(e) that you hold harmless Duplex and its suppliers from and against
any damages or liabilities including attorneys or other legal fees that
arise or result from claims or lawsuits regarding the use or distribu-
tion of the program.868 CONVEYANCING, DRAFTING & DEEDS [PART 2
4. Government Restricted Rights ? parts of the software and written material
accompanying the software are provided with Restricted Rights. Use duplication or
disclosure by the Government is subject to restrictions, as applicable.
5. Duplex believe the program provided is free of defects in materials and work-
manship.  However no warranty is offered that the program will be interruption or
error free. In any event neither Duplex nor its suppliers will be liable to you for any
indirect incidental consequential or other loss or damage arising out of or in con-
nection with your use or inability to use the software or manual, the breach of any
express or implied warranty or condition or otherwise in connection with the soft-
ware the manuals and/or this License even if Duplex has been advised of the
possibility of such damages. In no event shall Duplex (or its suppliers) total liability
for any damages direct or indirect in connection with the software the manuals
and/or this License exceed the Licence fee paid for your right to use this copy of
the software whether such liability arises from any claim based upon contract war-
ranty tort or otherwise and this clause shall ensure for the benefit of Duplex and its
suppliers.).
6.   This licence shall be construed in accordance with the laws of [Country
Name].
Signature………………………………..
Designation……………………………..
Date……………………………………….
Office Seal………………………………
6 6 6 6 6
Software License Agreement for developing, manufacturing Software License Agreement for developing, manufacturing Software License Agreement for developing, manufacturing Software License Agreement for developing, manufacturing Software License Agreement for developing, manufacturing
and marketing computing products and marketing computing products and marketing computing products and marketing computing products and marketing computing products
[Full Form]
This Software License Agreement is entered into on this [Date] by and be-
tween ABC COMPANY LTD. a subsidiary of 3Com Corporation (collectively,
?3Com?), a Company incorporated under the Companies Act with a place of busi-
ness at [Address] AND JD CORPORATION (?JD?), also a Corporation incorpo-
rated under the Companies Act with a place of business at [Address].
The effective date of this Agreement shall be the date last executed below
(?Effective Date?).
RECITALS
A. 3Com or its suppliers are the owners of software and other technology
related to the 3Com Computing platform.
B. JD is a developer, manufacturer and marketer of handheld computing prod-
ucts.
C. JD desires to obtain a licence to certain 3Com software and technology,
as more particularly described in Exhibit A (3Com Software), in order toPART 2] SOFTWARE AGREEMENTS?FORMS 869
develop, manufacture and market handheld computing products incorpo-
rating such 3Com software and technology. 3Com is willing to grant JD
such a license upon the terms and conditions set forth below.
AGREEMENT
NOW, THEREFORE, the parties agree as follows:
1. Definitions :
1.1 ?Confidential Information? means that  information of either party (?Dis-
closing Party?) which is disclosed to the other party (?Receiving
Party?)pursuant to this Agreement, in written form and marked ?Con-
fidential, ? ?Proprietary? or similar designation, or if disclosed orally,
the Disclosing Party shall indicate that such information is confiden-
tial at the time of disclosure and send a written summary of such
information to the Receiving Party within thirty (30) days of disclo-
sure and mark such summary ?Confidential, ? ?Proprietary? or similar
designation.  Confidential Information shall include, but not be limited
to, trade secrets, know-how, inventions, techniques, processes, al-
gorithms, software programs, schematics, designs, contracts, cus-
tomer lists, financial information, product plans, sales and marketing
plans and business information.  References to a Receiving Party or
a Disclosing Party shall also include all present and future subsidiary
and parent companies of such party , subject to the restrictions con-
tained in this Agreement.
1.2 ?JD Products? means any handheld computing products developed
by JD, or for JD by a third party,which contain 3Com Software, in
whole or part, combined with JD?s added value.
1.3 ?JD Software? means any software developed or acquired by JD, or
for JD by a third party, for the JD Products.
1.4 ?Net Revenue? means monies received or receivable by JD in con-
nection with the sale, permitted licensing, distribution or other exploi-
tation of the JD Products, but shall exclude taxes, returns, rebates,
and separately stated shipping and handling costs or maintenance,
support, and engineering fees.
1.5 ?3Com Device Applications? means the applications files described
in Exhibit A (3Com Software).
1.6 ?3Com Device Applications SDK? means 3Com?s commercially avail-
able software development kit for applications for the 3Com Comput-
ing platform as described in Exhibit A (3Com Software).
1.7 ?3Com Desktop Software? means the 3Com desktop software re-
lated to the 3Com Product described in Exhibit A (3Com Software).
1.8 ?3Com Development Environment? means the development and de-
bugging tools relating to the 3Com OS described in Exhibit A (3Com
Software), including a list of certain third-party development tools
that are commercially available relating to the 3Com OS, provided
that JD shall be responsible for obtaining any necessary rights for
such third-party development tools.870 CONVEYANCING, DRAFTING & DEEDS [PART 2
1.9 ?3Com End-User Documentation? means the end-user documenta-
tion related to the 3Com Software as described in Exhibit A (3Com
Software).
1.10 ?3Com GUI? means the graphical user interface files for the 3Com
Computing platform as described in Exhibit A (3Com Software).
1.11 ?3Com Installation CD Files? means the artwork, guided tour files,
and other files and related elements of the 3Com installation CD as
described in Exhibit A (3Com Software).
1.12 ?3Com Materials? shall mean: (a) the 3Com End-User Documenta-
tion, 3Com Technical Documentation, and any 3Com end user mate-
rials provided under Section 7.3 below;  and (b) all current and future
foreign language versions thereof, to the extent that 3Com has the
right to grant JD rights to such versions.
1.13 ?3Com OS? means the 3Com operating system software files and
build tools described in Exhibit A (3Com Software), including:  (a) soft-
ware and documentation provided by 3Com to JD pursuant to Sec-
tion 6.1;  and (b) the 3Com OS Drivers. All 3Com OS software shall
be provided in object code form only, except as may be agreed by the
parties pursuant to Section 6.2(b).
1.14 ?3Com OS Drivers? means the software drivers and sample exten-
sions for the 3Com OS as described in Exhibit A (3Com Software).
1.15 ?3Com Software? shall mean:  (a) the 3Com Device Applications, 3Com
Device Applications SDK, 3Com Desktop Software, 3Com GUI, 3Com
Installation CD Files, 3Com OS, 3Com OS Drivers, and 3Com Test
Code;  and (b) all current and future foreign language versions thereof,
to the extent that 3Com has the right to grant JD rights to such ver-
sions.
1.16 ?3Com Technical Documentation? means the technical documenta-
tion, repair manuals, service manual, engineering schematics, and
other materials relating to the 3Com OS as described in Exhibit A
(3Com Software).
1.17 ?3Com Test Code? means the software quality assurance and hard-
ware and production test code described in Exhibit A (3Com Soft-
ware).
2. Licenses :
2.1 Development and Documentation License.
(a) 3Com Deliverables. Subject to the terms and conditions of this
Agreement, 3Com hereby grants to JD a limited, non-exclusive,
non-transferable (except as provided in Section 17.9), fully-paid
licence to use and reproduce the 3Com Development Environ-
ment, the 3Com Software in object code form, and the 3Com
Materials solely to develop, manufacture, test and support the
JD Products. Such license shall include the right to use any
3Com intellectual property rights associated with or related to
use of the 3Com Development Environment, 3Com SoftwarePART 2] SOFTWARE AGREEMENTS?FORMS 871
and/or 3Com Materials, in connection with the development,
manufacturing, testing or support of such items solely within JD
Products.
(b) Derivative Works. Subject to the terms and conditions of this
Agreement, 3Com hereby grants to JD a limited, non-exclusive,
non-transferable (except as provided in Section 17.9), fully-paid
license to create derivative works based upon the 3Com Mate-
rials and, to the extent permitted under Section 6.2 (OS En-
hancements), the 3Com OS (collectively ,  ?Derivative Works?)
solely for use within JD Products.
2.2 Distribution License. Subject to the terms and conditions of this
Agreement, 3Com hereby grants to JD a limited, non-exclusive, non-
transferable (except as provided in Section 17.9), worldwide, royalty-
bearing licence to use, reproduce, and distribute (directly and through
third parties) solely for use within JD Products: (i) the 3Com Software
in object code form only; (ii) the 3Com Materials (subject to Section
13); and (iii) Derivative Works.  Such licence shall include the right to
use any 3Com intellectual property rights associated with or related
to use of the 3Com Development Environment, 3Com Software and/
or 3Com Materials, in connection with the distribution of such items
within JD Products. Such license shall also include the right to grant
end user sub-licenses subject to the provisions of Section 10.4 be-
low.
2.3 Compatibility and Trademark License.
(a) Compatibility Testing. 3Com will finalize and provide to JD
compatibility test criteria for ensuring interoperability of third party
add-on software for the 3Com OS and the JD Products (?Test
Criteria?) within ninety (90) days of the Effective Date. JD and
3Com will agree on a reasonable time period for compatibility
testing of the JD Products by any of 3Com?s independent testing
labs (?Test Period?) which shall be incorporated into the Test
Criteria.  When finalised, such Test Criteria shall be attached as
Exhibit B (Test Criteria) to this Agreement. 3Com shall use its
reasonable discretion in determining the contents of the Test
Criteria; provided that, in the event JD does not approve of the
Test Criteria, as its sole and exclusive remedy JD may terminate
this Agreement immediately without liability within thirty (30)
days of its first receipt of the Test Criteria from 3Com.  Prior to
the release of any and all JD Products, or any upgrade or new
version thereof, JD shall submit the JD Products at its expense
to any of 3Com?s approved independent compatibility testing
labs (?Approved Testing Lab?) for compatibility testing in
accordance with the Test Criteria. If the Approved Testing Lab
rejects the JD Products because of a non-conformance with
the Test Criteria, then such testing lab will provide JD and 3Com
a detailed written statement of the reasons for such rejection.
(?Statement of Errors?). Upon receipt of the Statement of Errors,
JD shall use reasonable efforts to modify the JD Products to872 CONVEYANCING, DRAFTING & DEEDS [PART 2
conform to the Test Criteria. The parties acknowledge that the
contents of the Test Criteria may need to be changed from time
to time if major new functionality is added to the 3Com Software.
3Com shall use its reasonable discretion in determining new
Test Criteria for such 3Com Software with such new functionality
and will apply such new Test Criteria to its internal customers
and to JD and its other licensees.
(b) Compatibility Certification Requirement. JD agrees that it shall
not release or distribute any JD Products which have not received
compatibility certification from an Approved Testing Lab in
accordance with the Test Criteria. Each version of a JD Product
shall be required to pass the Test Criteria only once, regardless
of 3Com?s subsequent modifications to the 3Com Software.
However, in order to obtain compatibility certification for 3Com
Software with new functionality and new Test Criteria as
described in the last paragraph of Section 2.3(a), JD may submit
JD Products for compatibility testing against such new Test
Criteria in accordance with Section 2.3(a). JD may indicate
compatibility certification for JD Products only with respect to
the version(s) of the Test Criteria which the JD Products have
passed.
(c) Trademark License.  Subject to sub-sections (a) and (b) above
and the other terms and conditions of this Agreement, 3Com
hereby grants to JD a limited, non-exclusive, non-transferable
(except as provided in Section 17.9), fully-paid license to use,
subject to the guidelines set forth in 3Com?s Trademark Policy
Guidelines attached hereto as Exhibit C, the  ?3Com Computing
Platform Compatible? trademark and such other 3Com
trademarks and the respective stylistic marks as may be mutually
agreeable and the artwork for which has been provided by 3Com
to JD (collectively, the ?3Com Trademarks?) in connection with
the marketing and sale of JD Products that have received
compatibility certification in accordance with subsection (a)
above.  JD shall use such trademarks in conjunction with the
distribution, promotion, and marketing of any JD Products that
have received compatibility certification, consistent with the
guidelines set forth in Exhibit C.  3Com shall have the right to
receive free samples of all advertising and promotional materials
and reasonable numbers of sample production units of the JD
Products and related JD documentation on which such
trademarks are used to ensure that 3Com?s quality standards
are maintained.
The foregoing licence shall be limited to use of the 3Com
Trademarks for the purposes of Section 8.3. JD shall have the
right to permit its [*] for the JD Products to use the 3Com
Trademarks as set forth herein, provided that JD contractually
obligates such [*] to comply with the terms of Section 7.3 and
this Section 2.3, and provided further that 3Com reserves thePART 2] SOFTWARE AGREEMENTS?FORMS 873
right to enforce and protect its trademark rights directly in the
event of any failure to comply with such terms.
2.4 Right to Sub-license.
(a) [*] Within thirty (30) days of the execution of each [*], JD shall
notify 3Com in writing of such execution and the identity of the
[*].  Each such [*] will contain provisions that protect 3Com?s
proprietary rights to no less of an extent than such rights are
protected by Sections 2.3 (Compatibility and Trademark Li-
cense), 2.5 (No Reverse Engineering), 2.6 (Inspection Rights),
8.3 (Branding), 10 (Proprietary Rights), 13 (Confidentiality), and
15 (Export Regulations) of this Agreement. In the event of any
failure by any [*] to comply with the foregoing terms of their [*],
JD shall use its reasonable efforts to enforce and protect 3Com?s
intellectual property rights against such [*], provided that 3Com
reserves the right to enforce and protect its intellectual prop-
erty rights directly against such [*] with the cooperation of JD.
(b) Subject to the requirements of Sections 2.5 and 13, JD shall
have the right to sub-license its rights under Section 2.1 to con-
sultants and contractors solely for the purpose of developing,
manufacturing, testing, and supporting JD Products for JD.
(c) Except as specified in this Section 2.4, JD shall not have the
right to sublicence any of its rights under this Agreement.
2.5 No Reverse Engineering.  JD shall not reverse engineer, reverse
compile or disassemble any 3Com Software, or otherwise attempt to
derive the source code to any 3Com Software. The foregoing shall
not apply to such activities conducted in the ordinary course of tech-
nical support of JD Products such as may occur through the use of
debugging tools.
2.6 Inspection Rights. 3Com shall have the right, upon reasonable ad-
vance notice, to inspect JD?s records and facilities, and its [*], with
respect to the manufacture of the JD Products hereunder and to re-
ceive sample units thereof in order to verify that such manufacturing
is within the scope of this Agreement, and that there are appropriate
security procedures to protect 3Com?s Confidential Information. JD
shall have similar rights with respect to its contract manufacturers
sublicensed under Section 2.4(b).
2.7 No Other Licences. The licences granted under this Agreement are
specifically set forth herein, and no licenses are granted by 3Com to
JD by implication or estoppel.
2.8 Limitations on Scope of Agreement. Notwithstanding the other
terms and conditions of this Agreement, the rights granted to JD un-
der this Agreement do not, and will not, include any right or licence to
sub-license any of the foregoing rights to any OEMs, consultants,
contractors, or other third parties.
3. Delivery and Sourcing :
3.1 Delivery of Licensed Materials. Within forty-five (45) days following874 CONVEYANCING, DRAFTING & DEEDS [PART 2
the Effective Date, 3Com will deliver to JD a complete and current
set of the 3Com Software, 3Com Development Environment and
3Com Materials.
3.2 Third Party Sourcing. Exhibit D contains a list of custom compo-
nents (?Components?) that JD may wish to purchase from 3Com?s
third party component suppliers and/or manufacturers (?Sources?)
for incorporation in JD Products.  3Com hereby grants JD the right to
use such suppliers and procure such Components during the term of
this Agreement, and will notify such Sources of the same. In the event
that such Sources are unable to promptly fill all Component orders
from 3Com due to market demand, manufacturing delays, or other
factors, JD acknowledges and agrees that such Sources shall fulfill
all orders from 3Com before fulfilling orders from JD or JD?s.
4 Royalties, Fees and Reports :
4.1 Royalties.  JD shall pay to 3Com royalties on its Net Revenues (?Roy-
alties?) as specified in Exhibit E (Royalties and Fees). Such royalties
shall be due and payable to 3Com regardless of whether JD collects
payments for the JD Products from JD?s customers.
4.2 Maintenance and Support Fees. JD shall pay to 3Com fees as speci-
fied in Exhibit E (Royalties and Fees) for maintenance, support, up-
dates, and upgrades provided by 3Com to JD pursuant to Sections
6.1 and 7.  Such fees shall be due and payable to 3Com in advance
beginning one year after the Effective Date, regardless of whether
JD collects payments for the JD Products or their maintenance and
support from JD?s customers.
4.3 Reports. JD shall keep adequate records to verify all reports and
payments to be made to 3Com pursuant to this Agreement for a pe-
riod of two (2) years following the date of such reports and payments.
3Com shall have the right to select an independent certified public
accountant mutually agreeable to the parties to inspect no more fre-
quently than annually the records of JD on reasonable notice and
during regular business hours to verify the reports and payments
required hereunder. If such inspection should disclose any
underreporting, JD shall pay 3Com such amount within thirty (30)
days of the conclusion of such inspection. The entire cost of such
inspection shall be borne by 3Com;  provided, however, that if JD is
determined by such inspection to have underpaid royalties by five
percent (5%) or more, then the cost of such audit shall be borne by
JD.
5. Payment Terms :
5.1 Payment.  Royalties shall accrue upon shipment to a customer of JD
Products by JD and shall be payable within [*] after the end of each
calendar .  Each Royalty payment shall be accompanied by a state-
ment setting forth in sufficient detail the basis upon which royalties
were calculated.  Payments and statements shall be sent to 3Com at
the address set forth at the beginning of this Agreement or such other
address as 3Com may designate in writing.PART 2] SOFTWARE AGREEMENTS?FORMS 875
5.2 Royalty-Free Units of JD Products. JD shall have the right to manu-
facture and distribute a commercially reasonable number of JD Prod-
ucts, provided that it does not receive any revenue therefrom, for the
following purposes without incurring a Royalty obligation to 3Com:
units for testing, units with limited functionality for reseller point of
purchase and demonstration, units provided to 3Com, 3Com, or other
3Com licensees, units used internally by employees or contractors of
JD, and units given to press and analysts.
5.3 Taxes. In addition to any other payments due under this Agreement,
JD agrees to reimburse and hold 3Com harmless from any sales,
use, excise, import or export, value added or similar tax or duty, any
other tax not based on 3Com?s net income, and any governmental
permit and licence fees, customs fees and similar fees levied upon
delivery of the deliverables and/or services hereunder which 3Com
may incur in respect of this Agreement.
6. Update Responsibilities and OS Enhancements :
6.1 Updates and Additions to 3Com Software and 3Com Materials.
During the term of this Agreement and subject to Section 9.4 (3Com
Update and Support Obligations), 3Com shall deliver to JD all up-
grades, bug fixes, modifications, enhancements and new versions of
the 3Com Software and 3Com Materials within ten (10) business
days after 3Com?s internal beta releases or production releases. Upon
such delivery, the licenses granted to JD pursuant to Section 2 above
shall be deemed to include the items delivered pursuant to this Sec-
tion 6.1. JD acknowledges that during the term of this Agreement, in
addition to delivering to JD the upgrades, bug fixes, modifications,
enhancements and new versions referred to above, 3Com. expects
to release separate modules and components for the 3Com Com-
puting platform for which 3Com may elect to require that licensees
pay separate consideration and enter into separate agreements or
amendments in order to have any rights to such modules or compo-
nents.
6.2 OS Enhancements.
(a) Approved OS Enhancements.  In the event that JD requests in
writing that 3Com add new functionality to the 3Com OS requir-
ing enhancements to the 3Com OS source code, 3Com will
consider such request in good faith and will respond to JD in
writing within thirty (30) days of its receipt of such request (or
within such longer time period as may be reasonably agreed by
the parties) with whether 3Com intends to implement such re-
quest and, if so, with a proposed schedule for implementation.
In the event 3Com approves such request under a proposed
schedule reasonably acceptable to JD (?Approved OS Enhance-
ments?), 3Com will use its reasonable commercial efforts to
implement such enhancements within the proposed schedule,
whereupon such Approved OS Enhancements will be deemed
additional 3Com OS software for all purposes of this Agree-876 CONVEYANCING, DRAFTING & DEEDS [PART 2
ment. Upon delivery to JD, the licenses granted to JD pursuant
to Section 2 above shall be deemed to include such Approved
OS Enhancements. JD shall execute all assignments and other
documents as may be requested by 3Com to evidence and
perfect 3Com?s ownership of the Approved OS Enhancements
and the intellectual property rights therein.
(b) Implementation by JD. To the extent that 3Com rejects JD?s re-
quest for 3Com OS enhancements, or if 3Com?s proposed
schedule is not reasonably acceptable to JD, then JD may no-
tify 3Com in writing that JD wishes to implement such enhance-
ments itself, whereupon the parties will negotiate in good faith
the terms under which JD will develop the enhancements, in-
cluding: (i) which 3Com OS source code and tools JD will re-
quire; (ii) the limitations  that will be placed on JD?s (and any
contractors?) use of such source code and tools;  (iii) the parties
respective intellectual property rights in such enhancements;
(iv) 3Com?s responsibility, if any, for support and maintenance
of such enhancement; and (v) JD?s responsibility for any costs
and expenses that 3Com may incur in connection with such
implementation, support, and maintenance.
7. Support :
Subject to Section 9.4 (3Com Update and Support Obligation), 3Com shall
provide JD with the following support during the term of this Agreement in
accordance with the 3Com Support terms set forth in Exhibit F (3Com
Support Services).
7.1 Development Support. 3Com will provide JD with a reasonable level
of support by telephone, e-mail, fax or, if requested by JD, in person
at 3Com?s Mountain View and/or Santa Clara, California site, during
3Com?s normal business hours (8:00 am – 5:00 pm ,excluding holi-
days) in connection with JD?s use of the 3Com Software to develop
and support the JD Products, including the use of reasonable com-
mercial efforts: (i) to answer JD?s questions regarding the proper uti-
lization and optimization of the 3Com Software; and (ii) to provide
solutions, workarounds and/or patches to correct any reproducible
error in the 3Com Software. JD shall designate up to two qualified
individuals per Designated Site to act as primary technical liaisons
for communications with 3Com?s technical support staff. 3Com shall
designate two qualified individuals to act as primary and secondary
technical liaisons for communications with JD?s technical support staff.
7.2 Customer Support Training. During the term of this Agreement,
3Com shall, at its expense, provide JD with one (1) course per ver-
sion of the 3Com Software of basic and advanced training as it re-
lates to customer support for up to six (6) JD employees engaged in
the technical support of the JD Product. 3Com shall further provide
to JD, at 3Com?s expense, similar training for modifications or other
revisions to the 3Com Software, as it relates to customer support.
Training will be conducted at 3Com?s facilities in [Address] or suchPART 2] SOFTWARE AGREEMENTS?FORMS 877
other mutually agreeable facility.  Each training course shall commence
on a mutually agreed upon date. Such training shall cover in detail,
the installation, configuration, operation, trouble-shooting, adjustment,
test and maintenance of the 3Com Software, as it relates to cus-
tomer support. JD shall provide a reasonable quantity of appropriate
JD Product units as training aids.  3Com shall provide copies of the
student training guides, and all other necessary materials to each
trainee and to JD. All other training requested by JD and provided by
3Com shall be billed at 3Com?s standard rates.
7.3 Customer Support.  JD shall be solely responsible for First Level
Support and Second Level Support of the JD Products. The parties
agree to work together to develop and facilitate the call handling pro-
cesses to provide seamless customer support and technical service
to resellers and end users of the JD Product. In addition, 3Com will
provide JD with Third Level Support during the term of this Agree-
ment.  The definitions of First, Second And Third Level Support shall
be as set forth in Section 7.4 below. During the term of this Agree-
ment, 3Com shall permit JD to create hyperlinks to the 3Com Web
site and to display certain 3Com end user  materials on JD?s Web
site for customer support purposes, subject to 3Com?s prior approval
of each proposed use. During the term of this Agreement, JD shall
permit 3Com to create hyperlinks to the JD Web site and to display
certain JD end-user materials on 3Com?s Web site for customer sup-
port purposes, subject to JD?s prior approval of each proposed use.
7.4 Technical Support.
(a) Technical Support Levels. For the purposes of Section 7.3 above,
?Level? means a certain class of service provided for the JD
Products.  Definitions are as follows:
(i) ?First Level Support? means first call support on all cus-
tomer calls; technical support staff answers technical in-
quiries regarding JD Products, performs JD Product con-
figuration support, if applicable, and provides broad trouble-
shooting expertise.
(ii) ?Second Level Support? means specialist level technical
support; technical support/escalation staff performs prob-
lem isolation and replication, and implements a solution
for a problem that is not the result of a 3Com Software
program error. In the case of a 3Com Software program
error, the technical staff is able to identify the source of the
error, create a reproducible test case, and document the
details of the error for escalation to 3Com.
(iii) ?Third Level Support? means backup technical support to
two representatives of JD?s Second Level Support team
(the  ?Authorized Callers?).  3Com will identify to JD its tech-
nical support personnel for the 3Com Software (the ?Des-
ignated Support Personnel?). The Authorized Callers and
Designated Support Personnel will be the primary contacts878 CONVEYANCING, DRAFTING & DEEDS [PART 2
between 3Com?s and JD?s technical support and/or esca-
lation centers.  JD will provide a list of Authorized Callers
including names, address, phone numbers, and Internet
e-mail address.  3Com will provide a similar list of Desig-
nated Support Personnel. These lists will be reviewed quar-
terly and updated as required.
(b) Support Timing. 3Com shall make Third Level Support avail-
able via telephone, FAX or E-Mail solely to JD?s Authorized Call-
ers during 3Com?s normal business hours (8:00 am ? 5:00 pm
, excluding holidays). 3Com.  shall use reasonable commercial
efforts to answer support questions within the timeframes speci-
fied in Exhibit F (3Com Support Services). So long as 3Com is
using reasonable commercial efforts to answer such questions,
3Com?s inability to resolve answer such question shall not be
deemed a material breach of the Agreement.
(c) Direct Customer Support. 3Com will not be obligated to provide
direct support of any kind to JD?s customers or end users pur-
suant to this Agreement. JD will provide sufficient information
and/or training regarding the JD Products to 3Com?s Designated
Support Personnel to enable 3Com to properly assist JD in re-
solving problems.
8. Marketing and Publicity :
8.1 Marketing. The parties agree to work together to identify areas where
joint marketing efforts would benefit both parties, and upon mutual
agreement shall implement such efforts.
8.2 Publicity. Neither party shall disclose the terms of this Agreement to
any third party, other than its financial or legal advisors and current
or potential Non-Corporate Investors, or make any announcements
regarding the nature of the relationship between the parties without
the prior approval of the other party, except that a party may disclose
the terms of this Agreement where requi